Justice Simon Moore has imposed a sentence of life imprisonment and a minimum non-parole period of 17 years on the man who murdered British backpacker Grace Millane.
Millane was murdered in the Auckland Central CityLife hotel on either December 1 or 2, 2018, following a four-hour-long Tinder date with the killer. He continues to have his identity protected by a court order.
After his November trial at the Auckland High Court, in which a jury of seven women and five men unanimously determined the man was guilty, Justice Moore began deliberating on the sentence he would hand down to the killer.
So how did the judge come to his decision on Friday?
The key Act
New Zealand's legislation provides strict rules over how an individual may be penalised for a crime. Central to this is the Sentencing Act 2002, which requires anyone convicted of murder to receive life imprisonment unless such a sentence would be manifestly unjust in the eyes of the presiding judge.
However, a non-parole period (NPP) must also be handed down - that being the minimum amount of time an offender must remain behind bars before they can apply for parole. This must be at least 10 years and it is up to the judge to decide how far past that baseline the period may last.
Any sentence imposed must satisfy all or any of the following:
- Holding the offender accountable for the harm done to the victim and the community by the offending
- Denouncing the conduct in which the offender was involved
- Deterring the offender or other persons from committing the same or a similar offence
- Protecting the community from the offender
The law does provide the ability for the judge to not hand down a parole period, meaning the convicted will never leave prison. However, this has never happened in New Zealand's history. Currently, the longest non-parole period ever given in New Zealand is 33 years, which was reduced to 30 years upon appeal. That was for William Bell, who gunned down three people during a 2001 robbery at the RSA in Panmure.
Importantly, Section 104 of the Act requires the judge impose a minimum non-parole period of 17 years if the offence involved one of several factors, such as the killer committing the offence to cover up another crime, the victim being particularly vulnerable, or the offence being committed with a "high level of brutality, cruelty, depravity or callousness."
The latter was regularly brought up in remarks during Friday's hearing.
Along with the Act, the judge also examines the sentences handed down in comparable murder cases.
Both the prosecution team - led by Brian Dickey - and the defence team - led by Ian Brookie - provided submissions to the court on what they believed an appropriate sentence may be. The Crown said the sentence should be at least 17 years in prison, something rejected by the defence. Brookie recommended a 12-year starting point, with a one-year reduction for mitigating factors.
Justice Moore's remarks were split into four parts: A description of the facts, a discussion of the victim impact statements and pre-sentence reports, the man's personal circumstances and, finally, what the law requires.
He quickly made it clear life imprisonment would be imposed and it was the length of the non-parole period up for determination.
His description of the facts of the case was drawn from the evidence presented at trial, including witness statements, pathologists' determinations, and CCTV footage. He said the jury's verdict revealed whether they believed or rejected some aspects of the killer's defence. For example, by announcing the man guilty, they rejected the defence that Millane consented to the man putting his hands around her neck and sustaining significant pressure that led to her death. On other aspects, the judge said it was up to him to come to his own conclusion.
After recounting Millane's journey to New Zealand, how she met the killer on Tinder, and their four-hour-date, details which can be verified through CCTV footage and receipts, Justice Moore began to consider some of the claims the killer made in interviews with police, which would be relied upon by the defence during the trial. For example, the killer insisted Millane initiated rough sex and he had little experience with it. However, Justice Moore said this ran counter to evidence from other women about his sexual activity.
The judge also discussed the killer's post-death conduct. This included the purchase of cleaning products, going on a date with another woman, buying a shovel and dumping Millane's mobile phone at a park.
Victim Impact Statements and personal circumstances
Twenty-six victim impact statements were filed to the court, with three read out live by Victoria Millane, Grace's sister-in-law, Declan Millane, her brother, and her mother Gillian. The trio streamed into the court via audio-visual link from the United Kingdom.
These statements are considered by the judge when determining sentence and allow victims to highlight the emotional, physical, financial and social effect an offence has had. Justice Moore said the statements he read were "harrowing and desperately sad."
He also considered the killer's personal circumstances, laid out in documents like the pre-sentence report.
"Unsurprisingly, the risk you pose to others has been assessed as being very high," Justice Moore said. As a result of this and the severity of the offending, the killer will receive treatment in prison.
Letters from the killer's family largely reflected the pre-sentence report while a cultural report found the killer's "childhood and upbringing [was] affected by various traumatic incidents that impacted on [his] transition to adulthood and [his] ability to make good decisions and right decisions".
Justice Moore decided to treat him as a first offender as he had no criminal convictions and only two minor traffic convictions.
Justice Moore noted what both the Crown and the defence submitted in relation to imposing a sentence under Section 104 of the Sentencing Act, meaning a minimum non-parole period of 17 years.
Prosecutor Dickey said the murder was committed with a "high degree of brutality, cruelty, depravity and callousness", one of the factors under Section 104. He pointed to the death being due to manual strangulation, the vulnerability of Millane, the post-death conduct, and the lies told to police as illustrating this.
But defence lawyer Brookie didn't believe the case engaged Section 104 as he submitted it was not callous, not the result of a sustained attack and wasn't out of the ordinary in comparison to other cases. He also stated there is no evidence Millane suffered before her death and that the post-death conduct fell short of hitting the Section 104 test.
Justice Moore reviewed for the court what witnesses submitted about how Millane died, pathology evidence, and comments from previous partners of the killer. He said he agreed with the Crown that manual strangulation is an intimate and intimidating form of physical violence.
He also heard a submission from Brookie about manual strangulation in other cases and agreed the action of manual strangulation did not automatically mean the "high level of brutality, cruelty, depravity or callousness" factor was relevant.
However, he said it was necessary to analyse the context of the situation.
Justice Moore said while the killer wasn't driven by rage and hadn't murdered Millane to cover up another crime, the victim was particularly vulnerable during sexual intercourse in the man's apartment, one of the Section 104 factors.
"You were in a position of total physical dominance and in my view that meets the definition of particular vulnerability, and even if it does not, it is a material and highly relevant aggravating factor in the assessment of the circumstances of Ms Millane's death."
Justice Moore then moved on to the killer's action after death, which he said could be taken into account when considering whether the killing was committed with a "high degree of brutality, cruelty, depravity and callousness".
He noted how the man accessed pornography while Millane's body was lying in his room. The killer also took "highly sexualised" images of Millane, a violation Justice Moore said was relevant to consider whether Section 104 was applicable, even if it happened after death. The judge said this wasn't a showing of remorse that may point away from callousness.
"It is plainly a serious aggravating factor. It was conduct closely connected in time to Ms Millane's death. It is rightly described as depraved. These were not the actions of a man in panic, far from it. Your actions reveal a complete disregard for your victim," Justice Moore said.
"This conduct is inextricably connected to the manner in which the murder itself was committed. It is conduct which underscores not only the total lack of empathy you have for Ms Millane but the sense of self-entitlement and objectification and sexualisation that is reflected in other parts of the evidence."
The judge said the killer's other actions - like trying to cover up his tracks and contacting other women - were relevant in the broader contextual assessment of callousness. The killer was also given little credit by the judge for showing police where the body was buried, as police would "almost certainly have discovered Ms Millane in short order".
Justice Moore also said the killer's attempts to avoid detection by lying to police supported a finding of a high degree of callousness.
Standing back and viewing each factor while also comparing the offending to other cases, Justice Moore was satisfied the starting point for the NPP was 17 years.
Next, the judge had to consider mitigating factors, notably the killer's personal circumstances, which could lead the NPP to be reduced.
"I accept you had a volatile upbringing and that may well have influenced the person you are today. I also accept you have experienced a degree of cultural isolation. As is suggested those influences may have made you lie to those you wanted to impress by pretending you were a man of affluence and social standing."
But he found no factors justifying any leniency or to reduce the NPP from 17 years. He was satisfied two Section 104 factors were engaged - a "high level of brutality, cruelty, depravity or callousness" and particular vulnerability.
Justice Moore, therefore, sentenced the killer to life imprisonment with a non-parole period of 17 years.
As Brookie mentioned at the start of his submission, the killer maintains his innocence. Following sentencing, Dickey said while his team was pleased with the result, no one was obviously happy with the situation.
What life imprisonment means
Justice Moore said there was "widespread public misunderstanding" about what the sentence of life imprisonment meant. He said someone given such a sentence would spend the rest of their life in prison unless given parole. Many prisoners, Justice Moore said, will never leave prison as the parole board believes they pose an unacceptable risk to the public.
Even if someone is released on parole, the convicted individual must live and work where they are directed to by a probation officer. They also can't leave the country and maybe recalled to prison if they commit another offence or cause concern.