Page:R v Tarrant 2020 NZHC 2192 sentencing remarks.pdf/31

in which case, if the Court is satisfied the statutory threshold is met, a whole-of-life sentence must be imposed despite the constitutional implications.^[1]

[143]I have chosen for the purpose of sentencing you to proceed on the basis that the Court retains its residual discretion.^[2] Thus, the penal presumption (by default) and the inferred statutory purpose in the use of “may” both support an interpretation that leaves a residual discretion to the Court. The overarching question therefore remains whether it would be grossly disproportionate to impose a life sentence without parole in the extraordinarily exceptional circumstances of this case where one or more of the requisite purposes of sentencing for murder cannot otherwise be achieved.

[144]In that regard, I note the Court of Appeal has recognised, although it did not decide the point, that a life sentence without parole (and implicitly without meaningful review) might be necessary to satisfy the societal requirements of accountability, denunciation, or deterrence.^[3] In making that observation it cited the examples of murders involving terrorism, or extraordinary sadism or cruelty, and the murder of multiple victims. The Court observed that the statutory power provided by the Act “provides an appropriate mechanism to achieve these purposes through open judicial assessment unaffected by a presumption”.^[4]

(ii)if subsection (2A) applies, make an order under that subsection …

Under subs (2) the minimum term of imprisonment must not be less than 10 years and must be the minimum term the Court considers necessary to satisfy the prescribed purposes of sentencing. Under subs (2A), if no minimum term would be sufficient to satisfy one or more of those purposes the Court may order that the sentence be served without parole. It follows from the preceding requirement of subs (1)(a) that should the Court have concluded that no minimum term would be sufficient, the Court has no other option than to order the sentence to be served without parole.
1. New Zealand Bill of Rights Act, ss 4, 5 and 6; R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at[92] per Tipping J, [57]–[60] per Blanchard J and [192] per McGrath J.
2. See RI Carter Burrows and Carter Statute Law in New Zealand (5th ed, LexisNexis, Wellington, 2015) at 233–234, on the principle that criminal statutes should generally be construed in favour of the individual, consistent with Parliament’s purpose (“the penal presumption”). While the learned authors note this presumption has lost some of its force with the growing emphasis on purpose in statutory interpretation (at 234), they say “in cases of genuine doubt as to the meaning and purpose of a provision, the accused … [is] still likely to get the benefit of the doubt” (at 236, footnote omitted). Here, Parliament deliberately chose to use the permissive “may” in s 103(2A) of the Sentencing Act; it must have intended to reserve a discretion for the Court.
3. Harrison, above n 25, at [84]–[85].
4. Harrison, above n 25, at [85]; and Sentencing Act, s 103(2A). In Harrison at [122], the Court of Appeal noted the observations of the Supreme Court of Canada in R v Lloyd 2016 SCC 13, [2016] 1 SCR 130 that there were various ways of ensuring mandatory minimum sentences meet constitutional standards, one of which was to provide “[r]esidual judicial discretion for exceptional cases …” (at [36]). McLachlin CJ specifically identified ss 86E, 102 and 103 of the Sentencing Act (NZ) as illustrative of that method (at [36]). The Judge noted that the laws of other countries, including New Zealand, reveal a variety of approaches to residual judicial discretion, with the only requirement being that this discretion allows for a lesser sentence where the application of the