R v Kahu - [2017] NZHC 983

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

CRI-2016-083-000473 [2017] NZHC 983

THE QUEEN

v

WATTIE ADOLF KAHU

Hearing: 15 May 2017

Appearances:

Michele Wilkinson-Smith for the Crown
Debbie Goodlet for the Defendant

Judgment:

15 May 2017

SENTENCING NOTES OF MOORE J

R v KAHU [2017] NZHC 983 [15 May 2017]

Introduction

[1] Wattie Adolf Kahu, at the age of 50, you appear for sentence. You have pleaded guilty to charges of aggravated burglary,1 kidnapping,2 burglary,3 recklessly causing injury4 and two charges of using an imitation firearm to prevent arrest.5

[2] The Crown, as it is required to, has given notice of its intention to seek a sentence of preventive detention. This is the second time a Judge sentencing you has been invited to impose such a sentence. The last time was in this Court in October
2009. Then the Court declined the Crown’s application and, instead, imposed a finite term of six years’ imprisonment.

[3] You accept that whatever I decide today it is inevitable you will be going to jail again for a long time. The question for me is whether, whatever term I impose, will it be finite (in other words measured in a specific number of years) or will it be non finite in the form of preventive detention (in other words an indefinite term of imprisonment)?

[4] However, before I turn to consider that issue I must set out the facts on which you are to be sentenced. These are contained in the summary of facts with which you agree.

[5] I am conscious that nothing I am about to say will come as a surprise. The facts will be well-known to you. However, because the sentencing process is an important public judicial function which must be undertaken in open Court I am required to set out those facts which I regard as relevant to the sentence I shall
impose.

1      Crimes Act 1961, s 232 maximum penalty of 10 years’ imprisonment.
2      Crimes Act,s 209; maximum penalty of 14 years’ imprisonment.
3      Crimes Act, s 231; maximum penalty of 10 years’ imprisonment.
4      Land Transport Act 1998, s 36(1)(a); maximum penalty of five years’ imprisonment.
5      Arms Act 1983, s 54(1); maximum penalty of seven years’ imprisonment.

Background facts

[6] Early on the morning of Sunday, 20 March 2016 you and another man, Mr Walker, broke into a vacant house in Whanganui. It was being renovated. The two of you stole decorating equipment worth about $2,000.

[7] You drove away with no lights on and, no doubt because of that, you came to the attention of the Police who told you to stop.

[8] Instead of stopping, you took off at speed hitting a fence and driving through a stop sign before losing control, spinning out and crashing into a parked car. You and Mr Walker ran off. Not long afterwards Mr Walker, who had suffered a shoulder injury in the crash, gave himself up at the Police station.

[9] The Police did…

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 Kahu

Details

AGLC: R v Kahu [2017] NZHC 983
Case: [2017] NZHC 983
Decision Date: 15 May 2017

CaseChat Overview and Summary

Wattie Adolf Kahu appeared for sentencing at the High Court of New Zealand Whanganui Registry. Kahu had pleaded guilty to aggravated burglary, kidnapping, burglary, recklessly causing injury, and two charges of using an imitation firearm to prevent arrest. The Crown sought a sentence of preventive detention, an indefinite term of imprisonment. Kahu had previously been sentenced to preventive detention, but the sentence was later commuted to a finite term of imprisonment. The court considered the seriousness of Kahu's offending, which involved a home invasion and the use of an imitation firearm. The court also considered Kahu's extensive criminal history, which included multiple convictions for violent offences. The court also took into account expert reports that assessed Kahu's risk of re-offending as high. The court decided against imposing a sentence of preventive detention, instead imposing a finite sentence of seven years' imprisonment, with a minimum period of imprisonment of four years. The court also considered the possibility of an extended supervision order being imposed at a later date, which could provide more intensive monitoring and support for Kahu upon release from prison.

Orders