New Zealand Case Law: Decisions & Judgments

Topic

Sentencing act 2002 s104

Legal area

Court

14 Jul 2021

R v SMITH [2021] NZCA 318

Citation

(2021) 29 CRNZ 830
Court

Court of Appeal

Court found s104(1)(g) applied (victim particularly vulnerable) but an MPI of 17 years would be manifestly unjust given the offender's severe mental health deterioration, carer burnout, remorse and low risk of reoffending; however the gravity of the offence (premeditation, gross breach of trust, child victim) meant it was not manifestly unjust to impose life imprisonment, so the High Court's finite sentence was quashed and substituted with life imprisonment with an MPI of 10 years.
3 Jun 2021

R v SAMSON [2021] NZHC 1335

Citation

[2021] NZHC 1335
Court

High Court

Section 104 applied because the murder involved a high level of brutality, callousness and premeditation in a domestic context; the defendant's adverse background and s 27 material did not make imposing the 17 year MPI manifestly unjust given the extreme violence, breach of trust and his prior violent offending, so the correct sentence is life imprisonment with a minimum period of imprisonment of 17 years.
17 Nov 2020

TUFUI v R [2020] NZCA 568

Citation

[2020] NZCA 568
Court

Court of Appeal

The trial judge erred in law by treating the proposed showing of the arrest photographs as a dock identification and by misframing the s8 analysis, but the exclusion produced at most a speculative possibility of a different outcome and not a reasonable possibility such that a miscarriage of justice is established; accordingly convictions stand. Applications by Tapaevalu for extension of time and to adduce fresh sentencing evidence were granted but his appeal against the 17-year minimum sentence was dismissed as not manifestly unjust given his assessed culpability.
12 Jun 2020

R v POTTS [2020] NZHC 1336

Citation

[2020] NZHC 1336
Court

High Court

Section 104 applied because of the brutality, cruelty and callousness of the offending (including actions after death); however an early guilty plea and genuine remorse warranted a modest reduction from the presumptive 17 year minimum to a 15 year minimum, resulting in a sentence of life imprisonment with a 15 year minimum term.
22 May 2020

MARONG v R [2020] NZCA 179

Citation

[2020] NZCA 179
Court

Court of Appeal

Leave to appeal out of time granted. The Court held s104 was engaged: planning met the 'calculated or lengthy' threshold based on extensive internet research and prior conduct; high level of callousness present including post-offence disposal and statements; the victim was particularly vulnerable due to very small stature and occupation (court excluded cerebral palsy from assessment in this appeal). The combined presence of planning, callousness and vulnerability justified an uplift from the statutory 17-year MPI to 18 years; the appeal against sentence was dismissed.
13 Mar 2020

SILAPEA MOMOISEA v R [2020] NZSC 19

Citation

[2020] NZSC 19
Court

Supreme Court

Leave to appeal dismissed because the proposed challenge to the guilty plea discount and invocation of Hessell in s104 cases had insufficient prospects of success and raised no question of principle; the sentencing judge and Court of Appeal properly assessed mitigation and credit, and criteria for leave were not met.
23 Aug 2018

CARROLL v R [2018] NZCA 320

Citation

[2018] NZCA 320
Court

Court of Appeal

The Court held s 104(1)(e) was engaged because the cumulative facts — premeditation and vigilante intent, a prolonged brutal unprovoked 30-minute attack to the head, and degrading post-mortem treatment — demonstrated a high level of callousness; the 17-year non-parole period was not manifestly unjust and was affirmed.
17 Jun 2016

R v POMARE & ANOR [2016] NZHC 1346

Citation

[2016] NZHC 1346
Court

High Court

For Pomare the court imposed life imprisonment and, although s104 features applied, departed from the 17 year statutory minimum because the offender's age, diagnosed foetal alcohol spectrum disorder and reduced culpability justified a lower non-parole period; the appropriate minimum period was fixed at 12 years after allowance for mitigation including a one year reduction for the guilty plea. For Perkinson the court accepted his limited physical role but found culpability in accompanying Pomare knowing violence was likely and in callous conduct after the attack; a starting point of four years…
7 May 2015

R v KUMAR & PERMAL [2015] NZHC 954

Citation

[2015] NZHC 954
Court

High Court

s 104 was engaged because the assault intended to kill and the subsequent burning were part of a single transaction; exceptional circumstances under s 104(1)(i) were present given the sequence and nature of events; no manifest injustice in imposing the 17-year minimum non-parole period; accordingly each offender was sentenced to life imprisonment with a 17-year minimum non-parole period.
7 Apr 2014

CORNELIUS V R CA17/2014 [2014] NZCA 123

Citation

[2014] NZCA 123
Court

Court of Appeal

The offending was of high brutality and callousness justifying a s 104 starting point of 17 years; after accounting for an early guilty plea and genuine remorse an 18 month reduction was appropriate, provocation did not warrant further discount, and the minimum term of 15 years and six months was not manifestly excessive and is upheld.