Life imprisonment in New Zealand

Life imprisonment has been the most severe criminal sentence in New Zealand since the death penalty was abolished in 1989. Offenders sentenced to life imprisonment must serve a minimum of 10 years imprisonment before they are eligible for parole, although the sentencing judge may set a longer minimum period or no minimum period at all (i.e. life without parole). Released offenders remain on parole and are subject to electronic tagging for the rest of their life.[1]

Life imprisonment in New Zealand for crimes other than murder is relatively rare. Only six life sentences since 1980 have been for crimes other than murder - one for manslaughter in 1996, and five for drug offences in 1985, 1996, 2008 (two) and 2009. In contrast, there have been 813 life sentences for murder during the same period.[2]

Offences

Life imprisonment is the mandatory sentence for treason. It is the presumptive sentence for murder; a sentence of life imprisonment for murder is mandatory unless in the circumstances it would manifestly unjust to impose life imprisonment.

Life imprisonment is an optional sentence for the following offences:

Life imprisonment for murder

The imposition of life imprisonment for murder is codified in sections 102 to 104 of the Sentencing Act 2002.[7]

102 Presumption in favour of life imprisonment for murder

(1) An offender who is convicted of murder must be sentenced to imprisonment for life unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust.
(2) If a court does not impose a sentence of imprisonment for life on an offender convicted of murder, it must give written reasons for not doing so.
(3) This section is subject to section 86E(2).

103 Imposition of minimum period of imprisonment or imprisonment without parole if life imprisonment imposed for murder

(1) If a court sentences an offender convicted of murder to imprisonment for life it must,—
(a) if section 86E(1) does not apply to the conviction,—
(i) order that the offender serve a minimum period of imprisonment under that sentence; or
(ii) if subsection (2A) applies, make an order under that subsection; or
(b) in any case where section 86E(1) applies to the conviction, take the action prescribed by that section.
(2) The minimum term of imprisonment ordered may not be less than 10 years, and must be the minimum term of imprisonment that the court considers necessary to satisfy all or any of the following purposes:
(a) holding the offender accountable for the harm done to the victim and the community by the offending:
(b) denouncing the conduct in which the offender was involved:
(c) deterring the offender or other persons from committing the same or a similar offence:
(d) protecting the community from the offender.
(2A) If the court that sentences an offender convicted of murder to imprisonment for life is satisfied that no minimum term of imprisonment would be sufficient to satisfy 1 or more of the :purposes stated in subsection (2), the court may order that the offender serve the sentence without parole.
(2B) The court may not make an order under subsection (2A) unless the offender was 18 years of age or over at the time that the offender committed the murder.
(3-6) [Repealed]
(7) Subsection (2) is subject to section 104.

104 Imposition of minimum period of imprisonment of 17 years or more

(1) The court must make an order under section 103 imposing a minimum period of imprisonment of at least 17 years in the following circumstances, unless it is satisfied that it would be manifestly unjust to do so:
(a) if the murder was committed in an attempt to avoid the detection, prosecution, or conviction of any person for any offence or in any other way to attempt to subvert the course of justice; or
(b) if the murder involved calculated or lengthy planning, including making an arrangement under which money or anything of value passes (or is intended to pass) from one person to another; or
(c) if the murder involved the unlawful entry into, or unlawful presence in, a dwelling place; or
(d) if the murder was committed in the course of another serious offence; or
(e) if the murder was committed with a high level of brutality, cruelty, depravity, or callousness; or
(ea) if the murder was committed as part of a terrorist act (as defined in section 5(1) of the Terrorism Suppression Act 2002); or
(f) if the deceased was a constable or a prison officer acting in the course of his or her duty; or
(g) if the deceased was particularly vulnerable because of his or her age, health, or because of any other factor; or
(h) if the offender has been convicted of 2 or more counts of murder, whether or not arising from the same circumstances; or
(i) in any other exceptional circumstances.
(2) This section does not apply to an offender in respect of whom an order under section 86E(2)(b) or (4)(a) or 103(2A) is made.

Circumstances where life imprisonment might be deemed manifestly unjust include mercy killings, failed suicide pacts, and "battered defendants" who were subjected to "prolonged and severe abuse".[8]

Since the Sentencing and Parole Reform Act 2010 came into force, judges must sentence offenders to life imprisonment without possibility of parole if they have a previous conviction for a serious violent offence, unless given the circumstances it would be manifestly unjust to do so.[9] In R v Harrison, the Court of Appeal dismissed the Crown's appeal of two cases where the sentencing judges applied the manifestly unjust provision and gave the offenders life imprisonment with possibility of parole instead. The Court of Appeal ruled that imposing life imprisonment without parole in these cases would be inconsistent the right not to be subjected to disproportionately severe treatment or punishment under the New Zealand Bill of Rights Act 1990, especially given one offender's previous serious violent offence was at the minor end of the scale (an indecent assault conviction for pinching a female police officer's bottom).[10]

There is no minimum age for imposing life imprisonment. The youngest people sentenced to life imprisonment in New Zealand were aged 13 years at the time of the offence.[11]

Case law

  • R v Williams [2005] 2 NZLR 506 – judgement providing guidance on sentencing offenders subject to the 17-year minimum period of imprisonment contained in section 104 of the Sentencing Act 2002.
  • Churchward v R [2011] NZCA 531; (2011) 25 CRNZ 446 – judgement providing guidance on imposing minimum periods of imprisonment when sentencing adolescent offenders.
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Longest minimum periods of imprisonment

The longest minimum period of imprisonment on a sentence of life imprisonment is 30 years, currently being served by William Dwane Bell. No person in New Zealand has yet been sentenced to life imprisonment without the possibility of parole.

Sentences where a minimum term of imprisonment of 20 years or more has been imposed include:

LengthOffenderDate of offenceDescription
30 yearsWilliam Dwane Bell8 December 2001Bell killed three people, and seriously injured another person during an armed robbery at the Panmure RSA clubrooms. Bell was initially jailed for a minimum period of 33 years, which was reduced by 3 years on appeal.[12]
27 yearsRussell John Tully1 September 2014Tully entered the Ashburton Work and Income office and shot dead two staff members and attempted to shoot dead a third.[13] In addition, he also received 11 years for attempted murder and 4 years for firearms-related charges, served concurrently.[14]
26 yearsGraeme Burton6 January 2007Burton murdered during a shooting spree in the Wainuiomata hills. He had a previous murder conviction from 1992.[15] He was also sentenced to preventive detention with a non-parole period of 26 years for ten other offences committed during the shooting spree in 2007 – two of attempted murder, two of aggravated robbery, two of kidnapping, two of using a firearm against a law enforcement officer, aggravated injury and injuring with reckless disregard.[16]
25 yearsBruce Howse4 December 2001Murder of his stepdaughters, 12-year-old Saliel Aplin and 11-year-old Olympia Jetson, at their Masterton home. Reduced from 28 years on appeal.
25 yearsHayden McKenzie1999, late 2003Murder of James (Janis) Bambrough and Jae-hyeon Kim (two separate incidents).
24 yearsTony Douglas Robertson24 May 2014Murder of Blessie Gotingco.[17]
23 yearsJeremy McLaughlin10 November 2011McLaughlin strangled 13-year-old Jade Bayliss to death while burgling her Somerfield, Christchurch house, before trying to cover up the murder by setting fire to the house. He had previously been in a relationship with Bayliss's mother but the relationship broke off after conflict between McLaughlin and Jade. McLaughlin had previously been sentenced to 12 years imprisonment in Western Australia for the 1995 manslaughter of 14-year-old Phillip Vidot. In addition, he also received 8 years for burglary and 4 years for arson, served concurrently.[18]
23 yearsLiam Reid15 November 2007Murder of Emma Agnew in Christchurch. Reduced from 26 years on appeal.
23 yearsJason SomervilleSeptember 2008, August 2009Somerville killed neighbour Tisha Lowry in 2008 and his wife Rebecca Chamberlain in 2009, burying both bodies under his home in Aranui, Christchurch.[19]
21 yearsKamal Gyanendra Reddy2006Murder of his girlfriend and her 3-year-old daughter.[20]
20 yearsAntonie Dixon21 January 2003Murder of James Te Aute. Dixon committed suicide in his prison cell on 4 February 2009.
20 yearsDavid Konia27 May 2005Murder of Margaret Waldin and Ted Ferguson at Ferguson's Feilding home. Konia died on 14 January 2015 after being diagnosed with terminal cancer a year earlier.[21]
20 yearsMark Lundy29 August 2000Murder of his wife Christine and seven-year-old daughter Amber at their Kelvin Grove, Palmerston North home. Increased from 17 years on appeal. Several problems with the prosecution's evidence saw the Privy Council quash Lundy's conviction in October 2013 and ordered a retrial. In April 2015, Lundy was again found guilty of Christine and Amber's murders and re-sentenced to the original 20-year minimum imprisonment

The longest minimum period for a woman is 19 years, currently being served by Tracy Jean Goodman for the murder of pensioner Mona Morriss in the course of a burglary in Marton in January 2005.[22]

Preventive detention

There is also provision for an indefinite sentence of preventive detention, which is given for lesser crimes than treason, murder or manslaughter. Since the Sentencing Act 2002 came into force, this has been given to repeat sexual offenders and serious violent recidivist offenders. Preventive detention has a minimum period of imprisonment of five years, but the sentencing judge can extend this if they believe that the prisoner's history warrants it. The sentence of preventive detention was first introduced in the Criminal Justice Act 1954.[23]

The longest minimum period of imprisonment on a sentence of preventive detention is one of 28 years, which was given in 1984.[24]

References

  1. ↑ "FAQ". New Zealand Parole Board. Retrieved 9 October 2013.
  2. ↑ "Adults convicted in court by sentence type - most serious offence calendar year". Statistics New Zealand. Retrieved 19 August 2015.
  3. ↑ Aviation Crimes Act 1972, section 3
  4. ↑ Misuse of Drugs Act 1975, section 6(2)(a)
  5. ↑ Crimes Act 1961, section 177
  6. ↑ Terrorism Suppression Act 2002, section 6A
  7. ↑ "Sentencing Act 2002 No 9 (as at 22 December 2016)". New Zealand Legislation. Parliamentary Counsel Office. 22 December 2016. Retrieved 21 February 2017. This article incorporates text from this source, which is in the public domain.
  8. ↑ Chhana, Rajesh; Spier, Philip; Roberts, Susan; Hurd, Chris (March 2004). The Sentencing Act 2002: Monitoring the First Year. pp. 13–14. Retrieved 10 June 2012.
  9. ↑ Sentencing Act 2002, section 86E
  10. ↑ R v Harrison & Ors, 2016 NZCA 381 (10 August 2016).
  11. ↑ "New Zealand's youngest killers". 3 News NZ. 20 December 2012. Retrieved 26 October 2015.
  12. ↑ "Record sentence for RSA murders". Television New Zealand. February 13, 2003. Retrieved 2009-03-09.
  13. ↑ "Life sentence of Work and Income killer Russell Tully". 3 News. Retrieved 27 May 2016.
  14. ↑ R v Tully, [2016] NZHC 1133 (27 May 2016).
  15. ↑ Watts, Jerram (19 February 2010). "Burton sentenced to preventive detention". 3 News. Retrieved 2 May 2015.
  16. ↑ Independent Police Conduct Authority Report into the Shooting of Graeme Burton. Wellington: Independent Police Conduct Authority. 2008. p. 45. Retrieved 30 April 2015.
  17. ↑ R v Robertson, [2015] NZHC 1849 (6 August 2015).
  18. ↑ R v McLaughlin, [2013] NZHC 2625 (9 October 2013).
  19. ↑ Leask, Anna (23 May 2010). "'House of Horrors' transcript - a lurid tale of death and sex". Retrieved 26 May 2017.
  20. ↑ R v Reddy, [2016] NZHC 1367 (22 June 2016).
  21. ↑ King, Kathryn (21 February 2015). "Double killer David Konia's death shocks families". Manawatu Standard. Retrieved 8 November 2016.
  22. ↑ "Female murderer to appeal record sentence". The Dominion Post. 7 May 2008. Retrieved 27 September 2009.
  23. ↑ Gavaghan, Colin; Snelling, Jeanne; McMillan, John (2014). Better and Better and Better? A Legal and Ethical Analysis of Preventive Detention in New Zealand (PDF). University of Otago. p. 9.
  24. ↑ Offenders on Indeterminate Sentences (PDF). Topic Series. Wellington: Department of Corrections. 2014. p. 5. Retrieved 26 May 2016.
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