Life Without Parole appeal

Last week the Court of Appeal ruled against the Crown in two cases involving the 3 strikes legislation.

Court of Appeal Judgment R v Harrison and R v Turner

The Court of Appeal media release aimed at assisting understanding of the judgment:


R v JUSTIN VANCE TURNER (CA114/2015) [2016]


This summary is provided to assist in the understanding of the Court’s judgment. It does not comprise part of the reasons for that judgment. The full judgment with reasons is the only authoritative document.

The Court of Appeal has today dismissed the Solicitor-General’s appeal against sentence in the case of Shane Harrison but allowed the appeal against sentence in the case of Justin Turner in part, increasing the minimum period of imprisonment of his life sentence to 17 years.

These appeals were the first to challenge the application of s 86E of the Sentencing Act 2002, part of the so-called “three strikes” legislation. Section 86E requires a person convicted of murder after committing a “serious violent offence” (a “stage-1 offence”) to be sentenced to life imprisonment without parole, unless that would be manifestly unjust. In the High Court the sentencing judges, Mallon and Woolford JJ respectively, found it would be manifestly unjust to sentence Mr Harrison and Mr Turner to a whole of life sentence. A Full Court of the Court of Appeal has agreed with this conclusion.

The crux of the appeals turned on the meaning of “manifestly unjust”. The Solicitor-General contended that manifest injustice would be established in rare and exceptional circumstances only such that the exception was a very narrow one. Section 86E created a statutory presumption that there should be a higher level of punishment for repeat violent offenders, irrespective of their actual culpability. This was the basic rationale behind the three-strikes regime. The Solicitor-General accepted that the manifestly unjust exception involved a 2 judicial discretion to ensure that the presumption in s 86E did not infringe s 9 of the New Zealand Bill of Rights Act 1990 — the right not to be subjected to disproportionately severe treatment or punishment.

The Court of Appeal considered the likelihood of grossly disproportionate sentences arising from the application of s 86E to be high. A key reason included the breadth of the qualifying catchment, namely a previous conviction for a “serious violent offence”. The offences within that definition number 40 and are extremely wide-ranging, producing an infinite range of circumstances of offending.

The consequences of the application of a whole of life sentence also contributed to the potential for gross disproportionality. Such a sentence provides no opportunity for review. For a sample of actual murder cases from 2009–2010, the length of time spent in prison, on average, was calculated to be upwards of 35 years, significantly longer than an offender sentenced for murder would usually serve.

Given the high likelihood of a sentence imposed under s 86E being grossly disproportionate, the Court concluded that the meaning of “manifestly unjust” must be interpreted broadly. Its application requires an intensely factual consideration of the circumstances of the offending and the offender, including: the sentence that would otherwise be appropriate for this offending, the consequences of a whole of life sentence, the actual culpability of the offending and the risk posed by the offender. Ultimately, the judicial approach to the scope of the manifestly unjust exception is intended to avoid wholly disproportionate sentencing outcomes.

Applying this approach to Mr Harrison’s and Mr Turner’s cases, the Court agreed it would be manifestly unjust to impose a sentence of life imprisonment without parole in each case. For Mr Harrison, the Court agreed with Mallon J that the low culpability of Mr Harrison’s stage-1 offence, together with his attempts to rehabilitate, his age and the views of the victim’s family, would have made a whole of life sentence grossly disproportionate. The Court also noted that Mr Harrison was only a secondary party to the murder.

In Mr Turner’s case, the Court concluded that although the circumstances of his offending were brutal, his age, guilty plea and mental health difficulties culminated to make a whole of life sentence grossly disproportionate. However, the Court agreed with the Solicitor-General that the appropriate minimum period of imprisonment was 17 years rather than 15 years as imposed by Woolford J.

Mr Harrison and Mr Turner also sought a declaration of inconsistency with the Bill of Rights Act, contending both s 9 and s 22 were breached by s 86E of the Sentencing Act. The Court declined such a declaration on the basis that a rights-consistent interpretation of s 86E was possible. The Court noted, however, that if the manifestly unjust safeguard did not operate to prevent gross disproportionality, this could be addressed at a later time.

As an ACT MP David Garrett was the driving force behind the 3 strikes legislation. He responds to this decision in detail in a guest post at Kiwiblog: Guest Post: Appeal Court refuses to apply LWOP


Leave a comment


  1. Gezza

     /  15th August 2016

    Excellent analysis by David Garrett on kiwiblog. Judiciary JJ in this country put me beyond despair. I am not sure why concurrent sentences of Preventive Detention (s.87 Crimes Act) are not sought & imposed for offenders such as these – that appears to be a regime in which release will not happen in any situation where the offenders show every sign of being a high risk for re-offending – which these two currently appear to be.

    Will check this out a bit later.

    • Gezza

       /  15th August 2016

      Preventive detention
      87 Sentence of preventive detention
      (1) The purpose of preventive detention is to protect the community from those who pose a significant and ongoing risk to the safety of its members.

      (2) This section applies if—
      (a) a person is convicted of a qualifying sexual or violent offence (as that term is defined in subsection (5)); and
      (b) the person was 18 years of age or over at the time of committing the offence; and
      (c) the court is satisfied that the person is likely to commit another qualifying sexual or violent offence if the person is released at the sentence expiry date (as specified in subpart 3 of Part 1 of the Parole Act 2002) of any sentence, other than a sentence under this section, that the court is able to impose.

      (3) The High Court may, on the application of the prosecutor or on its own motion, impose a sentence of preventive detention on the offender.

      (4) When considering whether to impose a sentence of preventive detention, the court must take into account—
      (a) any pattern of serious offending disclosed by the offender’s history; and
      (b) the seriousness of the harm to the community caused by the offending; and
      (c) information indicating a tendency to commit serious offences in future; and
      (d) the absence of, or failure of, efforts by the offender to address the cause or causes of the offending; and
      (e) the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.

      (5) In this section and in sections 88 and 90, qualifying sexual or violent offence means—
      (a) a sexual crime under Part 7 of the Crimes Act 1961 punishable by 7 or more years’ imprisonment; and includes a crime under section 144A or section 144C of that Act; or
      (b) an offence against any of sections 171, 173 to 176, 188, 189(1), 191, 198 to 199, 208 to 210, 234, 235, or 236 of the Crimes Act 1961.

    • J Bloggs

       /  15th August 2016

      Gezza: it’s because preventitive detention is a way of effectviely giving a life sentence for offences that otherwise would not carry a life sentence. The issue is that a serious, recidivest violent/sex offender always had the option of waiting out what ever sentence was given, at which point they have to be freed from prison, thus allowing them to go out and offend again. PD was the solution by which the courts could effectively give life sentences to those people, in order to be able to keep them indefinitely detained.

      Murder already carries a life sentence, and it is entirely possible for the parole board to decline parole for either of these two every time they front up (which would mean that they spend their entire lives in prison).

      • Gezza

         /  15th August 2016

        Thanks J. I found this:

        Life imprisonment has been the most severe criminal sentence in New Zealand since the death penalty was abolished in 1989. Life imprisonment is mandatory for treason and the presumptive sentence for murder. It may be imposed for manslaughter and Class A drug dealing. 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 for the rest of their life.[1]

        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

        • Kitty Catkin

           /  15th August 2016

          1989 always sounds wrong, somehow. I don’t know why treason was singled out for it after its abolition for other things.

          The clumsiest ever bisection (for want of a better word) of a word that I have ever seen was manslaughter printed, believe it or not, as mans-

          • Kitty Catkin

             /  15th August 2016

            Then there was humbuggery, which was (accidentally ?) printed as hum-

            I have also seen an advertisement for Glamatex mink coats that read
            ‘Nothing becomes a leg-
            end like Glamatex.’


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