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…

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 Kaihau

Details

AGLC: R v Kaihau [2013] NZHC 3192
Case: [2013] NZHC 3192
Decision Date: 29 November 2013

CaseChat Overview and Summary

In the case of R v Kaihau, the defendant, Israel Kaihau, was found guilty of manslaughter by the jury after his trial in the High Court of New Zealand. The case involved a fatal stabbing of Mr Wilkinson, a stranger, on New Year’s Eve. Kaihau had been on bail at the time of the incident and was subject to a curfew. He claimed that the stabbing was accidental, resulting from a misunderstanding and panic, but the court found his explanation implausible and rejected it.

The court had to determine the appropriate sentence for manslaughter, considering various factors including the use of a lethal weapon, the unprovoked nature of the attack, and the vulnerability of the victim. The court also had to assess the starting point for the sentence by comparing it with other manslaughter cases and considering the aggravating features. The Crown argued for a starting point of nine to ten years, while the defence suggested a lower figure. The court eventually settled on a starting point of eight years and nine months, considering the case to be somewhat more serious than other comparable cases but less so than the most severe examples.

Further adjustments to the starting point were made to account for Kaihau's status as an offender on bail and his previous criminal history, which included violent offences. The court added three months for the bail breach and six months for his prior convictions, resulting in a final starting point of nine and a half years. Mitigating factors such as Kaihau's age and his early guilty plea were considered but did not significantly reduce the sentence. The court allowed a 15% discount for the early guilty plea, resulting in a sentence of eight years and one month. Additionally, a minimum period of imprisonment of four years was imposed to ensure appropriate deterrence and denunciation.

In conclusion, Kaihau was sentenced to eight years and one month's imprisonment for manslaughter, with a minimum term of four years to be served. The court also issued a three strikes warning, indicating that any future serious violent offences would result in harsher penalties, including potential life imprisonment without parole.

Orders