R v Kipa
[2023] NZHC 1642
•29 June 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-004-006449
[2023] NZHC 1642
THE KING v
BRADFORD DAMIAN KIPA
Hearing: 29 June 2023 Appearances:
S McMullan for Crown T J Darby for Defendant
Sentenced:
29 June 2023
SENTENCING NOTES OF VENNING J
Solicitors: Meredith Connell, Auckland Counsel: T Darby, Auckland
R v KIPA [2023] NZHC 1642 [29 June 2023]
[1] Bradford Kipa, you are for sentence having pleaded guilty to the murder of John Ioane. On 23 August 2021 you stabbed Mr Ioane to death.
[2] There are two principal issues for the Court to consider regarding your sentence this morning. The first and most important is whether it would be manifestly unjust to impose the sentence of life imprisonment for murder; and if not, and life imprisonment is imposed, what the minimum non-parole period should be. I start with the facts.
[3] You and your wife had been in a relationship for 10 years and had recently married about three months before you killed Mr Ioane. You lived in Panmure.
[4] Mr Ioane was one of your wife’s work colleagues. They had known each other since December 2020 and apparently had formed an intimate relationship shortly after meeting. You had met Mr Ioane and were aware who he was.
[5] At about 5.00 pm on Monday, 23 August 2021, you were at your home in Panmure together with your wife and mother-in-law. You had been drinking alcohol during the afternoon. For some time you suspected your wife was being unfaithful. When you raised the matter with her, she told you she had kissed another man. You became enraged and an argument ensued. During the argument you said words to the effect of “You lied to me again … I loved you so much … You went and did this to me … You didn’t take your vows seriously … Is this what you think of our marriage?”. Your wife had her phone in her hand and was messaging a work group chat on Facebook Messenger at the time. You forcibly took the phone from her, took it outside and smashed it against the air conditioning unit on the wall of your unit.
[6] At about 6.25 pm your wife used her work phone to message Mr Ioane. They exchanged a number of text messages between 6.25 and 6.32 pm. She told him you had broken her phone and also that she had told you she had cheated on you. She also said she had got a hiding. Mr Ioane responded, “Oh shit what happened … You ok? Everything ok … Wtf I’m coming over … Shit wtf … Want me to pick you up …
Should I come over or not the cunt shouldn’t lay a hand on you or any woman”. Your wife texted Mr Ioane that everything was ok and not to come over.
[7] When you saw her texting Mr Ioane you took the phone from her. At 6.32 pm you sent a message on that phone to Mr Ioane saying “You got a cheek to talk cunt. You shouldn’t be fucking with someone wife. Can’t you find your own”. At 6.57 pm Mr Ioane responded, “Ok let meet up dick I’m on my way”, to which you responded “Good”.
[8] About 20 minutes later, at about 7.16 pm Mr Ioane arrived at the unit’s car park and sent a message to your wife’s work phone saying “I’m here tell him to come out”. He then waited for about five minutes before driving out of the car park and then parking on Tripoli Road, which has a pedestrian access to your unit. You were outside the back of the property at the time and saw his car as it turned into Tripoli Road. You walked back inside the unit, picked up a knife, and went back out to the front of the address. The knife was 32 cm in length with a 19.5 cm blade. You confronted Mr Ioane on the grass verge just as he got out of the car. A short argument ensued before you used the knife to stab Mr Ioane at least nine times about his face and body.
[9] As a result of the attack Mr Ioane suffered a number of stab wounds. You stabbed both his right and left shoulders, twice to his left arm, under his left arm, to the right side of his chest and twice below his bottom lip. During the course of your assault you inflicted a fatal stab wound through the right side of his abdomen, which punctured his lung and aorta. Mr Ioane fell to the ground. You had walked back inside and left the knife in the kitchen. It was bent and slightly broken at the handle from the force that you had used in the assault. You called 111 for two minutes. You also called your sister and said, “I stabbed him”.
[10] Your wife had come out of the address as you were walking back inside. When she saw Mr Ioane’s injuries she called 111 and requested an ambulance. She then carried out CPR unsuccessfully. During the emergency call you were heard to say, “I fucking told him I was gonna kill him if he comes here”. When the Police arrived and asked who did this, who stabbed him, you said “I did, I did”. You were arrested. The Police found another knife in the back pocket of your pants. Mr Ioane was pronounced
dead by an attending ambulance officer when they arrived at the scene. When interviewed by Police shortly after the incident you admitted your offending.
[11] In fixing your sentence today, I have regard to the purposes and principles of the Sentencing Act 2002.
[12] The particularly relevant purposes are to hold you accountable for killing Mr Ioane and for the harm done to the community by such violent offending, and to promote in you a sense of responsibility for and acknowledgement of the harm caused by your actions. To the extent possible the sentence should also provide for the interests of the family of the victim, and importantly, in cases such as this, the killing of another person, the sentence should denounce and deter such conduct.
[13] You have heard from the victim impact reports that were read to you today and I hope your counsel has taken you through the written ones, the effect that your offending has had on the family of the victim, and it continues to have, and will continue to have on them. I hope that hearing those statements gives you some insight into the consequences of your actions.
[14] The particularly relevant principles are the gravity of the offending, including your culpability, and the seriousness of the offence itself. Murder is the most serious of crimes.
[15] I have regard to your personal circumstances. You are 49 years old, a Māori of Ngapuhi descent. You are the youngest of six siblings. You recall having “a pretty normal, low-middle income” childhood. Your father had served his country in the navy. You say although you were disciplined when you were a child your parents did the best they could. During the course of your life you have had many jobs, managed bars, concrete laying and other manual work. You have been compliant in custody and you have shown some insight, and acknowledge your alcohol use was more problematic than you realised. In the hours leading up to the offending you think you may have consumed as much five or six bottles of Steinlager and four Vodka cruisers. You do not have an issue or addiction to any drugs.
[16] Unfortunately it seems your relationship with your wife was marred by infidelity and mistrust which ultimately led to the tragic and senseless killing of Mr Ioane. I accept, however, it is unlikely you pose a risk to the general public.
[17] The probation officer considers you to be sincerely remorseful for your killing Mr Ioane. Finally, I note you have two children from a previous relationship. Apparently they maintain contact, and if so, you are fortunate to have that support.
[18] The Court is directed to impose a sentence of life imprisonment for murder unless such a sentence would be manifestly unjust given the circumstances of the offence and your personal circumstances.
[19] Mr Darby has submitted strongly on your behalf it would be manifestly unjust to impose life imprisonment on you for the murder. To support that submission he says your overall culpability is closer to manslaughter than murder, and the surrounding circumstances, particularly the provocation, are such that a finite sentence rather than life imprisonment should be imposed. Mr Darby has submitted the Court should impose a finite sentence of about 12 or 13 years with a minimum term of eight years, rather than life imprisonment.
[20] The Crown submits that in all the circumstances of the offending and even having regard to your personal circumstances, your culpability is not reduced to a level where it would be manifestly unjust to impose life imprisonment. The Crown seeks a sentence of life imprisonment.
[21] I am not able to accept Mr Darby’s submission your offending is more akin to manslaughter. While I accept you may not have had intent in terms of s 167(a) of the Crimes Act 1961, by stabbing Mr Ioane nine times with the knife in question and in the areas of his body where you stabbed him, you definitely intended to cause him bodily injury which you must have known, given where you stabbed him and the force used, and the number of stabs, that it was likely to cause his death and that you recklessly carried on your attack on him nevertheless. You had murderous intent under s 167(b) and properly pleaded guilty to murder.
[22] It has also been suggested at some stage you have a mental impairment which reduced your culpability. Dr Galpin, a consultant psychiatrist, examined you as long ago as November 2021. He confirmed there was no clear evidence of a disease of the mind nor any evidence of a major psychotic or mood disorder consistent with a finding of disease of the mind and no evidence to support any finding you were not aware of the moral wrongness of your actions. In his opinion there was no prospect of a plea of not guilty by reason of insanity being sustained. Dr Galpin also rejected any suggestion of automatism.
[23] Dr Galpin did note you reported sustaining a head injury when you were about 19 years old after a car accident and that when you were about 11 or 12 years of age you were hospitalised with amoebic meningitis. He considered it possible you may have been vulnerable to disturbed impulse control from the conflict with Mr Ioane, the associated emotional arousal and your alcohol intake on the day.
[24] Your sentencing has been adjourned on a number of occasions to enable material to be put before the Court on the issue of whether you suffer from any relevant mental impairment that may have reduced your culpability. However, there is no further relevant information before the Court on that issue.
[25] Further, and in any event, in cases where life imprisonment has been found to be manifestly unjust because of mental impairment the defendants have been diagnosed with significant and serious depressive or other mental illnesses which have affected their cognitive reasoning and impaired their ability to act rationally, such as in R v Cole.1 In R v Mayes,2 Mayes was found guilty of murdering the victim by stabbing her to death after they had got into a fight. He pleaded guilty during trial. Mr Mayes and the victim were in an on-again, off-again relationship with elements of violence. Mr Mayes had suffered a severe injury when he was young following a car accident when he was thrown through the windshield of a car resulting in a depressed skull fracture. The injury required ongoing treatment with anti-psychotic medications to cope with aggression. He was subject to passive aggressive, and aggressive anti- social and paranoid traits at significant levels consistent with traumatic brain injury on
1 R v Cole [2017] NZHC 517. See also R v Wihongi [2011] NZCA 592.
2 R v Mayes [2004] 1 NZLR 71.
personality functioning. The High Court considered that in his circumstances life imprisonment would be manifestly unjust. However, the Court of Appeal allowed the Crown appeal and substituted a sentence of life imprisonment, noting that the murder was brutal and his response to any provocation was callous.
[26] The Court also noted the influence of alcohol in that case but confirmed the legislative policy to the effect that voluntary consumption or use of alcohol is no excuse as indicated by s 9(3) of the Sentencing Act. In other words, the Court must not take into account by way of mitigation that an offender, such as you, may also have been affected by the voluntary consumption of alcohol.
[27] Other cases where the Court has accepted life imprisonment would be manifestly unjust because of mental or other afflictions often involve elements of domestic abuse or battered women’s syndrome such as in R v Riha.3
[28] On the information before the Court in your case any medical or mental condition that you may have falls well short of any intellectual impairment mitigating your moral culpability to the extent it would be manifestly unjust to sentence you to life imprisonment.
[29] In his written submissions Mr Darby has focused on the issue of provocation. He has argued the combination of the discovery of your wife’s infidelity, the provocative communication from Mr Ioane, and the recognition of the deceased all combined to reduce your level of culpability. In Hamidzadeh v R the Court of Appeal confirmed the exceptional circumstances involving a high level of provocation will be required to warrant a sentence of less than life imprisonment.4 Hamidzadeh had believed, after listening to a tape from a concealed audio recorder, the victim was having an affair with his separated wife. Adultery was considered a serious offence under his faith. He stabbed the victim multiple times with two knives in a prolonged and frenzied attack while the victim was sleeping. As the Court of Appeal observed in that case:5
3 R v Rihia [2012] NZHC 2720.
4 Hamidzadeh v R [2012] NZCA 550.
5 At [68].
[W]hile an angry and emotional response to the end of a relationship may be understandable, the ordinary expectation of the community is that this ought not to justify the use of violence, especially where there are fatal consequences.
[30] In Collings v R,6 Mr Collings had murdered an acquaintance by driving over him with his car. There was a degree of provocation (a threat from the deceased to the defendant’s family), a psychiatric report which confirmed it was likely Mr Collings’ threat processing mechanism in his brain was deranged at the time, due to the effects of grief, PTSD and methamphetamine abuse, but nevertheless the Court of Appeal upheld the sentence of life imprisonment and in declining leave to appeal the Supreme Court noted the attack was deliberate rather than arising from a spontaneous loss of control and though provoked, the reaction to the provocation was grossly disproportionate.
[31] Similarly in this case your attack was deliberate. Over 20 minutes or more had passed from when Mr Ioane said he was coming over to when you confronted him. You had time to cool down. You were expecting Mr Ioane and were waiting for him. When he arrived, rather than facing him man-to-man, you deliberately went back into your unit, armed yourself with that knife before going out there to confront him. It must have been obvious to you before you started your murderous assault that he was unarmed.
[32] Your response in this case by deliberately arming yourself with the knife and stabbing an unarmed man nine times in the upper body and face, was wholly disproportionate to any degree of provocation from Mr Ioane. It falls well short of the exceptional circumstances required to displace the presumption in favour of life imprisonment.7 The frenzied nature of your attack does not make you less culpable.
[33] The threshold of manifestly unjust is properly a high one, as confirmed by the Court of Appeal in a number of cases. In R v Rapira the Court noted:8
The injustice must be clear, as the use of “manifestly” requires. The assessment of manifest injustice falls to be undertaken against the register of sentencing purposes and principles identified in the Sentencing Act 2002 and
6 Collings v R [2023] NZSC 67.
7 R v Te Maru [2020] NZHC 2084.
8 R v Rapira, [2003] 3 NZLR 794 (CA) at [121].
in particular in the light of ss 7, 8 and 9. It is a conclusion likely to be reached in exceptional cases only, as the legislative history of s 102 suggests was the expectation.
[34]In R v Cunnard the Court of Appeal confirmed:9
… Parliament has mandated that life imprisonment should be the standard sentencing response to a conviction for murder, reflecting society’s recognition of the sanctity of human life and its condemnation of anybody who wrongfully takes another life. …
[35] On a principled approach, a sentence of life imprisonment for the murder of Mr Ioane cannot be said to be manifestly unjust in your case.
[36] I turn to consider the minimum non-parole period. In doing so I again have regard to the relevant purposes and principles of the Sentencing Act.
[37] In your case Mr Kipa, having regard to the circumstances of the offending, I would take a start point for a minimum term of 12 years as appropriate. You are entitled to a number of credits. You are entitled to a credit for your guilty plea. However, that must be tempered by the fact that, despite your early acknowledgement of your responsibility for the murder of Mr Ioane, your guilty plea came over a year after you were charged with the murder and only two weeks before trial. Mr Kipa you knew what you had done. You could have pleaded earlier. You are also entitled to a discount for your genuine remorse, which I accept has been confirmed by the probation officer, and for the limited time you spent on EM bail. Taking account of those factors, and also the provocation which, although not sufficient to displace the presumption of life imprisonment, is still relevant to the minimum term, I consider the statutory 10 year minimum to be appropriate.
[38]Mr Kipa please stand.
[39] On the charge of the murder of John Ioane, you are sentenced to life imprisonment. You are to serve a minimum non-parole period of 10 years before you will be eligible for parole.
9 R v Cunnard [2014] NZCA 138 at [16].
[40]Stand down.
Venning J
6
0