Legal Beagle by Graeme Edgeler

Terrorism Offences and Murder Sentencing: An Explainer

I wrote some explainers on this site about New Zealand’s Terrorism Suppression Act following the Urewera Raids. I won't link to them as they are somewhat out of date. While still largely accurate for their descriptions of the offences of membership of a terrorist organisation, new terrorism offences have been added since. These include offences of “terrorist act” and “terrorist bombing”, which I detail below to bring together information from various tweets in one place.

Any charge under the Terrorism Suppression Act requires the consent of the Attorney-General. In reality, this decision will always be made by either the Solicitor-General, or more usually, a Deputy Solicitor-General under devolved authority. The permission is not required before taking steps in the proceeding like arrest or charge, but would have to be obtained before a prosecution proceeded beyond initial stages (this is not always the case with some other offences which need Attorney-General or Solicitor-General consent).

What does the Terrorist Act offence involve?

In New Zealand, it is a crime to engage in a terrorist act. The test of whether something is a terrorist act has three parts:

The act must be intended to cause:
[you need one of these]

a) death or serious injury (other than to the terrorist);
b) serious risk to health or safety;
c) serious interference to an infrastructure facility likely to endanger human life;
d) destruction or serious damage to property of great value or importance, or major economic loss, or major environmental damage if likely to cause a, b, or c;
e) the release of a disease bearing organism if likely to devastate the economy; or

and it must be carried out for the purpose of advancing:
[and you need one of these]

a) an ideological cause;
b) a political cause; or
c) a religious cause.

and it must be intended to:
[and you need one of these]

a) induce terror in a civilian population; or
b) unduly compel or to force a government or an international organisation to do or abstain from doing any act.

The maximum penalty for engaging in a terrorist act is life imprisonment. If the sentence imposed was life imprisonment, and not a shorter sentence, a 10-year non-parole period would apply.

What does the Terrorist Bombing offence involve?

In New Zealand, it is a crime to engage in a terrorist bombing. A person commits the offence of terrorist bombing if they intentionally and without lawful justification or excuse do one of the following with an explosive or other lethal device:

[you need one of these]
a) deliver
b) place,
c) discharge, or
d) detonate

in, into, or against one of these places:
[and you need one of these]

a) a place of public use
b) a State or government facility
c) a public transportation system, or
d) an infrastructure facility.

The action of delivering, placing, discharging or detonate must have been done with intention to cause:
[and you need one of these]

a) death or serious bodily injury; or
b) extensive destruction of the place, that results in (or likely to result in) major economic loss.

Like the terrorist act offence, the maximum penalty a terrorist bombing is life imprisonment. If the sentence imposed was life imprisonment, a 10-year non-parole period would apply.

It is notable that the offence of terrorist bombing can be committed without a bomb being detonated. Mere delivery of an explosive device can be sufficient if the other elements of the offence are present (but the requirement for an ideological cause, etc. do not apply to this offence).

If an explosive device was not actually delivered or placed, a charge of attempted terrorist bombing might be possible. Recalling that mere placement or delivery of an explosive device is sufficient for a charge of terrorist bombing (with a life sentence), if an attempt fell short of that, so that it could not be charged as a terrorist bombing, a maximum penalty of 10 years imprisonment (with a maximum non-parole period of 6 years, 8 months) would be available.

What other charges are possible, where there are terrorist acts?

That an event qualifies as a terrorist act, or a terrorist bombing, or attempted terrorist bombing, does not mean it could not be charged as another offence instead, or in addition to a terrorist charge. For example, murder charges, attempted murder charges, or wounding charges, as well as arms act offences, and many others. Those are more widely understood, so I won’t explain them here. A person can be charged with multiple offences arising out of the same conduct. Charging someone with murder does not prevent a terrorist act charge for the same killing.

What sentences are possible under terrorism laws?

As noted, the maximum penalties for offences under the Terrorism Suppression Act are life sentences. A finite sentence can be imposed, but even if a life sentence was imposed for a terrorism offence, the sentencing judge would not have the option of increasing the non-parole period beyond 10 years, and the default non-parole period would apply.

Preventive detention is not a possible sentence for a charge laid under the Terrorism Suppression Act.

Preventive detention vs life imprisonment

The distinction between preventive detention and a life sentence is not widely understood. The major distinction is at sentencing itself. Once imposed, there is effectively no distinction between the sentence. Both life sentences and sentences of preventive detention can require a person to be detained for their whole life, and both also allow for lifetime recall to prison if the person is ever paroled.

As a general rule, offences which carry a maximum sentence of life imprison do not allow for the possibility of sentence of preventive detention. It would be redundant. Rather, preventive detention provides a process by which a court may effectively impose a life sentence for an offence which ordinarily only provides for a finite (as opposed to indefinite) sentence, in order to protect the community. A life sentence already allows the indefinite detention of a person for the safety of the community. Preventive detention allows for the indefinite detention of people who commit offences with finite maximum penalties.

Under an indefinite sentence (either life imprisonment or preventive detention) parole is not automatic, and few, if any, people serving indefinite sentences get paroled at the first opportunity. Many never get paroled. All people who are subject to an indefinite sentence and who are paroled are subject to parole conditions and to the possibility of recall to prison for the remainder of their lives.

What sentences are possible under other laws like murder?

In New Zealand, murder carries a life sentence. Unlike the life sentences possible in respect of any other offence, including terrorism offences, when imposing sentence following a murder conviction a Court has discretion to impose a higher non-parole period. The default is a 10 years non-parole period, but a non-parole period of at least 17 years must be imposed in a range of circumstances (the full list is available here, but one such circumstance in when the murder was committed as part of a terrorist act). Courts are permitted to impose even higher non-parole periods if appropriate.

In a relatively recent law change, a murder conviction can also result in a sentence of life without parole. Although this was brought in at the same time as the three strikes regime for serious sexual or violent offending, it is available for any murder conviction. The offence does not have to be a second or third strike. In the almost nine years since that law change, no sentence of life without parole has yet been imposed. A sentence of life without parole is only available as a sentence for murder; it is not available for any other charge even a terrorism charge.

Attempted murder and wounding charges carry maximum finite sentences of 14 years imprisonment (with a non-parole period at most of 9 years, 4 months). Charges of attempted murder and wounding do allow for a sentence of preventive detention, which can see a higher non-parole period. Preventive detention cannot be imposed without parole, but as noted above, parole is never automatic for indefinite sentences, and many people serving indefinite sentences are never paroled.

It is not possible to order a finite sentence to be served cumulatively with an indefinite sentence. The non-parole periods of indefinite sentences must run concurrently, however, in setting a non-parole period following a murder conviction (or in deciding to order it to be served without the possibility of parole), a Court will take account of all the offending when deciding the sentence and minimum period of imprisonment of the most serious charge.