a meaningful process of review of a life sentence without parole, but it remains unclear whether such a sentence without the possibility of review would in all circumstances breach the New Zealand Bill of Rights Act 1990.[1]
[140]The Court of Appeal has examined the interpretation and application of the law, collectively referred to as the “three-strikes legislation”, that provides the Court with the power to impose a whole-of-life sentence for murder notwithstanding there having been no previous offending.[2] The Court of Appeal’s focus was on offenders convicted of murder who have received a first or final warning and who this Court must sentence to life imprisonment without parole unless satisfied it would be manifestly unjust to do so.[3]
[141]In examining how that exception should be approached in the face of the statutory presumption of a whole-of-life sentence, the Court of Appeal emphasised the essential need to comply with the constitutional requirement that the sentence must not be grossly disproportionate.[4] By this Court approaching its task in that way, the tension between the imposition of a sentence of life imprisonment without parole, as mandated by Parliament, and the need to avoid a disproportionately severe punishment can be reconciled.[5]
[142]There is no express presumption in favour of the imposition of a whole-of-life sentence once the Court is satisfied that no minimum term of imprisonment can satisfy one or more of the listed purposes to which it must have regard.[6] However, while the discretion, once engaged, does not on its face appear to be constrained, the construction of the relevant section of the Act is such that once the Court has reached that position, the legislative intent that a whole-of-life sentence will be imposed appears plain.[7] Arguably, the language of the Act admits of no other interpretation,
- ↑ Parole Act 2002, s 41; Harrison, above n 25, at [92]; New Zealand Bill of Rights Act, s 9 (prohibition on relevantly cruel, degrading or disproportionately severe treatment or punishment).
- ↑ Harrison, above n 25.
- ↑ Sentencing Act, s 86E.
- ↑ Harrison, above n 25, at [110].
- ↑ Harrison, above n 25, at [78], [107], [110] and [121].
- ↑ Sentencing Act, s 103(2A).
- ↑ Where an offender is sentenced to life imprisonment for murder under s 103(1)(a), the Court must either:
- (i)order that the offender serve a minimum period of imprisonment under that sentence; or
