COURT OF APPEAL OF NEW ZEALAND
TE KŌTI PĪRA O AOTEAROA
10 August 2016
MEDIA RELEASE
R v SHANE PIERRE HARRISON
(CA691/2014)
R v JUSTIN VANCE TURNER
(CA114/2015)
[2016] NZCA 381
PRESS SUMMARY
This summary is provided to assist in the understanding of the Court’s judgment. It does not comprise part of the
reasons for that judgment. The full judgment with reasons is the only authoritative document. The full text of the
judgment and reasons can be found at www.courtsofnz.govt.nz.
The Court of Appeal has today dismissed the Solicitor-General’s appeal against sentence in the case of Shane Harrison
but allowed the appeal against sentence in the case of Justin Turner in part, increasing the minimum period of
imprisonment of his life sentence to 17 years.
These appeals were the first to challenge the application of s 86E of the Sentencing Act 2002, part of the so-called
“three strikes” legislation. Section 86E requires a person convicted of murder after committing a “serious violent
offence” (a “stage-1 offence”) to be sentenced to life imprisonment without parole, unless that would be manifestly
unjust. In the High Court the sentencing judges, Mallon and Woolford JJ respectively, found it would be manifestly
unjust to sentence Mr Harrison and Mr Turner to a whole of life sentence. A Full Court of the Court of Appeal has agreed
with this conclusion.
The crux of the appeals turned on the meaning of “manifestly unjust”. The Solicitor-General contended that manifest
injustice would be established in rare and exceptional circumstances only such that the exception was a very narrow one.
Section 86E created a statutory presumption that there should be a higher level of punishment for repeat violent
offenders, irrespective of their actual culpability. This was the basic rationale behind the three-strikes regime. The
Solicitor-General accepted that the manifestly unjust exception involved a 2
judicial discretion to ensure that the presumption in s 86E did not infringe s 9 of the New Zealand Bill of Rights Act
1990 — the right not to be subjected to disproportionately severe treatment or punishment.
The Court of Appeal considered the likelihood of grossly disproportionate sentences arising from the application of s
86E to be high. A key reason included the breadth of the qualifying catchment, namely a previous conviction for a
“serious violent offence”. The offences within that definition number 40 and are extremely wide-ranging, producing an
infinite range of circumstances of offending.
The consequences of the application of a whole of life sentence also contributed to the potential for gross
disproportionality. Such a sentence provides no opportunity for review. For a sample of actual murder cases from
2009–2010, the length of time spent in prison, on average, was calculated to be upwards of 35 years, significantly
longer than an offender sentenced for murder would usually serve.
Given the high likelihood of a sentence imposed under s 86E being grossly disproportionate, the Court concluded that the
meaning of “manifestly unjust” must be interpreted broadly. Its application requires an intensely factual consideration
of the circumstances of the offending and the offender, including: the sentence that would otherwise be appropriate for
this offending, the consequences of a whole of life sentence, the actual culpability of the offending and the risk posed
by the offender. Ultimately, the judicial approach to the scope of the manifestly unjust exception is intended to avoid
wholly disproportionate sentencing outcomes.
Applying this approach to Mr Harrison’s and Mr Turner’s cases, the Court agreed it would be manifestly unjust to impose
a sentence of life imprisonment without parole in each case. For Mr Harrison, the Court agreed with Mallon J that the
low culpability of Mr Harrison’s stage-1 offence, together with his attempts to rehabilitate, his age and the views of
the victim’s family, would have made a whole of life sentence grossly disproportionate. The Court also noted that Mr
Harrison was only a secondary party to the murder.
In Mr Turner’s case, the Court concluded that although the circumstances of his offending were brutal, his age, guilty
plea and mental health difficulties culminated to make a whole of life sentence grossly disproportionate. However, the
Court agreed with the Solicitor-General that the appropriate minimum period of imprisonment was 17 years rather than 15
years as imposed by Woolford J.
Mr Harrison and Mr Turner also sought a declaration of inconsistency with the Bill of Rights Act, contending both s 9
and s 22 were breached by s 86E of the Sentencing Act. The Court declined such a declaration on the basis that a
rights-consistent interpretation of s 86E was possible. The Court noted, however, that if the manifestly unjust
safeguard did not operate to prevent gross disproportionality, this could be addressed at a later time.