New Zealand Case Law: Decisions & Judgments

Topic

S 104 sentencing act 2002

Legal area

Court

2 Aug 2021

SAMUELS v R [2021] NZCA 358

Citation

[2021] NZCA 358
Court

Court of Appeal

The Court declined new evidence (Wilson/Hikaka) as not credible or cogent; concluded playing the dairy robbery video and admitting T's police DVD were mistakes in form but not so prejudicial as to render the trial unfair; held s 103 direction and other evidential decisions, the prosecutor's challenged remarks and the jury directions did not produce a miscarriage of justice; consequently conviction and sentence (life with 17-year MPI under s 104) were upheld.
1 Jul 2021

R v EDWARDS [2021] NZHC 1612

Citation

[2021] NZHC 1612
Court

High Court

The Court found the offending was of sufficient brutality and callousness to engage s 104, assessed a starting minimum of 15 years for the murder (on facts and comparable authorities), added a three-year uplift for causing grievous injury to the child (total 18), then reduced that by two years for mitigation (1.5 years for early guilty pleas and 0.5 years for adverse background in the s 27 report) resulting in a minimum period of 16 years before parole; imposed life imprisonment for murder and a concurrent four years for grievous bodily harm.
18 Dec 2020

KEMPSON v R [2020] NZCA 656

Citation

[2020] NZCA 656
Court

Court of Appeal

The Court held that consent (including an honest but mistaken belief in consent) is not a defence to a murder charge under s167(b) where the offender meant to cause bodily injury known to be likely to cause death and was reckless whether death ensued; the trial Judge gave proper directions on propensity and pathology evidence; inadmissible statistical material (a small Polish study) should not have been used but did not create a material risk of miscarriage in context; and s104(1) was engaged because the victim was particularly vulnerable and the offender's conduct demonstrated a high degree…
16 Jun 2020

R v PEENI [2020] NZHC 1352

Citation

[2020] NZHC 1352
Court

High Court

Section 104 was engaged because the attack combined sustained, forceful impacts with degrading taunts and was carried out in the presence of and despite opposition from the defendant's young children, elevating callousness and cruelty to the high level required; however imposing the 17 year statutory minimum would be manifestly unjust given the defendant's very early guilty plea and associated mitigation, so a life sentence with a minimum non-parole period of 15.5 years was imposed.
19 Mar 2020

VEA v R [2020] NZCA 68

Citation

[2020] NZCA 68
Court

Court of Appeal

The Court held the starting point of 17.5 years was appropriate but that the mitigation package, including full credit for an early guilty plea, immediate admissions and the ifoga, warranted a two-year reduction; imposing a 17-year MPI would be manifestly unjust, so the MPI was reduced to 15 years and six months.
9 May 2017

CHRISTISON v R [2017] NZCA 168

Citation

[2017] NZCA 168
Court

Court of Appeal

S 104 applied and given the proved aggravating factors (calculated planning, unlawful entry/presence in a dwelling, and high brutality/callousness) a starting point MPI in the 18–20 year range was open; the sentencing Judge adequately considered mitigating factors (remorse, depression/diminished responsibility, guilty plea) and any implicit discount did not make the 17 year MPI manifestly unjust; therefore the extension of time is granted and the appeal against sentence is dismissed.
3 May 2017

POMARE v R [2017] NZCA 155

Citation

[2017] NZCA 155
Court

Court of Appeal

Although a larger combined discount for youth and FASD may have been open to the sentencing Judge, the trial Judge lawfully exercised discretion having regard to objective seriousness, the aggravating features under s 104, and the available discounts; the resulting life sentence with a 12-year MPI is not manifestly excessive and the appeal is dismissed.
16 Dec 2016

SMITH v R [2016] NZCA 617

Citation

[2016] NZCA 617
Court

Court of Appeal

Extension of time to appeal was granted; the sentencing Judge did not err in principle or fact in imposing a life sentence with a 17-year MPI — the Judge properly identified and weighed s 104 aggravating factors (planning, unlawful entry, brutality) and took account of the appellant's personal circumstances; Dr Duff's report did not establish a sufficiently strong causal nexus or a level of impairment that would render a 17-year MPI manifestly unjust; the late guilty plea and doubts as to remorse justified only a modest reduction.
9 Jul 2015

R v TARAPATA [2015] NZHC 1594

Citation

[2015] NZHC 1594
Court

High Court

s104 applied by virtue of two victims; although the defendant suffered psychotic illness reducing culpability and meriting discount, the illness did not make a 17 year minimum manifestly unjust; having adopted a 20 year starting point for gravity and reduced for mental illness and remorse, the court fixed a 17 year minimum and declined a hybrid order.