The man charged over the Christchurch mosque shootings faces an unprecedented prison term if found guilty, a veteran criminal defence barrister says.
Brenton Harrison Tarrant, 28, appeared in Christchurch District Court on Saturday morning. He faced one murder charge, but police say more are likely.
Belinda Sellars QC, who specialises in murder cases, said the offender was likely to face an “extraordinary” minimum non-parole term if found guilty of the shooting – given the number of casualties was far in excess of previous mass-murder cases.
Auckland University law professor Bill Hodge said it would be risky for the Crown to attempt to use terrorism laws to try the man, and he would instead expect them to pursue multiple murder charges against the accused.
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Hodge said the standard approach was to use a ‘holding’ charge while the case was investigated, which would be why Tarrant has been initially charged with a single count of murder despite 50 people now being declared dead after the shootings.
The Terrorism Suppression Act 2002 has rarely been used and Hodge said the majority of prosecution lawyers would have little working knowledge of the statute, whereas all would be well versed in the Crimes Act.
“There are plenty of tools. We are not short of good statutes under the Crimes Act, and we’ve got clarity with that, whereas the Terrorism Suppression Act is relatively novel,” Hodge said.
“The average lawyer in the street has never dealt with that, whereas every law student knows the Crimes Act backwards. I would not want to test a law that has not been used with this case – I am old fashioned… let’s stick with murder, we know how it works, the police know how to develop evidence for a murder case, so you go with murder.”
The Terrorism Suppression Act appears aimed at organised groups, with charges relating to financial trafficking and cross-border offending, which would not seem to apply if the accused was acting alone, or in a small group.
What sentence the shooter could expect if found guilty will raise legal questions.
New Zealand judges rarely sentence people who have committed multiple offences to serve their sentences consecutively. Instead, they serve them concurrently – which means the same spell of jail time is served for all the crimes.
In the United States, offenders usually get consecutive sentences and so much longer time in prison – for example, financial criminal Bernie Madoff is serving a 150-year tariff.
The longest sentence given to a multiple murderer in modern times was the 30-year non-parole term (meaning the earliest date he can apply for parole) given to William Bell, who killed three people and left another close to death in a gun attack at the Mt Wellington-Panmure RSA in 2001. Bell’s non-parole term expires in 2033, when he will be 55 years old.
More recently, Russell John Tully, 57, is serving a 27-year non-parole period for a double murder and an attempted murder after a gun attack in 2014 at the Ashburton WINZ office. He’s appealing that sentence.
Sellars said the Bell case was considered the yardstick in these circumstances, but the Christchurch atrocity was completely unprecedented. “Lawyers always look for precedent, and we haven’t seen anything like this before.
“The last murder I did, a single murder, received an 18-year minimum, so this would have to be an extraordinarily long minimum. It’s not only unprecedented in NZ in terms of the number of fatalities, it is quite unique.
“On the magnitude of this, you would basically say it is only going to be far more than anything we’ve ever seen before.”
Sellars said given the lack of comparative trials here, the judiciary might look to Australia or the UK for similar cases for sentencing comparisons.
Hodge agreed, saying: “You would say this is worse than William Bell, who got 30 years.”
There is also a little known amendment to section 103 (2A) of the 2002 Sentencing Act, which was adopted in 2010 but overshadowed by the ‘three strikes’ law introduced at the time. That clause introduces the possibility of life without parole for crimes where the judge feels such a sentence would reflect the need for any or all of the following – to hold the offender to account for the harm they’ve done, to denounce their conduct, to deter similar offending, or to protect the community from the offence. It has never been used, having been twice unsuccessfully sought at trial by the Crown, said the former ACT MP and barrister David Garrett.
There is no comparable case to the Christchurch shooting because the worst mass murderer in recent history, David Gray, was himself shot dead by police after killing in the South Island town of Aramoana in 1990.
Hodge said it tended to be the case that such mass shooters rarely made it to trial, either because they were killed themselves by police or committed suicide in custody. As a result he said any trial would be heavily scrutinised by legal experts and overseas media.
“We lawyers and academics follow these things avidly and this case will be of great interest. It will be a test of our legal system, can we stand up to the scrutiny that a big case will bring to bear and generally the New Zealand justice system, police and prosecutors do stand up very well … the New Zealand system can provide a very high standard.”
Sellers said the multiple murders would place a stress on already-overloaded pathology and forensic services and that could mean a longer timeline for the trial.
An alternative sentence would be preventive detention – a legal arrangement which means the offender can be held for as long as the Crown considers them a risk. Hodge could not recall an instance where a murderer had received that sentence. “I would think preventive detention is on the cards,” he said. “It’s obviously early days, but I imagine the Crown Solicitor down there is looking up their [Sentencing Act] sections.”
Preventive detention is usually used against serious sexual offenders. Most recently, the Crown sought preventive detention in the case of junior rugby coach Alosio Taimo, who was found guilty of 95 sexual offences spanning three decades. Taimo was instead sentenced to 22 years, with a minimum non-parole period of 10 years. He is appealing.
New Zealand’s longest-serving prisoner is the now 81-year-old Alfred Thomas Vincent, who has been inside since 1968 on preventive detention for committing indecent assaults on five boys after two previous jail terms for similar offending. He was declined parole last November, the Parole Board saying he continued to show “inappropriate” behaviour.