He appealed the conviction and sentence to the Court of Appeal on four grounds, that the judge: wrongly contrasted defensive action with acting in anger and inadequately corrected this when it was raised by M’s trial counsel; wrongly tied his directions on what amounts to reasonable force to community standards; erred in his directions on inferences that supported the Crown’s case, failed to give a tripartite direction in respect of some evidence and wrongly prevented defence counsel from cross-examining key Crown witnesses; and gave an intoxication direction and a direction on the expert evidence about youth in relation to murderous intent but failed to give those directions in relation to self-defence on which they were also relevant.
In their decision the Appeal Court judges dismissed the appeal against conviction.
They allowed the appeal against sentence, quashing the life sentence and replacing it with a sentence of 13 years’ imprisonment. A minimum period of imprisonment of five years and two months was also imposed.
The judges said Justice Brewer acknowledged that the higher courts might alter the approach to assessing whether a sentence of life imprisonment is manifestly unjust in relation to young offenders but noted he was to sentence M in accordance with the law as it presently stood.
However, since then the Court of Appeal issued its decision in Dickey, where it held that a more flexible approach to the presumption of life imprisonment for murder provided in s 102 of the Sentencing Act 2002 was appropriate for youth.
That decision concluded that a life sentence may be manifestly unjust for some young offenders through a combination of the indeterminacy of the sentence, the length of the MPI and lifetime parole, and where a determinate imprisonment sentence could respond to such injustice.
‘’Starting with the gravity of the offending, M murdered Mr Willems in the circumstances the Judge described. It was a shocking and tragic end to the night, leaving a young man stabbed to death by a 14-year-old boy whom the young man had befriended,’’ the judges said.
Expert evidence in M’s trial was that at 14 years of age, M was an early adolescent and at that stage of development for a young person in his situation and that cognitive ability is somewhat isolated … from the socioemotional part of the brain because the connections between those brain legions are slow.
‘’We consider that M’s young age significantly reduces his culpability. He was materially younger than the three appellants in Dickey (aged 16, 18 and 19 years old at the time of their offending) for whom this Court found that a sentence of life imprisonment would be manifestly unjust. At such a young age, the harmful effects of a life sentence and the long period before M will be eligible for parole are likely to weigh particularly heavily on M. Given life expectancies, his young age also means that he is likely to remain on parole conditions (unless and until the Parole Board discharges his release conditions) and liable for recall for a long time.’’
Willems was stabbed seven times in the chest area, and when he collapsed to the ground a further six stab wounds were inflicted. One of the stab wounds pierced his heart and proved fatal.
The full Court of Appeal decision can be found at: courtsofnz.govt.nz/assets/cases/2023/2023-NZCA-319.pdf
