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Rahman, Shadia --- "Addressing Anomalies Created by the Fiction of Life Imprisonment" [2000] WkoLawRw 5; (2000) 8 Waikato Law Review 87

ADDRESSING ANOMALIES CREATED BY

THE FICTION OF LIFE IMPRISONMENT

BY SHADIA RAHMAN[*]

I. INTRODUCTION

The sentencing of serious violent offenders is an issue that is currently attracting great public interest in New Zealand. This article looks at one aspect of sentencing such offenders: the sentencing of multiple offenders who are subject to life imprisonment. Although life imprisonment is considered under the law to be imprisonment for life, many of those subject to life imprisonment are released from prison on parole while they are still alive. But the common law on sentencing does not recognise this reality. Consequently, anomalies result when it comes to the sentencing of those who have committed other offences as well as the offence attracting life imprisonment.

This article attempts to address those anomalies. It first explains the common law relating to the sentencing of multiple offenders who have committed an offence punishable by life imprisonment, and examines the anomalies created by this law. It then analyses the ways in which these anomalies are currently addressed by legislation in New Zealand, and analyses the adequacy of these legislative measures. Finally, it proposes an alternative way to address the anomalies created by the common law.

II. COMMON LAW ON SENTENCING MULTIPLE OFFENDERS

1. Multiple Offenders

Multiple offenders are those who are either being sentenced for more than one offence at the one trial, or who are already serving a sentence and are being sentenced for another offence.[1] The offences may have arisen from a single incident, or they may have been committed on separate occasions over a period of time.[2] The following examples illustrate the type of situations in which multiple offences can arise:

- A stabs B and then sets fire to B’s house; A is convicted of murder and arson;

- C is serving a sentence of life imprisonment; after formulating a cunning plan, she escapes from prison and robs a bank, seriously injuring two security guards in the process; she is convicted of aggravated robbery and two counts of causing grievous bodily harm;

- D is a serial rapist and murderer; over the course of a year, he sexually violates and murders 12 women; he is convicted on 12 counts of murder and 12 counts of sexual violation by rape.

Ordinarily, there are two ways to deal with a situation where an offender has received more than one sentence. One is simply to add together the sentences received for each offence. This is known as consecutive or cumulative sentencing. So, for example, if an offender has received two sentences of four years’ imprisonment each, under consecutive sentencing he or she would serve a total of eight years’ imprisonment. The other way is to allow the offender to serve all the sentences at the same time – so that for each day the offender spends in prison, one day is taken off each of the separate sentences imposed. This is known as concurrent sentencing. Under concurrent sentencing, the offender receiving two four-year sentences would spend only a total of four years in prison, as he or she would serve both four-year sentences at once. Normally, a mixture of concurrent and consecutive sentences is imposed in order to arrive at a total sentence that fairly represents the totality of the offending.[3]

2. Multiple Offenders and Life Imprisonment: The Rule in Foy

In the case of life imprisonment, consecutive sentences cannot be imposed. Courts are not allowed to impose a consecutive sentence on life imprisonment. This rule derives from English case law, primarily R v Foy. In that case, Lord Parker of the English Court of Appeal stated:

Life imprisonment means imprisonment for life. No doubt many people come out while they are still alive, but when they do come out it is only on licence, and the sentence of life imprisonment remains upon them until they die. Accordingly, if the court makes any period of years consecutive to life imprisonment, the court is passing a sentence which is no sentence at all, in that it cannot operate until the sentenced man dies.[4]

This reasoning was adopted by the New Zealand Court of Appeal in R v de Malmanche.[5] In that case, a life prisoner, previously convicted of murder, took part in a prison riot in which, among other things, he assaulted a warden. A Magistrate passed a sentence on that assault charge, cumulative on the sentence of life imprisonment. The Court of Appeal quashed that sentence, and substituted a concurrent sentence, reasoning that because there was no provision for a sentence of life imprisonment to be brought to an end – but merely for the prisoner to be discharged “on licence” – no sentence could be imposed cumulatively upon it.

3. The Nature of a Life Sentence

A life sentence must be imposed for murder,[6] and is the maximum penalty that may be imposed for manslaughter[7] and a small number of other offences.[8] When a convicted offender is sentenced to life imprisonment, it does not mean that the offender will necessarily spend the rest of his or her life in prison. All life prisoners are eligible to be released on parole after they have served their minimum non-parole period – this is a period of ten years,[9] unless the sentencing Judge orders a longer minimum non-parole period for that offender under section 80(1).[10]

But there is no obligation ever to release life inmates, even when they become eligible for parole. And when they are released, they are released subject to conditions imposed by the Parole Board. They remain subject to these conditions for life. If they breach these conditions, or if they commit an offence or are considered to be likely to commit an offence, they can be recalled to prison to continue serving their life sentence in prison.[11]

This is why Lord Parker LCJ stated in Foy that the sentence of life imprisonment remains on those sentenced to it for the rest of their life – even if they do not spend the rest of their life in prison. And because the sentence never ends, there is no point at which a sentence purported to be made consecutive to the life sentence can begin – therefore, it is not conceptually possible to impose a sentence consecutive to life imprisonment.

4. Problems with the Rule in Foy

The prohibition on sentences consecutive to life imprisonment creates many problems. First, as identified by Hammond J in R v McElroy,[12] it creates an anomaly. If an offender is sentenced for rape on one day and murder on the following day, then the sentences can properly be made consecutive. The logic of Parker LCJ in Foy would not apply in this case. But if the sentence for murder is imposed first, then Foy would apply, and the sentences must be made concurrent.

A second problem is that those who commit offences punishable by life imprisonment are effectively unpunished for any other crimes they may commit. The situations in which this can arise include multiple murders,[13] other crimes committed at the same time as the murder (or other offence punishable by life imprisonment),[14] and crimes committed by those serving a sentence of life imprisonment either in prison or after escaping from prison.[15] McElroy itself provided an example of a situation where a murderer committed other offences at the same time as the murder, including rape, arson and manslaughter. Hammond J was unable to find any principled way of ensuring that the offender was punished to a greater degree than if he had simply committed murder. R v de Malmanche, discussed above, provides an example of a life inmate committing further offences and effectively being unable to be punished for those offences.

In addition, there have been a number of cases in New Zealand in which persons sentenced to life imprisonment have escaped and committed further crimes while at large. One is R v Haunui and Greening,[16] where two accused serving terms of life imprisonment for murder escaped and terrorised a neighbouring family in order to obtain weapons, goods and vehicles. Knowing full well that they could not be subjected to further terms of imprisonment, the two offenders hugely enjoyed their further court appearance, much to the consternation of the sentencing judge, Fisher J.[17] All that Fisher J could do in this situation was to direct that his remarks about the offenders be brought to the attention of the parole authorities, with a recommendation that the offenders’ parole eligibility date be substantially postponed. He could not impose a sentence that would have any practical effect on the offenders – and even the steps he did take were questioned as to their validity by Hammond J in McElroy, as the Parole Board is supposed to be an independent body.[18] It seems anomalous that, while offences punishable by life imprisonment are arguably regarded as the most serious crimes in New Zealand, those who commit them are effectively absolved from any further punishment for further crimes they may commit.

A third problem is, as arose in Haunui and recognised by Hammond J in McElroy, that, if at sentencing, a life prisoner hurled abuse at the court, the court “could not even to pass a cumulative sentence of contempt to maintain the integrity of its own processes”.[19]

Finally, the inability to punish further those subject to sentences of life imprisonment is contrary to the purposes of sentencing, and the sentencing theories and principles that are currently applied in New Zealand. The primary purpose of sentencing in New Zealand is to protect the public from crime, and to preserve the peace and order of society.[20] This is achieved by imposing sentences upon offenders which are commensurate with the seriousness of the offences committed – in other words, sentences which are deserved by the offender (“just deserts”); sentences which deter the offender and others from committing (further) offences; sentences which prevent offenders from committing further offences by incapacitating them; and sentences which rehabilitate offenders so that they are not inclined to commit any further offences. But the inability to impose consecutive sentences onto a sentence of life imprisonment is contrary to the first three of these purposes of sentencing:

First, it becomes almost impossible to impose a sentence that is commensurate with the total offending by an offender if no extra sentence can be imposed on someone who has committed murder. For example, offender D, who committed 12 murders, would receive no greater a sentence than an offender who had committed only murder. The same applies to offenders A and D, who have both committed offences which are worse than murder alone, and therefore deserve weightier sentences. Yet there is no way to sanction the more serious nature of this offending, as consecutive sentences cannot be imposed to reflect the extra offending.

Secondly, the rule in Foy can weaken the deterrent effect of sentencing, because once an offender has committed an offence attracting a life sentence, there is no incentive not to go on offending as the punishment imposed can be no more severe than a simple life sentence. Thus, the principle of individual deterrence is undermined by the inability to sanction the other offending. General deterrence is also undermined to some degree, because members of the public will note that, if they are sentenced to life imprisonment, they will be immune from further punishment for any other that crimes they may have committed or be inclined to commit.

Thirdly, although it is difficult to predict which offenders are likely to reoffend upon release, evidence has shown that one of the best predictors of future offending is past criminal activity.[21] Those with a history of past offending are the ones most likely to reoffend in future. Thus, those who have committed multiple offences on unrelated occasions (such as offenders C and D) are more likely to reoffend when released. Yet the rule in Foy prevents the incapacitation of these offenders for any longer period of time – and thus prevents the Court system from protecting the public from these offenders.

Thus, in addition to the problems already discussed, the rule in Foy is contrary to most of the purposes of sentencing.

5. Departure From the Rule in Foy?

At first glance, the easiest answer to this problem would be simply to disregard the conceptual limitations pointed out by Parker LCJ in Foy, and allow the imposition of consecutive life sentences in appropriate situations. But there is one problem that would prevent this course of action having any practical effect in New Zealand. That is that imposing a sentence consecutive to life imprisonment (or vice versa) would make no difference to the date at which the offender would be eligible for parole. Under section 92(2) Criminal Justice Act 1985, when calculating parole eligibility for an offender serving consecutive terms of imprisonment, the procedure is to treat the consecutive terms as one term of imprisonment. So, for example, consecutive terms of five years’ imprisonment and life imprisonment would be treated effectively as one term of life imprisonment – as it is nonsensical to envisage a single term of “life + five years”. Thus, the date of eligibility for parole would be the same as that for life imprisonment, even if the offender were facing a sentence consecutive to a term of life imprisonment.

III. LEGISLATIVE RESPONSE TO ANOMALIES

1. Criminal Justice Act, section 80

The Criminal Justice Amendment Act (No. 1) 1993 provides some relief for the problems caused by the rule in Foy. It brought in a new section 80 of the Criminal Justice Act, allowing a sentencing court to order an offender being sentenced to an “indeterminate sentence” (which includes life imprisonment)[22] to serve a minimum period of imprisonment of more than the ten years set out in section 89 before being eligible for parole.

When the new section 80 was first enacted, a court could make such an order only if it was satisfied that the circumstances of the offence were “so exceptional” that such an order was justified. This was a very high standard: the Court of Appeal in R v Parsons stated that “[i]t is a power to be exercised only in the exceptional case which is so horrendous or repugnant as to justify additional denunciation”.[23] But the wording was changed in 1999, bringing in a standard of the circumstances of the offending being merely “sufficiently serious” to justify the order.[24] “Sufficiently serious” means out of the ordinary but not exceptional.[25] The change in wording lowered the threshold for imposing minimum non-parole periods.

One effect of section 80 is that, where a person who commits an offence punishable by life imprisonment also commits other offences, the sentencing court can ensure that the multiple offender is punished more than a single offender who commits only the offence punishable by life imprisonment. The court can do this by making an order that the multiple offender must serve a longer period in prison before being eligible for parole. There is no statutory restriction on the duration of the minimum term specified in an order under section 80, and in theory a sentencing judge could impose a sentence well in excess of the ten-year parole date that would otherwise apply. To date, the longest minimum term ordered under section 80 for murder is 18 years.[26]

The appropriate punishment of multiple offenders was not the primary reason why the present section 80 was enacted. It was one reason,[27] but more important was the need to meet the public demand for denunciation and punishment for particularly horrendous crimes – whether these crimes were accompanied by multiple offending or not.[28] The section therefore applies also to single offenders who commit the offence attracting life imprisonment in a particularly repugnant or brutal way.[29] There are many factors which a court can take into account in deciding whether the circumstances of an offence are “sufficiently serious” to attract the operation of section 80. These include an unusual level of premeditation, brutality, depravity or callousness,[30] or any home invasion involved.[31]

The courts have, however, specifically noted the commission of multiple offences as one of the factors to take into account when considering an order under section 80.[32] The surrounding circumstances of offending, including any other offences committed at the same time, can properly be taken into account when making an order under section 80. In R v Sibley,[33] for example, the offender pleaded guilty to the murder of a three-year-old child and the attempted murder of her mother. The offender received a concurrent sentence for the attempted murder. Despite this, the Court of Appeal noted that it was appropriate for the purposes of section 80 to regard the attempted murder as forming part of the circumstances surrounding the offence of murder – and therefore appropriate to take it into account when making an order under section 80.[34]

A review of the cases shows that multiple offending often features in cases where orders are made under section 80. In R v Watson,[35] Scott Watson received a minimum non-parole period of 17 years for the random opportunistic murder of two young people who posed no threat or harm. David Bain received a minimum non-parole period of 16 years for shooting five members of his own family.[36] The defendant in R v Kirner[37] received a minimum non-parole period of 15 years for the rape and murder of an intoxicated and helpless victim. R v Barlow[38] involved the premeditated execution of two businessmen in their office – the offender received a minimum non-parole period of 14 years. In R v Sibley,[39] the offender received a minimum non-parole period of 13 years for the murder of a three year-old child and attempted murder of her mother in an act of revenge for being evicted.

This shows that the courts have begun to use to advantage this provision that allows them, in appropriate cases, to censure and punish more harshly those subject to life imprisonment who are more deserving of censure. Although there is provision for the Parole Board and a Prisons Board to override a judicially-imposed minimum period,[40] there is no record of this having been done to date. It seems, therefore, that section 80 is having an effect on solving some of the problems relating to multiple offenders subject to life imprisonment.

2. Does s 80 Completely Solve the Problem?

Prior to the 1999 amendment, it could have been argued that the section would apply only in a very small number of cases. This was particularly after the comments of the Court of Appeal in R v Parsons, that the power under s 80 was to be exercised only in the “exceptional case which is so horrendous or repugnant as to justify additional denunciation”.[41] In fact, the Justice and Law Reform Committee noted the limiting effect of these comments in the very small number of section 80 orders following that case. However, since the 1999 amendment, the threshold has been lowered, and it can now be assumed that the powers under section 80 will be able to be used more easily in appropriate situations.

However, section 80 itself does not cover the whole range of problems thrown up by the rule in Foy. It would cover, for example, offender A, who was convicted of murder and arson, and offender D, who was convicted of 12 counts of murder and sexual violation by rape. If this offending was considered “serious enough”, offenders A and D could properly be sentenced to longer minimum non-parole periods than the ordinary ten years. This would serve the purposes of just deserts, deterrence and incapacitation noted above. These offenders would receive sentences that were more proportionate to the gravity of their offending. The sentences would deter others, who would now know that committing an offence punishable by life imprisonment does not give them licence to commit other offences without fear of further punishment. And it would incapacitate these dangerous offenders for a longer period of time.

But it would not cover a serial offender who was being sentenced for his or her offences in isolation. If an offender (offender E) had committed three murders, each not more serious than any other murder, then each murder in itself would not attract the operation of section 80: it would not be “sufficiently serious” to justify the imposition of a minimum period of imprisonment of more than 10 years. Together, it is quite likely that the offending would be sufficiently serious to attract the operation of the section: R v Sibley[42] indicates that other offences can be taken into account when considering an order under section 80. But if offender E was tried for and sentenced for these murders separately,[43] then it is questionable whether the section would apply. Because section 80(2) requires the court to consider the “circumstances of the offence”, if it was sentencing for each murder separately, it is unlikely that it could take into account the circumstances of any other offence not currently before the court. This would apply even when offender E was being sentenced for the second and third murders – even though the court would have full knowledge of the previous murders, it is unlikely that they could be taken into account. As pointed out by Tipping J, the purpose of section 80 is not to give public protection, but to denounce the conduct of the offender,[44] and public protection is not a matter that can be taken into account under section 80. Thus, the sentencing court would not be able to take into account the fact that offender E had committed two other murders, and offender E would simply receive concurrent life sentences – and be treated no differently by the court system than an offender committing a single offence.

Similarly, it is questionable whether section 80 could apply to such an offender as described by Hammond J in McElroy: one subject to a sentence of life imprisonment who hurled abuse at the court. Because this does not make up part of the offence to be considered under section 80, the section could not be used to, as Hammond J put it, “maintain the integrity of [the court’s] processes”.[45]

Section 80 also does not cover offenders like offender C, who was serving a sentence of life imprisonment, but escaped and committed further offences. The court could impose a minimum period of imprisonment on offender C under section 80(4) (which applies to serious violent offending attracting a sentence of more than two years’ imprisonment). But this cannot be imposed consecutively on the life sentence – the sentence for the offences committed upon escaping would have to be concurrent. Therefore any minimum period of imprisonment imposed under section 80(4) would be served concurrently with the life sentence. The sentencing court could not, for example impose a 15 year sentence in order to make the sentence for the further offending so long that it continues beyond the parole date applicable to offender C’s life sentence, because the sentence imposed must still be commensurate with the gravity of the offending.[46] And the minimum period of imprisonment imposed under section 80 cannot be any longer than the sentence itself.[47] As a result, unless offender C was nearing her parole eligibility date under the life sentence,[48] any sentence imposed for C’s further offending does not amount to any real punishment. The same would apply to any life inmate who commits further offences – whether in prison, as in de Malmanche, or outside, as in Haunui and Greening.[49]

Thus, while section 80 does much to ameliorate the problems created by the rule in Foy, it is clear that there are areas that still need to be addressed.

IV. ANOTHER ANSWER TO THE PROBLEM

1. Canadian Bill C-247

A Bill currently before the Canadian Senate (Bill C-247) also addresses the problems raised by the inability to impose consecutive sentences on life imprisonment.[50] One of the cases giving rise to concern in Canada was that of Clifford Olson, serial killer of 11 children. In a hearing before the Parole Board, Mr Olson read out a letter from his lawyer that had advised him to admit at once to all the murders he had committed, so that he could take full advantage of concurrent sentencing. In open court, Mr Olson mocked, “They can’t do nothing. They can only give me a concurrent sentence”. Mr Olson recognised that, due to the prohibition on consecutive life sentences, he could receive a sentence no greater than if he had committed only one murder. This case greatly disturbed some members of Canada’s Parliament,[51] and the result was a Private Member’s Bill aimed at ensuring that those subject to life sentences can be effectively sentenced for other offences that they may commit.

Although a situation like Clifford Olson’s would now be covered in New Zealand by section 80 of the Criminal Justice Act 1985,[52] Canada’s Bill C-247 takes a somewhat different approach to the problem. It advocates granting judges the power to order the offender (in appropriate cases) to serve consecutive minimum non-parole periods. Thus, a sentencing judge can, where appropriate, order an offender to serve, on the expiry of one minimum non-parole period, a further period of up to 25 years. This gets around the problem of not being able to impose consecutive life sentences, while still ensuring that those subject to a sentence of life imprisonment can nevertheless receive real and effective punishment where this is appropriate.

The wording used in Bill C-247 is poorly chosen, and the Bill in its current form is an example of hasty drafting.[53] For example, it makes consecutive non-parole periods mandatory for further offences other than murder,[54] but leaves to the judge’s discretion the imposition of consecutive non-parole periods where the further offence is another murder.[55] This could give rise to the unfortunate situation where an offender who commits, say, a murder and a car burglary, could end up facing a longer minimum non-parole period than an offender who committed three murders – because the sentence for the first offender is mandatory. This is contrary to the all-important principle that sentences must be proportionate – which occupies a central position in Canada’s sentencing system as well as our own.[56]

However, despite the flaws in the drafting of Bill C-247, the concept behind the Bill is one that could well be used in New Zealand to overcome the problems posed by the rule in Foy. Under a consecutive non-parole period approach, offenders such as offender C and offender E could, if appropriate, receive effective sentences for offences committed. In the case of offender C (who escaped from prison and committed further offences), the sentencing Judge could order offender C to serve another period of time (say, three years) after she had finished serving the 10-year non-parole period under her life sentence. Thus, offender C would serve 13 years before being eligible to be considered for parole. This would mean that offender C can be effectively sentenced for the offences she committed upon escaping from jail. It would also provide a solution for the problems faced by Fisher J in Haunui and Greening.[57] Similarly, if it is considered appropriate that offender E serve a longer minimum non-parole period once it is discovered that she committed three murders, not one, then this could be effected by the sentencing Judge ordering the non-parole period for her second or third murder to be consecutive upon the non-parole period for the first.

The consecutive non-parole period approach proposed in Canadian Bill C-247 is, therefore, a practical answer to the problems posed by Foy.

2. A Cap on the Total Non-parole Period?

Bill C-247 provides that the total non-parole period to be served by an inmate is not to exceed 50 years. However, such a provision can create problems. Some of these were pointed out by Senator Bryden in the Canadian Senate at the second reading of Bill C-247.[58] The 50-year limit is arbitrarily chosen. It can result in a judge who is sentencing an offender who has already received additional non-parole periods being limited in the length of the non-parole period he could impose for no reason relating to the actual offence itself. Thus, even if a minimum non-parole period longer than this 50 years is warranted for an offender (say, Clifford Olson), a Judge could not impose it. This is contrary to principles of sentencing such as proportionality.

A “cap” such as that in Bill C-247 would not be necessary in the New Zealand context. It was not considered necessary when section 80 of the Criminal Justice Act 1985 was introduced – so that a judge in New Zealand could, theoretically, impose a minimum non-parole period of 99 years. But a review of the cases shows that judicial practice has been responsible in this area. The longest non-parole period imposed to date for murder is 18 years.[59] Most non-parole periods imposed under section 80 are of 13 or 14 years. This shows that there is no need to constrain New Zealand judges by an arbitrary limitation on the length of the minimum non-parole period.

3. Objections to Consecutive Non-parole Periods

A review of the debates in the Canadian House of Commons and Canadian Senate is useful to show the objections which can be taken to the imposition of consecutive periods of non-eligibility for parole.

First, it is argued that even the worst offenders can be rehabilitated, and that lengthening their prison sentence only delays the chance for these offenders to become mature, contributing members of society. However, allowing the imposition of consecutive non-parole periods would not prevent the possible rehabilitation of the offender being considered at sentencing – just as it would be with the sentencing of any multiple offender not subject to a sentence of life imprisonment. As rehabilitation is, along with just deserts, deterrence and incapacitation, one of the primary purposes of sentencing in New Zealand, a sentencing judge would still be required, when sentencing an offender subject to life imprisonment, to take into account rehabilitation considerations.

Secondly, because imprisonment involves such an immense restriction on the liberty of inmates, and has such a huge impact on their lives, it is argued that sentences should be as short as possible. Lengthening sentences intervenes even further in inmates’ lives, and is something that should be avoided. There is also a feeling that there are too many people in New Zealand prisons already, and shorter sentences will reduce the overall number of prisoners.[60] Restraint in sentencing is one of the most important sentencing principles in New Zealand. Section 7 of the Criminal Justice Act 1985 requires sentences of imprisonment to be as short as is “consonant with protecting the safety of the community”. It is argued that allowing consecutive non-parole periods would unduly lengthen sentences and would result in offenders serving an even longer term in prison. Again, however, simply allowing the imposition of consecutive non-parole periods would not detract from this principle. Restraint would still be one of the factors considered by a sentencing judge at sentencing. If lengthening the amount of time a life inmate had to serve before being eligible for parole was, in a particular case, not “consonant with protecting the safety of the community”, then the judge would not impose a consecutive period. The change proposed simply allows a judge to impose a further sentence on an offender where this is necessary or appropriate – it does not suggest that this should always be done.

Thirdly, it is argued that allowing consecutive non-parole periods to be imposed would result in increased costs to the public of keeping the sentenced offenders in prison for longer. But those who commit murders and other offences attracting a life sentence make up a very small part of the prison population – only about six percent of total inmates.[61] Of the small number of inmates sentenced to life imprisonment, many would already be covered by section 80 of the Criminal Justice Act 1985, so that, if appropriate, they could already be made to serve a minimum non-parole period of longer than 10 years. And, as demonstrated above, it is unlikely that judges would impose very long total non-parole periods under the suggested law change – so that the total length of non-parole periods is unlikely to increase unreasonably. Given this, it is likely that the increased fiscal cost to the public of the suggested law change will be minor.

The law change proposed only removes an anomaly in the law – simply allowing those who have committed offences punishable by life imprisonment to be subject to consecutive sentencing in a manner similar to those who commit other offences. Thus, the potential objections to the proposed law change must be of limited merit.

V. CONCLUSION

The prohibition against sentences consecutive to life imprisonment continues to create anomalies in the law, despite the ameliorating effect of section 80 of the Criminal Justice Act 1985. Section 80, while it solves the problems relating to those who commit or are sentenced for multiple offences at the same time, does not address the problems relating to those who do not fall into this category – such as life inmates who commit further crimes, or offenders who are sentenced for their multiple offences on separate occasions. This creates the situation that our sentencing system is unable to impose proper sentences on some of the most serious offenders that come before it.

The current state of the law is therefore unsatisfactory. One way to address the anomalies created is to adopt the broad approach proposed in Canada’s Bill C-247 and allow judges to impose consecutive periods of non-eligibility for parole. While there is no research indicating the success or otherwise of the approach at this stage (as the Bill has not yet been passed by the Canadian Senate), the approach is theoretically sound. If it is adopted in New Zealand in a flexible manner, without unduly limiting the discretion of the sentencing judge by mechanisms such as a cap on the total sentence, then it has the potential to overcome the shortcomings present in section 80. This would have the advantage of enabling the courts to sentence some of our most serious offenders in the principled manner so prized by New Zealand’s sentencing system.

APPENDIX:

BILL C-247

An Act to amend the Criminal Code and the Corrections and Conditional Release Act (cumulative sentences)

As passed by the House of Commons October 19, 1999

[*] Barrister and Solicitor, High Court of New Zealand; Judge’s Clerk, Court of Appeal.

[1] Von Hirsch, A and Ashworth, A (eds) Principled Sentencing: Readings on Theory and Policy (1998) v.

[2] Donovan, “Buck Should Stop Here: Consecutive Sentencing of Multiple Offenders in Iowa” (1980) Iowa L Rev 468, 481. This may occur because there were separate trials or because the second offence occurred in prison.

[3] For more detail, see Hall, G Hall’s Sentencing (2000).

[4] [1962] 1 WLR 609; [1962] 2 All ER 246, 247 (CA).

[5] Unreported, Court of Appeal, CA73/65, 28 March 1966, North P, Turner and McCarthy JJ.

[6] Crimes Act 1961, s 172. A life sentence may also be imposed for piratical acts which involve murder, attempted murder, or acts which endanger the life of any person: Crimes Act 1961, s 94.

[7] Crimes Act 1961 s 177.

[8] Dealing in class A drugs (such as heroin) (Misuse of Drugs Act 1975, s 6(2)(a)); hijacking (Aviation Crimes Act 1972, s 3); 14 military offences under the Armed Forces Discipline Act 1971 and two offences under the Chemical Weapons (Prohibition) Act 1996.

[9] Criminal Justice Act 1985, s 89(1).

[10] Criminal Justice Act 1985, s89(2). This aspect will be dealt with in more detail later in this article.

[11] Criminal Justice Act 1985, s 107I, s 107L. Note, however, the comments of Randerson J in Hart v Parole Board [1993] 3 NZLR 97, 99 (HC), where he stated that “plainly an application [for recall to prison] will usually be made only where an offence of some seriousness occurred while the offender is on parole”.

[12] [1993] NZHC 2446; [1993] 3 NZLR 192, 196 (HC).

[13] As with offender D.

[14] As with offender A

[15] As with offender C. See further R v Haunui and Greening [1992] NZHC 2274; (1992) 8 CRNZ 543 (HC).

[16] [1992] NZHC 2274; (1992) 8 CRNZ 543 (HC), Fisher J.

[17] See R v Haunui and Greening, supra note 15, at 546, per Fisher J: “I am glad that you are enjoying this occasion, going by the smiles on your faces”.

[18] The Parole Board does on occasion take into account the views of the courts when making decisions on parole (see Gordon v Parole Board, unreported, High Court, Dunedin, CP13-98, 13 November 1998, Hansen & Chisholm JJ). However, it is an independent body, and it is therefore undesirable for a court to give directions to the Board.

[19] Supra note 12, at 195.

[20] Criminal Justice Act 1985, s 5; R v Clarke, unreported, Court of Appeal, CA255/98, 3 September 1998, Keith, Heron & Elias JJ).

[21] Research by the 1986 (United States) National Panel on Research on Criminal Careers: Blumstein, A, Cohen, J, Roth, J and Visher, C (eds) Criminal Careers and Career Criminals, Vol I (1986).

[22] Criminal Justice Act 1985 s 2

[23] [1996] 3 NZLR 129, 131 (CA).

[24] Criminal Justice Amendment Act (No. 2) 1999.

[25] Criminal Justice Act 1985 s 80(5A).

[26] This was imposed on Carlos Namana, who shot Mangakino police officer Constable Murray Stretch last year: R v Namana, unreported, High Court, Rotorua, 5 September 2000, T99/2180, Nicholson J; and on Taffy Hotene, who raped and murdered journalist Kylie Jones in Auckland: R v Hotene, unreported, High Court, Auckland, 523/2000, 9 October 2000, Paterson J).

[27] See comments of Mr Rob Munroe during the Second Reading of the Bill: (1993) 535 NZPD 15714, 10 June 1993: “That will mean that if community revulsion is clearly expressed – perhaps if multiple offending has taken place – a High Court judge will be able to express at the time of sentencing, not later, the feeling of the court”.

[28] See the comments of Hon D A M Graham in (1993) 535 NZPD 15916 at the Third Reading of the Bill (17 June 1993).

[29] See eg R v Mane, unreported, Court of Appeal, CA 233/99, 24 August 1999, Blanchard, Gallen and Anderson JJ, where the court made an order for a minimum non-parole period of 17 years for a “carefully planned and cold-blooded execution” of a prosecution witness in his own home; and R v Krynen, unreported, High Court, New Plymouth, T1/96, 6 June 1996, Robertson J, where the court made an order for a minimum non-parole period of 12.5 years for a random slaying with an axe of a neighbour who was not known to the offender, in circumstances where the offender was suicidal and his object was to commit a violent and horrendous act in which he expected to be killed by the police.

[30] See R v Wilson [1996] 1 NZLR 147. (Note that this case predates the change of wording in 1999).

[31] By law, if the offending involves a home invasion, the court must impose a minimum non-parole period of at least 13 years: Criminal Justice Act 1985, s 80(2A).

[32] See R v Wilson, supra note 30.

[33] Unreported, Court of Appeal, 290/97, 15 October 1997, Henry, Tipping and Williams JJ.

[34] The Court of Appeal reduced the concurrent sentence received for the attempted murder of the child’s mother from 10 years to eight years, in order to ensure that the appellant was not “punished twice for matters properly reflected in the murder sentence with its extended minimum non-parole period”.

[35] Unreported, High Court, Wellington, T2693/98, 26 November 1999, Heron J. Upheld on appeal: Watson v R, unreported, Court of Appeal, 384/99, 8 May 2000, Richardson P, Gault and Henry JJ.

[36] R v Bain, unreported, High Court, Dunedin, T1/95, 21 June 1995, Williamson J.

[37] Unreported, High Court, Christchurch, T43/95, 25 October 1995, Fraser J.

[38] Unreported, High Court, Wellington, T1/95, 15 December 1995, Neazor J.

[39] Supra note 33.

[40] Criminal Justice Act 1985, ss 97 and 100.

[41] Supra note 23, at 131, per Doogue J.

[42] Supra note 33.

[43] This could be, for example, if an order for severance was made under the Crimes Act 1961, s 340(3).

[44] R v Sibley, supra note 33.

[45] Supra note 12.

[46] See comments of Fisher J in R v Haunui and Greening, supra note 16, where Fisher J considered but rejected this course of action.

[47] In fact it must be at least three months’ shorter than the sentence: see Criminal Justice Act 1985, s 80(6).

[48] In which case the sentence imposed for the further offending would extend beyond her parole eligibility date.

[49] Supra notes 5 and 16.

[50] At present, Bill C-247 is before the Committee on Legal and Constitutional Affairs, having passed both its first and second readings. For the text of Bill C-247, see Appendix.

[51] See the Debates in the Canadian Senate, 17 November 1999, para 1515; and the Debates in the Canadian House of Commons, 1 May 1998 (Edited Hansard, Parliament of Canada, http:parl.gc.ca/36/2/parlbus/chambus).

[52] Note, however, that it would only be covered if Mr Olson confessed to all his murders before or at sentencing. If he confessed to others after sentencing, he would be in the same situation as offender E, and his previous offending could not be taken into account when sentencing for the murders confessed to later.

[53] Bill C-247 was substantially redrafted so that it could be reinstated after the Select Committee recommended that the Bill and its clauses be deleted in their entirety: see the Debates in the Canadian House of Commons, 25 March 1999 (Edited Hansard, Parliament of Canada, http:parl.gc.ca/36/2/parlbus/chambus).

[54] Bill C-247, clause 2.1.

[55] Bill C-247, clause 2.2.

[56] See the Canadian Criminal Code s 718.1, which states proportionality to be the “fundamental principle”.

[57] Supra note 16.

[58] See the Debates in the Canadian Senate, 11 April 2000, para 1705 (Edited Hansard, Parliament of Canada, http:parl.gc.ca/36/2/parlbus/chambus).

[59] Supra note 26.

[60] See for example (1993) 535 NZPD 15712; (1993) 535 NZPD 15727. There is good statistical support for this point of view: a report recently published by the Ministry of Justice shows that New Zealand has one of the highest gross imprisonment rates in the Western World (Ministry of Justice, The Use of Imprisonment in New Zealand (1998)).

[61] As at 20 November 1997, life inmates made up 6.2 percent of total inmates: Ministry of Justice, Census of Prison Inmates 1997 (1998).