Between the potency and the existence ... falls the shadow

Despite what the "three strikes" law seemed to say, another murderer has avoided a sentence of full-life-without-parole. And that's partly David Garrett's fault.

In a decision (available here) that got a little bit of media attention last week, the sentencing of one Justin Vance Turner tells us something about the way in which courts and Parliament dance around one another when it comes to making new laws.

Let's deal with the bad stuff first.  Mr Turner committed a pretty terrible crime (murder) against a 49-year-old alcoholic homeless man. From Justice Woolford's sentencing notes:

Mr Turner admits punching Mr Hussain in the face for 20 – 30 minutes. At one point he tried to stab him with a nail file, but it broke. He then dragged him off the bed, and began stomping his head on the floor, into the concrete. This apparently continued for half an hour, albeit that Mr Hussain was knocked out after the first stomp. Mr Turner himself described the attack as continuing until Mr Hussain’s head was bouncing off the pavement.

Mr Turner's reasons for this attack were confused at best - something about "a rage toward Mr Hussain, because he was urinating in public, being sick in public and sleeping on the footpath." What is more, Mr Turner has a long history of offending - much of which was lower level public-order type offences, but also included in 2011 a conviction for:

wounding with intent after hitting a female acquaintance in the head several times, causing her traumatic brain injuries. His victim required life support when admitted to Auckland Hospital and required ongoing, serious rehabilitative treatment. That offending also involved what the sentencing judge described as “extreme and prolonged violence which included attacks to her head”.

So there's no doubt that Mr Turner is a violent and dangerous individual from whom the public needs protection. The question then is, how much protection? Under the "three strikes" sentencing law passed back in 2010, Mr Turner's murder of Mr Hussain was a "second strike" offence (the earlier wounding with intent conviction being his "first strike"). And under the provisions of that law, any sentence of imprisonment imposed for a "second strike" offence must be served in full without parole, unless that outcome would be "manifestly unjust".

Here, then, is the kicker. The all-but-obligatory sentence for murder is life imprisonment.* If Mr Turner is given that sentence under the "no-parole rule" for his "second strike" offence, he will have to remain in jail until he dies. And Mr Turner is 29 years old ... meaning that (applying actuary tables) he could expect to serve some 45-55 years behind bars before being carried out in a box. Which could by that time make him New Zealand's longest serving prisoner.

The primary question for Justice Woolford at sentencing was whether that outcome would be "manifestly unjust" in the context of the three strikes regime. And to decide that, you have to consider not only what Mr Turner did, but also who he is:

Mr Turner has had an unenviable childhood. His parents separated when he was six, and he has eight other siblings from his parents’ subsequent relationships. His family were relatively transient, and at the age of four he suffered the loss of his brother in a fire, an incident which Mr Turner saw occur. He was subject to physical and sexual abuse, with alcohol, drug-taking and gang violence normal in his life from a young age. He also spent time in CYFS care and Youth Justice facilities. Apart from the time Mr Turner has spent in prison, he has lived on the streets for a period of around 15 years.

The report notes that Mr Turner has a number of head injuries from fighting, leading to suspected frontal lobe damage, although there are “no obvious deficiencies in his mental processes”. He is, however, medicated for epilepsy, blood pressure and has been on anti-psychotics. While he has at times reported hearing voices, he was taking no medication at the time of his offending.

The point is not to curry sympathy for Mr Turner's plight, but rather to highlight that there's a background to his offending. If that background can be remedied or ameliorated, then his propensity to commit future offences might be significantly reduced. And in particular, in the report of the court appointed psychiatrist who examined Mr Turner prior to sentencing:

Dr Goodwin identifies Mr Turner as having expressed a willingness to engage with alcohol, drug and anger management treatment during his imprisonment which “may or may not” go some way towards mitigating his risk to others. The report notes it is difficult to comment on whether he has been unresponsive to treatment as he has never engaged with alcohol, drug or personality disorder related treatment.

Which then makes Justice Woolford's job a pretty tough one. Should he send a 29-year-old to prison for the rest of his life, even though there is at least a chance that he can be rehabilitated sufficiently so that he won't hurt people again in the future? Would doing so be "manifestly unjust", in the terms of the governing legislation?

To cut to the chase, Justice Woolford said that it would:

This is a finely balanced case, in which Mr Turner is not an overly sympathetic candidate. However, he is not the worst type of murderer, nor does he have an established inability to rehabilitate. The combination of factors in his case, in particular his borderline psychosis, his limited ability to attempt rehabilitation prior to this point and clear demonstrations of remorse, put him into a category in which it would be manifestly unjust to sentence him to life imprisonment without parole.

Although the pre-sentence and psychiatric reports are not promising, after a significant time in prison this assessment may change. Once treatment options have been explored and the negative social behaviours encouraged by living on the streets are no longer part of his day to day life, Mr Turner may be able to change his life. ...

Instead of a full-life-without-parole sentence, Justice Woolford sentenced Mr Turner to life imprisonment with a minimum non-parole period of 15 years. Meaning that he'll be 44 years old before he can even ask to be released back into society - and, as Justice Woolford notes,"If he does not change, under the terms of a life imprisonment, which I am about to impose, parole will not be granted."

I'll come back to why Justice Woolford reached the conclusion he did a bit later on. But before doing so, I want to turn attention to the role that David Garrett, the ex-Act MP, played in this case.

You'll recall that Mr Garrett was the architect of the whole three strikes sentencing regime (before, you'll also remember, he quit Parliament because he'd neglected to tell voters about his being discharged without conviction for stealing the identity of a dead child). And in a blog post from October last year that was confidently titled "Three strikes about to bite hard", Mr Garrett gleefully noted that:

Unless there are extremely good reasons which would preclude such a result, we are about to get our first  “strike” offender sentenced to Life Without Parole (LWOP) for murder as a second strike.

To be fair to Mr Garrett (because that's the way we roll here at Pundit), he did also acknowledge that; "Because of privacy laws we know little about [Turner] other than he has a first strike to his name for serious violent offending. There is a suggestion from the terms of the remand that his fitness to plead may have been an issue, but clearly that is no longer the case."

So maybe if Mr Garrett had known the full background to Turner's offending before he wrote his post he would have changed his opinion that a full-life-without-parole sentence should apply to his particular case. However, the fact that Mr Garrett then went on to say that if the existence of "some psychological condition ... [made Turner] prone to episodes of extreme violence, this ought to be even more reason to lock him up for the rest of his life" makes me think that this is unlikely.

So why am I dredging up his near-five-month-old blog post now? For a couple of reasons.

The first is that it nicely illuminates a rather ironic section in Justice Woolford's sentencing notes (at paragraphs 56-57). His Honour was trying to work out what was meant by the discretion given to judges to side-step the statutory rule that a "second strike" offender must get a no-parole sentence - a discretion, remember, that is only available where the resulting sentencing outcome would be "manifestly unjust". And in trying to work out what that term meant, his Honour had a look at what the MPs who passed the law thought that they were doing at the time.

However, in examining the scope of the “manifestly unjust” exception, it is notable that the disproportionate nature of receiving life imprisonment without parole for second strike murder offending was not specifically addressed by the MPs who spoke to the Bill’s passage, or mentioned in the Select Committee Report. In fact, the parliamentary debate also reveals a clear intent toward the types of murders that would trigger the application of a full term of life imprisonment. At the Bill’s third reading, David Garrett MP of the Act Party, the major proposers of the three strikes regime, stated:

"[C]ontrary to what has been said by members on the other side of the House and by people elsewhere, this bill is not about locking people up and throwing away the key, and it never has been. I re-emphasise what the Minister of Corrections said: the only people who will be locked up for life under this bill will be persons who have committed murder as a “third strike”, or the worst of our murderers—people like Graeme Burton, William Bell, Liam Reed, and, sadly, a number of others whose names are less well known."

The Hon Judith Collins, introducing the Bill, noted the “pivotal” role of David Garrett and the ACT Party in promoting the legislation. His view that the bill would apply to only the worst murderers was clearly stated in the speeches of other MPs throughout the three readings of the bill, with references to mass murderers like Graeme Burton and William Bell featuring repeatedly. Although some of these comments were directed towards the discretionary life imprisonment without parole sentence also being introduced, the view that the only criminals who would be locked away for life would be those who had engaged in the worst, most egregious types of behaviour was clearly popular.

So, one of the factors (not the only factor, by all means, but certainly one of them) leading Justice Woolford to decide it would be "manifestly unjust" for Mr Turner to get a life-without-parole sentence were the views of ... David Garrett, MP.

Which is kind of funny.

But the discrepancy between what Mr Garrett thought the law was going to do in his blogpost and what actually happened to Mr Turner under it also goes to illustrate a deeper issue with the whole "three-strikes" sentencing concept. You see, problems like that posed by Mr Turner are not accidental or quirky byproducts of the law. They are endemic to the very enterprise of trying to force judges to treat all cases as being the same.

Lots of people said so at the time the three strikes law was being considered. Here's Warren Brookbank's and Richard Ekins critique of the whole concept of mandatory sentencing, and here's Graeme Edgeler's specific critique of the law in its final form (including the consequences it would have for "second strike" murders, so it's not as if this was an unexpected or unforeseen problem).

You see, criminal sentencing is a bloody complicated thing to do. It involves trying to achieve a whole number of social ends, some of which point in opposite directions. Judges are required to follow a set of principles, including that they "must impose the least restrictive outcome that is appropriate in the circumstances". In setting a sentence, they have to consider a wide variety of aggravating and mitigating factors. The whole point of which is that a judge is trying to fit an appropriate response to criminal wrongdoing to the particular individual who has committed the act.

In the midst of this punchbowl of flavours, the mandatory requirements of the three strikes regime floats like a great big turd. To simplify a bit, it tells judges not to look at anything except the fact that the offender has done other bad things in the past. If they have done those bad things, then the consequences are meant to be all but set in stone.

Which is so deeply at odds with the rest of the law around sentencing that it is little wonder Justice Woolford chose to interpret the "manifestly unjust" escape clause in the way he did. If the consequence is to impose perhaps the longest ever prison sentence in New Zealand on a still-youngish man who may be able to be rehabilitated for a murder which (while somewhat gruesome) is not amongst the worst sort that occur in New Zealand, then it is so inconsistent with what criminal sentencing is intended to achieve that it cannot be what Parliament intended to happen.

(Before anyone goes off on a "bloody left-wing, bleeding-heart, liberal judges" rant, before being appointed to the bench by Attorney General Chris Finlayson Justice Woolford was a partner at Merideth Connell, which acts as the Crown prosecutor in Auckland, as well as being "a member of both the Serious Fraud Office Panel of Prosecutors and the Auckland District Law Society Panel of Prosecutors." So you wouldn't expect him to have a particularly "pro-crim" view of the world.)

And nor is Justice Woolford the first judge to take this stance. For in another case from last year, Justice Mallon also refused to sentence a "second strike" murderer to full-life-without-parole because the "first strike" offence involved "pinching the bottom of a police officer and brushing [a] hand across her groin and her thighs, while she was taking the details of a group of Mongrel Mob members assembled at a carpark." Imposing a full-life-without-parole sentence on someone (rather than a life sentence with fixed non-parole period one) just because they'd carried out this relatively trivial sexual assault would be, in Justice Mallon's view, "manifestly unjust".

All of which is perhaps a useful corrective to the usual view we hold of how our lawmaking system works. We're used to thinking that the MPs who sit in Parliament can get the laws that they want put into place. Parliamentary sovereignty and all that.

Well, that's sort of true. But while MPs can get whatever words they want put into our statute books, those words don't have full effect until judges confront them in the real world of a court case. And at that point the issue isn't "what do the particular MPs who wrote the words of the law think should happen here?", but instead becomes "what do we, the judiciary, think this law should be taken to mean, given all the other law that sits around it?"

The answer to which may come as a considerable shock and disappointment to some ex-MPs -but that's how a constitutional democracy under the rule of law rolls.


* A court does have the discretion to depart from the mandatory "life imprisonment for murder" rule in certain very limited circumstances, none of which apply to Mr Turner.