A "Community" Sentence: Analysing the Sentencing of the Christchurch Shooter

By Sam Meyerhoff

How are we as a country meant to respond to an unspeakable evil? This was the question that came to a head recently with the sentencing of the Christchurch shooter. A year ago, the Equal Justice Project published a piece laying out some expectations of how the trial of the killer may progress. While an interesting piece, much of it is irrelevant as the defendant pleaded guilty to all the charges levelled at him. While this is undoubtedly a small mercy for victims and their families, it meant that in an odd turn of events, the first real opportunity for the country to gain closure came with sentencing. Put bluntly, a great deal was hanging in the balance when Mander J delivered his judgment[1] as even if the result seemed obvious, the manner in which it was expressed had added significance legally, morally, and culturally.

Looking it over, Mander J’s judgment is an excellent example of the balancing act of how to express and follow the law while also bringing in the community and its needs. One key example evident is the way the judgment seems to embrace the goals of sentencing. Section 7 of the Sentencing Act 2002 lists out the purposes that underlie the process courts are meant to engage in when sentencing someone. This can be thought of as establishing the goals of sentencing, and how a judge should decide on a sentence. However, without delivering too harsh a criticism to those in the legal community, it often feels as if people consider this provision to be the purposes of the sentences we impose on people, instead of the purposes of the sentencing process as a whole.

In all cases, but especially this one, the process followed has some kind of significance inherent in itself. This is obviously more present in communal based systems of law like Tikanga Maori[2] but it is arguable that Mander J has demonstrated and reminded us that even the Western system of law has to be aware of its own significance to society. This could be why Mander J appropriately based much of his judgment around listing the victims of the massacre, taking the necessary time to speak to the humanity and decency of those lost. Sections 7(1)(a) and 7(1)(c) state that two of the purposes of sentencing are to hold offenders accountable for the harm they did to the victim, and to provide for the interests of the victims. While mostly we think about this in terms of imposing a sentence that reflects the harm done to the victims, in this case these purposes also manifested in the structure of the judgment. Mander J clearly felt they were the most important purposes that the process had to fulfill and, as such, tailored his judgment to reflect that.

Going through the list of other purposes and principles of sentencing, we can see that the judgment and the way the trial was conducted reflects many more of these provisions. S 7(1)(a) also lists that the offender must be held accountable to the community, while s 7(1)(e) says the process should denounce the acts done. Is there any other explanation for the judgment to explicitly state at paragraph [155] that the shooter sought to “attack New Zealand’s way of life”?

It is also worth noting that this approach to the sentencing was not limited to the judgment of the court. The state itself had a difficult role in these events. The rule of law is prized above all else in this country,[3] and so while the state arguably had a moral duty to make clear its position on the sentencing, it could not do so while interfering with the shooter’s right to a fair, public sentencing free from interference. It is very easy to argue that this is what was accomplished by the frankly unprecedented show of force on the streets of Christchurch while the sentencing was underway.[4] Reasonable people may differ in their assessment, but I would argue that while some features like increased cyber security and armed guards were necessary precautions, other elements like rooftop snipers and concrete blockades were more performative. There is nothing wrong with this, however. As mentioned, this sentencing was the first chance for the country to gain a sense of legal closure. Seeing such extraordinary steps being taken gave an element of catharsis to the affairs, as if the nation’s support of the victims had physically materialized. By acting as they did, the executive branch of government showed a sense of agreement with Mander J that procedure itself was worth consideration. The rule of law must be upheld, but there are other important ways the process can be conducted to show support for those who deserve justice.

Additionally, while the structure of the judgment is important, the result and how it was reached is equally worthy of analysis. The shooter has been sentenced to life imprisonment without parole under s 103(2A) of the Sentencing Act. Since this punishment’s introduction in 2010, it has been unsuccessfully sought by the crown on two occasions.[5] However, here Mander J became the first person to ever use it to set a sentence. While he properly addressed the real concerns around whether such a sentence breaches New Zealand’s obligations under international law,[6] and discussed how the authority to utilise such a drastic provision ultimately should be left to the residual discretion of the courts in order to avoid executive over-reach,[7] his judgment succinctly summarises his position in paragraph [182] asking “if not here, then when?”

This is a powerful moment in New Zealand history. We are a country that in its infancy infamously suspended habeus corpus and levelled extreme punishments at Maori who dared challenge colonial rule.[8] Yet, now the most severe punishment in our nation’s history has been levelled at someone who, in many ways, is a spectre of the ideologies that shaped our past. Mander J was proper in providing a thorough, legal justification for his use of s 102(2A), but his most powerful argument, and the one which will go down in history was directed not to the legal profession but the people who the shooter had hurt, and the community who stands behind them. The prime function of the criminal law, he states, “is to protect the community from crime”. Not individual criminals, but crime overall. He goes on to state:[9]

By having regard to the circumstances of the offence and the offender, the sentence should accord with the general moral sense of the community. A crime is a public wrong, and the public dimension of sentencing and the maintenance of public confidence in the criminal justice system must be kept in mind. The sentence I impose must be one that reflects the community’s repudiation of your crimes. It must represent a civilised reaction based not on emotion but justice and deliberation.

Mander J’s judgment is clear; populism cannot be allowed to sway the results of a sentencing,[10] but the overall focus of sentencing should be on the community. It is not enough that the public feel vindicated by the imposed sentence, they must be included in the overall process, especially the victims.

As briefly discussed earlier, this more communal focus is something often lacking from Western jurisprudence with its adversarial style. While there are many groups pushing for reform, these often focus on making the end sentence better serve the victim of the crime,[11] as opposed to trying to make the entire process serve the victims and the community at large. By placing emphasis on the importance of the process and the community’s investment in it, Mander J echoes Tikanga concepts like utu and muru through the language of the principles and purposes of the Sentencing Act.

One may be forgiven for thinking this is reading too much into one judgment, but as has been elaborated on throughout this article, this sentencing carries a pathos unlike any other judgment in New Zealand history. We should be looking at it as a sign of where the law may develop in future, and how the system of tomorrow may differ from the reality of today. With that context in mind, it is hard not to draw connections between this case and the soon to be argued Peter Ellis posthumous appeal which has the potential to fundamentally change the way that the law deals with concepts like mana which represent alternative ways of viewing criminal justice. Mander J’s judgment is one of the most emotionally resonant in New Zealand’s history, and is arguably the most important in a generation. It makes sense then that it may be a window into future legal developments and might serve as a harbinger of a cultural change in how we view the relationship between the community and the law.

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Featured image source: Wikimedia Commons

[1] R v Tarrant [2020] NZHC 2192.

[2] Khylee Quince “Maori and the Criminal Justice System” in Julia Tolmie and Warren J Brookbanks Criminal Justice in New Zealand (LexisNexis, Wellington 2007) 333.

[3] R v Hines, [1997] 3 NZLR 529 CA at p 562.

[4] “Tight Security at Court as Mosque attacker’s Sentencing Begins” (24 August 2020) RNZ < https://www.rnz.co.nz/>.

[5] R v McLaughlin [2013] NZHC 2625 and R v Tainui [2019] NZHC 626.

[6] At [139].

[7] At [143].

[8] Katherine Sanders “Parihaka and the Rule of Law” 11 AULR 174 at 190-191.

[9] At [177].

[10] At [178].

[11] Karrin Coates “Our Weak and Unjust System” (24 April 2020) Sensible Sentencing Trust < https://sst.org.nz/>.