Page:R v Tarrant 2020 NZHC 2192 sentencing remarks.pdf/31

 in which case, if the Court is satisfied the statutory threshold is met, a whole-of-life sentence must be imposed despite the constitutional implications.

[143]I have chosen for the purpose of sentencing you to proceed on the basis that the Court retains its residual discretion. Thus, the penal presumption (by default) and the inferred statutory purpose in the use of “may” both support an interpretation that leaves a residual discretion to the Court. The overarching question therefore remains whether it would be grossly disproportionate to impose a life sentence without parole in the extraordinarily exceptional circumstances of this case where one or more of the requisite purposes of sentencing for murder cannot otherwise be achieved.

[144]In that regard, I note the Court of Appeal has recognised, although it did not decide the point, that a life sentence without parole (and implicitly without meaningful review) might be necessary to satisfy the societal requirements of accountability, denunciation, or deterrence. In making that observation it cited the examples of murders involving terrorism, or extraordinary sadism or cruelty, and the murder of multiple victims. The Court observed that the statutory power provided by the Act “provides an appropriate mechanism to achieve these purposes through open judicial assessment unaffected by a presumption”.