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Court of Appeal revisits ‘manifest injustice’ when sentencing young people for murder

24 Mar 2023

| Author: Hannah Hellyer

Sentencing – Young Persons – Murder – s 102, Sentencing Act 2002 – Life Imprisonment – MPI – Manifest Injustice – Neurological Immaturity – Culpability – Mitigating Factors 

Dickey v R [2023] NZCA 2 (Miller, Collins and Simon France JJ)

Please note:

  • This is not a guideline judgment. The Court of Appeal has not attempted to prescribe when it may be appropriate to find life imprisonment manifestly unjust for young people, nor to establish notional starting points for a determinative sentence when a young person is not sentenced to life imprisonment. This judgment does not have the effect of creating a special category for young persons convicted of murder. Under s 102 of the Sentencing Act 2002, all people convicted of murder must be sentenced to life imprisonment unless that would be manifestly unjust.

The appellants, Georgia Dickey, Christopher Brown and Katarina Epiha appealed their respective sentences of life imprisonment with an MPI of 10 years for murder, which they committed as teenagers. Their respective offending was characterised by active participation and some serious aggravating features.

The court found the appellants’ neurological immaturity mitigated their culpability and increased the negative impact a sentence of life imprisonment with an MPI (minimum period of imprisonment) of 10 years would have on them. Other factors mitigating their culpability included histories of significant social deprivation and psychological conditions.

Having evaluated the above factors, the court considered the respective sentences of life imprisonment were manifestly unjust and imposed determinate sentences of imprisonment and MPI periods.

This judgment revisits the approach to culpability and mitigating factors for young people who would otherwise be sentenced to life imprisonment under s 102 of the Sentencing Act 2002.

The court observed that having regard to the developments since Rapira, the leading authority on s 102, several considerations point to the need for a more flexible approach to the jurisdiction.

The court found it is no longer correct that youth can carry little weight when balanced against the public interest of denunciation and accountability. However, the seriousness and culpability of the offending remain central, and it remains generally true that youth alone is not enough to establish manifest injustice.

Regarding the source of manifest injustice for a young person sentenced to life imprisonment for murder, the court considered the indefinite nature of the sentence, the 10-year MPI and the impact of lifetime parole but emphasised that it is the harm done by these features of the sentence over and above that inherent in the counterfactual – a long term of imprisonment with a substantial MPI, designed to mark the fact that a life was lost without justification or excuse.

Following its assessment of these factors, the court accepted that a life sentence may be manifestly unjust for some young offenders through a combination of the above, and where a determinate sentence of imprisonment is capable of responding to such injustice.

In respect to assessing manifest injustice, the court found the assessment must begin with the gravity of the offending and culpability of the offender. Personal aggravating and mitigating factors should then be taken into account. Each case must be assessed on its own merits, having regard to the full register of sentencing principles, purposes and factors.

The court observed that manifest injustice is most likely to be found where the offender can point to both mitigating circumstances of the offending and a combination of substantial personal mitigating factors.

Upon a finding that a sentence of life imprisonment would be manifestly unjust, the court must then fix the type and duration of the determinate sentence. When a determinate sentence is imposed, the MPI is set under s 86, not s 103, however the same considerations apply.

Held: Applications for extensions of time granted – applications to adduce further evidence granted – appeals against sentence allowed – Dickey – sentence of life imprisonment and MPI of 10 years quashed and substituted with sentence of 15 years’ imprisonment and MPI of seven-and-a -half years – Brown – sentence of life imprisonment and MPI of 10 years quashed and substituted with sentence of 12 years’ imprisonment and MPI of six years – Epiha – Sentence of life imprisonment and MPI of 10 years quashed and substituted with sentence of 13 years’ imprisonment and MPI of seven years.

Hannah Hellyer is an Auckland criminal defence barrister  and a member of the ADLS Criminal Law Committee and Parole Law Committee

Dickey v R [2023] NZCA 2

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