R v Hemana - [2012] NZHC 376

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-088-2218 [2012] NZHC 376

THE QUEEN

v

JAMES ALLAN FREDERICK HEMANA

Hearing: 8 March 2012

Appearances: P K Hamlin and J Shaw for Crown
S J Bonnar and K P Cato for Prisoner

Judgment: 8 March 2012

SENTENCING NOTES OF PETERS J

Solicitors:
Meredith Connell, Crown Solicitors, Auckland phil.hamlin@meredithconnell.co.nz / joshua.shaw@meredithconnell.co.nz

Counsel:
S J Bonnar, Auckland steve.bonnar@22lorne.co.nz

K P Cato, Auckland kristin.cato@xtra.co.nz

R V HEMANA HC AK CRI 2010-088-2218 [8 March 2012]

Introduction

[1] Mr Hemana, I am to sentence you on two charges. The first is the murder of Cezar Taylor in 2010 and the second is for failing to provide Cezar with the necessaries of life. A jury found you guilty on the murder charge at a trial in November and December 2011. You pleaded guilty to the failing to provide charge at the beginning of the trial. I was the Judge at the trial and I have a very good recollection of the evidence that was given.

Background

[2] The important facts for the purposes of sentencing are these. Cezar was born on 21 January 2010. He was the son of Adam Clarke and Victoria Taylor and at that time, they had one other child, Wikitoria.

[3] Victoria and Adam separated in about May 2010. Victoria began a relationship with you shortly afterwards. Not long after that, Victoria moved into a house in Mangere which was intended for Victoria and Samantha, her sister, and for either or both of Wiki and Cezar if they came to live with Victoria. You moved into the house shortly afterwards, as did Russell, Victoria’s older brother.

[4] At the end of May 2010 Victoria brought Wiki to live with her, and that meant to live with you. Victoria’s evidence was that you were fine with Wiki to start with but after a week or so you started shouting and growling at Wiki. There was also an incident involving you and Wiki that appears to have left Wiki with a bruise under her right eye. But I am far from clear on the details of that incident and who was responsible for what so I intend to put all of that one side.

[5] A few weeks later Victoria returned Wiki to Adam and took Cezar in Wiki’s place. This was on 28 June 2010. Cezar, a healthy little baby boy, five months’ old, was dead a month after coming into the household.

[6] Cezar’s death on 28 July resulted from your actions on 13 July. Victoria

Taylor, Cezar’s mother, gave evidence of two incidents before that. One was when

Cezar was in his walkie and the other was when you shook him on 6 July. I am going to mention these matters briefly but they are not of great significance, given what happened on 13 July.

[7] Victoria’s account of the walkie incident was that, while Cezar was in his walkie, you became annoyed with him and slapped him on the…

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 Hemana

Details

AGLC: R v Hemana [2012] NZHC 376
Case: [2012] NZHC 376
Decision Date: 8 March 2012

CaseChat Overview and Summary

The case of R v Hemana involved the sentencing of James Allan Frederick Hemana for the murder of Cezar Taylor, a six-month-old infant, and for failing to provide the necessaries of life. The court was tasked with determining an appropriate sentence for these serious offences, considering the unique circumstances of the case, including the vulnerability of the victim and the offender's background.

The primary legal issues the court had to decide were the appropriate sentence for the murder charge, including whether the mandatory minimum period of imprisonment should be imposed, and the sentence for the charge of failing to provide the necessaries of life. The court also had to consider various mitigating and aggravating factors, including the offender's background, his admission of guilt, and the impact of his actions on the victim and his family.

The court determined that a sentence of life imprisonment with a minimum period of 17 years was appropriate for the murder charge, given Cezar's vulnerability due to his age. The court found that while the offender's actions were severe, they did not exhibit a high level of brutality or callousness. For the charge of failing to provide the necessaries of life, the court imposed a concurrent sentence of four years' imprisonment. The court considered the offender's background, his admission of guilt, and the lack of prior convictions as mitigating factors, but ultimately found that the serious nature of the offences warranted a substantial sentence.

The final orders of the court were that James Allan Frederick Hemana be sentenced to life imprisonment with a minimum period of 17 years for the murder charge and four years' imprisonment, to be served concurrently, for the charge of failing to provide the necessaries of life.

Orders