R v Fore - [2020] NZHC 2290

ORDER UNDER S 205 CRIMINAL PROCEDURE ACT 2011 SUPPRESSING ANY REPORTING ON THIS SENTENCING UNTIL CHARGES

AGAINST REMAINING DEFENDANTS DETERMINED.

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2018-083-1456

[2020] NZHC 2290

THE QUEEN

v

DWAYNE ANSON TEWHENUA FORE KEMP RANGITAHAE RIPPON DANIEL SHANE WHAREAORERE

Hearing: 3 September 2020

Counsel:

M M Wilkinson Smith and R N Benic for the Crown A J Holland for the Defendant Fore

S Lance for Defendant Rippon
P M Keegan and J H C Waugh for the Defendant Whareaorere

Date:

4 September 2020

SENTENCING OF COOKE J

[1] Kemp Rippon, Dwayne Fore and Daniel Whareaorere you appear today for sentencing on the charge of manslaughter following the guilty pleas you have entered after receiving a sentencing indication.1 Mr Rippon you have pleaded guilty to the additional charge of wounding with intent to cause grievous bodily harm.2 And Mr Fore you have also pleaded guilty to driving offences committed while on bail.

1 Crimes Act 1961, s 167, maximum penalty life imprisonment.
2 Crimes Act 1961, s 188(1), maximum penalty 14 years’ imprisonment.

R v FORE & ORS [2020] NZHC 2290 [4 September 2020]

[2] The summary of the facts for the main offending is the same for each of you. The role that you each played in the offending is also largely the same, although there are some differences. I propose to consider the general starting point for the period of imprisonment for the offending. I will then deal with the sentence for each of you separately including the starting point for each of you given your involvement and the issues that affect your individual sentence.

[3] I note that the background is unusual given your guilty pleas following a trial that was abandoned earlier this year as a consequence of the implications of COVID-
19. The abandonment occurred shortly after the conclusion of the Crown’s case. I heard the evidence at the trial to that point. I have made it clear, however, that under s 24 of the Sentencing Act 2002 the sentence must proceed on an agreed summary of facts rather than my view of the evidence we heard during the trial.3 I do not supplement the agreement by any of my own views about the facts in a material way, although as usual I am able to draw inferences from the summary, and further points of agreement have emerged from counsels’ earlier submissions.

The offending

[4] On Sunday 22 April 2018 the three of you were among a group of Black Power members who attended the home of James and Brent Butler to engage in what is colloquially referred to as a taxing. James Butler had been known to be involved in selling drugs in the area, and your intention was to extract by force drugs, money or other items of value.

[5] Your group was made up of 8–10 people. You arrived in two vehicles at approximately 6.15 that evening. James…

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 R v Fore

Details

AGLC: R v Fore [2020] NZHC 2290
Case: [2020] NZHC 2290
Decision Date: 4 September 2020

CaseChat Overview and Summary

The case of R v Fore was heard in the High Court of New Zealand, Whanganui Registry. Three defendants, Kemp Rippon, Dwayne Fore, and Daniel Whareaorere, were sentenced for their involvement in a home invasion resulting in the death of James Butler. The defendants pleaded guilty to manslaughter, and Rippon additionally pleaded guilty to wounding with intent to cause grievous bodily harm. Fore also pleaded guilty to driving offenses while on bail. The court considered the appropriate starting point for the period of imprisonment for the manslaughter charge, which was determined to be eight to nine years for participants in the offending. The court assessed the role of each defendant in the offending and applied relevant discounts and uplifts based on their individual circumstances and criminal history. The court also considered cultural and personal factors that may have contributed to the defendants' offending, applying appropriate discounts for these factors. The final sentences for the defendants were six years and six months for Rippon, four years and ten months for Fore, and four years and ten months for Whareaorere, with the latter's sentence to be served without parole. The court also sentenced the defendants for their other charges, with the sentences to be served concurrently.

Orders