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How R v Dickey is being applied to young offenders facing life imprisonment

28 Apr 2023

| Author: Jamie Dierick

Sentencing Act 2002 – sentencing for youth – R v Dickey – minimum period of imprisonment – discounts for youth – discounts for personal factors – discharge without conviction – name suppression – permanent name suppression denied – interim name suppression allowed pending instructions for appeal.

R v TH & HH [2023] NZHC 6300 (Brewer J)

Note: The sentencing was originally scheduled for 2 February 2023 but was adjourned as the law on the sentencing of young people for murder was changed by the recent Court of Appeal decision of R v Dickey. This held that although there is no exception to life imprisonment for all youth murderers and the seriousness and culpability of the offending remain central, young persons may now present with a combination of mitigating circumstances relevant to the offending and personal mitigating factors which together can make it manifestly unjust for a young person to be imprisoned for life.

Sentencing for two defendants, both brothers, involved in a street brawl. This resulted in TH obtaining a blade from an associate with which, after several attempted blows and the deceased fighting back, TH stabbed the deceased.

Although not involved in the stabbing, HH was with his brother during the fight and kicked the deceased when he was on the ground.

TH was found guilty by a jury of murder and assault with a weapon. HH pleaded guilty to one charge of injuring with intent to injure. TH was 20 years old when this happened and HH was 17.

In applying R v Dickey, Brewer J concluded that TH should not be sentenced to life imprisonment and instead adopted a starting point of 20 years.

A discount of 35% was given for personal factors. This included a 15% discount for factors relating to TH’s difficult upbringing, issues related to substance abuse, gang involvement, cultural disconnection, and prospects for rehabilitation. A further discount of 20% was given for factors relating to youth.

This resulted in a provisional sentence of 13 years’ imprisonment. However, Brewer J uplifted this to 18 years to ensure the sentence was proportionate to the offending, despite TH’s personal situation.

A minimum period of imprisonment of seven years and six months was imposed.

TH also received one year’s imprisonment on the charge of assault with a weapon, to be served concurrently with the murder charge.

HH was denied his application for discharge without conviction.

Brewer J considered that given that HH had spent 20 months on bail with a 24-hour curfew, he was convicted and discharged.

An order for name suppression was denied. However, Brewer J allowed interim name suppression for five days pending instructions on whether to appeal his refusal to grant permanent name suppression.

Held: TH was sentenced to 18 years’ imprisonment, with a minimum period of seven years and six months. HH was convicted and discharged.

R v TH & HH

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