Murder – sentencing – sentencing starting point –Sentencing Act 2002, s 104 – presumption of 17 years’ minimum period of imprisonment due to vulnerability of the victim – relevance of youth in murder sentencing – nominal MPI of 15 years imposed in absence of presumption – final sentence of life imprisonment with MPI of 15 years

R v Tyson Brown [2023] NZHC 1267 per Johnstone J.

Tyson Brown was found guilty at trial for the murder of Arapera Fia, a two-and-a-half-year-old girl.

Johnstone J relied on evidence of a couple staying in the sleepout of the house, telephone records from Fia’s caregiver, T, and forensic pathological evidence given at trial to infer that Brown either struck Fia or struck her against hard surfaces in her room.

It was found there were at least three distinct and forceful impacts against her head, which cause widespread subdural haemorrhaging.

Fia was also discovered to have suffered bruising over much of her body and compression fractures. The judge said the bruising to her head was caused by “the severe beating” to which Brown subjected her.

Two-and-a-half hours later, emergency services were called. While faint traces of life were detected, Fia was formally pronounced dead soon after.

Brown’s counsel accepted a sentence of life imprisonment was required.

Given Fia’s vulnerability and the “high level of brutality and callousness,” s 104 of the Sentencing Act 2002 came into play, requiring a minimum of 17 years’ imprisonment.

Brown’s lawyer accepted the presumption for a minimum period of imprisonment (MPI) was applicable, but said it would be manifestly unjust given Brown’s personal mitigating features. These included his age at the time of the murder (21 years old), dysfunctional family background, and lack of relevant previous conviction.

Johnstone J considered the leading decision for approaching s 104 considerations, R v Williams [2005] 2 NZLR 506, which sets out a two-step approach. First is a consideration of the culpability of the case compared to others that do not feature s 104 circumstances and whether a nominal MPI can be imposed in the absence of the s 104 presumption. Second, the court must consider whether the MPI of 17 years would be manifestly unjust in light of the nominal MPI settled on.

Johnstone J stated a nominal MPI of 15 years was appropriate, taking into account, inter alia, the significance of youth in sentencing for murder as decided by the Court of Appeal in Dickey v R.

The judge decided the 17-year presumptive MPI under s 104 should not be imposed as he believed life imprisonment with at least 15 years in custody was enough.

Held: Life imprisonment with a minimum period of imprisonment of 15 years.

R v Tyson Brown