Kaiwai v Police - [2024] NZHC 2491

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2024-441-000012

[2024] NZHC 2491

BETWEEN
JAKAHN ROBERT KAIWAI

Appellant

AND

NEW ZEALAND POLICE

Respondent

CRI-2024-441-000013

BETWEEN

PAAKA MALACHI BABBINGTON
Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 22 August 2024; further submissions 28 August 2024

Counsel:

C E Church for Appellants

M J M Mitchell for Respondent

Judgment:

2 September 2024

JUDGMENT OF LA HOOD J

(Appeal against Sentence)

[1] Jakahn Kaiwai and Paaka Babbington were charged (alongside five other men) with one charge of injuring with intent to injure.1 The group are gang members and associates who attacked a fellow inmate in prison. Messrs Kaiwai and Babbington pleaded guilty and were each sentenced to three years’ imprisonment by Judge Ingram in the Hastings District Court.2 They appeal on the basis that the Judge erred by setting

1 Crimes Act 1961; maximum penalty of five years. The charge was originally “intent to cause grievous bodily harm” but this was amended.
2 Police v Babbington [2024] NZDC 12175 [Decision under appeal].

KAIWAI v NEW ZEALAND POLICE [2024] NZHC 2491 [2 September 2024]

the starting point too high, failing to account for parity with co-offenders, and failing to accept as a mitigating factor the tikanga Māori principle of utu.

[2] I have concluded the starting points of imprisonment should be adjusted to reduce the disparity between the appellants’ sentences and the sentences imposed on their co-offenders. The disparity would cause an independent objective observer to think the administration of justice has miscarried. As the starting points adopted for the co-offenders were manifestly inadequate, the appellants’ starting points should be reduced to the bottom end of the available range because a manifestly inadequate sentence cannot justify the imposition of another sentence outside the available range. I consider a starting point of no less than three and a half years’ imprisonment was appropriate.

[3] I consider no further adjustment to the sentences is required as there was no error in the Judge’s approach. There was no basis to consider the practice of utu a mitigating factor in this case. There would at least need to be pūkenga evidence to support the proposition that an orchestrated gang attack on a rival gang member in prison is consistent with utu. Moreover, recognition of utu would be contrary to binding authority that vigilante action is an aggravating rather than mitigating factor.3 The assertion that the attack was in retaliation for an unwanted sexual advance on Mr Kaiwai falls well short of the threshold required to establish provocation as a mitigating factor.4

[4] Therefore, the appeal is allowed. The sentences of three years’ imprisonment are quashed and sentences of two years and one month imprisonment substituted.

What happened?

[5] The appellants (and their co-offenders) are all patched members or associates of Black Power. Mr Kaiwai and Mr Babbington were remanded in custody and resided in the same wing as the victim at Hawkes Bay Regional Prison. At around 1.00 pm on 23…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NZHC 2491
Decision Date: 2 September 2024

CaseChat Overview and Summary

Jakahn Robert Kaiwai and Paaka Malachi Babbington appeal against the sentences imposed on them for injuring with intent to injure another inmate in Hawkes Bay Regional Prison. Both pleaded guilty and were sentenced to three years' imprisonment by Judge Ingram in the Hastings District Court. The appellants contend the starting point for their sentences was too high, failed to account for parity with co-offenders, and should have considered the tikanga Māori principle of utu as a mitigating factor. The High Court allowed the appeals and substituted sentences of two years and one month imprisonment.

The court found the starting points for the appellants' sentences were too high and should be reduced to address the disparity with the sentences of their co-offenders. While the sentences for the co-offenders were manifestly inadequate, the court was not required to impose an inadequate sentence on the appellants. A starting point of no less than three and a half years' imprisonment was deemed appropriate.

The court rejected the argument that utu should be considered a mitigating factor. There was insufficient evidence to support the claim that the attack was consistent with utu. Moreover, recognition of utu would contradict binding authority that vigilante action is an aggravating factor. The claim that the attack was in retaliation for an unwanted sexual advance by the victim did not meet the threshold for provocation as a mitigating factor.

The appeals were allowed and sentences of three years' imprisonment were quashed. Sentences of two years and one month imprisonment were substituted.

Orders