R v Kahia - [2019] NZHC 1021

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2013-069-001200

[2019] NZHC 1021

THE QUEEN

v

HENDRIX JOHN KAHIA

Hearing: 10 May 2019

Appearances:

C Macklin and M Jenkins for Crown E Hall for Defendant

Sentencing:

10 May 2019

SENTENCING NOTES OF WYLIE J

Solicitors:
Crown Solicitor, Rotorua E Hall, Wellington

R v KAHIA [2019] NZHC 1021 [10 May 2019]

Conviction/strike warning

[1] Mr Kahia, I did not enter a conviction against you after the jury gave its verdict because the Crown was unable to advise me as to what type of strike warning was required. The law states that the strike warning has to be given at the time the conviction is entered. The Crown has now clarified the position. It is necessary to provide you with a first stage strike warning.

[2] Accordingly, I now enter a conviction against you for the murder of Wiremu Birch.

[3] Given your conviction for murder you are now subject to the three strikes law. I am now going to give you a warning of the consequences of another serious violence conviction. You will also be given a written notice outlining these consequences, which lists the “serious violent offences”.

(a)If you are convicted of any serious violent offences other than murder committed after this warning and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release.

(b)If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event the Judge must sentence you to a minimum term of imprisonment.

[Court hears submissions from counsel].

Sentencing/Introduction

[4] Let me start by welcoming both Mr Birch’s whanau and Mr Kahia’s whanau to the Court. It is a sad series of events which brings you here today. It is my duty to now proceed to sentence Mr Kahia.

[5] Mr Kahia, you appear for sentence today having been found guilty, following a trial before a jury, of one charge of murder.

[6]I will briefly set out the relevant facts.

Relevant facts

[7] In the early hours of the morning on 11 October 2013, the deceased – a 19 year old man – Wiremu Birch, was stabbed to death in Taupo.

[8] Mr Birch had been drinking throughout the night and he was grossly intoxicated. He was also very aggressive.

[9] Mr Birch and his partner went to a property in a residential area. It belonged to a senior member of the Mongrel Mob gang. Mr Birch was not a member of that gang, but he wanted to join. People at the property – who were more or less closely associated with the Mongrel Mob gang – tried to calm Mr Birch down and they offered him a bed. He declined. Instead, he jumped over the rear fence and into the back yard of another property which…

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 Kahia

Details

AGLC: R v Kahia [2019] NZHC 1021
Case: [2019] NZHC 1021
Decision Date: 10 May 2019

CaseChat Overview and Summary

Hendrix John Kahia has been sentenced for the murder of Wiremu Birch in Taupo. Kahia was found guilty of murder following a retrial. The initial conviction and sentencing took place in 2015, but the case was later appealed and resulted in a retrial. The facts of the case involve a confrontation between members of the Black Power and Mongrel Mob gangs, escalating into a fatal stabbing. Kahia, a member of the Black Power gang, stabbed Birch three times, leading to his death. The legal issues in this case involved determining the appropriate minimum non-parole period for Kahia's life sentence, considering both aggravating and mitigating factors.

The High Court considered the statutory presumption of life imprisonment for murder and the various purposes of sentencing, including accountability, denunciation, deterrence, and community protection. The Court found several aggravating factors, such as the use of a weapon, gratuitous violence, multiple attackers, and the gang dimension of the offence. Despite these factors, the Court also acknowledged mitigating aspects, such as Kahia's willingness to engage in rehabilitation, his past compliance with bail conditions, and the delay in obtaining the retrial. Balancing these considerations, the Court decided to reduce the minimum non-parole period from the initial 13 years to 12 years, reflecting the time Kahia spent awaiting retrial and his period on electronic monitoring bail. The final sentence imposes life imprisonment with a minimum non-parole period of 12 years, emphasizing the importance of rehabilitation and behavioural change for potential future release.

Orders