Kee v R - [2011] NZCA 229

IN THE COURT OF APPEAL OF NEW ZEALAND

CA55/2011
[2011] NZCA 229

BETWEEN ANITALEA CHAN KEE
Appellant

AND THE QUEEN
Respondent

Hearing: 24 May 2011

Court: Randerson, Gendall and Allan JJ

Counsel: J C Down and L Hughes for Appellant
H Ebersohn for Respondent

Judgment: 26 May 2011 at 4.30 p.m.

JUDGMENT OF THE COURT

A The time to appeal is extended.

B The appeal against sentence is dismissed.

___________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

The appellant was involved with five others in the aggravated robbery of the Riverton Liquor Store in South Auckland on 7 June 2008. In the course of the robbery one of the owners of the store, Mr Navtej Singh, was shot and later died. It is not in dispute that the appellant was responsible for shooting Mr Singh. The appellant was found guilty of murder after trial by Lang J and a jury. He had earlier pleaded guilty to the aggravated robbery of the liquor store and to another charge of aggravated robbery of premises described as a tinnie house just a few days before.
On 7 May 2010, Lang J sentenced the appellant to a term of life imprisonment with a minimum period of imprisonment (MPI) of 17 years. Concurrent sentences of ten years imprisonment were imposed on each of the two charges of aggravated robbery. [1]
[1] R v Kee HC Auckland CRI-2008-092-8864, 7 May 2010.
The appellant now appeals against his sentence on the ground that it was manifestly excessive. It is common ground that s 104(1)(d) of the Sentencing Act 2002 was engaged in that the murder of Mr Singh was committed in the course of another serious offence, namely aggravated robbery. However, Mr Down on behalf of the appellant submitted that, in all the circumstances, an MPI of 17 years was manifestly unjust and that a lower MPI should have been imposed.

Background facts

The Judge found that the appellant and others had been socialising on the evening in question at a house in Manurewa. There was widespread and large-scale consumption of alcohol by all involved. When the supply of alcohol ran out, the appellant was the instigator of a plan to steal more alcohol. The appellant had a firearm which he showed to others present and he took a practice shot at a can at the rear of the house.
The Judge found that the appellant had loaded the firearm. A plan to rob the Riverton Liquor Store was discussed in some detail before the appellant and the others left the house. All had agreed to become part of a plan to rob the Riverton Liquor Store and to use a firearm in doing so. While the appellant knew the firearm was loaded, the Judge accepted that the jury’s verdicts demonstrated that the others may not have been aware of that.
The robbery was carried out by the appellant and two others (Jason Naseri and Myron Felise). The other three men assisted in various ways…

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.

Continue reading Kee v R

Details

AGLC: Kee v R [2011] NZCA 229
Case: [2011] NZCA 229
Decision Date: 26 May 2011

CaseChat Overview and Summary

The appellant, Anitalea Chan Kee, was found guilty of murder and was sentenced to a term of life imprisonment with a minimum period of imprisonment (MPI) of 17 years. The appellant appealed against his sentence, arguing that it was manifestly excessive. The central issue before the Court was whether the sentence imposed was appropriate under the circumstances, specifically whether the statutory minimum period of imprisonment of 17 years was manifestly unjust. The Court examined the nature of the crime, the appellant's culpability, and the statutory requirements of the Sentencing Act 2002.

The Court of Appeal considered the two-step approach outlined in R v Williams, which involves first assessing the degree of culpability and then determining if the statutory minimum is manifestly unjust. The Court held that the Judge had correctly applied the statutory policy of s 104, which requires a minimum term of 17 years for murders committed in the course of serious offences unless it would be manifestly unjust. The Court found that the appellant's culpability was high due to the premeditated nature of the crime, the use of a firearm, and the resulting death of the victim. Given the appellant's pattern of violent offending and the lack of mitigating factors, the Court concluded that the 17-year MPI was justified and not manifestly unjust.

The Court of Appeal dismissed the appeal and confirmed the sentence imposed by the lower court. The Court acknowledged the seriousness of the crime and the devastating impact on the victim's family while emphasizing the importance of deterrence and denunciation in such cases. The appeal was allowed to proceed despite being filed out of time, but it was ultimately dismissed.

Orders