R v Burns
[2025] NZHC 1082
•2 May 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-092-9236 [2025] NZHC 1082
THE KING
v
KELLY-ANNE BURNS
Hearing: 2 May 2025
Counsel::KFR Karpik for Crown JA Philson for Defendant
Sentence: 2 May 2025
SENTENCING NOTES OF WILKINSON-SMITH J
Solicitors/Counsel:
Great South Chambers, Auckland Kayes Fletcher Walker Ltd, Auckland
R v BURNS [2025] NZHC 1082 [2 May 2025]
Introduction
[1] Ms Burns, you appear for sentence today having pleaded guilty in this Court to:
(a)one charge of conspiracy to injure with intent to injure;1 and
(b)one charge of failure to answer bail.2
The offending
[2] In November 2021, a conflict arose between your daughter, Jimel Burns-Wong-Tung, and the deceased, Mr Ngaronoa. Mr Ngaronoa said that Ms Burns-Wong-Tung’s young child, your grandchild, had done something wrong. That was the catalyst for what followed.
[3] On 21 November 2021 your daughter Ms Burns-Wong-Tung, her then partner Mr Hemopo, you and your then partner Rocky Ngapera, and Rocky’s brother Thomas Ngapera planned to take Mr Ngaronoa to Ms Burns-Wong-Tung to sort out their conflict, and it seems that what was anticipated was that Mr Ngaronoa would receive a “hiding”.
[4] Mr Ngaronoa was 22 years old and was the nephew of your partner, Rocky Ngapera.
[5] You all agreed to meet at an address in Clendon to give Mr Ngaronoa a “hiding”.
[6] Police obtained CCTV footage which captured the attack on him which led to his death.
1 Crimes Act 1961, ss 189(2) and 310; maximum penalty five years’ imprisonment.
2 Bail Act 2000, s 38(b); maximum penalty one year’s imprisonment or $2,000 fine.
[7] Your daughter went to the address with her partner Mr Hemopo in a Honda Accord. Your daughter was sitting in the front passenger seat, and there were two other males sitting in the back.
[8]Your daughter messaged you to tell you that she was in Clendon.
[9] You then drove to the Clendon address in a Toyota and stopped next to Mr Hemopo’s vehicle.
[10] Within a minute or so of you arriving, Thomas Ngapera drove a Ford Escape motor vehicle onto the address. Your partner, Rocky Ngapera, was in the front passenger seat. They had Mr Ngaronoa with them. As I have said, he was their nephew.
[11] Thomas Ngapera exited the vehicle and spoke with Mr Hemopo through the window of the Honda, while you repositioned your vehicle and parked it on the footpath.
[12] The two males from the car your daughter arrived in got out of the Honda and approached Mr Ngaronoa. Thomas Ngapera told them that only Ms Burns-Wong-Tung was to touch Mr Ngaronoa.
[13] Ms Burns-Wong-Tung then got out of the Honda and approached the Ford. She appeared to pass a concealed object from her right hand to her left hand.
[14] Ms Burns-Wong-Tung spoke to Mr Ngaronoa through the open window and demanded that he open the door, which it seems he did. Ms Burns-Wong-Tung leaned into the rear right door and used a kitchen knife to stab Mr Ngaronoa repeatedly.
[15] Witnesses on the street heard distressed screaming coming from the Ford, and you must have heard that as well.
[16] Ms Burns, you approached the Ford and stood in the doorway as Ms Burns-Wong-Tung continued to stab Mr Ngaronoa for about one minute, stabbing him a total of at least eight times.
[17] Ms Burns-Wong-Tung stopped stabbing Mr Ngaronoa and said “thanks bruv” to Thomas Ngapera before returning to the Honda.
[18] Mr Hemopo then drove Ms Burns-Wong-Tung to Māngere. You followed them in the car you were driving.
[19] Thomas Ngapera and Rocky Ngapera drove the Ford, containing a badly injured Mr Ngaronoa, to Takanini Medical Centre. While staff at the medical centre treated Mr Ngaronoa, Thomas Ngapera and Rocky Ngapera left.
[20] Mr Ngaronoa was taken to Middlemore Hospital by ambulance for emergency medical treatment. He was pronounced deceased at 2.32 pm.
[21]Mr Ngaronoa suffered at least eight stab wounds, including:
(a)three stabs to the top of his head which damaged, but did not penetrate, his skull;
(b)a 13 cm-deep wound on his upper chest;
(c)a large wound under his left armpit;
(d)a deep wound to his stomach;
(e)a defensive wound to his left thumb; and
(f)wounds to his calf and right foot.
[22] The indication from the pathologist is that he died as a result of blood loss due to his stab wounds.
[23] You were charged with conspiracy to injure with intent to injure because you agreed with your co-offenders that Mr Ngaronoa would be assaulted and injured by your daughter as retribution for the conflict that had arisen. Although you conspired
to give Mr Ngaronoa a hiding, it is not suggested that you knew or intended that he would be stabbed or killed, and that is the basis on which you are being sentenced.
[24] Your daughter, Ms Burns-Wong-Tung, went further than what was intended by you.
[25]You also face a charge of failing to answer bail.
[26] You were remanded in custody awaiting trial. On 15 December 2022, the High Court granted you compassionate bail to enable you to attend a funeral between 8 am and 6 pm on 16 December 2022. However, you failed to return to custody and you were not located until 28 May 2024. That was almost a year and a half evading police.
[27] On 15 March 2023, you failed to attend trial callover at the Auckland High Court, and the trial of your daughter and Mr Hemopo subsequently proceeded while you were unable to be located. You would have been tried in the same trial had you gone to trial and not absconded.
[28]You were arrested by police on 28 May 2024. You did not hand yourself in.
Approach to sentencing
[29] The most serious charge is the charge of conspiring to injure with intent to injure. You conspired to do real harm to a young man of 22. You may have thought it was justified, but that conspiracy has ruined and affected many lives.
[30] I must first set a starting point for that offending, taking into account the aggravating and mitigating features. I will then consider what uplift is needed for your failure to answer bail. That is not just a matter of adding two sentences together. The overall sentence must not be out of all proportion to the seriousness of the overall offending.3
3 Sentencing Act 2002, s 85(2); see also Jacobson v R [2023] NZHC 1358 at [14].
[31] Finally, I will determine any further uplifts and reductions to the sentence that reflect aggravating and mitigating factors personal to you.4
[32] In determining the appropriate sentence, I must have regard to the purposes and principles of sentencing set out in the Sentencing Act 2002. The purposes of sentencing that I consider to be particularly relevant in your circumstances are:
(a)to hold you accountable for the harm done, but that is the harm done as a result of your offending;5
(b)to promote in you a sense of responsibility for, and an acknowledgement of, that harm; 6
(c)to denounce the conduct in which you were involved;7 and
(d)to deter you and others from committing the same or similar offending.8
[33] In sentencing you today, I must take into account the need for parity with the sentences imposed on your co-offenders. That means, Ms Burns, that your sentence must be fair when compared with theirs. I must also impose the least restrictive outcome that is appropriate in the circumstances.9
Starting point — conspiracy offending
[34] The Crown submits that a starting point in the vicinity of two years and nine months’ imprisonment is appropriate for the conspiracy to injure with intent to injure charge, having regard to parity considerations. They say you should get the same sentence as Rocky and Thomas Ngapera.
[35]The Crown identifies as aggravating features of your offending:
4 This approach follows the two-stage methodology set out by the Court of Appeal in Moses v R
[2020] NZCA 296, [2020] 3 NZLR 583 at [46].
5 Sentencing Act, s 7(1)(a).
6 Section 7(1)(b).
7 Section 7(1)(e).
8 Section 7(1)(f).
9 Section 8(g).
(a)the fact that the conspiracy was completed — it was not just an idea; it was actually carried out. Mr Ngaronoa was attacked and ultimately murdered by Ms Burns-Wong-Tung;
(b)the presence of some degree of vigilante action in that your offending came about for the purpose of punishing Mr Ngaronoa; and
(c)the harm to the victim — specifically, that he was stabbed eight times and died as a result of the conspiracy. I accept, Ms Burns, that was not your intention; you did not intend that to happen, but it came about as a result of you agreeing to be part of this.
[36] The Crown also submits that the aggravating features of your offending include planning and premeditation because you arranged to meet with the co- offenders to confront Mr Ngaronoa; and the fact that there were multiple defendants.
[37]Your counsel, Ms Philson, accepts the matters relied on by the Crown.
[38]I agree those aggravating factors are present.
[39] Both the Crown and Ms Philson refer to the decision of Nuku v R,10 in which the Court of Appeal provided guidance on the sentencing guidelines in R v Taueki11, which involves sentencing for offences involving an intent to injure.12 The Court set out sentencing bands to guide the determination of the starting point.13
[40] While the bands set out in Nuku provide some guidance in setting the starting point, as I have said, parity with the sentences imposed on your co-offenders is important. Your sentence must be fair when compared with theirs. In setting the starting point for your offending I have primarily had regard to the starting points adopted for the Ngapera brothers and Mr Hemopo.
10 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
11 R v Taueki [2005] 3 NZLR 372 (CA). This decision provided sentencing guidelines for serious violent offending, with a primary focus on grievous bodily harm offending under s 188(1) of the Crimes Act.
12 The offences covered by the guidelines in Nuku v R include injuring with intent to injure under s 189(2) of the Crimes Act.
13 Nuku, above n 10, At at [38].
[41] In sentencing the Ngapera brothers,14 Venning J adopted a starting point of two years and nine months’ imprisonment in relation to the conspiracy charge.15 The Judge noted the principal aggravating feature of their offending was a breach of trust. They were the uncles of Mr Ngaronoa; Mr Ngaronoa, at 22 years old, was much younger than both offenders and would not have expected them to lead him to his death.
[42] The Judge also considered that the Ngapera brothers’ involvement in the planning of the arrangement to mete out some form of vigilante justice was an aggravating factor relevant to the determination of the starting point. The Judge accepted that neither of those offenders knew that Ms Burns-Wong-Tung would go on to murder Mr Ngaronoa but noted that they intended that he would be injured.16
[43] In Mr Hemopo’s case,17 Muir J adopted a starting point of two years’ imprisonment,18 acknowledging that Mr Hemopo’s role in the conspiracy was significantly less serious than that of the Ngapera brothers, who took Mr Ngaronoa under their control effectively as a captive and whose relationship gave rise to a substantial breach of trust. The Judge also distinguished Mr Hemopo’s offending from that of the Ngapera brothers on the basis that both of the Ngapera brothers exited their vehicles at various points while Ms Burns-Wong-Tung was attacking Mr Ngaronoa, and neither intervened to stop the assault.19 That is the situation in your case as well. Mr Hemopo’s proven involvement was limited to driving Ms Burns-Wong-Tung to the Clendon address and he made some attempt to prevent the assault from continuing.20 In setting the starting point, Muir J acknowledged that Mr Hemopo understood that Mr Ngaronoa was to receive a beating or “hiding”, but not that he would be subjected to a fatal assault with a large kitchen knife.21
14 R v Ngapera [2023] NZHC 2931.
15 At [15].
16 At [14].
17 R v Hemopo [2023] NZHC 1613.
18 At [28].
19 At [23].
20 At [24]–[26].
21 At [27].
[44] The Crown submits that your offending is similar to that of the Ngapera brothers and should attract the same starting point. The Crown points to the fact that you were physically next to Ms Burns-Wong-Tung while she attacked Mr Ngaronoa, and that you did not intervene.
[45] The Crown also suggests that you are the link between the main offender, your daughter Ms Burns-Wong-Tung, and the Ngapera brothers who transported Mr Ngaronoa to her, as Rocky Ngapera was your partner. The Crown says it might be inferred that you had a significant role in facilitating Mr Ngaronoa being brought to Ms Burns-Wong-Tung for the planned attack.
[46] That is not an inference that I am willing to draw. All of you were presumably known to each other and I am not willing to speculate as to how central your role was in having Mr Ngaronoa brought to the address. I think your role is less culpable than that of the Ngapera brothers.
[47] The Crown also submits that your significant role in the offending is further reflected by the fact that you followed Ms Burns-Wong-Tung away from the scene after the attack occurred. I do not think that aggravates your role in any particular way. Your main culpability stems from your agreement that an attack on Mr Ngaronoa by your daughter should be facilitated and your attendance when that attack happened.
[48] Ms Philson says that your offending differs from that of the Ngapera brothers because Mr Ngaronoa was not your nephew and breach of trust is not engaged to the same degree. Ms Philson points out that, unlike the Ngapera brothers, you did not transport the victim to the scene of the planned assault. That is a significant difference which I do accept.
[49] I consider that your role was less than the Ngapera brothers’, and there must be some difference in the starting point. On the other hand, your role was more active than Mr Hemopo who remained in his car throughout. You were right beside your daughter as she stabbed the victim.
[50] I consider that a starting point of two years and six months is appropriate. That is lower than the two year and nine month starting point taken for the Ngapera brothers but higher than the two years taken for Mr Hemopo.
Uplift for failure to answer bail
[51]There must be an uplift for your failure to answer bail.
[52] The Crown submits that your offending in relation to this charge is close to the most serious of its kind and would, on its own, attract a starting point close to the maximum of 12 months’ imprisonment.22
[53] The Crown points to the fact that you absconded from compassionate bail and unlawfully remained at large for a significant period of time — more than one year and five months — and you failed to attend your original trial date alongside your co-offenders in August 2023. Having regard to the totality considerations, the Crown submits that an uplift of approximately nine months’ imprisonment is appropriate in respect of the charge of failing to answer bail.
[54] Ms Philson submits that your offending in relation to the charge of failing to answer bail warrants an uplift of three to six months’ imprisonment. Ms Philson acknowledges that you remained unlawfully at large for a significant period of time and that, as a result, the trial you were originally scheduled to attend proceeded in your absence.
[55] That meant that the witnesses who gave evidence in that trial faced the prospect of having to give evidence twice.
[56] However, as Ms Philson submits, your absence does not appear to have caused any actual prejudice to the trial and your guilty pleas meant that the witnesses did not in the end have to come back to court.
22 Sentencing Act, s 8(d).
[57] I do not agree that this is an instance of absconding that would attract a sentence at the very maximum on a standalone basis. I consider that that sort of sentence would be reserved for a situation where a person absconds for a particular purpose — probably related to perverting justice such as confronting a victim, and there is no evidence that was your purpose.
[58] But absconding from compassionate bail is serious. It makes it harder for others to get compassionate bail. It means that other people might not be able to go to funerals or to other important family events. It demonstrates a complete contempt for the compassion and trust shown by the Court towards you.
[59] I consider that the charge of failing to answer bail warrants an uplift of six months’ imprisonment. On a standalone basis it probably would have attracted nine months.
[60]This results in a global starting point of three years’ imprisonment.
Personal aggravating factors
Previous convictions
[61] You have 26 previous convictions, 12 of which resulted in sentences of imprisonment. Two of those convictions arose out of violent offending — specifically, assaults in 1996. That is now a very long time ago. I accept, as submitted by Ms Philson and acknowledged by the Crown, that no uplift is warranted in respect of those convictions given their historic nature.
[62] However, you also have nine previous convictions for failure to answer bail between 2006 and 2019. The Crown and your counsel agree that a modest uplift of one to two months’ imprisonment is appropriate to reflect these previous convictions.
[63] I agree that an uplift is required. The convictions are of the same type as one of the charges you are for sentence for.
[64]I apply an uplift of one month to reflect your previous convictions.
Personal mitigating factors
Remorse
[65] Ms Philson seeks a reduction in the vicinity of five to 10 per cent for remorse. Ms Philson says you have demonstrated genuine remorse and acknowledged responsibility for your involvement in the harm caused by your offending by your willingness to attend a restorative justice conference with Mr Ngaronoa’s whānau.
[66] A referral was made for the purposes of restorative justice;23 however, no restorative justice conference took place because the co-ordinator was unable to contact, or maintain contact with, Mr Ngaronoa’s whānau. I note that they have also not provided victim impact statements.
[67] A discount for remorse is available where a defendant shows genuine remorse. The Court will look for “tangible evidence” of remorse, and engagement in restorative justice processes can be an example.24 But willingness to engage in restorative justice is not necessarily enough on its own.25
[68] The reason that remorse justifies a lesser sentence is that it indicates insight into harm, and it may reduce the risk of further offending. It is not a question of simply ticking a box. The Court will look at the overall picture to assess remorse.
[69] The Crown suggests that any expression of remorse indicated by your willingness to engage in restorative justice is unsupported by other material before the Court, such as the pre-sentence report.26
[70] That report records that you were originally scheduled to attend a pre-sentence interview in February 2025, but you refused to attend. An addendum to the pre-sentence report states that another interview was arranged, which you attended, but said you were unable to complete due to hip pain resulting from a recent accident.
23 R v Burns HC Auckland CRI-2021-092-9236, 11 February 2025 (Minute).
24 Moses v R, above n 4, at [24].
25 Pene v R [2023] NZHC 1234 at [27].
26 The Crown cites R v Rapira [2003] 3 NZLR 794 (CA) as an example of a case where the Court looked to the objective assessments of pre-sentence report writers to substantiate claims of remorse.
That addendum also states that at this second interview, you presented in a negative manner and questioned whether there was any point in the interview and pre-sentence report.
[71] Because you would not engage, Ms Burns, I have very little information about your attitude — but it is clear that you did not take the opportunity to express remorse through the pre-sentence report process. It is hard to know how you feel about what happened. It is possible that you feel the offending was justified, at least to some extent, according to your own set of values and morals. If that is the case, then whatever this Court says will have little effect as you will just regard the Court as “out of touch” or lacking understanding of the world you live in.
[72] But real harm has resulted. I hope you will reflect on that. Mr Ngaronoa was only 22. Your daughter has been removed from her children and will not be able to mother them as they grow up as a result of this conspiracy. Getting involved in this sort of revenge violence is not worth it. It hurts everyone involved. You are old enough to be a matriarch in your whānau and an influence on the next generation. There is, I have to say, a better place in society for your grandchildren than there might have been for you. Society has changed since the 1990s when you were last here on violence offences. Your grandchildren have other options, and I hope that you can be a more positive role model for them.
[73] A discount for remorse is available when there is real remorse demonstrated. You may have been willing to engage with Mr Ngaronoa’s whānau to make amends to them, but I do not see that on its own as indicating remorse to the extent that a discrete discount is warranted. Your level of remorse must be assessed also against the fact that you absconded for a lengthy period and put Mr Ngaronoa’s whānau through the prospect of a further trial.
[74] I do not consider that a discrete reduction for remorse is warranted but there will be a discount for guilty plea.
Time spent on electronically monitored bail
[75] I am required to consider the time you have spent on electronically monitored (EM) bail as a mitigating factor that may justify a reduction to your sentence.27 In taking this factor into account, I consider the period of time you spent on EM bail.28 The relative restrictiveness of the EM conditions and your compliance with the conditions of EM bail are mandatory considerations.29
[76] You were granted EM bail on 25 February 2022, but were remanded in custody just five days later. You were only on EM bail for five days.
[77]Given that very short time, no reduction is warranted for time on EM bail.
Personal factors
[78] There is little information before the Court relating to any other personal factors which might justify a reduction in your sentence. The addendum to your pre-sentence report contains some information on your background, including that you were born and raised in Auckland, by both of your parents; you were the youngest of nine siblings; you described your childhood as “good”. You reported that you did not attend school, saying that your literacy and numeracy are “not that good”. You were not working prior to being remanded in custody and you were recently involved in an accident which led to you being in a wheelchair and suffering hip pain. It was at that point in the interview that you indicated you were unable to continue. You are still in a wheelchair, Ms Burns. You are facing surgery, and you are immobile. You are, I accept, likely to find the custodial environment more difficult than people who are not in a wheelchair, and there will be some acknowledgement of that.
[79] Ms Philson did not seek a reduction for personal factors. In submissions, it is noted that the addendum to the pre-sentence report states that you “presented in a negative manner”, you refused an offer to consider options for an EM sentence and you expressed a preference for a sentence of imprisonment. The pre-sentence report
27 Sentencing Act, s 9(2)(h).
28 Sentencing Act, s 9(3A)(a).
29 Sentencing Act, s 9(3A)(b) and (c).
assesses your likelihood of re-offending, your risk of harm and your ability to comply with a community-based sentence as “medium”.
[80] You presented negatively to the pre-sentence report writer, but I take little from that. I expect that you simply distrust the system, but it is a shame you would not talk to the writer. I think that a background report might have helped. I suspect there is a lot in your background that normalised violence and made you regard the “hiding” Mr Ngaronoa was supposed to get as justified. It was not justified in any way, but the things in your life that made you behave like that can matter in the sentencing process.
[81] As I have said before, Ms Burns, things have changed since the 1990s when you last appeared before the Court for violence offences. If you had talked, I would have listened. As it is, I simply don’t have any information that justifies any discount for personal factors apart from your health issues — which do justify a small discount.
Guilty pleas
[82] I must have regard to your guilty pleas.30 The Crown’s written submissions outline that you first appeared on 15 December 2021 on the conspiracy charge, and on 28 May 2024 on the failing to answer bail charge. Your guilty pleas were entered on 11 February 2025, six days before your trial scheduled to begin on 17 February 2025.
[83] By this stage, you had failed to attend the trial originally scheduled for you and your co-offenders. The Crown submits that a reduction of no more than five per cent is appropriate to account for your guilty pleas, reflecting that a retrial did not have to proceed.
[84] Ms Philson accepts that a guilty plea reduction of around five per cent is appropriate.
[85]I will apply a reduction of five per cent.
30 Sentencing Act, s 9(2)(b).
[86] The other matter, your broken hip and immobility, also requires a reduction; and I will apply a further five per cent for that, taking the overall reduction to 10 per cent.
Result
[87] From the starting point of three years’ imprisonment, I apply an uplift of one month for your previous convictions. I apply a five per cent reduction for your guilty pleas, and I apply a five per cent reduction for the difficulty that you will face in custody. That brings your end sentence to one of two years and nine months’ imprisonment.31
[88] On the charge of conspiracy to injure with intent to injure, you are sentenced to two years and nine months’ imprisonment.
[89] On the charge of failure to answer bail, you are sentenced to six months’ imprisonment.
[90] These sentences are to be served concurrently. That means the total term you will serve is two years and nine months’ imprisonment.
Wilkinson-Smith J
31 Rounded down from 33.4 months’ imprisonment.
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