The news that the Christchurch mosque attack gunman has chosen to represent himself at sentencing next month is causing concern for survivors of the shootings.
What can be expected at the sentencing? Public defence lawyer Marie Dyhrberg talked to Checkpoint host Lisa Owen about what might take place.
What are his rights in terms of representing himself?
“He has the right to represent himself. There are some restrictions, say, for in a trial as to questioning for witnesses but generally, anyone can self-represent and certainly a person can self-represent at a sentencing if that is their choice.
“As with any sentencing, the judges will be very much alert to the fact that whatever is going to be said by any of the parties has to be relevant, cannot be outrageous, and has to be within the bounds of what is available in terms of sentencing.
“So certain measures are taken ahead of time. In a normal sentencing, the Crown files written submissions as to what it thinks its view is of an appropriate sentence and a defendant is entitled to file submissions in response.
“Now, in this case, it may well be that the defendant may not want to file written submissions and you cannot force that to happen. A judge will then have to decide ‘well, does that mean he has forfeited his right to make submissions in response?’
“That would be a pretty high call to make for anybody not to be able to respond. The court may instruct someone, (which) we call an amicus curiae (a court-appointed assistant) – someone to act as an intervener, to speak on the defendant’s behalf. But again, I would imagine that the defendant himself would be entitled to speak.
“When somebody is represented at sentencing, they don’t speak because they have council. In his case of course, an intervener is not his council, so I can anticipate he will be allowed to speak, but a judge will be ensuring that whatever is said is within the bounds of what is appropriate for sentencing.”
It’s quite difficult to control, isn’t it?
“You can jump pretty quickly where you can silence someone. And it may be that there’s speakers in the court and the judge may well be able to control the speaker. There may be technology to be considered because the court may well think ‘is this more appropriate to have the sentencing by audio-visual – by remote?’.
“Now, the general feeling is that sentencing is so important to anybody facing the court and access to justice that sentencing, the default position is that you are there in person. But it may be that there are different considerations here and that the sentencing may take place with the defendant remotely and a feed being on the camera.
“That is something the judge may decide. The defendant will be able to argue against that because of course they must have a view and the Crown will have a view as well. But that is one potential way of dealing with keeping somebody under control.”
Have you seen many cases where someone is sentenced on a charge so serious via an audio-visual link?
“I personally haven’t and as I say, it would be rare. Normally, if someone is entitled and wants to appear in person but they are determined that they won’t it is generally for witnesses because they need to be safe… so it is a very big step to deny a defendant access to the public courtroom.”
Where would (the gunman) be during sentencing?
“One would think logistically and for security reasons for any defendant they must of course be with a security guard, whether they pose a real problem or not, that they would set up, I would imagine, the dock where the person would have the desk available, the microphone available, and of course can see and hear the judge and the Crown. Or they may have a separate box set up so he could be in the court… but he will be entitled to see and hear the judge and the Crown at all times.”
Victims can make victim impact statements to the court. Will he get access to that sensitive information?
“Yes he will and he must. But already just in the general body of law there are very, very strict rules around the use of victim impact statements.
“How it works just generally at the moment, say myself as counsel, I receive a victim impact statement from the Crown, I do that on the undertaking that I will not copy it, I will not give it to anyone else, I will not let anyone else look at it or be within hearing unless they are the defendant, perhaps a court-appointed interpreter, perhaps, and that is all.
“I then sit with the defendant, I hand the victim impact statement over, the defendant reads it, I take it back. At the end of the hearing, I hand it back to the Crown and they take it back into their custody. Or, I read the victim impact statement out to the client.
“Sometimes, clients don’t want to listen, they don’t want to hear, but at least they have been given the opportunity.
“Victim impact statements, 100 percent in our current law, are very carefully guarded and monitored so that they do not get into the wrong hands.”
In lieu of a lawyer, presumably he will access those statements himself?
“I doubt that.
“I think there would be an order that a lawyer would be appointed by the court for the purpose of assisting the defendant and that lawyer would be the person who is given that statements and has control of those statements and reads them out or may hand them to him then take them back.
“Keep in mind there will be security officers very close by so that if a defendant refuses to hand a victim impact statement back, then it can obviously be taken from them… he will not get it directly because no defendant will receive it directly, even if you are self-represented. There are ways and procedures in place where they do not have control over a victim impact statement.”
How does the court manage the situation like this whereby an individual like this may get some satisfaction or glee from involving himself in the proceedings along with victims?
“There are always going to be people who want to do that. There are going to be defendants, generally, who want to go all the way, who are going to want people to read statements at court that should be accepted as evidence and you cannot control that because the system says you are entitled to that.
“Unfortunately, if the sentencing is going to be a prolonged one as a result of the victims who wish their statements to be read out in court, then that is the way it will be an I would think that there will be a lot of time set aside to ensure that this sentencing starts and this sentencing finishes.
“There will be a lot of logistics that will need to be considered in terms of who can access the court in terms of the public because the public arena is not huge in any courtroom in New Zealand. All sorts of identification. How are submissions presented, how people are kept under control – and that’s for everybody in the court so the decorum of the court is maintained and… plan a, plan b, plan c, they will all be in place and ready to be put into effect should certain things happen.
“It will be a very well prepared sentencing with all potential circumstances taken into account and what the response will be.”
What are the options for sentencing? Is there an upper cap on the potential sentence that this man could get?
“No. And there is a misconception unfortunately where people read in the paper that ‘oh yes, that somebody has 13 years or 15 years’. When somebody is convicted of murder they get sentenced to life imprisonment and it means just that, you are in prison for life. Where the numbers come into play is that there is then an option having a minimum parole sentence put in place and you cannot apply for parole before that time is up.
“In New Zealand, unless there are extreme circumstances and there is a lesser period of minimum non-parole, anyone convicted of murder, they have a minimum non-parole period of 10 years and they cannot apply for parole until that 10 years is up.
“In other circumstances, that term can be increased. So what you read when you read figures, it is to do with parole only. This person has pleaded guilty to murder, has been convicted of it a number of times but anybody who is convicted of murder gets life imprisonment and it means you can stay there for your life.”
How do you manage those coming to support the victims and perhaps those coming to support the man being sentenced?
“I would anticipate that you would have the courtroom – and it may well be that you have those in the courtroom will be those who are given some sort of priority for either side.
“There will then be other courtrooms I can anticipate that will be set up with audio visual facilities so members of the public or other support people can watch the proceedings, but they are not actually in the courtroom… then whether or not there is something set up outside the courtroom for people to watch, I don’t know.
“Of course, the media will be there and they will be able to record the proceedings themselves.”
Will this be the tightest sentencing that this country has ever seen?
“I would think that it would be one of the tightest.
“Where there might have been previous sentences where there would have been real risks to a defendant, maybe to disorder, then there would have been very tight security put in place. But this is a sentencing that has to go smoothly for everybody, not just the defendant himself and his supporters – if there are any – but for everybody involved.
“So, there will be a lot of steps taken to ensure security, access to justice, that everything is prepared ahead of time and that sufficient time is put aside for any eventuality that might crop up – that can happen with any sentencing – but there will definitely be a great will for this to start and finish and not be derailed for any reason.
“So a lot of planning and we have a lot of very experienced court staff and a lot of very experienced judges and prosecutors as well. They will all have input how to ensure everybody’s rights are respected because (that is) something that must be maintained when there is a very unpopular defendant.”