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, Tawaka

Sentencing:

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…

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 [2015] NZHC 344
Case: [2015] NZHC 344
Decision Date: 4 March 2015

CaseChat Overview and Summary

The defendants, Hendrix Kahia, Raymond Kahia, and Lee Tawaka, appeared for sentencing following their convictions in relation to the death of Wiremu Birch. Hendrix Kahia was found guilty of murder, while Raymond Kahia and Lee Tawaka both pleaded guilty to assault with intent to injure. The court had to decide on the appropriate sentences for each defendant, considering the purposes and principles of sentencing as set out in the Sentencing Act 2002. In sentencing Hendrix Kahia for murder, the court considered the aggravating factors, including the use of a weapon and the premeditated element of the offending. The court determined that a minimum non-parole period of 13 years was appropriate, reflecting the seriousness of the crime and the risk posed by the offender to the community. For Raymond Kahia and Lee Tawaka, who were convicted of assault with intent to injure, the court considered their personal characteristics, pre-sentence reports, and the circumstances of the offending. The court imposed a sentence of five and a half months home detention for Raymond Kahia and deferred sentencing for Lee Tawaka until a report on the suitability of an address for electronically monitored home detention could be obtained. The court emphasised the importance of accountability, denunciation, deterrence, and rehabilitation in determining the sentences for each defendant.

Orders