Today’s news that the mosque shooter will represent himself at his sentencing next month has raised fears he plans to use it as a platform for his hateful views. But the judge may have other ideas, write Otago University professors Danica McGovern and Andrew Geddis
In March of this year, the man responsible for last year’s Christchurch mosque shootings pleaded guilty to 51 counts of murder, 40 counts of attempted murder, and engaging in a terrorist act. In short, he formally accepted that he is both a murderer and a terrorist.
On August 24, the sentencing hearing to determine how many years he remains in prison for these crimes begins. It likely will be a terrible event, perhaps lasting for more than three days, as many of those affected by the terrorist’s actions present their statements to the court. For there are far more than 91 direct victims to consider. There are children, parents, brothers, sisters – all with their lives shattered by the evil done on March 15, 2019.
Today’s news that the terrorist has waived his right to legal representation and will instead represent himself at this sentencing hearing inevitably raises fears that this already terrible event will be made worse.
Does he plan to use this event as an opportunity to hurt his victims even further? Or, as a platform to proselytise the hate contained in his puerile “manifesto”? Or, as a way to generate content for those who celebrate his actions through social media and meme culture?
Well, maybe that is his aim. But if so, there are ways that it can be defeated; or, at least, combatted.
We need to start by recognising it is the terrorist’s right to choose to make submissions at his sentencing, just as it is the right of any other offender to do so. People may have lawyers represent them at these sorts of proceedings. If you are smart, you’ll do so – someone who knows the process and can engage with it dispassionately likely will do a far better job than you will. But, if you really would rather do it yourself, then you can.
The only restriction on this right to self-represent is in relation to cross-examination in sexual offending or family violence cases. The Evidence Act prohibits defendants in such proceedings from personally questioning the complainant or a child witness.
However, just because the terrorist can represent himself at his sentencing does not mean that he is allowed to use the occasion however he wants. New Zealand courts are not like the ones you see in US legal shows, where lawyers use appearances as a stage to launch into monologues on anything they want. In fact, US courts aren’t even like that.
Instead, the sentencing process is a relatively restricted affair, limited to establishing how the purposes and principles of sentencing (as well as any aggravating or mitigating factors) ought to apply to the facts of the case at hand. Any submissions made by the terrorist will have to be directed to these specific matters.
General attempts to justify his actions along the lines of protecting his culture or his race, or attempts to blame his victims as somehow deserving of his actions, will not mitigate his culpability – in fact, targetting people because of their religion or race is an aggravating factor at sentencing. Justice Mander (who will be presiding over the sentencing hearing) can, and should, shut him down. If the terrorist persists in trying to make such claims, then his honour can even rule him in contempt, exclude him from the proceedings, and appoint a lawyer to take over sentencing submissions instead.
Furthermore, as the chair of the Criminal Bar Association, Otago’s own Len Anderson QC, points out:“if [the terrorist] says something which indicates other than guilt and remorse he runs the risk of removing some or all of the credit he gets for [his] guilty plea, which would normally be a factor to be taken into account.”
This credit for pleading guilty is perhaps the only thing that might save the terrorist from an “all of life” jail term – a sentence that will see him kept behind bars until he dies. So, seeking to justify his actions before the court carries real risks for the terrorist. He’d literally be gambling with his future.
Furthermore, if a defendant makes a submission to the court and no-one reports it, was it ever really made? This is a question that the media will need to ask of itself when covering what the terrorist has to say to the court. New Zealand’s media already has an agreed set of guidelines in place as to how his trial was to be covered, designed to limit how the terrorist could use it as a venue for spreading hate. I assume that will extend to his sentencing hearing also.
Of course, the terrorist’s decision to represent himself raises another possibility. It’s not entirely clear why he has taken it. Indeed, much of his behaviour in the wake of his crimes has been a bit surprising. The decision to plead guilty rather than go to a full trial, for instance, caught observers somewhat off guard.
And perhaps revealingly, the terrorist’s lawyers report that “there has been no conflict or relationship breakdown” with their client. This apparently rules out his asking them to make submissions at his sentencing that they felt were irrelevant or unethical or otherwise something that they would not do.
As such, there is one possibility it is at least worth considering. The terrorist, having had over a year in virtually solitary confinement to think on his actions, may have come to regret them. He may wish to say so directly to the court and to those he has harmed.
This may be wishful thinking. But while preparing for the worst that he can do at his sentencing hearing, perhaps we can also quietly hope for the best.