Page:R v Tarrant 2020 NZHC 2192 sentencing remarks.pdf/43

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absence of any rights-consistent meaning being able to be given to the relevant provision of the Sentencing Act,^[1] the Court would be obliged to follow Parliament’s directive to make such an order where the statutory criteria has been met, notwithstanding any inconsistency with the Bill of Rights Act.^[2]

[186]You will now stand.

Sentence

[187]On each of the 51 charges of murder (charges 1-51) you are sentenced to life imprisonment. I order that you serve the sentences without parole.^[3]

[188]On each of the 40 charges of attempted murder (charges 52-91) you are sentenced to concurrent terms of 12 years’ imprisonment.

[189]On the charge of committing a terrorist act (charge 92) you are sentenced to life imprisonment.

↑ Section 6 of the New Zealand Bill of Rights Acts binds the scope of a court’s power to exercise a statutory discretion; see Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at [7.13.5]–[7.13.6]. However, where there is no other “tenable” meaning (see Hansen, above n 34, at [5] and [25] per Elias CJ, [149] per Tipping J, [179] per McGrath J and [288] per Anderson J) than that meaning ascertained as “Parliament’s intended meaning” at step 1 of the Hansen analysis (Hansen, above n 34, at [92] per Tipping J, [57]–[62] per Blanchard J and [192] per McGrath J), the discretion is as fulsome as expressed in the statute, regardless of any rights-inconsistency. As commented by the learned authors in Butler and Butler, above (at [7.13.1]):
The deployment of s 6 of BORA is particularly likely to occur in the context of generally-worded statutory discretions. This is most likely to occur where the application of BORA rights will add to the range of relevant considerations, or recalibrate the weightings to be given in exercising statutory discretion, so long as it does not destroy the perceived purpose and range of the discretion.

(Emphasis added)
As this Court said in Re AMM [2010] NZFLR 629 (HC) at [32], “the Court must approach a s 6 exercise with due regard to the principle of Parliamentary sovereignty that underlies s 4 of BORA”. Here, Parliament clearly intended a whole-of-life sentence to be available to the Court where the statutory trigger was engaged. Section 103 of the Sentencing Act was specifically amended, in clear terms, to introduce the discretion to impose life without parole. On this analysis, s 4 of the New Zealand Bill of Rights Act entitles the Court to exercise that discretion in the very worst cases of murder, regardless of any potential rights-inconsistency.
↑ Sentencing Act, s 103; New Zealand Bill of Rights Act, s 4.
↑ Sentencing Act, s 103(1) and (2A).

[1] Section 6 of the New Zealand Bill of Rights Acts binds the scope of a court’s power to exercise a statutory discretion; see Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at [7.13.5]–[7.13.6]. However, where there is no other “tenable” meaning (see Hansen, above n 34, at [5] and [25] per Elias CJ, [149] per Tipping J, [179] per McGrath J and [288] per Anderson J) than that meaning ascertained as “Parliament’s intended meaning” at step 1 of the Hansen analysis (Hansen, above n 34, at [92] per Tipping J, [57]–[62] per Blanchard J and [192] per McGrath J), the discretion is as fulsome as expressed in the statute, regardless of any rights-inconsistency. As commented by the learned authors in Butler and Butler, above (at [7.13.1]):
The deployment of s 6 of BORA is particularly likely to occur in the context of generally-worded statutory discretions. This is most likely to occur where the application of BORA rights will add to the range of relevant considerations, or recalibrate the weightings to be given in exercising statutory discretion, so long as it does not destroy the perceived purpose and range of the discretion.

(Emphasis added)
As this Court said in Re AMM [2010] NZFLR 629 (HC) at [32], “the Court must approach a s 6 exercise with due regard to the principle of Parliamentary sovereignty that underlies s 4 of BORA”. Here, Parliament clearly intended a whole-of-life sentence to be available to the Court where the statutory trigger was engaged. Section 103 of the Sentencing Act was specifically amended, in clear terms, to introduce the discretion to impose life without parole. On this analysis, s 4 of the New Zealand Bill of Rights Act entitles the Court to exercise that discretion in the very worst cases of murder, regardless of any potential rights-inconsistency.

[2] Sentencing Act, s 103; New Zealand Bill of Rights Act, s 4.

[3] Sentencing Act, s 103(1) and (2A).

[1]

[2]

[3]

Page:R v Tarrant 2020 NZHC 2192 sentencing remarks.pdf/43

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