FROST v R [2023] NZCA 294

FROST v R [2023] NZCA 294 [12 July 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA718/2021[2023] NZCA 294BETWEEN NATHAN GORDON FROSTAppellantAND THE KINGRespondentHearing: 9 February 2023 (Further submissions received 24 February 2023)Court: Cooper P, Goddard and Clifford JJCounsel: P M Keegan for AppellantM J Lillico for RespondentJudgment: 12 July 2023 at 11.00 amJUDGMENT OF THE COURTA The appeal is allowed.B The order that Mr Frost serve a minimum period of imprisonment of20 years is set aside and substituted with an order that Mr Frost serve aminimum period of imprisonment of 18 years.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Table of contentsPara noIntroduction [1]Background [3]The legislative context [11]The challenged sentencing decision [17]Grounds of appeal [20]Murder sentencing in New Zealand [25]The general approach to MPIs for murder [25]Providing for mitigating features [37]The issue of guilty pleas [42]Analysis [59]Overview [59]The starting point MPI [60]An irrelevant consideration? [70]Should there be a change to the approach to determining guilty pleadiscounts for MPIs in murder sentencings? [72]The discounts here [90]Mr Frost's guilty pleas [91]Mr Frost's personal mitigating circumstances [96]Result [112]Introduction[1] The appellant, Nathan Frost (Mr Frost), pleaded guilty on 15 July 2021 to themurder of his father, Stephen Frost (Mr Frost Snr), and his half-brother,Regan Frost-Lawn, at their home in the early hours of 18 January 2021. Mr Frost wassentenced by Ellis J in the High Court at New Plymouth on 17 September 2021 to lifeimprisonment, with a minimum period of imprisonment (MPI) of 20 years.1[2] Mr Frost now appeals his sentence. He says the MPI imposed was too great;in all the circumstances, his MPI should be the presumptive MPI of 17 years calledfor by s 104 of the Sentencing Act 2002 (the Act).Background[3] From the age of five, following his parents' separation, Mr Frost lived with hismother, Lorena Frost, and his older brother Jayden, until his mother's death in 2016.Mr Frost was by then 16 years old. Mr Frost had a loving relationship with his motherthroughout that time, but little if any contact with his father.[4] After his mother's death Mr Frost and Jayden went to live with his father, hisfather's then partner Michelle Lawn, and their two children Regan and H.1 R v Frost [2021] NZHC 2450.[5] By January 2021, Jayden had moved out and Mr Frost Snr and Ms Lawn hadseparated. Mr Frost was living with his father and his two half siblings, Regan and H.Mr Frost was unemployed and drinking heavily. His relationship with his father andhalf siblings was not good: he reported contemplating killing them and he had obtainedthe weapons he intended to use; a large pipe wrench and a hunting knife.[6] By the early hours of the morning of 18 January 2021, Mr Frost had, by hisaccount, drunk close to a bottle of Jack Daniels. His father, hearing Mr Frost cryingin his bedroom, came to his door and tried to enter. As he did so Mr Frost attacked hisfather with the pipe wrench, striking him multiple times to the head and jaw, andknocking him to the ground unconscious. Mr Frost continued to beat his father withthe pipe wrench whilst he was on the floor. Mr Frost then took the hunting knife andstabbed his father numerous times. Mr Frost Snr died at the scene.[7] During the attack on Mr Frost Snr, Regan heard the attack, and, upon seeingwhat was happening, called out to Mr Frost to stop. He also yelled out to warn H, whowas in a sleep-out outside. After the attack, Mr Frost followed Regan into hisbedroom. Mr Frost stabbed his half-brother numerous times with the hunting knife —puncturing his lungs, causing massive internal bleeding and deep lacerations to hishead and face. He then stabbed him four times in the neck. Regan also died at thescene.[8] After the attack on Regan, Mr Frost uplifted the keys to the sleep-out and wentoutside. However H had heard the attack and Regan's warning; leaving the sleep-outto hide nearby. From this position, she called the police.[9] When the police arrived at the scene shortly thereafter, Mr Frost acknowledgedhe had killed two people. He subsequently declined to make any formal statement tothe police.[10] Mr Frost pleaded guilty to the two charges of murder he faced following thepreparation of psychiatric reports indicating his fitness to plead and the absence of anybasis for a defence of insanity.The legislative context[11] The provisions governing murder sentencing are set out in subpt 4 of the Act.[12] Pursuant to s 102(1) of the Act, a person convicted of murder must besentenced to life imprisonment unless to do so would be manifestly unjust. It was notsuggested in Mr Frost's case that the application of the mandatory sentence of lifeimprisonment would be unjust.[13] Pursuant to s 103(1) of the Act, where a court sentences an offender convictedof murder to life imprisonment it must either order that the offender serve a minimumperiod of imprisonment, set to achieve the purposes enumerated in s 103(2) or —where the court is satisfied that no minimum term of imprisonment would be sufficientto satisfy those purposes — order that the offender serve the sentence without parole.2It was not suggested a fixed MPI was insufficient in Mr Frost's case.[14] The question therefore was the length of the MPI required. Section 103(2)provides that the MPI must be the minimum term of imprisonment that the courtconsiders necessary to satisfy all or any of the following purposes:3(a) holding the offender accountable for the harm done to the victim andthe community by the offending:(b) denouncing the conduct in which the offender was involved:(c) deterring the offender or other persons from committing the same ora similar offence:(d) protecting the community from the offender.[15] In determining the MPI, s 104 of the Act requires the court to impose an MPIof at least 17 years in a range of circumstances unless, again, to do so would bemanifestly unjust. Those circumstances are:(a) if the murder was committed in an attempt to avoid thedetection, prosecution, or conviction of any person for any2 Sentencing Act 2002, s 103(2A). See for example, R v Tarrant [2020] NZHC 2192,[2020] 3 NZLR 15.3 Those purposes are a subset of the purposes found in s 7(1) of the Sentencing Act — namely in(a), (e), (f) and (g).offence or in any other way to attempt to subvert the courseof justice; or(b) if the murder involved calculated or lengthy planning,including making an arrangement under which money oranything of value passes (or is intended to pass) from oneperson to another; or(c) if the murder involved the unlawful entry into, or unlawfulpresence in, a dwelling place; or(d) if the murder was committed in the course of another seriousoffence; or(e) if the murder was committed with a high level of brutality,cruelty, depravity, or callousness; or(ea) if the murder was committed as part of a terrorist act (asdefined in section 5(1) of the Terrorism Suppression Act2002); or(f) if the deceased was a constable or a prison officer acting inthe course of his or her duty; or(g) if the deceased was particularly vulnerable because of his orher age, health, or because of any other factor; or(h) if the offender has been convicted of 2 or more counts ofmurder, whether or not arising from the same circumstances;or(i) in any other exceptional circumstances.[16] It was accepted at Mr Frost's sentencing that s 104 was engaged.4 The MPIfor Mr Frost was accordingly determined in this context.The challenged sentencing decision[17] At sentencing, for Mr Frost, Mr Keegan recognised the s 104(e) factor of ahigh level of brutality was involved in Mr Frost's offending. Mr Keegan accepted astarting point MPI of 21 years would be warranted. But he submitted that withdiscounts for guilty pleas and personal features, that MPI should be reduced to15 years. Finally, and given in particular Mr Frost's age (21 years at the date of theoffending), imposing the 17-year minimum MPI called for by s 104 would bemanifestly unjust. Hence, Mr Keegan submitted, Mr Frost's MPI should be 15 years.4 Specifically s 104(b), (e) and (h) of the Sentencing Act.[18] The Crown's position was that an MPI starting point in the region of 23 to24 years was called for, with discounts for guilty pleas and for personal factors ofbetween two and three years. That would result in an MPI of 20 to 21 years. In theCrown's submission, no issue of manifest injustice arose.[19] The Judge reached her decision to impose an MPI of 20 years in the followingway:(a) She first observed that the average MPI starting point in instances ofdouble murders seemed to be around 22 years.5(b) She then identified two particularly aggravating factors of thesemurders.6 First, the planning and premeditation involved — evidencednot only by Mr Frost having obtained the wrench and the hunting knifesome time before committing the murders but also, by his own accountto a psychiatrist, having contemplated those actions for quite sometime.7 Whilst, the Judge said, the actual murders were in the endimpulsive, without that planning and that preparation in all likelihoodthey would not have happened.8 Second, the murders wereundoubtedly brutal and, in the case of Regan — who had the misfortuneof having seen and having tried to stop Mr Frost murdering his father— particularly callous and cruel.9 On that basis, the Judge arrived atan MPI starting point of 23 years.10(c) The Judge then recognised the personal mitigating factors of Mr Frost'sage, absence of previous convictions and guilty pleas at an early stage— albeit in the face of an overwhelming Crown case.11 The Judgeconsidered Mr Frost's "mental health issues" as identified in thepsychiatric reports before the Court, but noted that "[a]ny recognition"5 R v Frost, above n 1, at [26].6 At [27]–[30].7 At [28]; applying s 104(1)(b).8 At [28].9 At [29].10 At [30].11 At [32].of such issues were difficult because there was no "real diagnosis".12As will be outlined later, reports prepared on Mr Frost were unable toidentify any discernible psychiatric disorder. Instead, the Judgeconsidered that it was "really the interplay between alcohol and[Mr Frost's] mental distress that was the real and immediate cause" ofthe offending.13 Taking all those matters into account the Judgeconcluded that a global discount of three years was all that could beallowed.14(d) Finally, the Judge was satisfied that the resulting MPI of 20 years wasnot one that, in terms of s 104, could be described as manifestlyunjust.15Grounds of appeal[20] Mr Keegan advanced Mr Frost's appeal on three grounds. He said:(a) the MPI starting point of 23 years was too high;(b) the Judge had been wrong to refer to and place weight on the Crown'ssubmissions that, but for H's actions in hiding from Mr Frost, Mr Frostwould have murdered her as well; and(c) the global discount of three years for Mr Frost's guilty plea and hispersonal mitigating factors was insufficient.[21] That third submission was based in particular on the proposition that we shouldreview the current approach, as taken by the Judge, to guilty pleas in murder cases.The methodology proposed, which will be returned to later, would provide a greaterdiscount in response to Mr Frost's guilty plea.12 At [32].13 At [32].14 At [33].15 At [34].[22] By the time we heard this appeal the decision of this Court in Dickey v R,addressing the significance of youth in murder sentencing, had been released to theparties, but not publicly.16 The Court arranged for that decision to be circulated tocounsel on 7 February 2023, just before our hearing on 9 February. Defence counselinitially sought an adjournment. We were able to proceed with the appeal asscheduled, with the agreement of all counsel, on the basis that oral submissions wereto be made at the hearing and written submissions were to be filed subsequently inrelation to the discount given for youth.[23] In the hearing, Mr Keegan, for Mr Frost, conceded that the application of themandatory 17-year MPI would not, in Mr Frost's case, be unjust. But he submittedthat the MPI imposed should be 17 years, not the 20 years imposed by the High Court.In his further submissions regarding youth sentencing, Mr Keegan argued theapproach taken in Dickey provided further support for the proposition that a greaterdiscount for personal factors should have been allowed in Mr Frost's case. Dickey,accordingly supported his proposed MPI of 17 years.[24] We address the submissions of the parties, including those made in writingafter the hearing, in the analysis which follows.Murder sentencing in New ZealandThe general approach to MPIs for murder[25] Until 1993 MPIs for murder were set by the Criminal Justice Acts of 1954 and1985.17 The statutory MPI for murder varied over time. By 1987 that period was10 years.1816 Dickey v R [2023] NZCA 2, [2023] NZLR 405.17 Capital punishment was the primary sentence for murder until the enactment of s 172 of theCrimes Act 1961 and the repeal by s 2 of the Crimes Act 1961 of the Crimes Act 1908, exceptduring the period between 1941 and 1950 when capital punishment was abolished by s 2 of theCrimes Amendment Act 1941, and later reintroduced by s 2 of the Capital Punishment Act 1950.18 The non-parole period for offenders sentenced to life imprisonment for murder varied betweenfive to 10 years over this period. Under s 33(2)(c) of the Criminal Justice Act 1954, parole wasavailable after five years for an offender serving a life sentence. This was amended by s 26(1) ofthe Criminal Justice Amendment Act 1962 to 10 years and again by s 15(2) of the Criminal JusticeAmendment Act 1975 to seven years. The seven-year non-parole period was retained in s 93(1)(b)of the Criminal Justice Act 1985. Section 9 of the Criminal Justice Amendment Act 1987 finallyfixed the non-parole period to 10 years for offenders serving a sentence of life imprisonment.[26] In 1993 control over MPIs was given to the courts.19 The court could order anMPI of more than 10 years where it was "satisfied that the circumstances of the offence[were] so exceptional that a minimum period of imprisonment of more than 10 years"was justified.20[27] That threshold was lowered in 1999 and became whether the circumstances ofthe offence were "sufficiently serious to justify a minimum period of imprisonment ofmore than 10 years".21 This standard was initially retained following the introductionof the Sentencing Act in 2002. Section 103 originally provided that the court couldincrease an MPI beyond the 10-year minimum if the circumstances of the offence were"sufficiently serious to justify doing so".22 This was amended in 2004 to reflect thecurrent statutory wording — an MPI must be the minimum "necessary" to satisfy theidentified statutory factors.23[28] The general approach to the applicability of ss 103 and 104 was first explainedby this Court in R v Howse,24 a case concerning only s 103, and in R v Williams,25involving s 104. It has since been clarified a number of times including inRobertson v R,26 and recently in Davis v R.27[29] Howse held the focus of the s 103 inquiry was how much more than theminimum 10 years was required.28 It required the court to compare the culpability ofthe offending in the case before it with what it described as the standard cases ofmurder that would attract the statutory norm of an MPI of 10 years.29 It was alsonecessary to retain reasonable relativity between cases.30 The proper approach was to19 Criminal Justice Amendment Act 1993, s 39(1), amending s 80 of the Criminal Justice Act 1985.20 Criminal Justice Act 1985, s 80(2).21 Criminal Justice Amendment Act (No 2) 1999, s 2, amending the Criminal Justice Act 1985,s 80(2).22 Sentencing Act, s 103(3).23 Sentencing Amendment Act 2004, s 12, amending the Sentencing Act 2002, s 103.24 R v Howse [2003] 3 NZLR 767 (CA). As noted at [57] of the judgment, the Sentencing Act wasnot in force at the time of Mr Howse's offending. Pursuant to the transitional provisions in s 154,Mr Howse was sentenced under the Sentencing Act. However, s 154(3) provided that s 104 didnot apply in Mr Howe's case.25 R v Williams [2005] 2 NZLR 506 (CA).26 Robertson v R [2016] NZCA 99.27 Davis v R [2019] NZCA 40, [2019] 3 NZLR 43.28 R v Howse, above n 24, at [61].29 At [61].30 At [63].apply the primary comparison between the instant offence and the minimum 10 yearperiod as the first step, and then to use relevant individual comparators as a check.31[30] The Howse methodology continued to be applied despite the subsequentamendment of s 103.32[31] In Williams this Court suggested a modified two-stage approach, based onHowse, should be followed where s 104 applied.33 First, the court would, applying theHowse approach, consider "the degree of culpability of the instant case in relation tothat involved in the standard range of murders" and how much more than the MPI of10 years is needed to meet the relevant statutory purposes.34 Where that first stepindicated an MPI of 17 years or more, that would be the MPI imposed.35 But wherethe first step pointed to a lesser MPI, the second step would be to consider whether itwould be unjust to apply the 17-year minimum required by s 104.36 If not, then theMPI would be 17 years.37[32] As may be apparent, and as this Court later clarified in Davis, that first step infact itself requires the finding that s 104 does apply and then the application of thecomparator methodology.38 Given that s 104 has been found to apply, to then comparethe instant case to the standard cases of murders could be regarded as somewhatanomalous.[33] However, that approach would appear to have been a pragmatic response to thereality that, as Parliament intended, the role of s 104 was to increase MPIs for certainserious murders.39 Thus, initially at least, murders of a similarly serious nature would,because such cases were not governed by s 104, be likely to have attracted MPIs lessthan the new, 17-year minimum. As such, the comparator method, requiring acomparison between the instant offending and the standard range of murders so as to31 At [64].32 See for example R v Williams, above n 25, at [32]; and Brown v R [2011] NZCA 95 at [7(a)].33 R v Williams, above n 25, at [52]–[54].34 At [49] and [52].35 At [54].36 At [54].37 See R v Gottermeyer [2014] NZCA 205 at [75].38 Davis v R, above n 27, at [24]–[25].39 See R v Gottermeyer, above n 37, at [75]. See also Sentencing and Parole Reform Bill 2001(148–2) (select committee report) at 8.assess how much more than the 10 year minimum MPI was needed, was intended toreflect the legislative policy that the culpability of the most serious murders attractedgreater non-parole periods.40 Reflecting that, the Court in Williams went on torecognise that over time, comparisons based not on the standard range of murders buton the subset of murder cases where s 104 was applicable, would assist in theapplication of the comparator methodology.41 Moreover, and as later emphasised inDavis, the Court in Williams did not insist that the suggested two-step approach was arigid formula to be blindly adhered to.42[34] More recently in Davis, the Court suggested a three-step approach to theassessment of a determinate MPI where s 104 is engaged. The sentencing judge mustdecide:43(a) First, what notional MPI is called for under s 103(2)?(b) Second, does a s 104 category apply?(c) Third, if s 104 applies, but the notional MPI called for by the s 103methodology is less than 17 years, would the imposition of a 17-yearMPI be manifestly unjust?[35] But the first two steps need not be followed in that order. Rather:44The sequence chosen may depend on the category and the circumstances.Some s 104 categories apply unambiguously — double murder, for example— while others, of which s 104(1)(e) [(high level of brutality)] is the leadingexample, require judgments of quality and degree.[36] Nor would it always be necessary to apply that three-step methodology.Section 104 was no longer new and, as Williams had anticipated, there was now asubstantial body of s 104 cases which judges may rely on.45 That is, application of the40 R v Williams, above n 25, at [49].41 At [50]–[51] and [53].42 Davis v R, above n 27, at [27].43 At [25].44 At [25]. See also R v Williams, above n 25, at [51] in which the Court recognised that "the relativeculpability of the s 104 factors vary hugely".45 At [27].comparator methodology could answer both the question of whether s 104 applied andthat of the appropriate MPI. That approach, as the Court made clear in Davis, wasunobjectionable, so long as the judge addressed the relevant sentencing purposes andprinciples at the sentence and the reference comparator case or cases were consistentwith Howse and Williams.46Providing for mitigating features[37] The issue of principle raised by this appeal involves the question as to how andto what extent credit is to be given for guilty pleas and other personal mitigating factorswhen determining an MPI to which s 104 applies.[38] The setting of MPIs under both ss 103 and 104 raise those questions in aparticular context. Where, in the ordinary course, a court sets an MPI under s 86 ofthe Act, a finite sentence will already have been determined: all the ss 7, 8 and 9purposes, principles and factors will have been considered. That is not the case underss 103 and 104, as the presumptively mandated — indeterminate — sentence is lifeimprisonment.[39] As regards the position under s 103, since Howse there has been a generalrecognition of the significance of other sentencing factors to the s 103 assessment.47Adams on Criminal Law summarises:48Although the primary focus in fixing the minimum term is on thecircumstances of the offence and not the offender (see R v Brown [2002] 3NZLR 670; (2002) 19 CRNZ 534 (CA)), the principles in s 8 and theaggravating and mitigating factors in s 9 should be taken into account to theextent that they are relevant to the purposes in subs (2): R v Walsh (2005) 21CRNZ 946 (CA).46 At [27].47 See for example R v Williams, above n 25, at [65].48 See Simon France (ed) Adams on Criminal Law — Sentencing (online ed, Thomson Reuters) at[SA103.03].[40] These questions were considered at some length by this Court in Williams inthe context of s 104.49 The following principles were identified:(a) Section 104 reflects a statutory presumption that there should be ahigher level of punishment through the mechanism of a longer MPI ifspecified aggravating circumstances are present in a particularmurder.50(b) The legislation retained a limited judicial discretion to depart from thestatutory minimum term, that discretion being applicable only in caseswhich meet the criterion of manifest injustice.51(c) Defining the scope of the combined discretion raised a tension betweencompeting principles. Ultimately the court must do its best to make thelegislation work.52(d) The basic principles underlying successive sentencing regimes, largelycodified in ss 7, 8 and 9 of the Act, remained applicable:[65] That reflects the important principle that thepunishment should fit the crime, which is fundamental to theadministration of justice. There is no indication thatParliament intended a more radical restriction on thesentencing discretion of Judges that excluded consideration ofthose important principles.(e) The minimum 17-year period was not to be departed from lightly.53The presence of mitigating factors relating to personal circumstanceswould rarely misplace the presumption:[67] [A] minimum term of 17 years will be manifestlyunjust where the Judge decides as a matter of overallimpression that the case falls outside the scope of thelegislative policy that murders with specified featuresare sufficiently serious to justify at least that term.That conclusion can be reached only if the circumstances of49 R v Williams, above n 25.50 At [58].51 At [62].52 At [64].53 At [66].the offence and the offender are such that the case does notfall within the band of culpability of a qualifying murder.In that sense they will be exceptional but such cases need notbe rare. As well, the conclusion may be reached only on thebasis of clearly demonstrable factors that withstand objectivescrutiny. Judges must guard against allowing discounts basedon favourable subjective views of the case. The sentencingdiscretion of Judges is limited in that respect.[68] Beyond that, what level of disparity amounts tomanifest injustice remains a matter of sound sentencingjudgment that is not capable of precise determination. [41] More generally, it has been recognised by this Court that the policy behind thelegislative provisions for murder mean the discounts for personal mitigating factorshave played "a lesser role" in murder sentencing.54 This is because s 103(2) signalsParliament's intention that the seriousness of the offending is to be a sentencing court'sfocus when setting an MPI for murder.55The issue of guilty pleas[42] The Court in Williams was also called upon to determine whether a guilty pleacould properly be treated as significant in making a 17-year minimum term manifestlyunjust.56 Consistently with its general approach, the Court confirmed the relevance ofa guilty plea to the s 104 assessment, and noted there could be qualifyingcircumstances in which a guilty plea could give rise to a manifest injustice under thatprovision.57 But the Court went on:[73] The discount required for a guilty plea may, however, often be lessthan in an ordinary case where the statute establishes no presumption that thesentence will be at a particular level. The reason is that departures from the17-year minimum are only to occur in cases of clear injustice. While the Actrequires that a plea of guilty be taken into account, as a mitigating factor, s 104requires something more than the fact that a particular discount would havebeen given but for the section to establish a clear injustice. It follows that if aminimum term of 17 years would include a real element of discount for aguilty plea, it would normally be appropriate to impose that term.54 Webber v R [2021] NZCA 133 at [33]. See also Hohua v R [2019] NZCA 533 at [44].55 Webber v R, above n 54, at [33].56 R v Williams, above n 25, at [69]–[74].57 At [72].[43] Following Williams, a settled pattern emerged in which discounts for guiltypleas in the range of one to two years were provided.58[44] The role of a guilty plea in sentencing generally was considered by this Courtin R v Hessell (Hessell (CA)).59 Despite the established principle, as recognised ins 9(2)(b) of the Act, that guilty pleas ought to be recognised at sentencing, there wasno appellate guidance as to the extent of the discount to be provided.60In Hessell (CA), this Court issued a guideline judgment establishing a sliding scale offixed discounts for finite sentences: 33 per cent, 20 per cent and 10 per cent, dependingon when the plea was entered.[45] That approach was overturned by the Supreme Court in Hessell v R(Hessell (SC)).61 The Supreme Court preferred a less structured approach to thedetermination of a guilty plea discount, in which the sentencing judge had a discretionto take into account all relevant circumstances, including the strength of theprosecution case, as well as the timing of the plea.62 The Supreme Court alsoconsidered the maximum allowable discount should be 25 per cent, and not the33 per cent contemplated by the Court of Appeal.63 The Supreme Court described thepolicy rationale for an allowance for guilty pleas: providing an incentive to pleadguilty where appropriate, the efficient administration of justice, and benefits to thosewho would otherwise have to participate in the, often challenging, trial process.64[46] But, in a part of its discussion not commented on by the Supreme Court, thisCourt had addressed the specific question of discounts for guilty pleas in murdersentencing.65 The Court of Appeal judgment noted what it termed the "specialdifficulties" in dealing with guilty pleas in murder cases, including as regards theinterpretation of s 104.66 It was clearly desirable to recognise a guilty plea when58 R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298 [Hessell (CA)] at [70]; and R v McSweeney[2007] NZCA 147 at [10].59 Hessell (CA), above n 58.60 France, Adams on Criminal Law — Sentencing, above n 48, at [SA9.18]; and see the discussionin Hessell (CA), above n 58, at [1]–[6].61 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 [Hessell (SC)].62 At [74].63 At [75].64 At [45]–[46].65 Hessell (CA), above n 58, at [63]–[73].66 At [63].setting an MPI, as recognised in Williams.67 But how that was to be done would verymuch depend on the facts of the particular case.[47] That said, the Court accepted:(a) A guilty plea could not, in itself, reduce the 10-year minimum MPIunder s 102.68 This was "almost inconceivable", although "potentiallya guilty plea, when combined with other factors, could render lifeimprisonment manifestly unjust."69 The Court noted, however, that"[t]his guideline does not purport to speak to that unusualcircumstance."70(b) Nor could the standard guideline be applied in an unmodified form inmurder cases.71 It would severely undermine the s 104 policy if anoffender could reduce the 17-year MPI to 11 years simply by pleadingguilty.(c) But, the Court said, it was arguable some of the discounts that had beengiven — which, as noted, tended to be in the range of one to two years— had been too light.72[48] The Court then canvassed a number of approaches to guilty pleas for murders.It discussed a proposal by counsel assisting, Mr Boldt, for a modified form ofguidance. This is the modified discount methodology (MDM) contended for byMr Keegan in this case.[49] The Court explained:[71] Mr Boldt did suggest another option: a modified form of the guideline.He suggested that the first 10 years of the MPI should be treated as a statutoryminimum which must remain unaffected by any other factor, including thedefendant's plea. The guideline could then be applied to the "discretionary"67 At [68].68 At [69].69 At [63].70 At [63].71 At [70].72 At [70].component of the MPI – that is, anything above 10 years – in the usual way.Under this formula, a 13-year MPI would be reduced to 12 years if thedefendant pleaded guilty at the first reasonable opportunity. A standard17 year MPI would fall by two years and four months – to 14 years eightmonths – if the offender chose to plead guilty at the first reasonableopportunity. It would be "manifestly unjust", in s 104 terms, were such anoffender not to be given credit for his or her early guilty plea. This is certainlyworth consideration.[50] The Court did not however go further. It decided the matter should be left tothe Court's discretion, accepting a recommendation to that effect made by theLaw Commission:73It is desirable to recognise a guilty plea when setting a minimum period ofimprisonment in conjunction with a life sentence for murder or withpreventive detention. Where murder is concerned, for example, a policy ofnot recognising a plea provides little incentive for offenders to plead guiltyand may therefore result in delays in disposing of murder cases and an increasein trauma, stress, and inconvenience for the families of murder victims. While[the] guideline may help to determine the appropriate reduction as applied toa minimum period of imprisonment, the amount of reduction is at the judge'sdiscretion.[51] The Court regretted it would not be more definitive, noted again the difficultiesinvolved, and concluded "this part of the guideline should be regarded as unfinishedbusiness".74[52] Since Hessell (CA), judges have been tasked with setting discounts for guiltypleas in murder sentencings in the exercise of their discretion. Despite this Court'scomments in Hessell (CA), the typical discount provided for a guilty plea of one totwo years has not materially increased.75 This is perhaps due to the Supreme Court'sconsideration that, on policy grounds, the 33 per cent cap on guilty plea discounts forfinite sentences, proposed by this Court, was too high.7673 At [67]. Hessell (CA), above n 58, was quoting from draft sentencing guidelines prepared bythe Law Commission's Sentencing Establishment Unit in anticipation of the establishment ofthe Sentencing Council which was provided for, but ultimately not established, under theSentencing Council Act 2007. The draft guidelines quoted were ultimately not published. See [5]and [7]–[8] of Hessell (CA) and Hessell (SC), above n 61, at [59], n 53.74 At [73].75 This conclusion aligns with the tables prepared by Mr Lillico which showed that a large majorityof cases, including those after Hessell (CA), above n 58, have provided discounts in this range.See also Malik v R [2015] NZCA 597 at [22] referring, without comment, to the assessment inR v Malik [2015] NZHC 466.76 Hessell (SC), above n 61, at [48]–[49] and [75].[53] Furthermore, since Hessell (CA), this Court in Malik v R rejected a proposalthat the full Hessell (SC) 25 per cent discount be applied to the total MPI in murdersentencing.77[54] The MDM approach, as discussed in Hessell (CA), has been applied in ahandful of cases since that judgment.78 It appears in many of these cases, where adiscount was applied to the discretionary period, the application of the MDM wasproposed, or accepted, by the Crown.[55] In R v Boyes-Warren, the offender pleaded guilty shortly before trial to themurder of a taxi driver.79 In the High Court, French J adopted a starting point MPI of17 years.80 After finding that 17 years was manifestly unjust on the basis of theappellant's age and a guilty plea, a discount of about 20 per cent of the discretionarycomponent of the MPI was adopted.81 Accordingly, an MPI of 15 and a half years wasthe end sentence.82[56] Mr Boyes-Warren appealed.83 He criticised the approach taken — arguing thata greater discount should have been provided. In particular, that discount should havebeen against the full term, and not the discretionary component of the MPI above10 years. This Court noted that, against the background of this Court's decision inHessell (CA), the Judge could not be criticised for the approach taken.84 The realquestion was, "whether, however it was reached, the ultimate sentence was manifestlyexcessive."8577 Malik v R, above n 75, at [35]–[37].78 See for example R v Ogle HC Wellington CRI-2009-091-2763, 16 October 2009; R v SomervilleHC Christchurch CRI-2009-009-14005, 29 January 2010; R v Terewa HC RotoruaCRI-2009-087-2744, 19 February 2010; and R v Flewellen HC Christchurch CRI-2008-042-2328,29 April 2010.79 R v Boyes-Warren HC Christchurch CRI-2008-009-19959, 10 March 2010.80 At [52].81 At [54].82 At [55].83 Boyes-Warren v R [2010] NZCA 395.84 At [19].85 At [19].[57] There has, however, not been a case before this Court since Hessell (CA) inwhich the MDM has been proposed and considered. We return to consider the MDMbelow.[58] Mr Frost's appeal must be considered in light of the development of the law inthis domain described above. It must also be considered in light of s 250 of theCriminal Procedure Act 2011. That is, we must allow the appeal if satisfied that therewas an error in the sentence imposed on conviction and that a different sentence shouldbe imposed, and not otherwise.AnalysisOverview[59] We address the issues raised in the following order:(a) Was the MPI starting point of 23 years set by the Judge in error forbeing too high?(b) Was the Judge's reference to the possibility that Mr Frost was fortunatenot to also be facing the charge of murdering H an error, being areference to an irrelevant consideration, calling for an adjustment to theMPI?(c) Should the approach in murder sentencing to discounts from MPIstarting points for guilty pleas be revised?(d) In any event, did the High Court err by failing to give sufficient creditto Mr Frost for the mitigating considerations of his guilty pleas and hispersonal factors?The starting point MPI[60] In characterising the Judge's 23-year MPI starting point as too high,Mr Keegan noted the Judge had not identified a particular comparator and, for his part,relied on Malik v R86 and R v Maheno,87 both double murders in the family context.[61] We first observe that the concept of an MPI "starting point" does not feature inthe methodologies described in Howse,88 Williams,89 Davis,90 or Hessell (CA).91Its use is, however, a very common feature of murder sentencing. That can be seen asa result of the recognition of:(a) the relevance of the factors found in ss 7 to 9 of the Sentencing Act forthe assessments to be made under ss 103 and 104;(b) the role of the increased level of MPIs required by ss 103 and 104 asrepresenting an increase in punishment relative to that called for by the"standard" murder, much as the length of determinate sentencesincreases with the seriousness of the circumstances of the offence andoffender, and hence with the culpability of the offender; and(c) the general sentencing methodology now applicable in New Zealandof:(i) determining the sentencing starting point;(ii) assessing the aggravating and mitigating factors; and(iii) tailoring the sentence to the individual case.9286 Malik v R, above n 75.87 R v Maheno [2013] NZHC 2430.88 R v Howse, above n 24.89 R v Williams, above n 25.90 Davis v R, above n 27.91 Hessell (CA), above n 58.92 France Adams on Criminal Law — Sentencing, above n 48, at [SAB2]–[SAB4].[62] The approach adopted by Ellis J is entirely consistent with that overallapproach.[63] There was criticism by Mr Keegan of a failure by the Judge to identify one ormore specific comparator cases, reflecting that element of the methodologies alreadydescribed. At the same time, we note, as is always the case, the issue is not the use ofa given methodology, or a particular step in a methodology, but whether there is, interms of s 250 of the Criminal Procedure Act, an error in the sentence imposed.93[64] However, the Judge did, in fact, identify comparative cases. She said:94[26] The fact that you murdered two people is sufficient to engage thestatutory presumption that there will be an MPI of 17 years or more.95 And asMr Keegan referred to me in his written submissions there was a sentencingover 10 years ago where the Judge observed that for double murders arisingout of the same sequence of events, the MPI starting points ranged from18 and a half years to 25 years.96 Counsel have also referred me to severalsentencings for double murder since then.97 Overall, the average MPI startingpoint in such cases seems to be around 22 years.[65] In Malik, a father murdered his wife and 18 year old daughter.98 The murderoccurred because the father could not accept his wife's decision to leave him. He tooka large kitchen knife and went to his wife's room in the early hours of the morningwhere he stabbed her 31 times. He then went to his daughter's room, who realisedwhat was happening and tried to flee. He overcame her and stabbed her 25 times.On appeal this Court found the 21-year starting point MPI fixed by the sentencingJudge was unexceptional, commenting "[i]ndeed, it could have been higher."99[66] Maheno involved the murder of the offender's uncle, who the offenderregarded as a brother, and the uncle's wife.100 The three had lived together with theoffender's grandmother. Their relationship had broken down following the death of93 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].94 R v Frost, above n 1.95 Sentencing Act, s 104(l)(h).96 R v Somerville, above n 78.97 R v Maheno, above n 87: 21 years; Dawood v R [2013] NZCA 381: 19 years (second victimstabbed but did not die); R v Tarapata [2015] NZHC 1594: 20 years; and Malik v R, above n 86:21 years.98 Malik v R, above n 86.99 At [39].100 R v Maheno, above n 87.the grandmother. After an argument, the offender shot the uncle as he pleaded for hislife. The first shot did not kill the uncle. There was then a fight between the offenderand the uncle's partner which resulted in the offender shooting the partner as she triedto escape. She fell to the ground and was shot again. The offender returned to thehouse and shot the uncle again, killing him. The Judge identified an MPI starting pointof 21 years also.101[67] In R v Ogle, another brutal and callous double murder in a domestic context,an MPI starting point of 23 years was adopted by the High Court.102[68] Here, as the Judge recognised, not only was this a double murder, but bothmurders were brutal and involved great cruelty and callousness. Mr Frost Snr hadgone to his son's bedroom, hearing him in distress. The attack was vicious andunexpected. It involved repeated blows. The attack on Regan was just as serious.Moreover, Regan quite clearly knew what was happening: he was able to warn hissister but could not himself escape Mr Frost's violence. Both Mr Frost Snr and Reganwere vulnerable given the place and the time of their deaths — at home in the middleof the night. Regan was particularly so, being Mr Frost's younger half-brother. Therewas also a material degree of premeditation, in our view accurately assessed by theJudge.[69] In these circumstances we are not persuaded the Judge erred in setting the MPIstarting point at 23 years.An irrelevant consideration?[70] For Mr Frost, the submission is that the Judge improperly took account of whatshe described as Mr Frost's good fortune in that he was not also facing sentencing forthe murder of his half-sister, H. That was an irrelevant consideration. Absent a chargeof attempt, Mr Frost could not be punished for what he may have intended to do, butnever did. The Judge had therefore been wrong to take account of that consideration,resulting in a material error in the sentence she imposed.101 At [29].102 R v Ogle, above n 78, at [61].[71] We do not see the Judge's observation as reflecting any such error. Rather, weregard the challenged remark as a comment made in passing, and one which reflectedthe realities of the situation. As noted, the statement of facts to which Mr Frost pleadedguilty recorded that after he had killed Regan he uplifted the set of keys to the sleepoutwhere H was staying that evening. He went outside and went to the sleepout. H had,however, left the sleepout and hidden nearby. H was lucky to survive, and so wasMr Frost not to have been responsible for her death. But there is no indication thosematters contributed directly, or as aggravating factors, to the Judge's assessment ofMr Frost's culpability.Should there be a change to the approach to determining guilty plea discounts forMPIs in murder sentencings?[72] As noted, Mr Keegan, for Mr Frost, proposed this Court adopt the "modifieddiscount methodology" or MDM suggested by counsel assisting, Mr Boldt, inHessell (CA) when calculating the discount to be provided for guilty pleas in settingan MPI for murder.[73] That proposal involves applying the standard guilty plea percentage discountto that part of the MPI "starting point" in excess of 10 years in the first instance.That is, the first 10 years are treated as a statutory minimum, and discounts are onlyapplied to the difference between the MPI starting point and the 10-year minimum.This discount would be capped at 25 per cent, following the Supreme Court's guidancein Hessell (SC). Under this approach, if the maximum discount is provided, a 30-yearMPI starting point would be reduced by five years to an MPI of 25 years. A 14-yearMPI starting point would be reduced to 13 years.[74] Mr Keegan submitted, if, where s 104 was applicable, the MDM would reducethe MPI below 17 years, the question would be whether imposition of a 17-year MPIwould be manifestly unjust. If not, the "discount" would be reduced and a 17-yearMPI would be imposed. In other words, the "manifestly unjust" assessment of theapplication of s 104 would be undertaken after the effect of a "full" discount had beenmade apparent.[75] Mr Keegan argued the MDM would help avoid what he described asinsufficient, ambiguous and disparately applied discounts currently being adopted inthis area. It was submitted the MDM recognises the more limited credit in cases ofmurder underlying the legislative policy in s 104 and balances this against theconsideration in s 9(2)(b) of the Sentencing Act requiring credit for plea.[76] For the Crown, Mr Lillico argued that the current approach was wellestablished, had been confirmed on a number of occasions since first being outlinedin Williams and, in fact, was as capable as the MDM approach favoured by Mr Keeganof giving mitigatory effect to guilty pleas. Mr Lillico provided the Court with anumber of helpful tables which, he said, illustrated that proposition. Taken overallMr Lillico supported the conclusion this Court reached in Boyes-Warren v R that "thereal question is whether, however it was reached, the ultimate sentence wasmanifestly excessive".103[77] Before considering the merits of the two methodologies, it is first necessary tocompare them.[78] The existing discretionary approach, as noted, provides a discount of about oneto two years for a guilty plea. The discount of about one to two years is generallyconstant no matter the MPI starting point. That is, as the MPI starting point increases,the discount for a guilty plea remains about the same. So, a 30-year MPI starting pointwill be discounted by about two years to 28 years. A 15-year MPI starting point willreceive, in general, about the same discount to 13 years.[79] Under the MDM, the discount for pleading guilty increases with the MPIstarting point. If the full 25 per cent discount is provided, a 30-year MPI startingpoint would result in a five year discount, reducing the sentence to 25 years.In contradistinction, an 11-year MPI starting point would provide only a three-monthdiscount, resulting in an end MPI of 10 years and nine months.[80] As is apparent from the above analysis, an effect of the MDM, when comparedto the current approach, is that more serious murders will receive greater discounts103 Boyes-Warren v R, above n 83, at [19].for a guilty plea and the less serious murders will receive lesser discounts.The convergence point between the discounts provided under the two approaches isabout 18 years — at that point, under both methods, a two-year discount would beinitially given, albeit prior to any consideration of manifest injustice. Below about an18-year MPI starting point, the MDM provides a lesser discount, and the existingapproach a greater one, and vice versa.[81] We are satisfied that the MDM is not a superior approach to allocatingdiscounts for guilty pleas in murder sentencing, for four reasons.[82] First, under the MDM, the discount for sentences with MPI starting pointsapproaching the 10 year statutory floor would be negligible. An MPI starting point of12 years would be discounted by a maximum of six months. This is undesirable.It would reduce the incentive to plead guilty, and so undercut the well recognisedpolicy considerations pointing towards, where possible, a real benefit from a guiltyplea.104 Discounts of merely a matter of months will generally not preserve thatincentive at a desirable level. We do recognise that in some cases the discount inreality will be limited by the effect of the statutory floors of 10 and 17 years underss 103 and 104 respectively. Nonetheless, as noted in Williams, the court must do itsbest to make the legislation work.105[83] Second, the discounts available for the more serious murders, of up to, in somecases five years, under the MDM would be excessive. It would undermine thelegislative policy and the relativity between sentences if such credit were given.The general approach called for by s 104 requires recognition of the lesser significanceof guilty pleas in this context. The statutory emphasis is on the culpability of theoffending rather than the offender for murder sentencing.106 This effect could worsenif the MDM were applied alongside other discounts. There is also a further risk thatthe MDM would lead to an increased clumping of sentences around the 17-year markas discounts reduce the MPI to that point. This would undermine the need, as104 Hessell (SC), above n 61, at [45]–[46].105 R v Williams, above n 25, at [64].106 France, Adams on Criminal Law — Sentencing, above n 48, at [SA103.03] referring to R v Brown[2002] 3 NZLR 670 (CA). See also Webber v R, above n 54, at [33]; and Hohua v R, above n 54,at [44].identified in Howse, to preserve reasonable relativities between sentences to reflectthe comparative culpability of the offending.107[84] Third, in coming to this conclusion, the reasons for calculating a notionalpercentage discount for a guilty plea when imposing a finite sentence cannot beapplied uncritically in this context. Several reasons for such discounts are givenin Moses:108[T]he discount is justified in substantial part by systemic and socialconsiderations distinct from the offender's personal circumstances; thediscount must be transparent, which aids predictability; and the calculationallows others including the offender and the victim to identify the sentencethat would have been imposed but for the plea.[85] Similar considerations could be invoked to support identifying a percentagediscount as a step in guilty pleas for MPIs. But the fundamental point is that an MPIstarting point is not the functional equivalent of a finite sentence. Percentage discountsfor guilty pleas appropriate in one context are not automatically appropriate in theother. In particular, to start the manifest injustice analysis under s 104 by identifyingthe finite sentence guilty plea discount risks obscuring that analysis. As this Courtobserved in Malik:109[I]t is not appropriate to treat the starting point used when calculating aminimum period under s 104 as the direct analytical equivalent of the startingpoint used when setting a determinate sentence.[86] As emphasised by Mr Lillico, the discretionary method is working well and iswell-established. It can, and does, provide predictability and consistency, while alsopreserving the discretion of the sentencing judge to set an MPI according to thestatutory policy. This is on all fours with the Supreme Court's support of adiscretionary approach in Hessell (SC) — it ensures that the discount provided, withina range, can be tailored to the circumstances of the case.110 As is always the case withsentencing, there is a need to stand back and ensure that the end sentence reached isin proportion with the offending.111 This remains the case for the setting of an MPI.107 R v Howse, above n 24, at [63].108 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [47] (footnote omitted).109 Malik, above n 75, at [37].110 Hessell (SC), above n 61, at [74]–[77].111 Hessell (SC), above n 61, at [77]; and Dickey v R, above n 16, at [175] citing R v Williams, aboven 25, at [67].The discretionary approach — in particular given the unique legislative regime formurder sentencing — is best able to facilitate this assessment.[87] Fourth, the availability of sentencing indications prior to trial should furtherassuage any concerns as to the predictability of discounts under the current approach.A discount indication which, in most cases, will be implemented at sentencing, can beknown ahead of trial.[88] For completeness, we reject the proposition by Mr Keegan that greaterdiscounts for guilty pleas are required. An appropriate balance has been struck by theexisting authorities, within the legislative context of ss 103 and 104. Furthermore,Mr Keegan's proposed approach would only increase the discounts for more seriousoffenders, but not those with comparatively less culpability.[89] We consider judges may continue to adopt the approach which, taking intoaccount all relevant circumstances, they consider best enables them to apply the Actas the legislature intended.The discounts here[90] Ellis J allowed discounts in the round of three years. She did not identify whatpart of that overall discount was a response to Mr Frost's guilty plea, and what partresponded to the balance of his personal mitigating factors. Given the different factorswhich apply to a guilty plea discount, and discounts for personal mitigating factors weconsider it is preferable for a judge to separately identify those components.We consider each component separately below.Mr Frost's guilty pleas[91] We begin by considering the appropriate discount for Mr Frost's guilty pleas.[92] The case against Mr Frost was, psychological forensic issues aside,overwhelming. The events took place on 18 January 2021. Mr Frost was remandedin custody and was interviewed in prison on 4 February and 22 March 2021.[93] A court-directed psychiatric report prepared by Dr Gordon Lehany on 6 April2021 concluded, on the basis of the information then available, that the grounds for adefence of insanity did not appear likely and Mr Frost was fit to stand trial. A secondpsychiatric report dated 28 April 2021 was prepared by Dr Peter Dean, based on aninterview with Mr Frost when he was remanded to the Henry Rongomau BennettCentre mental health facility at Waikato Hospital. Dr Dean concluded Mr Frost wasfit to stand trial and found no evidence to support a defence of insanity. A thirdpsychiatric report, the second by Dr Lehany, was prepared at Mr Keegan's request.Dr Lehany again opined it was unlikely Mr Frost had a defence of insanity availableto him.[94] So the psychiatric assessments on fitness and sanity were consistent from theoutset, albeit — as we discuss below — those assessments also identified issues ofobjective abnormalities and possible psychosis. Mr Frost pleaded guilty on 15 July2021 and was sentenced on 17 September 2021.[95] We consider a two-year discount from the MPI starting point of 23 yearswould, in the context of s 104, be appropriate recognition of Mr Frost's guilty pleas.The policy factors which inform s 104 — reflecting an overall response to seriousmurder offending — necessarily limit the credit given to guilty pleas in other contexts,and particularly when finite sentences are being determined under the Act.Mr Frost's personal mitigating circumstances[96] The focus of Mr Keegan's argument for Mr Frost, in his initial writtensubmissions and at hearing, was on the contribution of Mr Frost's mental health to theoffending. Following the release of this Court's decision in Dickey, Mr Keegan in hislater submissions emphasised the role of youth in the offending.112 In any event, aswas recognised by Mr Keegan, in offending involving young people such factorstypically overlap. That was evidently the case here. The Court in Dickey said:113Youth offenders commonly present with more than one mitigating factor. It isalways necessary to stand back and make an overall assessment whensentencing, and manifest injustice is assessed as a matter of overall112 Dickey v R, above n 16.113 At [175].impression. Discounts overlap and there is a risk that some statutory purposesof sentencing can be lost sight of when they are treated separately and simplytallied up. But the point remains that some offenders present with acombination of personal mitigating factors which may collectively justify asentence substantially less than that which would otherwise be imposed.[97] In his submissions, Mr Keegan emphasised the evidence from Dr Lehany —outlined below — and background information contained in the s 27 report, provideda causative context for Mr Frost's trauma, mental health decline, alcohol addiction andultimately, offending. He argued that Dickey represented a shift in the law relating tothe relevance of youth in murder sentencing. It was, he said, no longer correct toconsider that the public interest in denunciation and accountability outweighed youth,as had previously been held in the case of R v Rapira.114 He submitted thatDickey provided ample confirmation that, at 21 years of age, Mr Frost was properly tobe considered as an "emerging or young adult", displaying characteristics typical ofyouth offenders, in particular his inability to control his impulses and his lack offorethought for the consequences of his offending. Furthermore, the tragic death ofMr Frost's mother, witnessed by him, when he was 16 years old, would have impactedon his personality development in a manner which was then exacerbated by theordinary neurological challenges present in young adults. These contributed towardsMr Frost's mental health decline, and ultimately the offending. Mr Keegan describedthis as "the perfect storm for this troubled young man that had a direct and causativelink to his loss of control and his killing of two family members".[98] For the Crown, Mr Lillico's submission was that the 13 per cent global discountawarded by Ellis J included the youth dimension, and was in line with similar cases.Global discounts on MPIs including (relative) youth were, furthermore, often modestin relation to murder. That will be the case where, on the facts of the offence as here,youth was not a powerful mitigating factor. Mr Lillico further emphasised the lackof a formal psychiatric illness in Mr Frost, and submitted that mental health was not astrong factor in the offending.[99] In Dickey, this Court surveyed research in relation to the characteristics ofyouth offending.115 The context was the potential significance of youth in the s 102114 R v Rapira [2003] 3 NZLR 794 (CA).115 Dickey v R, above n 16, at [76]–[87].assessment of whether — in the case of murder — an indeterminate life sentencewould be manifestly unjust. We acknowledge that different context. The presumptionin favour of a life sentence in s 102 may be harder to displace than the presumption infavour of an MPI of at least 17 years in s 104.116 That that does not, in our view, reducethe relevance of the significance of youth in a s 104 assessment of the analysis andconclusions in Dickey. The Court noted that much of the research was alreadyreviewed in Churchward, and was not new.117 It said:118[85] In Churchward, this Court accepted that there are significantneurological differences between young people and adults. The Courtrecognised that the abilities to plan, consider, control impulses and make wisejudgments are the last parts of the brain to develop, and that young people'sbrains are built to take more risks. The Court also recognised that youngpeople are more susceptible to negative influences, and that the social contextin which they act could lead to inappropriate behaviour. The Court acceptedthat long sentences can have a particularly crushing effect on young people,but on the other hand, young people also have greater capacity forrehabilitation as their character has not yet fully formed.[100] At the same time the Court recognised new research since Churchward:119The Crown acknowledged, however, that further research since Churchwardhas confirmed:(a) Adolescent behaviour reflects the slow pace of the development ofthose parts of the brain that control higher-order executivefunctioning, such as impulse control, risk assessment and planningability. Young people behave and react differently from adults due tobiological rather than behavioural or personality factors. As Ms Brookfor the Crown said, "[a]ll young people suffer from these cognitivedeficits; and all will eventually develop fully to overcome them(assuming no cognitive impairment exists)".(b) Neurological development may not be complete until the age of 25.(c) Young persons who commit serious offences frequently exhibit othercharacteristics which also tend to mitigate culpability, notablyintellectual deficits, mental illness and experiences of abuse or otherchildhood trauma.(d) Young people are more receptive to treatment and therefore havebetter prospects of rehabilitation than adult offenders, who find itmore difficult to alter entrenched behaviours.116 See Dickey v R, above n 16, at [144]; R v Williams, above n 25, at [57].117 Dickey v R, above n 16, at [86] referring to Churchward v R [2011] NZCA 531; (2011) 25 CRNZ446.118 Footnote omitted.119 At [86].[101] The Court considered the significance of the sentence in the context of the Act,including ss 7, 8 and 9;120 ss 9 and 25 of the New Zealand Bill of Rights Act 1990;121and various international instruments, the United Nations Convention on the Rights ofthe Child in particular.122 Finally the Court considered the approach in otherjurisdictions, namely Australia, the United Kingdom and Canada.123[102] Overall, the Court concluded, in the context of an assessment of manifestinjustice under s 102:124[177] ... [W]e think it is no longer correct to say, as the Court did in Rapira,that youth can carry little weight when balanced against the public interest indenunciation and accountability. The seriousness and culpability of theoffending remain centrally important. It also remains generally true to saythat youth alone is not enough to establish manifest injustice. However, youngpersons may present with a combination of mitigating circumstances relevantto the offending and personal mitigating factors which together are capable ofestablishing manifest injustice. [103] It is first necessary to recognise the different statutory context in this case.In Williams, the Court observed that while the establishment of manifest injusticeunder s 102 — allowing a substitution of life imprisonment by a finite sentence —was likely to be reached "in very exceptional circumstances only", the legislativehistory of the "manifestly unjust criterion" in s 104 "will be exceptional but such casesneed not be rare".125 A court will accordingly be more willing to recognise manifestinjustice for youth and other factors when considering manifest injustice under s 104.[104] Furthermore, in our view a personal factor, such as youth, going as it does tothe core issue of culpability, or moral responsibility, has more capacity to affect thes 104 assessment of manifest injustice than a guilty plea, which does not reflect thoseimportant considerations.[105] Aged 21 at the time of his offending, with no previous convictions, Mr Frostwas in 2021, in the terminology adopted in Dickey, an "emerging or young adult", as120 At [103]–[107].121 At [110]–[111].122 At [112]–[123].123 At [124]–[143].124 Footnote omitted.125 R v Williams, above n 25, at [57], [59] and [67].opposed to an adolescent.126 The reports prepared on Mr Frost do not explicitly focuson the significance of his youth, but characteristics consistent with the traits of youngpeople seen as mitigating culpability are evident. They also demonstrate a complex,albeit not precisely diagnosed, pattern of mental health issues in Mr Frost'sbackground:(a) The first report summarised Mr Frost's presentation as unusual andcomplex. The most striking features of his presentation were hisaffective abnormalities, apparent in a lack of empathy and lack of guiltor remorse. There were two possible explanations. The first that thesetraits were essentially aspects of his personality, and as such werelifelong and unlikely to respond to treatment. The second was thepossibility Mr Frost was developing a psychiatric illness, "largelyprodromal, or with delusional beliefs".(b) In the second report Dr Dean opined:Mr Frost has shown evidence of affective dysregulation,intermittent self-harm and chronic suicidal ideation. This hasbeen complicated by homicidal fantasies. He is sociallyisolated, has not had meaningful intimate relationships andhas an erratic employment history. It would appear hispsychosocial functioning deteriorated around the time of hismother's death when he was aged 16.(c) In the third, and final, report Dr Lehany again expressed concern as toaspects of Mr Frost's presentation which, combined with expressionsof odd persecutory ideas, raised the question of a possible underlyingpsychotic illness. But it had not been possible to explore that further.Dr Lehany remained of the view Mr Frost was fit to stand trial and thatthe defence of insanity was not available to him. Overall, the Doctorcommented:What does appear clear is that at the time of the allegedoffences Mr Frost was in an extremely agitated and distressedstate, however caused. He was distressed by issues arisingfrom the death of his mother at the age of 16, and with hisfeelings about the relationship between his mother and his126 Dickey v R, above n 16, at [76].father. This, combined with significant ongoing alcoholabuse, and a degree of abnormality in his thinking as notedabove with elements of persecutory ideation and ideas ofreference, were factors in his actions at the time of the allegedoffences.[106] The s 27 report prepared for the Court concurrently described Mr Frost'stroubled background, including his heavy alcohol use, mental health issues and poorrelationships.[107] The reports all comment on the significance for Mr Frost of the death of hismother when he was 16 years old and how, as objectively shown by subsequent events,that affected him. Dr Dean's comments, set out above at [105(b)], crystalise thoseaspects of Mr Frost most clearly. They suggest Mr Frost may have travelled a lesserdistance to adulthood than other 21 year olds. He was ill-equipped to manage theemotions he was experiencing, or to fully understand the consequences of his conduct.[108] It is difficult for us to avoid the conclusion that Mr Frost's immaturity, beingpart of and compounded by his life experiences since the death of his mother at 16, isa material mitigating factor in his culpability, and moral responsibility, for his actions.This naturally overlaps with Mr Frost's mental health. The lack of any previousconvictions is also a relevant factor for Mr Frost.[109] In the circumstances we would recognise a discount of three years from theMPI starting point set by the Judge to reflect Mr Frost's personal mitigatingcircumstances.[110] That results in a total reduction of five years from the MPI starting point of23 years.[111] On that basis, we allow Mr Frost's appeal and substitute an MPI of 18 years inplace of the 20-year MPI set by the High Court. In these circumstances, no questionof manifest injustice under s 104 arises.Result[112] The appeal is allowed.[113] The order that Mr Frost serve a minimum period of imprisonment of 20 yearsis set aside and substituted with an order that Mr Frost serve a minimum period ofimprisonment of 18 years.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent