R v Kahia
[2015] NZHC 344
•4 March 2015
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2013-069-001200 [2015] NZHC 344
THE QUEEN
v
HENDRIX JOHN KAHIA RAYMOND PORKY KAHIA LEE RANGANUI TAWAKA
Hearing: 4 March 2015 Appearances:
C Macklin and A Hill for the Crown
R Fairbrother QC and H Edward for Defendant, Hendrix Kahia
M Hine for Defendant, Raymond Kahia
S Schulze for Defendant, TawakaSentencing:
4 March 2015
SENTENCING NOTES OF WOOLFORD J
Counsel/Solicitors:
Crown Solicitor, Rotorua
R Fairbrother QC, Napier
Harry Edward Law, Rotorua
Families Matter Law Practice, Rotorua
Lance Lawson, Rotorua South
R v HENDRIX JOHN KAHIA RAYMOND PORKY KAHIA LEE RANGANUI TAWAKA [2015] NZHC 344 [4
March 2015]
Summary
[1] All three of you appear today for sentencing in relation to convictions which followed the death of Mr Wiremu Birch, on 11 October 2013.
[2] Mr Hendrix Kahia, on 5 December 2014, after a jury trial of just over a week, you were found guilty of murdering Mr Birch.1 Under the Sentencing Act 2002, there is a presumption that you automatically receive life imprisonment for your crime.
[3] Mr Raymond Kahia and Mr Lee Tawaka, on 27 November 2014, you both pleaded guilty on the morning of trial to assault with intent to injure. Assault with intent to injure carries a maximum sentence of three years imprisonment.2
Facts
[4] I will turn now to consider the facts of this offending. Between 10 and
11 October 2013, the victim Mr Wiremu Birch, went out drinking. He was heavily intoxicated and became aggressive, running onto the property of some of your friends. He yelled slogans which were associated with the Mongrel Mob, and was seen as causing a disturbance to those on the property. Mr Birch was not however a member of the Mongrel Mob.
[5] His behaviour led to confrontations with Black Power gang members and associates at the property. In particular, Mr Raymond Kahia, you were incensed by his actions and fought him one-to-one in the street. You made plans to fight further in the morning once you had sobered up. However, Mr Kahia, you are not a member of Black Power and you appear to have been generally incensed by his behaviour rather than specifically his gang slogans.
[6] The victim later began walking home with his partner. He was, at that stage, still very drunk and had sustained a number of injuries in fights throughout the night.
1 Crimes Act 1961, s 167(b)
2 Crimes Act 1961, s 193.
[7] Mr Hendrix Kahia, you were not involved in the earlier fight. You and Mr Tawaka, along with a Mr Tareha had been at a different location on Karamu Street where you all had been smoking methamphetamine. Once you heard of the earlier fight, you all got into Mr Tareha’s car and drove to meet your brother. Before you got into Mr Tareha’s car, I infer that you grabbed a knife to take with you.
[8] With your brother, the four of you discussed going to find Mr Birch with the intention perhaps of dealing to him if you found him. You all drove after him. Once you found the deceased, you, Mr Raymond Kahia, fought with him and repeatedly struck him. It was clear that you were the dominant one in the fight. Mr Tawaka, you were a party to this assault, although the extent of your physical involvement is unclear. Both of your charges of assault with intent to injure arise from this incident.
[9] Mr Hendrix Kahia, while your brother and Mr Tawaka were involved in the fight with the deceased, you drew a knife and stabbed him three times. Your stab to his chest was fatal. Your stabbing was unanticipated by the others, albeit that they subsequently helped clean the car and dispose of your clothing. You all drove away from the scene, leaving the deceased’s partner with the responsibility of getting help for her partner. All three of you the next day discussed how you might avoid implicating Mr Hendrix Kahia as the stabber.
[10] Mr Hendrix Kahia, Mr Tawaka and Mr Raymond Kahia, you all had affiliations to Black Power. In particular, Mr Hendrix Kahia, you are a patched Black Power member. Although you have never been patched, Mr Raymond Kahia, you have had a longstanding association with the gang through your family connections and you, Mr Tawaka are an ex-patched member.
Victim Impact Statement
[11] There are two victim impact statements that have been provided to the court. They both make clear the extent of the loss that a beloved family member, Wiremu, has had on the family. Ms Cheyenne Birch, Wiremu’s sister, talks about the loss of Mr Birch in a family that was already dealing with losing their mother seven months earlier. She attributes the loss of his mother to Wiremu’s heavy drinking. Ms Birch notes that their family cries a lot more now, and on some days her sons get really
angry. To compound this, the family had to deal with inaccurate media reporting which caused them a lot of hurt and pain.
[12] Ms Waimarama Nicoll, the victim’s partner, saw the murder happen. She is
18 years old and has now lost the father of her baby. Her grief has been deep, and she has turned to drinking and drugs running up to and following the trial to cope, particularly with the stress of giving evidence at trial and the recurring memories of the night Wiremu died. Understandably, the experience has been intensely traumatic for her.
Sentencing
[13] In sentencing each of you today, I follow the standard approach under the Act. I must consider the purposes and principles of sentencing as set out in the Act. The approach I take will involve setting what is known as the starting point for your offending before considering any relevant aggravating or mitigating features personal to you which might require altering this starting point.3
[14] I consider that the relevant purposes of sentencing for each of you include ensuring that the sentence I impose creates accountability for harm done to the victim and to the community (s 7(1)(a)), a sense of responsibility for, and acknowledgement of, that harm you have done (s 7(1)(b)). I also consider both the balanced needs of protecting the community, but also considering, if any, your potential to be rehabilitated and reintegrated into the community (ss 7(1)(g) and
7(1)(h)). I also have considered the principles of sentencing set out in s 8 of the Act.
Murder
[15] Mr Hendrix Kahia, I turn to your offending as clearly the most serious. Despite your conviction, you maintain your innocence and have chosen not to discuss the actions on the night of the offending due to a future appeal you intend to bring. You are 31 years old. You are a patched Black Power member, and have
multiple previous convictions for violence and alcohol related offending. The pre-
3 R v Clifford [2012] 1 NZLR 23 (CA).
sentence report describes you as using violence and intimidation in prison with other prisoners and staff.
[16] On the other hand, the report writer also notes that you have shown a wilingness and ability to engage in rehabilitation, and despite being expelled from school at 13, you completed NCEA Level 2 and 3 while in custody. You also completed alcohol counselling prior to your offending, and acknowledged the role it played in your behaviours. Despite these positive elements in your report, you are assessed as at a high risk of reoffending and harm to others. There is no evidence of an interest in leaving your gang lifestyle behind, and despite completing these courses while you were last in prison you reoffended soon after leaving prison.
[17] In sentencing for murder, a different sentencing regime applies. Under s 102 of the the Act an automatic life sentence is imposed for the crime of murder unless it would be manifestly unjust to do so. The standard for manifestly unjust is high and there is no dispute that you do not meet it. In that case, you will be sentenced to life imprisonment.
[18] The only remaining question to consider is what, if any, minimum non-parole period should be set.4 This refers, Mr Kahia, to the minimum amount of time you will have to serve in jail before being eligible for release if the Parole Board is so satisfied. This does not mean that you will automatically be released after this time.
[19] Section 103 of the Act specifies that this court must impose at least a 10 year minimum non-parole period on you, following a sentence of life imprisonment for murder. However, under s 103(2) this must be the minimum that the court considers necessary to satisfy all or any of the following purposes:
(a) holding the offender accountable for the harm done to the victim and the community by the offending:
4 Sentencing Act 2002, s 86. Section 104, which requires that for the most brutal and violent murders a 17 year minimum non-parole period should be applied, is not applicable here. Although your murder was cruel, the Crown concedes that it does not justify a 17 year minimum non-parole period.
(b) denouncing the conduct in which the offender was involved:
(c) deterring the offender or other persons from committing the same or a similar offence:
(d) protecting the community from the offender.
[20] The Crown submit that at least a 13 year minimum non-parole period should be imposed, following s 102 and s 103 of the Act and given the number of aggravating factors involved.
[21] In particular, Mr Kahia, the Crown points to your previous convictions for violence as evidence that you are a risk to the community, that they need protection from. This is because of your conviction in October 2011 on two charges of injuring with intent and assault with a blunt instrument, possession of an offensive weapon in January 2011 and injuring with intent in February 2010.
[22] In contrast, your counsel submits that I should not uplift the required 10 year minimum period of imprisonment (MPI) at all. Mr Fairbrother QC suggests that you do not habitually resort to a knife, and that, although your previous criminal history looks bad you have only six violent offences in a 13 year period of offending. He states that you have never before used a knife, and there is thus no pattern of behaviour in your actions.
[23] Mr Fairbrother also submits that I should consider that you will now be subject to the three-strikes sentencing regime, and will receive disproportionate punishments for any future crime you commit as an added consequence from your offending. This amounts to a submission that, in considering any uplift under the Act, that I should consider the future consequences that will ensue if you commit more crime. This cannot be the approach to sentencing which is required following the implementation of the three strikes legislation, not least because any future crimes you may commit would, even without three strikes operating, receive a higher starting point to reflect a history of severe violence.
[24] Finally, Mr Kahia, your counsel submits that in this context your gang membership is contextual, and not aggravating. He suggests that I should see this murder as a continuation of violence perpetrated mainly by others, in which your role was relatively minimal. He says the use of a knife was part of a “confrontation in which you had no part”.
[25] The comparable cases that the Crown has submitted, attracted starting points of somewhere around the 13 to 15 year period, and these are all gang-related killings. However, the one which attracted more than a 13 year MPI was clearly more severe than in this case, and took place in the context of prolonged bouts of gang violence rather than a one-off incident, which, although precipitated by gang loyalty was not gang warfare.5
[26] Gang violence was also the setting for the offending in R v Taoho.6 In that case, a group of alcohol fuelled gang members went out to seek a fight with rival gang members. The rival gang members launched an attack with rods, poles and other weapons, using one member’s vehicle as an attack method. The victim was struck, and while he was lying on the ground three men attacked him using the weapons identified and a sharp knife. Mr Taoho received a 13 year MPI. There are some similarities in the attack here.
[27] I have also had reference to other cases which have provided guidance. In R v Moala,7 and R v Afamasaga,8 both involved gang “hits”. Each received, respectively, a 13 and 14 year minimum non-parole period.
Analysis
[28] Mr Kahia, I will now go through the features of your offending which aggravate your already serious crime, and suggest you may require a higher minimum non-parole period. In particular, I see your use of a weapon, and the
premeditated element of the offending in consciously bringing a knife to what you
5 Pukeroa v R [2013] NZCA 305 and R v Pahau HC New Plymouth CRI-2008-043-4555,
16 August 2010.
6 R v Taoho HC Rotorua CRI-2009-263-163, 12 December 2011.
7 R v Moala HC Auckland CRI-2006-092-461, 12 December 2007.
8 R v Afamasaga [2014] NZHC 2142.
knew was to be a fight, as serious aggravating features of your offending. I do not accept the suggestion of your counsel that you were merely one element of a continuum of violence against the victim, or part of a confrontation in which you had no real part. You came to a house, in which the fight had been resolved and instigated the group into leaving to find Mr Birch again. You were clearly a key driver in the violence which ensued.
[29] The wounds inflicted on Mr Birch were significant. There were three stabs, at a depth of between nine and 11 cm each time. This represented a significant escalation from the violence which had preceded the stabbing, and was completely unnecessary in the context of a fight where Mr Birch was outnumbered and on the back foot. Because you continue to protest your innocence, you have offered no explanation for why you decided to take this course of actions.
[30] Although the Crown has invited me to consider that your offending was aggravated because there were multiple attackers, and because the victim was vulnerable through his drinking, I do not consider these to be factors which require an uplift to the minimum non-parole period. Drunk victims are not always considered vulnerable.
[31] Your actions in bringing the knife, and using it so unnecessarily, must be reflected as an aggravating factor, but clearly there was no real plan or considered pre-meditation for what you would do. Your offending was not as planned as in Pahau or anywhere near the extent in Afamasaga despite similarities in your pursuit of the defendant down the street, with a knife.
[32] I also see the gang elements to this offending as significant, as is the fact that you, Mr Kahia, committed this offending while you were still subject to a sentence. At the time of the offending you were subject to release conditions for a previous charge of injuring with intent to injure. This shows some escalation of your previous violence, although it is not a particularly significant factor. Although, as your counsel has submitted, only a few of your convictions are for violence, they are among your more recent convictions.
[33] If this was definitively a gang killing, explicitly connected to Mr Birch’s alleged Mongrel Mob association, there is no doubt that this would be a significant factor and a high MPI would certainly be appropriate. Although there was an element to which Mr Birch was targeted because of the offensive things he had said about Black Power, it is not as clear in this case that he was targeted specifically because of his associations with a rival gang as opposed to the perception of his general disrespectful manner. In R v Karaka, a similar distinction was drawn in the case of an offender who killed an innocent, non-gang connected young man because
he perceived him to have been part of a gang who had personally humiliated him.9
In that case, Mr Karaka had many more personal mitigating factors, and received a
12 year MPI for stabbing the victim in the back in the course of a fight which
Mr Karaka single-handedly provoked.
[34] I have reviewed other cases of stabbing, which involved similarly gratuitous violence, but did not involve gang elements to the offending.10 It is clear from them that a lower MPI than the cases highlighted by the Crown would typically be applied, although not significantly lower. A 12 year MPI is common. Thirteen and a half year MPI periods have been imposed in comparably more violent cases.11
[35] Although I agree with the Crown that this was not in a context of gang warfare, there was an element of the offending connected to the perceived slur on your gang, Mr Kahia. This does deserve recognition in setting the minimum period of imprisonment, which renders a 12 year minimum period less appropriate.
[36] The violence inflicted was gratuitous, and you took advantage of a situation where Mr Birch had been rendered vulnerable by your brother’s attack. I also
consider your previous convictions, and that your offending took place while you
9 R v Karaka HC Wellington CRI-2007-091-4694, 15 May 2009 at [44].
10 Selby v R [2010] NZCA 313, in which a 12 year MPI was imposed before youth was considered in a stabbing involving premeditation, and pre-emptive arming with a knife in a fighting context; R v Fa’avae HC Auckland CRI 2006-204-748, 10 July 2008 involving unprovoked street violence against a vulnerable child receiving a 12 year MPI before mitigating factors considered;
R v Pepene HC Auckland CRI-2009-044-007883, 13 December 2010 in which an 11 year MPI
before considering personal aggravating features was appropriate for an argument in which one party turned violent.
11 R v Hamiora HC Rotorua CRI 2005-063-3367/3368, 24 November 2006 in which the unprovoked act of violence involved extensive beatings from two people, using a baseball bat before stabbing the victim.
were still subject to a supervision order for your previous injuring with intent charge as being reasons which require an increase in the minimum period of imprisonment, despite the fact that the premeditation and severity of violence was less than many of the Crown cases relied upon, and other cases surveyed.
[37] I therefore impose a minimum period of imprisonment of 13 years.
[38] Since you did not plead guilty, and have shown no remorse, you are not entitled to a further discount. Your final sentence will be one of life imprisonment, with a 13 year minimum non-parole period. I emphasise again that you will remain in prison for the rest of your life unless you can convince the Parole Board you are no longer a threat to the community. If you continue to behave in the threatening and violent way that you have done so far, rather than take this opportunity to engage productively in rehabilitative programmes (as you have demonstrated you have the potential to do) you are unlikely to be let out by the Parole Board.
Assault with intent to injure
[39] Mr Raymond Kahia, and Mr Lee Tawaka, I turn now to your roles in this offending. I will go through your pre-sentence reports and personal characteristics, and the recommendations made towards your sentencing by your counsel and the Crown.
[40] Mr Kahia, you are 29 years old and have no previous convictions. Your pre- sentence report is positive. Although you grew up surrounded by gangs, you distanced yourself somewhat from them. You have had work as a scaffolder constantly, and have been working while on bail for nine months, for an employer who has advised that you will be able to maintain your employment after your sentencing. Your pre-sentence report recommends anger management and violence treatment, which you and your partner agree you require. Given the way in which you reacted to Mr Birch’s behaviour, I agree that anger and violence management courses are a necessary part of your sentence, regardless of the final sentence I in fact impose. Mr Kahia, the violence you inflicted on Mr Birch constitutes serious offending, and your pursuit of him for further vengeance shows an unhealthy attitude toward violence.
[41] You are assessed at a low risk of reoffending, although at a medium risk of causing harm if you do reoffend given that you did not use a weapon or intend the consequences which ensued from this offence. The report identifies no barriers to completing a community-based sentence. You have been with your partner for
12 years, and have had three children together. She is supportive of you, and consents to you staying at the house you share in Wellington with her on either community or home detention.
[42] The report writer recommends a 12 month sentence of supervision, to allow for completion of your rehabilitative treatment, with community work to add a punitive element to sentencing. They report writer also recommends community detention over home detention, with the same curfew as your current bail conditions to allow you to complete your employment and family obligations.
[43] Your counsel’s submissions, Mr Kahia, emphasise that the harm resulting from the offending should only be considered to be the injuries from the fight and not the events which later occurred, and that although there was actual violence, it was at the lower end of the spectrum. He suggests you were an unwilling passenger in the car which left to pursue Mr Birch, and that the fight you were involved in was essentially a consensual one-on-one fight.
[44] Your counsel submits that mitigating factors in your favour are your previous good character, the previous actions of the victim, your remorse and the guilty plea you entered. He argues that the previous fighting earlier in the night had caused anxiety and fear, and that the situation had not calmed down in your mind at all since the earlier altercations.
[45] Your counsel suggests that you should receive the full benefit of pleading guilty, as you indicated your intent to plead guilty to the assault with intent charge as early as January 2014 pending discussion of the final charges you would face.
[46] He submits, Mr Kahia, that this means a sentence of less than imprisonment should be considered for you, with a final sentence of community detention and
supervision imposed to allow you to continue your work. Your counsel notes that imposing community work requirements could interfere with your employment.
[47] Turning to you, Mr Tawaka, you are 34 years old and of Tūwharetoa and Tūhoe descent. Although you have a relatively extensive conviction history, your only previous violent behaviour has been an injuring with intent charge from 2010, for which you received eight months imprisonment and a common assault charge from 2009. The rest of your offending is primarily drunk-driving, disorderly behaviour, and some drugs related charges. Your involvement in this incident appears to have been a relative escalation for you. You indicate in your pre-sentence report that you “de-patched” from Black Power in 2008, although evidently you continued to associate with gang members.
[48] You are identified in your pre-sentence report as accepting of the need to attend anger management, tikanga Maori and other intervention programmes. You are willing to engage in restorative justice programmes with Mr Birch’s family. You are an active member on your marae and more broadly within your rohe, organising school camps for your children. These all evidence your ability to engage positively within the community. You state that you feel “broken” that a knife was used and are sorry for what had occurred, particularly given the victim’s young baby. However, your past convictions mean you are assessed as a medium risk of harm and reoffending.
[49] Your counsel submits that the appropriate sentence is one of home detention. He submits that you were merely a bystander to the attack, although he accepts that you were convicted as party to the offending, meaning your presence lent support to Mr Raymond Kahia’s offending. Although he does not argue that you should receive the full discount for pleading guilty that you are entitled to under Hessell v R, he, like Mr Kahia’s counsel, does ask that I take a charitable view of the circumstances of negotiation with the Crown that ensued prior to your guilty plea, which otherwise would have been seen as relatively late in the process.
[50] The Crown submits that your culpability is medium range, and the starting point should be a term of imprisonment of 12 – 18 months. The Crown advocate
imprisonment in both cases, but in the absence of the pre-sentence report, did not oppose a community-based sentence being imposed.
[51] I will now consider the circumstances of the offending. The offence you have both been convicted of, assault with intent to injure, carries a maximum sentence of three years imprisonment. If after completing the sentencing exercise I reach an end sentence of two years imprisonment or less, I may consider imposing an alternative sentence such as home detention or community detention.12 The advantage of these is that they keep you within the community and allow the possibility of better reintegration. For this reason, they are not often sentences imposed on violent offenders or where there is a strong risk of recidivism.
[52] Mr Tawaka, your counsel directed me to the case Collier v R which drew on the sentencing guidelines established by the Court of Appeal in R v Harris in relation to injuring with intent in sentencing an assault with intent to injure.13 Although injuring with intent is a more serious charge than assault with intent to injure, the Court did not distinguish between the two offences in applying the sentencing bands. I note, however, in a later Court of Appeal decision, Samuel v R a differently constituted Court of Appeal indicated that it would not be appropriate to rely on injuring with intent bands.14 This was because in “intent with intention to injure” cases, the intention of the offender and the actual injury sustained by the victim broadly correspond. However, in a case of assault with intent to injure these are not aligned.
[53] Mr Kahia, your counsel pointed me to R v Nuku as setting out the tariffs for charges involving intent to injure.15 However, the charges apply to higher level offending with intent, in which a maximum of seven years imprisonment is possible. Nuku repeats the general assessment in Harris, that is standard under typical
sentencing approaches, to assess the aggravating features of the offending, with
12 Sentencing Act, s 15A.
13 Collier v R [2012] NZCA 208; R v Harris [2008] NZCA 528.
14 Samuel v R [2012] NZCA 376 at [14].
15 R v Nuku [2012] NZCA 584.
reference to the factors considered in R v Taueki as necessary, considering the extent of the violence and the level of injury to the victim.16
[54] The guidance set out in the bands under Harris and Nuku broadly concurs with the typical approach to sentencing on assault charges, so the end outcome under either approach is likely to be the same. I will look to the circumstances of the offending, and any aggravating or mitigating factors of the offending. Where relevant, I may have reference to the guidance given in Taueki on aggravating factors
related to violent offending.17
[55] The Crown submits that there are two specific aggravating factors of the offending to consider. The first is the level of violence to what they characterise as an attack, not a fight, on Mr Birch. Mr Kahia, you deliberately challenged and ran at the victim. Mr Birch was drunk, suffering other injuries and the evidence was that, although he attempted to fight you, he was entirely inadequate in doing so. However, the violence in the attack was not overly serious. While you threw punches to the victim’s head and body, they were in the context of a general fight. There were no concentrated, concerted attacks to the head in a manner that makes
that attack a serious aggravating factor.18 The violence, to the courts’ knowledge,
resulted in little injury.
[56] In your Police interview originally, Mr Kahia, you appear to have taken some pride in the idea that the fight had been a fair one involving just you and Mr Birch. Of course, you were attacking a much younger, highly intoxicated man who had been the subject of a number of assaults across the night, and was in no real position to contest you. So the fight was not “fair”, even before the knife was pulled and the entire situation escalated. However, I accept that although the presence of four men was likely intimidating to Mr Birch, the multiple offenders involved is not a serious
aggravating factor.
16 At [41].
17 R v Taueki [2005] 3 NZLR (CA) at [31] – [33].
18 See the description of why attacking the head is seen as aggravating in R v Taueki, above n 17 at
[31].
[57] Mr Tawaka, your specific culpability is less clear – there was conflicting evidence given at trial as to whether you were in fact involved in the fight or not. However, you have been convicted of being a party to assault with intent, which, as your counsel notes means that you helped to facilitate the assault through your presence. Although I will take into account that you were not the key perpetrator of the fight, and may have solely been a silent witness to the fight, your presence still assisted the fight. Mr Tawaka, the Crown submits that, although your offending might be seen as less culpable than Mr Kahia’s, I should sentence you in light of the group dynamic, which allowed a situation to arise in which Mr Hendrix Kahia was able to stab the victim. There is seen as being a strong need to denounce your behaviour, and the way you both sought to seek revenge rather than avail yourself of the justice system.
[58] I take into account the actions which occurred across the night as a whole as part of the context of the offending, and the group dynamic which Mr Tawaka and Mr Kahia contributed to. However, it is inappropriate to give any real weight to the serious stabbing which occurred in sentencing. There is no indication that either of you had any idea of the presence of the knife, or any idea of Mr Hendrix Kahia’s intention to use it. Your actions here must be distinguished, for example, from a fight in which one offender beats the victim in order to facilitate another offender carrying out a worse attack.
[59] The second factor the Crown relies on as aggravating is the injury inflicted. The Crown concedes this a neutral factor, as the fights the defendant engaged in throughout the night of his death mean that no injuries can be positively attributed to this specific fight.
[60] In my opinion, overall the offending here was moderate to minimal – the premeditated element, in driving after Mr Birch once he had left the house to fight with him, adds an element of seriousness to the fight that occurred. However, Mr Kahia, you appear to have been acting in a fit of anger that flowed on from earlier in the night rather than engaging in a cold and calculated revenge plan. I do not accept the submission of your counsel that you were an unwilling or reluctant passenger in the car, or that you were not looking for trouble. The evidence that you
immediately jumped out of the car and began to fight Mr Birch puts rest to the idea that you were not interested in seeking him out to fight further.
[61] Your counsel submitted that the behaviour of the victim toward you, Mr Kahia, earlier in the night could be seen as a mitigating factor specifically in relation to your offending. The first fight that you both engaged in that night was partially due to Mr Birch’s behaviour in coming onto a neighbouring property, startling people inside and shouting gang slogans, which escalated into a wider confrontation between rival groups. Clearly this behaviour was concerning for you, but I place little weight on the fact that, earlier in the night, the victim had aggravated you. There is no suggestion you were seriously harmed or suffered any real damage earlier in the night, and this in no way justified or explained the
magnitude of your subsequent response.19 You had agreed with the victim, dubious
as this agreement was, to settle your dispute with a fight in the morning, and went ahead and pursued him anyway.
[62] Mr Kahia, your counsel referred the Court to Kohu v Police and Mori v Police.20 In Kohu, an assault on the defendant’s mother-in-law by punching her to the ground, and then punching her to the nose and mouth received a starting point of
12 months imprisonment. Although this is not factually similar, it indicates that lower level violence typically receives about a year’s starting point.
[63] In Mori, two friends who had been drinking randomly assaulted a middle aged woman walking home, hitting her in the head and punching and kicking her until she fell to the ground. The victim was particularly vulnerable and had extensive bruising and abrasions. The defendant received a starting point of 18 months imprisonment, reduced by six months for remorse, leading to an end sentence of six months home detention and 120 hours community work. The offending involved random violence, and the victim was more vulnerable than the
victim here, making the starting point higher.
19 This can be compared to the serious attack on the offender which warranted a reduction for provocation in Pukeroa v R [2013] NZCA 305.
20 Kohu v Police [2013] NZHC 944;
[64] Mr Tawaka, your counsel highlights Collier v R, in which the principal offender punched the victim in the head twice and six or seven times to the left side of the face while a second offender was sentenced as a party.21 They were each given a starting point of 15 months imprisonment, taking into account the actual violence, premeditation and planning, the number of persons involved and the fact that it occurred in the presence of young children. The party received a two month lower sentence to reflect her role in the offending. The premeditation and planning in that case involved luring the victim to a carpark to inflict the beating. This was
more significant than occurred here.
[65] I have also referred to two further similar fact cases. In Mane v Police, a similar style of assault which received a 12 month starting point was upheld on appeal.22 Two highly intoxicated men challenged two victims, who did not seek to engage in the fighting to any extent, to a fight. They punched and hit both victims, and at one point struck them with a broom. The end sentence was five months home detention, as the sentencing judge saw the assault as too serious to warrant
community detention. Similarly, in R v Bisschop, the Court of Appeal imposed an end sentence of six months home detention on the appellant, who had assaulted a man while out drinking and proceeded to kick the man about the upper body while he was on the ground.23 The Court concluded that a sentence of community detention was not warranted, as given the previous convictions of the offender and the circumstances of the offence, the offender was seen as having limited prospects for rehabilitation.
[66] In light of these cases, particularly Mane v Police, I adopt a starting point of
13 months imprisonment for you Mr Kahia, factoring in your pursuit of the victim as an aggravating factor.
[67] Mr Kahia, you have no history of violence or other aggravating factors which require me to uplift this starting point. In terms of mitigating factors, you pleaded guilty on the day of trial and have expressed remorse. Although remorse can in
some circumstances warrant a discount, in this case I am not convinced that your
21 Collier v R [2012] NZCA 208.
22 Mane v Police [2012] NZHC 2946.
23 R v Bisschop [2008] NZCA 229.
remorse can be considered exceptional enough to warrant a reduction in your sentence.
[68] While your guilty plea saved the Crown and witnesses some of the hassle of trial, it also does not warrant a significant discount.24 The guilty plea was in return for dropping more serious charges. However, I will allow a discount of one and a half months for the guilty plea, considering it a partial expression of remorse, which equates to about 10 per cent. This reduces your sentence to 11 and a half months imprisonment.
[69] This entitles me to consider the appropriateness of a community based sentence. Although this was a serious assault, more severe charges have received home detention sentences where there is evidence of rehabilitation.25 I find that imposing community detention, although it might facilitate your ongoing employment better, would not sufficiently meet the aims of deterrence and denunciation.
[70] This brings me to an end sentence of five and a half months home detention.
[71] In your case, Mr Tawaka, I adopt a lower starting point, of eight months imprisonment to reflect the lack of actual serious violence you engaged in. Even accepting that you stood by the assault, and may have thrown a punch, Mr Kahia was clearly described as the key instigator in the assault by all who witnessed it. He himself concedes that he saw it as a one-on-one fight. However, I must uplift that starting point to reflect that, unlike Mr Kahia, you have previous violence convictions. Adopting your counsel’s submission that an uplift of three months is appropriate brings me to a period of 11 months imprisonment.
[72] Your counsel argues that the sentence should be discounted to take into account the restrictive bail conditions you were on for approximately three months between 5 November 2013 and 20 January 2014. However, in the cases cited,
discounts were granted where an offender had been on restrictive bail for 12, six and
24 Hessell v R [2010] NZSC 135 at [76].
25 Ponyton v Police HC Wellington CRI 2009-485-128, 4 November 2009; Takerei v Police [2014] NZHC 3360; Dean v Police [2014] NZHC 1542.
10 and a half months. Those are manifestly different circumstances. No discount is warranted here, in my view. Mr Tawaka, you have been able to move relatively freely and work full time since January 2014.
[73] As with Mr Kahia, I do not consider your remorse to warrant further discount. I do, however, grant a discount of one and a half months considering your guilty plea. This brings me to an end sentence of nine and a half months imprisonment.
[74] As this is under two years, this entitles me to consider community sentences. In my opinion, your ongoing rehabilitation and a successful complete exit from gang life will not be facilitated by a prison sentence. In fact, I think that may increase your gang ties. However, like Mr Kahia, your offence was too severe for anything less than home detention to be applied. Accordingly, I would impose a sentence of four and a half months home detention, if there had been a report from the Department of Corrections about the suitability of an address for the purposes of an electronically monitored sentence, such as home detention.
[75] Having said that, I hope you both are able to reintegrate and contribute positively to the community. Your parole officers will have the discretion to allow you to leave your house every day for the purposes of work if they think that is suitable. Without pre-empting that decision, it would be beneficial for your reintegration into society for you to be able to continue to hold down a job and be able to forge a life outside of criminal and gang activity.
Conclusion
[76] Would you all please stand now.
[77] Mr Hendrix Kahia, I sentence you to life imprisonment for the murder of
Wiremu Birch. I impose a minimum non-parole period of thirteen years.
[78] Mr Raymond Kahia, I sentence you to five and a half months home detention on the special conditions listed in the appendix to the pre-sentence report, namely:
(a) To reside at the address specified in the pre-sentence report for the duration of the sentence.
(b) Not to communicate or associate directly or indirectly with the
victim’s family.
(c) To undertake and complete any other treatment, counselling, intervention, as may be directed by a probation officer.
[79] The same special conditions are also imposed for six months after completion of the home detention sentence. As the home detention address is in Wellington, I defer the commencement of the sentence until tomorrow, 5 March 2015.
[80] Mr Lee Tawaka, in the absence of a report about the suitability of an address for the purposes of an electronically monitored sentence, I adjourn your sentencing to 9.00 a.m. on Monday, 13 April 2015. In the meantime, I call for a report from the Department of Corrections on the suitability of an address for the purpose of an electronically monitored sentence of home detention. If a suitable report is available, I will sentence you on that date to a sentence of four and a half months home detention.
[81] You may stand down.
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Woolford J
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