R v Kaihau

[2013] NZHC 3192

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2013-019-129 [2013] NZHC 3192

THE QUEEN

v

ISRAEL KAIHAU

Hearing:                   29 November 2013

Counsel:                  R G Douch for Crown

P G Mabey QC and P T Attwood for Prisoner

Sentence:                 29 November 2013

SENTENCING NOTES OF DOBSON J

[1]      Mr Kaihau, at the conclusion of your trial in this Court five weeks ago, you were found guilty of manslaughter following a verdict of not guilty of murder.  I now have to sentence you for manslaughter on the view I take of all the facts that is consistent with the jury’s verdict.

The facts

[2]      On New Year’s Eve this year, you celebrated at Waihi Beach.  You were on bail for other offending at the time, and subject to a curfew, so you were concerned to avoid contact with the Police, who were out in some force given the traditional New Year celebrations that take place at Waihi Beach.  Hiding on a private property near the beach, you encountered a complete stranger, Mr Wilkinson, a slightly built, middle-aged man, who urged you to leave that property. You stabbed him in the side

of the head and he collapsed on the spot, fatally wounded.

R v KAIHAU [2013] NZHC 3192 [29 November 2013]

[3]      I do not believe your explanation as to how your attack on Mr Wilkinson occurred, and I am satisfied that the jury would also have been left at least with real doubts about the truth of how you described it.  There are a significant number of implausible parts to your explanation and when the impact of all those unlikely features is combined together, your overall tale was unbelievable.

[4]      At the time of your exchange with Mrs Wilkinson, you were intent on hiding from   the   Police.      That   was   a   non-threatening   short   discussion,   in   which Mrs Wilkinson dealt with you in a pleasant and friendly tone.

[5]      I find that only a short period of time elapsed between her leaving you next to the caravan,  her entering the caravan  and  starting to  prepare for bed,  and  then hearing her husband talking to you outside the caravan.   Very soon after that, she heard the noise that was her husband crashing against the garage door after your attack on him.  That was, in my view, too short a period for you to have lapsed into a drunken slumber or gone to sleep on the ground, and it was also too short a period for you to have changed your mind about the need to hide from the Police, consciously lie down on the concrete driveway facing away from the road, and fall sufficiently soundly asleep to be surprised by someone standing over you.

[6]      It was certainly too short a period for you to have gone to the rear of the property, pause for long enough to make an assessment of the chances of being able to go across other properties at the back, go from one side to the other across the back of the property and back down the right hand side through the gate you say was open, coming back to the front of the property and then decide to lie down and go to sleep.  You could not have done all that in the period between Mrs Wilkinson going back into the caravan and her hearing her husband talking to you.

[7]      In  Mr Mabey’s  cross-examination  of  Mrs Wilkinson,  he  got  a  qualified acceptance of the proposition that her perception was that you were going to go down that left hand side of the house.1   She may have had that perception at the time she turned away from you, but that does not alter my analysis that you did not in fact do that.

[8]      I consider it far less likely that you dropped your hoodie from around your neck in the process of what would have been a relatively less pressured assessment of an available route across the adjoining properties, than that it dropped in the panic of your fleeing the scene after the stabbing.  Consistently with that, if you fled out of the front of the property onto the roadway, it would be difficult to explain why you were not observed by Mr Williams, the civilian doing volunteer security work at the roadblock  just  metres  away  from  the  front  of  the  property.     He  responded

immediately on hearing the thump of Mr Wilkinson falling against the garage door,2

so would have been looking towards the property by the time you got to the front of it if you left that way.   He made his way to the scene quickly, but there was no suggestion that he observed you leaving the front of the property.

[9]      As to your reconstruction of the attack itself, it is entirely implausible that, if Mr Wilkinson had bent over you so that both his hands were on your chest, he could either deliberately or by accident reach over and touch, with either his hands or a foot, the part of your right leg which would have been on the side furthest away from where he would be bending down, so as to give you the jarring pain in that leg that you say caused you to react in fright or pain leading to the stabbing.

[10]     It is far more consistent with all the evidence that you remained in the area in the front of that garage door in the period between Mrs Wilkinson going inside, and your  being  confronted  by  Mr Wilkinson.     It  is  also  more  consistent  with  a confrontation of that type that he should say to you the words Mrs Wilkinson so clearly recalled her husband saying “if you keep hanging around here, we’re going to have to report you”.  On the other hand, it is inherently unlikely that Mr Wilkinson would, without any prior exchange, say such words to a sleeping figure on the ground.

[11]     After he gave you that warning, you stabbed Mr Wilkinson in the side of the head with the knife you had been carrying.

[12]     So I find that the confrontation occurred close to the garage door with both of you standing, and that the extent of Mr Wilkinson’s movements after being stabbed

by you were limited to falling backwards quite heavily against the door and then slumping to the ground.   Your version required Mr Wilkinson to remain upright while staggering backwards for some distance into the garage door.

[13]     Disbelieving your explanation of how the stabbing occurred does not mean that there was not a reasonable basis for the jury to come to the view that they did.  It was difficult for the Crown to establish murderous intent in the form of recklessness in this context.   I am comfortable that the jury most probably rejected your reconstruction of how the stabbing occurred, but was left, by the balance of your evidence and all the other evidence, with a reasonable doubt that the Crown had made out the reckless form of murderous intent.  I say that having particular regard to your clear and emphatic denial that you had any intent to cause serious injury that could kill.   Also, Mr Mabey’s very forceful closing address on that point made it tough for the jurors to be satisfied about the necessary intent, beyond a reasonable doubt. And I say those things despite the observations I am about to make in relation to the weapon that you used.

[14]     I am satisfied that the pathologist accurately reconstructed the dimensions of the blade that caused the fatal injury.   It was a blade sharpened on one edge and flattened on the other, at least 3.5 centimetres wide and 8.5 centimetres long.  I have reproduced those dimensions over the sketch of the knife as you drew it in the witness box during cross-examination, to reflect the dimensions necessary to cause the fatal injury to Mr Wilkinson.   The blade width is nearly twice as wide as the example that you drew in that sketch.

[15]     I also consider your explanation that the knife did not work so that the blade would not stay firmly in the open position, once it was set that way, was illogical and unlikely.  The knife would have been no use for any purpose if the person using it could not depend on the blade staying open once it had been set in the open position, when the user was holding it by the handle.  Obviously, the scale of the handle would have to be large enough to accommodate the blade when folded.

[16]     Now, a knife of those dimensions is not a boy’s toy: it is a lethal weapon.  I

also have very real doubts that the knife was open when you arrived at the property,

and that it was readily accessible by being held on some form of clip on your belt. Your focus at the time was on avoiding the Police because you were in breach of your bail curfew.  In those circumstances, it would be so utterly stupid to advertise the fact that you were carrying an offensive weapon by having it openly displayed that  your overwhelming instinct would surely  have been  to continue  to keep  it hidden.   However, you were not unduly pressed on the point and the view I have come to is that the knife was more likely than not readily available to you at the time of the attack.  So, I take that view, consistent with it having been clipped onto your belt in some way.

[17]     The  consequence  of  that  component  of  the  facts  is  that  you  had  been prepared, for whatever the length of time it had been there, to walk about with a lethal weapon readily accessible to you or anyone who wanted to snatch it off your belt.

[18]     As I understand your evidence, you were prone on the ground or just sitting up  when  you  lunged  at  Mr Wilkinson  with  the knife.   You  said  that  you  were targeting his arm but because he was bent over you, when you missed his arm you hit him instead in the side of his head.  I consider the attack occurred with both of you on your feet.  That makes it less plausible that you consciously targeted your victim’s arm and then missed it.   The jury found that they could not be satisfied beyond reasonable doubt on the existence of reckless murderous intent.  Consistent with   that   finding,   I  consider   that   your  attack  was   a  mindless   lunging  at Mr Wilkinson,  not  targeting  his  head,  but  with  your  motive  being  to  get  away without his having an opportunity to report you, and without any appreciation of the level of harm that your lunging at him with the knife could cause.

[19]     I  am  also  troubled  that  we  heard  your  explanation  that  you  aimed  for Mr Wilkinson’s arm but missed, and hit him in the side of the head instead, only for the first time in your evidence at the trial.  It cannot be decisive, but the single most important feature in your defence was that striking the victim in the head was a mistake and that you had instead intended to cut him in the arm.   There is no suggestion that you made any reference to that in the comments you made later in the night to friends when you re-united with them and mentioned the stabbing.  It is

also inconsistent with Mr Wiki’s evidence of how you described the attack to him in a prison van some months later.   It is the complete opposite of the denial of any involvement in the stabbing during the thorough interview with the Police in the weeks following the stabbing.

[20]     It  would  surely  have  been  highly  relevant  in  July,  when  your  counsel indicated to the Crown that you were prepared to plead guilty to manslaughter, to tell the Crown that striking Mr Wilkinson in the head was an accident and a mistake.  At that point, it would have been highly relevant to an attempt to persuade the Crown not to proceed against you with the more serious charge of murder.  Your failure to make any reference to this supposedly critical factor during all those opportunities does provide a measure of support for the view I have come to that your reconstruction as to the circumstances of the stabbing was not true.

[21]     No doubt befuddled by alcohol, and panicking, it was an attack that proved to be fatal, even although a reasonable doubt exists as to whether you appreciated the risk that that would be the outcome.  Given all that, I have to place this manslaughter relatively near the top of the continuum of relative seriousness of manslaughter offending.

[22]     I have of course read carefully the victim impact statements that have been provided  by  Mr Wilkinson’s  widow,  partly  read  to  the  Court  this  afternoon  by Mr Douch, by his son, Daniel, who has read his, and by other members of his family. They make harrowing reading, Mr Kaihau, and if you have not done so before, I ask you to read them.  I acknowledge the huge loss that they reveal.  However, I should say in the immediate context of an analysis of the facts that in reviewing all the evidence to settle the facts as I will rely on them in your sentencing, I have not been influenced in any way at all by the very strong criticisms of your conduct set out in those statements.

Starting point

[23]     As to a starting point, you should appreciate that the maximum sentence for manslaughter  is  life  imprisonment.     Counsel  have  referred  in  their  written

submissions to two alternative ways of setting what should be the starting point for your sentence.  Obviously, you are up for a relatively lengthy term of imprisonment.

[24]     The  first  method  is  to  compare  sentences  in  manslaughters  that  have comparable features, and counsel have referred me to a number of cases for their competing contentions.  For the Crown, a starting point of nine to 10 years, and on your behalf, implicit in the comparators Mr Mabey preferred, is a starting point of possibly around seven years or possibly less.

[25]     The second means of setting the appropriate starting point is to assess the number and seriousness of aggravating features identified in the Court of Appeal’s guideline judgment in R v Taueki.3    That case dealt with how to determine relative seriousness in cases of grievous bodily harm, and the same range of factors can be used for manslaughter where violence was the cause of death, by taking into account the added gravity of the offending where the victim has died, rather than just suffered

grievous bodily harm.

[26]     On comparative sentencings, the Crown’s high point was R v Olley.4   In that case, the trial Judge determined that the defendant had stabbed the victim whilst the victim was seated in the course of an argument between them.  A starting point of

nine years’ imprisonment was set, with the Judge identifying aggravating features as:

the use of the knife, which was a lethal weapon when used as it was;

the act was one of extreme violence;

the knife was used when there was no material threat to the defendant;

the knife was used in a violent rage; and

thevictim was vulnerable because of his slight build compared with that of the defendant and his seated position when the attack occurred.

[27]     The Crown has also cited R v Ames.5    That case involved a defendant who was 14 at the time of the manslaughter, substantially affected by alcohol so that he did not understand the consequences of his action when he took a knife, followed the victim out of the garage they had been in, and stabbed him from behind, penetrating his lung and leaving the victim to die at the site.  A starting point was fixed there of eight years’ imprisonment.

[28]     On the view Mr Mabey urged me to take of the facts, and in particular that you were only intending to stab Mr Wilkinson in the arm, or alternatively certainly not targeting the head, he argued that your case was not as serious as either of those. I do not accept that on the view I take of the facts, and consider that the relative seriousness of the manslaughter here puts it closer to Olley than to Ames.

[29]     Several other manslaughter sentencings were suggested as comparable, all of them  being cases  where the Judge set  somewhat  lower starting points.    I have carefully considered them all and, in the end, each must be seen just in the context of the particular mix of their own facts.  I consider the correct approach to comparators is to place this case in the eight to nine year range reflected in Ames and Olley, with it being closer to the top, as the overall circumstances are somewhat more serious than Ames, but possibly marginally less serious than Olley.   Mr Wilkinson was a stranger to you, and was dealing with you reasonably.  He posed no threat and was most unlikely to take any further action if you simply ran off.  You killed him with a lethal weapon and left him to die.  On those comparators, I would set a starting point at eight years and nine months’ imprisonment.

[30]     Applying the alternative means of setting a starting point by considering the number and relative seriousness of the aggravating features identified in the Taueki

guideline,6 I consider the following aggravating features are present here:

this was extreme violence;

it was an attack on the head of the victim;

it involved the use of a weapon; and

I treat the victim as being vulnerable.

[31]     As  to  the level  of violence,  Mr Mabey attempted to  persuade me  in  his written submission that this was not extreme violence in the sense used in Taueki.  I cannot accept that because the violence was unprovoked and gratuitous, and at a level that caused the victim inevitably fatal injury.  To people other than a befuddled and panicked teenager, that was an entirely predictable outcome.  It ranks as extreme violence without double counting the other features.

[32]     Inarguably this was an attack on the head of the victim with all the potential for serious outcomes that that carries with it.

[33]     You used a lethal weapon.   However oblivious you were to the range of consequences that may follow, you had it with you in circumstances where I infer you were prepared to use it, and you did.

[34]     As  to  the  vulnerability  of  your  victim,  Mr Wilkinson  weighed  a  mere

62 kilograms.   The evidence established that he was a thin, middle-aged man of obviously slight build.  He could not have represented a threatening presence to you, a fit, young man of larger build than his.   He was caught off-guard on private property where he had absolutely no reason to expect he would have to defend himself when moving from a New Year’s Eve party in a house to the caravan in which he was about to go to sleep.  For a sudden and completely unexpected attack to his head with a knife, he certainly presented as a vulnerable victim.

[35]     Those four aggravating features could have put your case into band three from Taueki, which can apply where there are three or more aggravating features, and their combination is particularly grave.   That band attracts sentences between nine and 14 years’ imprisonment.  Given the extent to which the aggravating features were present, and the prospect that some of them overlap, it is more appropriate to classify the circumstances of this attack in the upper half band two from Taueki.  If it was a grievous bodily harm sentencing, the starting point would be, say, seven and a

half to eight and a half years. Adopting the middle point of that range at eight years, that has to be uplifted for the fact that death resulted.7   The appropriate uplift would be an additional 12 months, putting the starting point, by reference to the Taueki criteria, at nine years.

[36]    That checking process, by the alternative assessment for starting points, therefore does not require me to adjust my initial starting point of eight years and nine months.

Adjustments to the starting point

[37]     Coming to adjustments to it, an aggravating feature of the offending is that you were on bail at the time of the manslaughter, and out and about in breach of a curfew imposed as a condition of your bail.  Offending whilst on bail is a recognised aggravating feature and warrants an additional three months.

[38]     The next step is any aggravating features of you as the offender that would warrant an uplift from the final starting point.   There is a worrying trend in your other offending.  In July 2012, you were charged with injuring with intent to injure, and in November 2012 with two charges of male assaults female.   By the time of your present trial, you had been sentenced to two years seven months’ imprisonment for the more serious of those convictions, with a six month concurrent term on the remaining convictions.

[39]     For the Crown, Mr Douch urged that this criminal history warranted an uplift of six months.  I accept that is the case, without it involving double counting of the fact that the offending occurred whilst you were on bail.  It is also validly taken into account as aggravating the seriousness of the present offending, even although I will be directing that this sentence is only to start when you would otherwise be eligible for parole on the existing one.  That is a factor of the relationship in timing between

the various offences.

7      R v Tai [2010] NZCA 598 at [12] and [21].

[40]     The uplift is accordingly from eight years and nine months to nine and a half

years’ imprisonment.

Mitigating factors

[41]     As to mitigating factors, I am troubled by the content of the pre-sentence report.   Your sad family background is described as highly dysfunctional, with a violent father who has been in prison for violent offending on six occasions, contributing to an environment in which you have developed a predilection to violence, and treated violence as a normal feature of life.   You did not express remorse to the Probation Officer and you were perceived as minimising the impact of your action in this present offending.  You have more recently written a letter to me in anticipation of sentencing, expressing remorse.  Mr Kaihau, assessing that in light  of  my  experience  of  observing  you  in  the  witness  box  and  the  videoed interview, I am not able to take that into account as genuine remorse.

[42]     Your relative youth was not raised as a discrete mitigating factor, but I have considered it.   It can be taken into account,8  and depending on the context, the impact  of  age  of  the  offender  on  his  or  her  culpability  may  be  relevant  to  a sentencing in three ways.  First, that youths are simply wired differently from mature adults, so that they are likely to act more impulsively and be more susceptible to negative  influences.    Secondly,  the  Court  has  to  be  mindful  of  the  effect  of

imprisonment, including the fact that long sentences may be crushing for young people.   Thirdly,  there  is  scope for  recognising that  young people have greater capacity for rehabilitation.9

[43]     As against that, cases of violent manslaughter leave little scope for credit for youth.   There cannot be any presumptive entitlement to a discount.10     Given the history of your recent prior offending, the manner of your presentation in the videoed interview played at trial, your performance at trial and the terms of the pre-sentence report, I am not prepared to allow a discount for your age in the context of this

manslaughter.

8      Sentencing Act 2002, s 9(2)(a).

9      Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77].

10     Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [96]; R v Waipuka [2013] NZHC 221 at [23], where a 19 year old offender was denied any discount for a brutal manslaughter

[44]     The   undoubted   mitigating   factor   is   to   acknowledge   credit   for   your preparedness to enter a guilty plea to manslaughter.   Although in your interview shortly after the offending, you denied involvement, the Crown accepts that by July this year your counsel had indicated your preparedness to plead guilty to manslaughter, and I accept, as Mr Mabey has reviewed the factors this afternoon, that that is to be treated as arising at an early stage.  So in those circumstances, you are entitled to a discount.  The Crown proposes 15 per cent would be appropriate, on the basis that there is no remorse, and that you were facing an overwhelmingly strong Crown case in respect of manslaughter so that a conviction was inevitable. Mr Mabey  urged  that  a  larger  discount  could  be  allowed.    Standing  back,  and reflecting on all other aspects of the sentencing evaluation, I am not prepared to allow  a  discount  beyond  15 per cent.    From  nine  and  a  half  years,  which  is

114 months, a reduction of 15 per cent results in an end sentence of 97 months or eight years and one month.

Minimum period of imprisonment

[45]     The last aspect is to address the Crown proposal that I ought to impose a minimum period of imprisonment.   It is argued that denunciation is required, not only  for  the  circumstances  of  the  killing,  but  the  surrounding  circumstances involving offending whilst in breach of bail terms, carrying a weapon and fleeing without offering any assistance.   The Crown also submits that I should impose a minimum term to deter you and others from offending in this way and, to a degree, to protect the community from you.

[46]     On your behalf, Mr Mabey has submitted there is no need for a minimum period, and that the timing of your release into the community should be left to the Parole Board. There is some validity in that, particularly given your relatively young age and the difficulty in predicting, given your age, how well you will respond to rehabilitative initiatives in prison.

[47]     However,  in  terms  of  s 86  and  the  view  I  have  taken  to  the  relative seriousness of the offending, I am persuaded that a minimum period is required to effect the appropriate level of deterrence and denunciation.

[48]     Accordingly, there will be an order that you are to serve a minimum of

50 per cent of the sentence I have imposed.

Conclusion

[49]     Mr Kaihau,  I  sentence  you  to  a  term  of  eight  years  and  one  month’s imprisonment on the conviction for manslaughter.   This sentence is to commence from the day you would otherwise be entitled to parole on the sentence you are presently serving. You are to serve a minimum period of 48 months, or four years.

Three strikes warning

[50]     I am also obliged to give you a three strikes warning, and that is in the following terms.

[51]     If  you  are  convicted  of  any  serious  violent  offence  (except  murder) committed after you received the first warning, you will receive a final warning.  In addition, if the Judge imposes a sentence of imprisonment for that offence (other than life imprisonment for manslaughter, or preventive detention) then you will serve that sentence without parole or early release.

[52]     If  you  are convicted of a murder committed after  you  received the first warning, you will be sentenced to imprisonment for life.  You must serve the life sentence without parole unless it would be manifestly unjust to do so.  If you receive a life sentence without parole, you will not be released from prison.  If serving the sentence without parole would be manifestly unjust, the Judge must specify the minimum term of imprisonment you will serve.

[53]     Stand down.

Dobson J

Solicitors:

Crown Solicitor, Hamilton