Guest Post: Minimum non parole periods for murder

A guest post by David Garrett:

The “standard” sentence for murder in New Zealand is life imprisonment with a minimum non parole period (NPP) of ten years. This can be increased at the sentencing Judge’s discretion. For murder with aggravating circumstances,  the sentence is life, with a minimum NPP of 17 years. Such sentences are rare. The third option is life without parole (LWOP) which thus far has only been imposed once, on the terrorist Brenton Tarrant.

New Zealand is a common law country, which simply means that our law is derived from the law of England. Other such countries include the US, Canada, Australia, India, the West Indies – and Tonga, where I now live. There are of course considerable differences in the laws of the countries I mention – the most notable of course being the USA, the states of which have some  offences  which are nonsensical to an English or New Zealand trained lawyer. For example I haven’t the foggiest idea what “voluntary manslaughter in the second degree” might mean.

The laws of Australia and the UK are much more similar to New Zealand law. In all three cases, the sentence for murder is life – whatever that might mean in a particular jurisdiction – with a minimum NPP.( Interestingly there are no NPP’s in  Tonga – in the Kingdom,  life means life).  All three countries – the  UK, Australia and New Zealand – also now have LWOP as a possible sentence. (LWOP is referred to as a “whole of life Order” in the UK which means exactly the same thing).

The use of LWOP varies greatly between the UK, Australia and New Zealand. There are currently 77 “whole of life” prisoners in the UK. My research suggests that a person in the UK who  kills two or more people, or someone who kills, is released on parole and then kills again, is almost certain to be sentenced to LWOP (much easier to write than “whole of life Order”). One significant difference between the UK and New Zealand is that it is possible to receive LWOP in the UK for an offence other than murder – in particular rape. This is not possible in New Zealand  because the maximum penalty for rape is 20 years as set out in the Crimes Act 1961. UK  judges seen to have a much wider degree of discretion than here.  There appears to be no Sentencing Act in the UK, although I stand to be corrected.

I have been unable to ascertain the number of prisoners serving LWOP in Australia – I would be most grateful if someone with better research skills than I possess could tell us how many there are. Suffice it to say that there are a number – I would guess perhaps a dozen, but perhaps more or fewer. What is very clear is that minimum NPP’s in Australia are generally much longer than here, with thirty years being not uncommon. As in the UK, a double or repeat murder in Australia will inevitably attract a life sentence – if not of LWOP  then with a minimum NPP of in excess of 25 and up to 30 years or more.

Here in New Zealand, other than Tarrant, the longest NPP remains  the 30 year sentence – reduced from 33 years on appeal – imposed on William Bell for the murder of three people at the Panmure RSA in 2001. Bell committed his crime while  on parole from a sentence for a particularly nasty aggravated robbery, during which Bell made it clear he wished to kill the service station attendant he attacked in the course of the robbery. Had Bell committed his crimes in the UK or Australia, I have no  doubt he would have got LWOP. Instead he will become eligible for parole in 2031 – although it is fair to say he is unlikely to released. Well, that is unless the Green Party is then in charge of appointments to the Parole Board.

The next longest NPP I am aware of is 28 years imposed on Paul Tainui – formerly known as Paul Wilson – for the murder of Nicola Tuxford, a woman who was trying to help him  but with whom he had become obsessed.  Prior to the murder of Ms Tuxford, Tainui had killed his girlfriend in 1994, served 13 years of a life sentence, and been released on parole.  In 2018 Tainui broke into Ms Tuxford’s house,  lay in wait for her for eight hours, and upon her return, he raped and murdered her. At his trial in 2019, the Crown sought a sentence of LWOP, or if not that, then a minimum NPP of 30-32 years. The judge refused, and sentenced Tainui to life with a minimum NPP of 28 years.

The third relatively recent such case I am aware of is that of Pauesi Brown, who killed “good Samaritan” Austin Hemmings, who came to aid of a woman Brown was attacking on an Auckland street in 2010. Brown had killed his ex-girlfriend in Australia. He repeatedly stabbed his estranged girlfriend in the neck and chest while they were living in Melbourne in 1992. He was charged with murder, but the charge was reduced to manslaughter,  and he was convicted in December 1993. He spent eight years in jail for that killing. Brown has a lengthy record of violent offences both in Australia and here.

In what I regard as an outrageous sentence, Brown was sentenced to life with a minimum NPP of a mere 16 years – one year less than the prescribed sentence for murder with aggravating features. Again, had Brown killed for a second time in Australia, if not LWOP, he would have been given a minimum  NPP  of at least  30 years – double what he received in New Zealand – if not more.

In my view – which I am sure is a view shared by most New Zealanders – sentences for murder in New Zealand are ridiculously light, and as I have shown, far more lenient than in  either Australia or the UK, two countries with which we compare ourselves. Prior to Tarrant, the Crown had applied for LWOP in at least four cases that I am aware of, all for either second killings, or the killing of children. In all four cases, the NPP’s were considerably less than  the 30 years William Bell is serving.

Murder – particularly the murder of children – is rightly the  most serious crime on our statute books. While it is fair to say the circumstances vary widely – from the “mercy killing” of a terminally ill spouse by the other spouse to the crimes committed by Bell and Tainui – I believe our sentences for the worse murders, such as those discussed in this piece  are woefully insufficient,  and do not come close to satisfying either the gravity of defying a person of life, or the public’s wish for the worst killers to pay commensurately for their crimes.

So how to change that? Given the nature and attitude of our judiciary, statutory direction is essential. The Sentencing Act could be amended to provide for a mandatory sentence of LWOP for any person who either kills two or more people, or is guilty of two killings separated by a prison sentence. We have already seen the folly of including a “manifestly unjust” get out of jail card. If that was part of any amendment I am as sure as I can be that the judges would avoid imposing LWOP. 

I believe such an alteration to our law for murder would enjoy widespread support – even among Green voters. When Curia polled on the original three strikes law some years ago, to my considerable surprise it enjoyed the support of something like 45% of Green voters. The Green party by contrast would almost certainly vote against it.

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