Neketai v The Queen - [2016] NZCA 174

IN THE COURT OF APPEAL OF NEW ZEALAND

CA135/2015
[2016] NZCA 174

BETWEEN	WITERI AHOMIRO NEKETAI Appellant
AND	THE QUEEN Respondent

Hearing:	12 April 2016
Court:	French, Asher and Williams JJ
Counsel:	C J Tennet for Appellant J E Mildenhall for Respondent
Judgment:	5 May 2016 at 10.00 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

Mr Neketai was convicted at trial of murder and sentenced by Brewer J to life imprisonment.[1] On appeal, this Court substituted the murder conviction with a conviction for manslaughter and remitted the case to the High Court for sentencing on manslaughter.[2]
[1]R v Neketai [2013] NZHC 2711.
[2]Neketai v R [2014] NZCA 502.
At the re-sentencing, Brewer J sentenced Mr Neketai to preventive detention with a minimum period of imprisonment of six years.[3]
[3]R v Neketai [2015] NZHC 396 [Sentencing notes].
Mr Neketai now appeals the sentence of preventive detention. He accepts manslaughter is a qualifying offence for preventive detention but submits in the circumstances the appropriate sentence was a finite sentence in the vicinity of five years’ imprisonment.
The facts of the manslaughter offending were that Mr Neketai agreed to act as an enforcer for a serving prisoner and recover an alleged drug debt. On 5 October 2011, he went to the alleged debtor’s home. When the victim refused to pay, Mr Neketai struck him with such force that the 109 kg victim flew backwards and hit his head on a concrete driveway as he landed. As the victim lay on the ground, Mr Neketai kicked him in the head. Mr Neketai texted the man who had given him the instructions saying the victim was “in a Coma cuz jst for you” and may be left “a vege”.
The victim died in hospital 11 days later.

High Court sentencing

In accordance with standard practice, Brewer J first determined what the appropriate finite sentence would be. After considering the aggravating features of the offending, he adopted a starting point of 12 years’ imprisonment, which he increased by 12 months on account of Mr Neketai’s criminal history of violent offending. The Judge then applied discounts for Mr Neketai’s guilty plea (10 per cent) and for totality having regard to the fact Mr Neketai was already serving prison sentences for other offending.
The Judge concluded that if he were to sentence Mr Neketai to a finite prison sentence, it would be for a period of nine years with a minimum period of imprisonment of six years.
Having reached that conclusion, the Judge then turned to consider preventive detention and addressed each of the factors he was required to take into account under s 87(4) of the Sentencing Act 2002.

Any pattern of serious offending disclosed by offender’s history

The Judge concluded that Mr Neketai’s criminal history did disclose a pattern of serious violent offending. In support of that conclusion, the Judge relied on convictions for violent offending 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.

Continue reading Neketai v The Queen

Details

AGLC: Neketai v The Queen [2016] NZCA 174
Case: [2016] NZCA 174
Decision Date: 5 May 2016 at 10.00 am

CaseChat Overview and Summary

Witeri Ahomirō Neketai appealed against his sentence of preventive detention, which was imposed by Brewer J following his conviction for manslaughter. The Court of Appeal dismissed the appeal, affirming the trial Judge’s sentence. The appeal court held that the trial Judge did not err in considering post-offending conduct or in assessing the seriousness of the harm caused by the offending. The trial Judge was also correct to conclude that Mr Neketai was at high risk of committing further serious offences and that the lack of previous treatment did not preclude the imposition of preventive detention. The Court of Appeal held that the sentencing judge’s approach was careful, thorough, and in accordance with the Sentencing Act and that there were no grounds warranting appellate intervention. The appeal against sentence was dismissed.

Orders