Mr Kepu pleaded guilty in the District Court to a charge of manslaughter. That charge followed an incident on 15 May 2010, in which Mr Kepu assaulted a prison officer at Spring Hill Prison. The prison officer subsequently died from injuries that he sustained as a result of the assault.
On 17 September 2010 Heath J sentenced Mr Kepu to six years four months imprisonment.[1] He directed that the sentence was to be cumulative on an existing sentence of two years eight months imprisonment that Mr Kepu was already serving. The Judge also ordered Mr Kepu to serve a minimum term of imprisonment of four years and two months before being eligible to apply for parole.
[1] R v Kepu HC Hamilton CRI 2010-019-4803, 17 September 2010.
Mr Kepu appeals against the sentence on the basis that it was manifestly excessive.
Facts
On Friday 14 May 2010, as a consequence of alleged misconduct by Mr Kepu, the prison authorities upgraded his security classification from “high risk” to “maximum security”. As a result, they arranged for him to be transferred to Auckland Prison at Paremoremo on Monday 17 May 2010. Pending his transfer to Auckland they placed him on 23 hour lockdown, and segregated him from other prisoners. Mr Kepu was therefore restricted to one hour of exercise per day, to be taken whilst the other prisoners in his unit were in their cells.
For some reason the prison authorities did not advise Mr Kepu immediately of the reason for his segregation from other prisoners. As a result, he became agitated about being locked up and being prevented from undertaking his usual activities. This led to a verbal exchange between Mr Kepu and several prison officers, including the victim, on Saturday 15 May 2010 when breakfast was delivered to Mr Kepu’s cell.
Later that day, the victim and two other prison officers went to Mr Kepu’s cell in order to escort him to the area where he was to undertake his hour of exercise. Immediately after they opened Mr Kepu’s cell door, Mr Kepu struck the victim a forceful blow to the chin. The blow caused the victim to fall backwards and strike his head on the concrete floor. He subsequently died as a result of brain injuries that he received when his head struck the floor.
Before he sentenced Mr Kepu, the Judge conducted a disputed facts hearing in order to determine whether or not Mr Kepu’s attack on the victim was premeditated. After hearing evidence from Mr Kepu and the prison officers who were present during the events that…
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
AGLC
Kepu v R [2011] NZCA 104
Case
[2011] NZCA 104
Decision Date
CaseChat Overview and Summary
Latu Savelio Kepu appealed against the sentence of six years four months imprisonment imposed on him for manslaughter, which followed an incident in which he assaulted a prison officer at Spring Hill Prison, resulting in the officer's death. Kepu argued that the sentence was manifestly excessive. The appeal was heard by Randerson, Simon France and Lang JJ, and the judgment was delivered by Lang J. The appeal was dismissed.
The legal issues in the case were whether the starting point for sentencing in manslaughter cases involving a single punch should be between three and four years, and whether the uplift for aggravating factors and previous convictions was disproportionate. The Court considered that the starting point of three to four years imprisonment was appropriate only for cases where manslaughter occurred in the context of sudden and spontaneous violence, often in a public place and fueled by alcohol and/or drugs. However, Kepu's case involved a calculated attack on a prison officer within a prison environment, and the Court found that the context of the offending set it apart from the "single punch" cases. The Court upheld the Judge's ultimate starting point of seven years six months imprisonment, as it was commensurate with the culpability of the offending. The Court also found that the uplift of two years to reflect Kepu's previous convictions was not disproportionate, considering the gravity of the overall offending and the need for significant consequences for re-offending, particularly violent re-offending while in prison.
In conclusion, the Court dismissed the appeal and upheld the sentence imposed on Kepu for manslaughter. The Court found that the starting point and uplift applied by the Judge were appropriate in the circumstances of the case, and the sentence was not manifestly excessive.