IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-004-5617
[2019] NZHC 2586
THE QUEEN v
NGATAMA JAMES KAIENUA
Hearing: 11 October 2019 Appearances:
B Dickey for the Crown
S Tait and J Hudson for the Defendant
Judgment:
11 October 2019
SENTENCE OF GAULT J
Solicitors:
Mr B Dickey, Meredith Connell, Office of the Crown Solicitor, Auckland Mr S Tait and Mr J Hudson, Barristers, Auckland
R v KAIENUA [2019] NZHC 2586 [11 October 2019]
[1] Mr Kaienua appears for sentence following guilty verdicts on two charges on 29 July 2019 after a judge alone trial.1
[2] I found Mr Kaienua guilty of being a party to one charge of assault with intent to rob,2 and party to one charge of aggravated wounding.3
[3] Both of these offences carry maximum penalties of 14 years’ imprisonment. These offences are both qualifying offences under the “three-strikes” regime. This offending is Mr Kaienua’s third strike. Therefore, I am compelled by legislation to impose the maximum sentence on both charges,4 whatever the merits. I have no choice about that.
[4] I must also order that Mr Kaienua serve that sentence without parole, unless that would be manifestly unjust.5
[5] I have concluded it would be manifestly unjust for Mr Kaienua to be in prison for 14 years without the possibility of parole. I will set out my reasons.6
The offending
[6] The following facts were uncontested at trial. On the day of the offending, 19 June 2018, Mr Kaienua was spending the day with his then 16-year-old friend, who I will call “Y”, because his name is suppressed. Mr Kaienua was 27 at the time. Y is the younger half-brother of Mr Kaienua’s then partner.
[7] Around 7 pm Mr Kaienua and Y were at the Grey Lynn shops. They had changed into darker clothing than they had been wearing earlier. They walked along Great North Road and paused for just under two minutes opposite a dairy. They then crossed the road towards it, but walked past it, heading back along the road. They returned two minutes later. Y went into the dairy. Mr Kaienua waited outside.
1 R v Kaienua [2019] NZHC 1794.
2 Crimes Act 1961, s 236(1)(a). Maximum penalty 14 years’ imprisonment.
3 Section 191(1)(c). Maximum penalty 14 years’ imprisonment.
4 Sentencing Act 2002, s 86D(2).
5 Section 86D(3).
6 Section 86D(5).
[8] Mr Patel, a member of the family who owned the dairy, was manning the counter. Y waited in the dairy for approximately two minutes while two other customers came and went, and as soon as the second customer completed his purchase and left the dairy, Y moved behind the counter, pulled out a knife and attacked Mr Patel.
[9] Y quickly escalated to thrusting the knife into Mr Patel, while also trying to open the cash register. Mrs Patel, Mr Patel’s mother, was in a kitchen near the back of the store. A family friend was also there.…
Continue reading R v Kaienua
Sign in free to access the full text
- AGLC
- R v Kaienua [2019] NZHC 2586
- Case
- [2019] NZHC 2586
- Decision Date
CaseChat Overview and Summary
The court's decision was based on the purposes and principles of sentencing, including holding Kaienua accountable for the harm done to the complainants, promoting a sense of responsibility, denouncing his conduct, protecting the community, and deterring others from committing similar offences. The court also considered Kaienua's personal background, the effect of earlier warnings, and his likelihood of reoffending. The court found that Kaienua's culpability was less than the primary offender, Y, but not significantly less. The court considered the circumstances of the present offending, the sentence that would be imposed but for the three-strikes regime, and the impact on the victims. The court concluded that imposing a sentence without parole would be manifestly unjust in this case.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.