New Zealand Case Law: Decisions & Judgments

Topic

Section 104 sentencing act 2002

Legal area

Court

6 Mar 2023

R v CANDY, R v WEBSTER (SENTENCING) [2023] NZHC 414

Citation

[2023] NZHC 414
Court

High Court

Both defendants convicted and sentenced to life imprisonment. For Candy the Court found s104(1)(d),(e) and (g) engaged, set a starting MPI of 19 years given high culpability and extreme brutality, then allowed limited mitigation (6 months for personal circumstances and 18 months for guilty plea) yielding a final MPI of 17 years. For Webster the Court found s104(1)(e) and (g) engaged but held that his youth, lack of prior convictions, more limited role and genuine remorse together made a 17-year MPI manifestly unjust and imposed a life sentence with an MPI of 12 years.
30 Nov 2022

PRASAD v R [2022] NZCA 588

Citation

[2022] NZCA 588
Court

Court of Appeal

The Court concluded the MPI of 18.5 years was within the available range despite minor methodological error by the judge; the offending involved unlawful entry, significant premeditation and extreme brutality, and none of the asserted mitigating factors (cultural background, remorse, prior good character) justified reducing the MPI to a manifestly unjust level, therefore the appeal against sentence was dismissed.
4 Jun 2021

WEBBY v R [2021] NZCA 234

Citation

[2021] NZCA 234
Court

Court of Appeal

The Court held the sentencing judge did not err as the s 104 factors were identified, the starting point MPI was supported by appropriate comparator cases, the judge's reliance on those comparators without formulaically reciting the three‑step approach was permissible, and the resulting sentence of life with an MPI of 17 years 9 months was within range and not manifestly excessive.
30 Mar 2021

R v PATUWAI and GIBSON-PARK [2021] NZHC 675

Citation

[2021] NZHC 675
Court

High Court

Life imprisonment was mandatory and imposed on both defendants; s 104(1) applied because the murder involved unlawful entry and exceptional brutality/cruelty/callousness, therefore a 17 year minimum period of imprisonment is required and is not manifestly unjust on the facts; Gibson-Park receives a concurrent 4 year sentence for arson which does not increase custody time.
9 Dec 2020

R v GARSON [2020] NZHC 3259

Citation

[2020] NZHC 3259
Court

High Court

The Court held the murder engaged s104 aggravating circumstances (unlawful intrusion into a dwelling place, high callousness and victim vulnerability) but declined to impose the statutory 17-year minimum because it would be manifestly unjust given the defendant's guilty plea, remorse and personal mitigation; life imprisonment imposed with minimum term 15 years and six months, and a concurrent three-year term for threatening to kill.
12 Jul 2019

R v WAKEFIELD [2019] NZHC 1629

Citation

[2019] NZHC 1629
Court

High Court

Although s104(1)(g) applied because the infant was particularly vulnerable, the Judge assessed relative culpability against standard murder ranges, set a starting MPI of 15.5 years, then applied a 9-month reduction for mitigating factors (notably genuine remorse, guilty plea to manslaughter issues and personal circumstances) to reach an MPI of 14 years 9 months and held that imposing the presumptive 17-year MPI would be manifestly unjust in this case.
13 Mar 2018

R v BAX [2018] NZHC 411

Citation

[2018] NZHC 411
Court

High Court

The Court held that s104(1) was engaged because the offender became unlawfully present in the victim's dwelling during the attack, the killing involved a high level of brutality and callousness, and the 77-year-old victim was particularly vulnerable in bed and unarmed; notwithstanding that engagement, imposing the statutory 17-year minimum would be manifestly unjust on the facts given mitigation (guilty plea, genuine remorse, mental health history not shown to be causative or exculpatory), and the appropriate minimum term was reduced to 15 years, with life imprisonment imposed.
9 Jun 2017

R v TE HIKO [2017] NZHC 1260

Citation

[2017] NZHC 1260
Court

High Court

The Court found the murder was committed with a high level of brutality and callousness (prolonged and frenzied attack, at least 70 blows, use of a metal pole, continued attacks while victim unconscious and failure to seek medical assistance), thereby engaging s 104, and imposed the mandatory life sentence with a minimum period of 17 years because a 17-year minimum was not manifestly unjust and adequately met the purposes of sentencing.
17 Feb 2017

R v MERRITT [2017] NZHC 232

Citation

[2017] NZHC 232
Court

High Court

The Court held s104(1)(e) applied because the killing involved brutality and callousness of a very high order (decisive steps to kill, multiple blows to the head, continuing strikes while victim was on the ground, and pronounced lack of remorse). However, the defendant's youth, absence of prior record and a diagnosed ASD materially reduced moral culpability; after allowances (approximately 20%) the Court set the minimum non-parole period at 12 years and imposed life imprisonment.
13 Dec 2016

R v DEMPSEY AND BRUNSELL [2016] NZHC 3056

Citation

[2016] NZHC 3056
Court

High Court

Section 104 did not apply to Dempsey because the victim's room was not treated as a separate dwelling for the purposes of the section; even if an attempted robbery were treated as 'in the course of committing a serious offence', imposing the 17 year minimum would be manifestly unjust on the facts. Applying s 103 the appropriate minimum term for Dempsey is 12 years. For Brunsell the jury verdict and the evidence established he assisted without intent to cause serious bodily harm or to steal, so a manslaughter starting point of 4 years reduced by 30% for youth and diminished responsibility prod…