R v Kaka
[2013] NZHC 2151
•23 August 2013
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
THE QUEEN
v
JAEDYN TENGA KAKA
Charge: Kidnapping
Plea: Guilty
Appearances: R L Mann for Crown
J S Gurnick for Prisoner
Sentenced: 23 August 2013
SENTENCING NOTES OF VENNING J
Solicitors: Crown Solicitor, Hamilton
Copy to: J S Gurnick, Hamilton
R v KAKA [2013] NZHC 2151 [23 August 2013]
Jaedyn Tenga Kaka, you are for sentence having pleaded guilty to one charge of kidnapping. The maximum penalty is 14 years’ imprisonment.
The victim was a 32 year old female living in Auckland. Early one morning in April last year she received a phone call from a friend inviting her for breakfast. The friend told her she would be collected by the friend’s boyfriend, a Mr Martin. Mr Martin, the victim’s female friend and a third male, unknown to the victim, collected her. She was told to get into the back seat of the car. Her glasses were taken off her and she was blindfolded. Her purse was taken off her. She was then taken to the address of another one of your co-accused, Ms Budd in Hamilton. You had stayed overnight at that address. You are related to Ms Budd.
The victim was taken to a garage area while still blindfolded. She was tied up with a skipping rope securing her arms, legs and neck. She was told she was being abducted for a $30,000 ransom. The victim was threatened by your co-accused Mr Martin and Ms Budd, as well as by the other unknown male. A knife was held against her throat.
During the time the victim was confined Mr Martin, Ms Budd and you also acted as her guard. After several hours of confinement the victim was able to break free and escape through a small window in the garage. She scaled a rear fence and made it to a neighbouring property.
The neighbour saw the victim, crouched beside the house in a collapsed state asking for help. The victim had bruising and abrasions to her neck, wrists and ankles as a result of being bound.
When you were spoken to you admitted you were aware the victim had been kidnapped but said you took no active part in relation to it. You admitted that you knew she had been kidnapped because after she had arrived at the address she was tied up, wrapped in a blanket and punched in the face. You related how she was taken to the back room where she was detained. You also accepted you went in there at that time. You admitted you were asked for some rope but said it was the others
who had tied her up. You accepted you were told to sit with her to make sure she didn’t get away. You suggested you wanted to release her but were frightened to do so.
In sentencing you I am required to have regard to the purposes and principles of the Sentencing Act 2002. In this case it is necessary for the sentence to hold you accountable for the harm done to the victim by your offending against her. It should also promote in you a sense of responsibility for and acknowledgement of that harm. To the extent possible the interests of the victim should also be provided for. I do not have a victim impact report before the Court but the circumstances as described in the state she was in indicate the effect on her.
It is also important to denounce this type of offending and to deter not only you but others from committing such offences.
In terms of the principles of the Act I take into account the gravity of the offending and your culpability. I also take into account the seriousness of the type of the offence itself, having regard to the maximum sentence fixed by Parliament for such offending. I also take into account the general desirability for consistency within appropriate sentencing levels and the need to bear in mind your rehabilitation and reintegration into the community.
I accept you had a lesser role within the group. You were not one of the offenders who initially took the victim and brought her to the property, nor were you a party to any specific ill treatment or ransom demands. Notwithstanding that, you were a party to her continued detention and during the period of that continued detention your watching over her meant she remained detained until she was able to escape.
There is no tariff sentence for offending of this nature. Counsel have referred to a number of cases, including R v Wharton; Piper v R; R v Kimber & Ors; R v Kohey; and Pouwhare v R.[1] Mr Gurnick emphasised the limited role that you
played in the offending and identified a number of mitigating factors including your age, that you were acting at the direction of others, and that you were genuinely remorseful and have pleaded guilty. He submitted the Court could take a starting point of 18 months and suggested an end sentence of home detention and perhaps in the present circumstances home detention combined with community work would be sufficient to meet the purposes and principles of the Act.
[1] R v Wharton (2003) 20 CRNZ 109, Piper v R CA246/2011, 22 March 2012; R v Kimber & Ors
HC Rotorua CRI-2003-070-6113, 17 June 2005; R v Kohey (2003) 20 CRNZ 62; and Pouwhare v R (2010) 24 CRNZ 868.
Having reviewed the authorities that counsel have referred to, and as I indicated at the sentencing indication hearing Mr Kaka, I consider the appropriate starting point to reflect your culpability in this case and to address the purposes and principles of the Sentencing Act to be two years, six months’ imprisonment. While each case turns on its facts, I note that in the case of Piper v R the Court of Appeal upheld a starting point taken in the District Court in that case of three years in the case of one offender, and two years, six months on another. That case involved demanding money from a female victim, taking her eft-pos card, returning to the address, forcing her to call the bank and obtain her account balance, taking her to the bank to withdraw the money, which was then taken. The offending took place over a shorter period of time than the offending you were associated with. It was about two hours. Again in the course of upholding the starting points the Court of Appeal reviewed a number of cases, including R v MacKenzie, Mahutoto v New Zealand Police and R v Rangitaawa.[2]
[2] R v MacKenzie HC Auckland CRI-2006-057-1114, 20 March 2007; Mahutoto v New Zealand
Police HC Auckland CRI-2011-404-111, 20 June 2011; and R v Rangitaawa HC Christchurch CRI-2004-009-14066, 11 August 2005.
From that starting point I take into account in particular your age, and at least at the time of this offending your relatively clean record, and that leads to the reduction in the starting point by four months to 26 months. I also accept that the pre-sentence report now before the Court, which I did not have at the time of the sentencing indication, confirms you are unworldly and somewhat naive. In light of the further matters referred to in the pre-sentence report, including the suggestion of post traumatic stress as a result of family circumstances, I reduce the starting point further by another three months. I then apply a credit of approaching 20 per cent for
your guilty plea, which leads to an end sentence of 18 months’ imprisonment, three months less than I had indicated in the sentence indication.
Mr Kaka, having reached that sentence the Court is bound to consider home detention. Home detention is technically feasible at the proposed address.
However, it is necessary to give a little more background as to how the sentencing process has developed to address whether home detention is appropriate. In giving you the sentence indication of 21 months’ imprisonment the Court told you that subject to a favourable pre-sentence report and other requirements for home detention being met it was likely the Court would impose home detention. The sentencing exercise was then adjourned to 12 July 2013 for that report to be prepared. For your own reasons you failed to attend the first appointment. You were then advised in person and in writing to allow up to two hours for the interview. Despite that, at the second interview you left halfway through for your own reasons. The third appointment was then scheduled at your home. However, when the probation officer called you were not there. A card was left asking that you make contact. You failed to do so. Against that background the report was not available for sentence in July.
However, Mr Gurnick then obtained affidavits from your mother and sister supporting you and convinced the Court to adjourn your sentencing one further time to today’s date. On 12 July 2013 when adjourning your case the Court addressed you directly Mr Kaka and told you in the following words:
I have to say the matters to date that I have referred to do not leave me with any confidence that you will do that [which is comply]. So you are going to have to convince the pre-sentence report writer and this Court through Mr Gurnick when you are ultimately sentenced, that you can and will comply with a sentence of home detention before the Court will even consider it. I hope you realise the serious position you have placed yourself Mr Kaka by your attitude to date.
Despite that, the very next day, 13 July 2013, you breached your bail by consuming alcohol. Then on 3 August 2013 you breached your bail again, this time by being away from your place of residence which I note is the same place proposed for your home detention sentence. You said you were concerned about your
girlfriend. However the matter was not pursued and you have been in custody since that date. Mr Gurnick has again this morning strenuously argued for home detention and as noted, perhaps combined with community work. He notes you have completed similar sentences in the past. He suggests the pre-sentence report raises issues of your psychological state which may mean imprisonment would be disproportionately severe. He has referred to the case of Rimene v R[3] as support for you. However, I do not accept that case to be applicable to your situation.
[3] R v Rimene HC New Plymouth CRI-2011-043-000441, 16 June 2011.
[18] Mr Kaka please stand. Mr Kaka, despite Mr Gurnick’s thoughtful and thorough submissions I am not able to accept that home detention is an appropriate sentence anymore. By your own actions both before and after the last sentencing date you have indicated you will not be able to comply with a sentence of home detention. It would be a vain thing to sentence you to home detention in those circumstances. I do not consider it can be said imprisonment would be unduly harsh. I have reduced your sentence from the indication I have previously given to take account of the further matters disclosed in the pre-sentence report.
[19] Mr Kaka on the charge of kidnapping you are sentenced to imprisonment for 18 months.
[20] I impose the following special release conditions to follow your sentence:
(a)To reside at 7a Norman Street, Nawton, Hamilton and not to move address without written approval of a probation officer.
(b)To undertake and complete any such assessment/counselling/ treatment or programme as directed, and to the satisfaction of, the probation officer and provider.
[21] Stand down.
Venning J
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