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Lawyer Ron Mansfield KC argued to a Court of Appeal panel in the High Court at Auckland last month that the 17-year minimum term should instead be swapped with one of 14 years.
“We accept that there is case law where courts have found that a 17-year minimum term is manifestly unjust, where, for example, the defendant has long-standing mental health issues,” the appellate judges responded in a 26-page decision that was released today. “Such issues can go to culpability.
“But we do not consider that Mr Izett’s use of methamphetamine and the mental health issues his consumption of the drug caused amount to compelling circumstances requiring a departure under the manifestly unjust exception from the statutory minimum of 17 years’ imprisonment...”
Mansfield told the panel last month that his client “struggles daily” with what he did to his daughter and remains “in a state of disbelief as to how this could have happened”.
A forensic pathologist testified during the 2020 trial that Nevaeh is believed to have suffered up to 70 or 80 injuries - covering almost every part of her body - before she was drowned by Izett, all while her mother was in hospital giving birth to her brother. At least two household implements were believed to have been used in the severe beating, which may have rendered the child unconscious.
Maketū toddler Nevaeh Ager, 2, was murdered by her father Aaron Izett in March 2019.
Crown prosecutors would later describe Izett as having been motivated by “meth rage” during the attacks on Nevaeh and three others over two days but disputed that he was suffering psychosis to the extent he didn’t know what he was doing was morally wrong.
Izett testified he had no memory of hurting his daughter or lashing out at police - biting an officer - when he was later arrested. The last thing he remembered, he said, was watching a Peppa Pig cartoon with her.
“We don’t hit our child,” he said in the witness box.
He was held in a mental health facility after his arrest. Izett testified he was confused at the time and thought he was in a spaceship.
At his sentencing, the judge would later refer to a provision of the Sentencing Act that calls for a minimum non-parole period of at least 17 years - unless manifestly unjust - for murders deemed to have been committed with an especially “high level of brutality, cruelty, depravity or callousness” or cases in which the victim was especially vulnerable due to age.
The sentencing judge was right to apply those factors to this case, Mansfield conceded. But the judge erred, he said, in not finding the end result manifestly unjust due to Izett’s mental health impairment - the result of a drug addiction that dated back to his teenage years, when he was homeless and living in Melbourne. He was introduced to methamphetamine after his deportation in 2004.
Even if jurors didn’t agree Izett met the narrow legal definition of insanity, there’s no question he was in an “extreme” state of drug intoxication that day and was “clearly psychotic” due to his addiction, Mansfield argued. He suggested that someone whose offending is attributable to addiction-driven intoxication should, for sentencing purposes, be treated in the same way as someone whose offending is attributable in large part to mental health issues.
“Addiction goes to the very core of culpability - of moral responsibility,” he said.
But Crown prosecutor Zannah Johnston noted a provision of the Sentencing Act that states “the court must not take into account by way of mitigation the fact that the offender was ... affected by the voluntary consumption or use of alcohol or any drug”.
“The court is being asked to accept he was so addicted he had no choice,” she said, suggesting it would set a bad precedent if drug abuse was considered “involuntary” given the “terrible impact addiction has on our society”.
Maketū father Aaron Izett was sentenced in the High Court at Tauranga for the murder of his 2-year-old daughter, Nevaeh Ager.
There was little debate that Izett’s behaviour was strange around the time of the murder. Neighbours heard him repeatedly blowing a whistle one night followed by him running naked through the neighbourhood the following morning. He was seen ranting and raving, and smashed a pumpkin into a car bonnet while screaming at the driver. When police came to arrest him, he was naked, blowing his whistle and armed with a pitchfork.
“Mr Izett was neither stable nor clear-headed at the time,” the appellate judges said.
But they also referred to evidence from Dr Peter Dean, a psychiatrist who had been called by the Crown during the trial.
“He considered that the symptoms were attributed to the direct effects of substance abuse, rather than mental illness,” the judges noted. “He recorded that at the time of his assessment, Mr Izett was not presenting with mental impairment; rather Mr Izett’s condition was ‘wholly’ caused by his use of methamphetamine. Dr Dean noted that because of Mr Izett’s previous experience of methamphetamine delirium, Mr Izett was aware of the potential consequences of his ongoing methamphetamine use.”
The expert witness opined that intoxicated people can still form an intent, even though it might be different from their usual intent when sober.
“We accept that addiction can have a strong pull; it may be that it can overwhelm voluntary choice,” the Court of Appeal decision stated. “Nevertheless, there was no material before the [sentencing] judge, nor is there any material before us on appeal, which enables us to reach any conclusions about why Mr Izett consumed methamphetamine shortly before or about the time of Nevaeh’s death.
“The available materials do not establish that Mr Izett’s drug consumption was involuntary as a result of his addiction.”
The decision was authored by Justice Edwin Wylie, who evaluated the case alongside Justices Sally Fitzgerald and Rebecca Edwards.
Craig Kapitan is an Auckland-based journalist covering courts and justice. He joined the Herald in 2021 and has reported on courts since 2002 in three newsrooms in the US and New Zealand.
