R v Kane - [2019] NZHC 2622

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2019-025-000796

[2019] NZHC 2622

THE QUEEN

v

DEJAY RAWIRI KANE

Hearing: 15 October 2019

Appearances:

R W Donnelly for Crown

W N Dawkins for Defendant

Judgment:

15 October 2019

SENTENCING REMARKS OF GENDALL J

R v KANE [2019] NZHC 2622 [15 October 2019]

Introduction

[1] Mr Kane, would you stand now please. Before I begin my sentencing remarks I am required to give you a Three-Strikes Warning.

[2] Dejay Rawiri Kane, given your conviction for one charge of manslaughter and four charges of reckless driving causing injury, you are now subject to the Three- Strikes law. I am now going to give you a warning of the consequences of another serious violence conviction. You will also be given a written notice outlining these consequences which lists the serious violent offence.

[3] First, if you are convicted of any serious violent offences, other than murder, committed after this warning, and if a Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release.

[4] Secondly, if you are convicted of murder, committed after this warning, then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event, a Judge must sentence you to a minimum term of imprisonment. So that is the Three-Strikes Warning I am required to give you.

[5] Mr Kane, you may be seated again for a moment. I will ask you to stand at the conclusion of my sentencing remarks. Thank you.

[6] Mr Kane, you have pleaded guilty to one charge of manslaughter and four charges of reckless driving causing injury. You are now before this Court for sentence.

Facts

[7] Turning now, first, to the factual background in this matter, on 7 December 2018, you were driving your Subaru motor vehicle in Invercargill with a passenger, one of your associates. At about 7.30 pm, the Subaru was observed by members of the public driving at high speed, weaving in and out of traffic along the Queens Drive area in Invercargill. It was also witnessed driving on the wrong side of the road in the suburb of Windsor.

[8] A member of the public whose vehicle was almost sideswiped by your Subaru, Mr Kane, on Queens Drive contacted police and followed the car to the Northern Tavern Bottle Store. The witness observed you, Mr Kane, as the driver, get out of the vehicle and go into the bottle store, and then return carrying alcohol.

[9] You then drove off and accelerated the Subaru at high speed between two vehicles that were driving around the roundabout at Queens Drive and Herbert Street. The Subaru nearly collided with them, fishtailed, and you appeared to lose control, Again you accelerated your Subaru onto Layard Street, tailgating vehicles before passing them inside at speed on the left side of the road. The Subaru was again seen…

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 Kane

Details

AGLC: R v Kane [2019] NZHC 2622
Case: [2019] NZHC 2622
Decision Date: 15 October 2019

CaseChat Overview and Summary

Dejay Rawiri Kane was sentenced by Gendall J in the High Court of New Zealand in Invercargill for one count of manslaughter and four counts of reckless driving causing injury. The defendant pleaded guilty to the charges, which stemmed from a high-speed car crash in which the defendant's vehicle collided with another car, resulting in the death of one person and serious injuries to four others. The defendant had been driving under the influence of alcohol and was disqualified from driving at the time of the incident.

The legal issues before the court included determining an appropriate starting point for sentencing, considering both aggravating and mitigating factors, and deciding on a minimum period of imprisonment and a driving disqualification period. The Crown argued for a starting point of nine years and six months, while the defence suggested a starting point of six years was more appropriate. The Crown also recommended an eight-year driving disqualification, while the defence proposed a period of four to five years.

In delivering the judgment, the court accepted the aggravating factors outlined by the Crown, including the loss of life, the defendant's prolonged and deliberate reckless driving, excessive speed, and high blood alcohol level. The court found some level of premeditation in the defendant's actions, despite the defence argument to the contrary. The court also acknowledged the mitigating factors of the defendant's youth, genuine remorse, and willingness to engage in rehabilitation programs. After applying the appropriate discounts for these factors and the defendant's guilty plea, the court imposed a sentence of four years and eight months' imprisonment for the manslaughter charge, with a minimum period of imprisonment of two years and four months. The court also sentenced the defendant to two years' imprisonment for each of the reckless driving charges, to be served concurrently. Finally, the court disqualified the defendant from driving for a period of six years.

Orders