The legal twists and turns expected at next week’s sentencing hearing for the Christchurch terrorist. David Williams reports
The eyes of the world were on a New Zealand terror sentencing.
The case had sparked the biggest police operation in the country’s history. Dozens of accredited media arrived from overseas and gun-wielding guards patrolled the court building. Beyond the main courtroom, a press centre and overflow room, with three video screens, were established.
French secret agents Alain Mafart and Dominique Prieur had pleaded guilty to manslaughter after the July 1985 bombing of the Greenpeace ship Rainbow Warrior, at Marsden Wharf in Auckland, killed crew member Fernando Pereira.
In November of that year, the pair were sentenced in Auckland’s cathedral-like Supreme Court building – though it was a sitting of the High Court, presided over by the country’s chief justice, Sir Ronald Davidson.
As told by the late historian Michael King, in his book Death of the Rainbow Warrior, defence lawyer Gerard Curry said his clients were acting on orders and believed no one would be injured. They expressed remorse for Pereira’s death and, by acknowledging their role with a guilty plea, “thereby avoided for all concerned a very lengthy and costly trial”.
Crown solicitor David Morris closed his arguments by stressing the importance of deterrent in the sentence. “There is a clear need to express public condemnation of such offending, and to give a clear warning to persons of like mind, and their political masters and overlords, that terrorist activities of any kind will be met with stern reaction and vigorous punishment.”
Davidson’s judgment talked of a “deliberate, planned operation of a terrorist nature, carried out for political and ideological motives”. In sentencing the pair to 10 years in prison – with seven years for wilful damage, served concurrently – the judge said: “People who come to this country and commit terrorist activities cannot expect to have a short holiday at the expense of our government and return home as heroes.”
Fast-forward to next week, and the sentencing of the Christchurch terrorist, an Australian who killed 51 Muslims at two of the city’s mosques on March 15 last year. The shootings have also garnered intense international media interest – although, with Covid-19 restrictions, many journalists will be “attending” the hearing by video stream.
Crucially, and similarly to 1985, one of the judge’s most important jobs is to weigh factors such as remorse, premeditation, and a guilty plea.
Academics say the mosques shooting case contains legal firsts – the first conviction for terrorism in this country, under the 2002 Terrorism Suppression Act, and the possibility of a sentence of life without parole, which has never been imposed.
Whatever the outcome, the academics agree an appeal is inevitable.
“Clearly what they have in mind is the worst-case scenario where he leaps up in the middle of a victim impact statement and starts abusing the person who’s making the statement.” – Andrew Geddis
Law professor Kris Gledhill, of AUT, says the courts system has done well to “normalise” the Christchurch terrorism case – something the Norwegian justice system did after the terrorist attack there in 2011, in which 77 people were killed.
“It’s a pretty exceptional case,” Gledhill says of the shootings at Christchurch’s Masjid An-nur and Linwood Islamic Centre. “But it’s exceptional because of the brutality of it and the number of victims. In terms of processes that have been followed, it’s been run like any other homicide case.
“It’s been run like any other case in terms of victim impact statements, and the judge has made all the appropriate investigations from his perspective to make sure that victim impact statements could be given despite the Covid [restrictions], despite the involvement of overseas people.”
The Christchurch High Court sentencing hearing opens on Monday, amid tight security, with the Crown prosecutor reading the summary of facts – which was delayed because the terrorist pleaded guilty during the nationwide level four lockdown. The Crown requested the summary be read when victims and families were present.
Forty-seven victims and family members have flown in from overseas, and undergone a 14-day quarantine, ahead of the hearing. Plenty of other victims and families, and media, will watch the hearing by a tightly monitored, and delayed, video stream.
Sixty-six victim impact statements will be read. Some are pre-recorded, while others will be read in person, by a victim or representative. That’s likely to take several days.
Only 35 victims can be accommodated in the main courtroom, as well as 10 media. An annexe courtroom will contain 27 further media and 12 members of the public. There are seven overflow courtrooms.
The hearing is scheduled for four days. AUT’s Gledhill says that’s unusually long, but reflects the sheer number of victims and “the enormity of the offending by the terrorist”. (Even if the hearing hasn’t finished, the court won’t sit on Friday, the most important prayer day for Muslims.)
Live reporting of the hearing is prohibited. Media will be able to publish at the midday and end-of-day adjournments.
Gledhill says the judge has done a decent job of allowing the media to report and protecting the interests of victims. “We want to have a measured and dignified process because there’s a lot of very vulnerable people giving their views to the court on sentencing matters via the victim impact statements.”
University of Otago law professor Andrew Geddis says there’s concern the Christchurch shooter might try to use the hearing as a platform to inspire others to commit similar acts, which adds another level of concern about widely publicising what he says or does. Media reporting restrictions allow the judge to make non-publication orders.
“Clearly what they have in mind is the worst-case scenario where he leaps up in the middle of a victim impact statement and starts abusing the person who’s making the statement, or when he’s making his own plea of mitigation, starts to try to justify his actions in some way. By not allowing for immediate reporting the judge can essentially consider whether to make an order to stop reportage of what has actually been said in court.”
The terrorist also has rights, AUT’s Gledhill says. “Although we don’t think much of him, obviously, there’s a defendant here as well, who is facing possibly the rest of his life in prison and who deserves to have a fair process.”
Friend of the court appointed to ensure fairness
The court has appointed an “amicus curiae” lawyer – “friend of the court” in Latin – and a standby counsel for the defendant, to protect the integrity of the sentencing process.
“If the defendant decides to continue representing himself right throughout the process, standby counsel will basically do nothing,” Gledhill says. “But amicus curiae will always be there to assist the court on points of law that an unrepresented defendant might miss.”
The amicus will make submissions at the conclusion of the victim impact statements, and after the Crown prosecutor.
Gledhill believes the judge wants to ensure the defendant can’t argue the process was unfair. “So the judge, here, sensibly, is bending over backwards to make sure that there is both standby counsel, to take over if the defendant decides, actually, no, it’s better to be represented, but also an amicus to make sure that any arguments that could have been put on behalf of the defendant are put.”
Otago’s Geddis says it’s important the judge considers all relevant legal considerations before imposing a sentence – especially because the terrorist is a prime candidate for an all-of-life sentence.
The terrorist himself can make submissions.
But, Gledhill says, his comments have to be relevant to the issues in front of the court. “And the only issue in front of the court is what are the aggravating circumstances, what’s the mitigation that’s available which will have an impact on sentence.
“The fact, for example, he’s admitted he’s a terrorist means that any issues about the justification in his mind for what he’s done are irrelevant to sentencing.”
It would be perfectly proper for the judge to shut down the defendant if he tries to justify his crimes, Gledhill says. And media reporting restrictions mean there is less incentive for him to try and blurt it out to create publicity.
Finally, the judge will deliver his sentencing decision and impose a sentence.
How important is a guilty plea?
The term of imprisonment will be ground-breaking, Geddis, of University of Otago, says.
If the terrorist gets an all-of-life sentence that’ll be the first time it has been imposed. And if he doesn’t, the judge’s reasons for not doing so will resonate in the law.
“Frankly, you would think if anyone’s going to get it, it would be this guy,” Geddis says.
Gledhill, of AUT, isn’t as sure. The counterpoint of law, he says, is he’s pleaded guilty. “It is a standard principle of New Zealand criminal law that you get the benefit of pleading guilty. Well, the only benefit he can get here is not to have a whole-life sentence.”
(Geddis notes the terrorist didn’t plead guilty at the very first opportunity “so that takes it down a bit”. Whether the terrorist shows genuine remorse is another important factor, he says.)
Both academics agree, however, an appeal is inevitable.
“If he gets all-of-life he’s bound to appeal simply because he’s got nothing to lose,” Geddis says. “And I would imagine the Crown is likely to feel that anything less than all-of-life just won’t be satisfactory. I’d say it’s almost certain this is going to get to the Court of Appeal.”
Gledhill, of AUT, says of an appeal: “I think there should be one because it’s a very important question.”
Some commentators have suggested the terrorist, who is Australian, should be deported back there to serve his lengthy, and costly, sentence on home soil. However, New Zealand has no capacity to send prisoners overseas under existing law, Otago’s Geddis says.
“In order to allow it to happen you probably need specific legislation to permit it as a concept.”
Which brings us back to Mafart and Prieur, the Rainbow Warrior bombers. Under pressure from France, which threatened to block New Zealand butter sales in Europe, David Lange’s government agreed to a United Nations-brokered deal. (The deal included an apology and $13 million compensation.)
The agents were released – pardoned under New Zealand law, Geddis says – into French custory in July 1986 so they could serve three years at a military base on Hao, the largest atoll in French Polynesia.
But the French reneged on the deal and both of the prisoners returned to France early: Mafart for a supposed stomach illness, and Prieur because she was pregnant. Both were decorated and promoted.
Geddis: “That wasn’t a release to serve your sentence overseas, that was a special deal done where, in terms of New Zealand law, they’d been released from their sentence, in order to be allowed to go overseas under this one-off arrangement.
“Given our experience with those bombers, that indicates, perhaps, why we’re a bit reluctant to do it again.”