Three teen convicted murderers do not meet the threshold for their sentences of life imprisonment to be deemed manifestly unjust, a court heard yesterday.
Brown and Dickey were sentenced to life imprisonment with a non-parole period of 10 years for the murder of Jack McAllister in Invercargill on June 7, 2017.
Epiha received the same sentence for the murder of Alicia Maree Nathan in Christchurch on August 5, 2017.
Brown was 19, Dickey was 16 and Epiha was 18 at the time the murders were committed.
The justices have been considering whether the age of the offenders at the time of the offending, their lack of brain development, as well as social and environmental factors in their backgrounds, would give rise to lesser culpability and therefore reach the court’s threshold for manifestly unjust.
This could mean their life sentences would be quashed and replaced with finite sentences but with an option of including a minimum period of imprisonment.
Yesterday, Crown lawyer Charlotte Brook said while the Children’s Commission considered a life imprisonment sentence for youth offenders breached the Bill of Rights Act, which states everyone has the right not to be subjected to torture or to cruel, degrading or disproportionately severe treatment or punishment, the courts did not.
She said judges sentencing youth offenders convicted of murder should first deem whether a life imprisonment sentence would be manifestly unjust, not only taking into account the offender’s role in the killing but also the offender themselves.
This would be evidence-based from reports presented to the court ahead of sentencing.
While she had said the court needed to take a holistic approach to culpability, she later said while Brown had powerful mitigating circumstances, his part in the killing of Mr McAllister outweighed other factors when looking at his culpability.
While he was not involved in the violence he was a player in a serious murder. He knew the knife was going to be used, thought Mr McAllister was going to die and was involved in the planning of the attack.
"And yet he still went along," Ms Brook said.
"For those reasons the Crown says his culpability is sufficiently high that the presumption [of life imprisonment] is not displaced."
Taking into account Dickey’s role in the offending, her culpability was such that the presumption was not displaced, she said.
Crown lawyer Rebecca Thomson said while Epiha had a gruesome and severe childhood, which clearly "fettered her freedom of choice" and took away rational actions therefore reducing her culpability, it did not reduce it to the level where it was manifestly unjust to impose a sentence of life imprisonment.
Ms Brook said she found it hard to conceive a situation where presumption would not be displaced for any youth murderer, even taking other factors into consideration.
She believed it was up to Parliament to repeal life imprisonment for young people convicted of murder, through amendment of the Sentencing Act.
Sentencing judges in the cases of Brown, Dickey and Epiha knew the details of the mitigating factors in relation to each of them and those judges considered those factors were not sufficiently exceptional as to warrant displacement of presumption, she said.
In reply, Brown’s lawyer, Lisa Preston, said it had been proved that youth offenders had inherently diminished responsibility because of their biological make-up and therefore there should be diminished culpability.
Dickey’s counsel, David More, said the Crown could not say the facts of the offence trumped the personal circumstances of the offender.
"You’ve got to look at the overall picture, including them both."
The justices reserved their decision.
