R v Herkt - [2016] NZHC 284

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-055-002443 [2016] NZHC 284

THE QUEEN

v

BEN BOSCH HERKT

Hearing: 26 February 2016

Appearances:

Gareth Kayes and Sacha Norrie for the Crown
Peter Kaye for the Defendant

Judgment:

26 February 2016

SENTENCING NOTES OF MOORE J

R v HERKT [2016] NZHC 284 [26 February 2016]

Introduction

[1] Ben Bosch Herkt, at the age of 39 you appear for sentence this morning having been found guilty by a jury on a charge that, on 17 November 2014, you murdered Matthew Greenslade (“Matthew”). The maximum penalty for murder is life imprisonment and that is the sentence I intend to impose upon you because as both the Crown and Mr Kaye agree there is no basis to do otherwise. But in your case there is a complication.

[2] This is because your sentencing triggers s 86E of the Sentencing Act 2002 (“the Sentencing Act”). That section forms part of our sentencing regime and is commonly referred to as the three strikes legislation.

[3] The three strikes legislation applies in your case because on 27 July 2012 you were convicted in the Manukau District Court on three charges of robbery. You were sentenced to three years’ imprisonment and given a first strike warning. Amongst other things you were warned in the event you were convicted of murder you would be sentenced to life imprisonment and would serve that sentence without the possibility of parole unless that would be manifestly unjust.1

[4] Since then you have gone on to commit murder. The effect of s 86E is that you must now be sentenced to life imprisonment without parole unless I am satisfied it would be manifestly unjust to do so. If I find it is manifestly unjust to impose such a sentence the Sentencing Act requires me to impose a sentence with a minimum
non-parole period of at least 10 years.2

[5] I am also required to take into account s 104 of the Sentencing Act which requires the Court to make an order imposing a minimum period of imprisonment of at least 17 years if one or more of a series of aggravating factors are present. If that section applies the Court may only decline making such an order if it is satisfied it
would be manifestly unjust to do so.

1 Sentencing Act 2002, s 86B.
2 Section 103.

[6] Before I examine these various issues in the context of your case it is necessary for me to review the background and the events which lead up to Matthew’s death.

Background facts

[7] Matthew was 32 when he died. In the latter part of 2014 he was living in one of the units situated in a block of six in Porchester Road, Papakura. The flats were occupied by tenants, some or all of whom had a history of various mental health issues. Matthew occupied Unit 3. It was a modest single bedroom unit and he had not been living there for long.

[8]…

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 Herkt

Details

AGLC: R v Herkt [2016] NZHC 284
Case: [2016] NZHC 284
Decision Date: 26 February 2016

CaseChat Overview and Summary

Ben Bosch Herkt has been convicted of the murder of Matthew Greenslade and is subject to the three strikes legislation. The legislation requires Herkt to be sentenced to life imprisonment unless the court finds it would be manifestly unjust to do so. The Crown submitted that it would not be manifestly unjust to impose such a sentence while the defence submitted that it would. The court found that it would be manifestly unjust to impose such a sentence on Herkt. The court found that Herkt's age and the likely consequences of a sentence of life imprisonment without parole for him personally, the circumstances of his offending in the present case, his first strike offences and criminal history, his personal circumstances, his prospects of rehabilitation, the purposes and principles of the Sentencing Act, the views expressed by the victims and his remorse all weighed in favour of a sentence of less than life imprisonment without parole. The court sentenced Herkt to life imprisonment and ordered that he serve a minimum term of imprisonment of 12 years. The court also gave Herkt a final warning under s 86E(6) of the Sentencing Act.

Orders