R v Kiwi

Case [2019] NZHC 3194 5 December 2019

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IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2018-063-2979

[2019] NZHC 3194

THE QUEEN

v

WARREN UATA KIWI

Date of hearing: 5 December 2019

Appearances:

C H Macklin for the Crown G R Tomlinson for Mr Kiwi

Date of sentencing:

5 December 2019

SENTENCING NOTES OF JAGOSE J

Solicitors/Counsel:
Gordon Pilditch, Rotorua
Gowing & Co Limited, Whakatane

R v KIWI [2019] NZHC 3194 [5 December 2019]

[1] Mr Kiwi, as you know, I am now to sentence you on your convictions for conspiring to murder,1 and attempting to murder,2 Karl Nyman. I know you maintain you are not guilty, but the jury found you guilty of those offences. In sentencing you,
I must accept as proved all facts that are essential to its findings.3

[2] I have considered what counsel have had to say, both for you and for the Crown. They recommend starting points of eight and a half to nine years’ imprisonment; your counsel, Gene Tomlinson, seeks an additional twelve-month discount for you.

[3] I am not bound by their recommendations. I must satisfy myself of the appropriate sentence for the gravity – the seriousness – of your offending, including your culpability – your responsibility – for it.

Background

[4]The charges against you arose out of events in 2002.

[5] Toward the end of May that year, you met with someone as yet unidentified, and agreed to kill Karl Nyman for them. For that, you were to receive five pounds of cannabis. You and Mr Nyman did not know each other. You were given Mr Nyman’s address in Rotorua. He worked for a local trucking company and regularly started work at 4.30 am. How you were to kill Mr Nyman was left to you.

[6] In the early hours of Wednesday, 31 July 2002, you travelled from Tauranga to Rotorua, parking near a reserve next to Mr Nyman’s street. You pulled on a tightly- secured balaclava or facemask. Carrying a semi-automatic .22 rifle, with a sock secured over its ejector port to catch spent bullet casings, you crossed the reserve and hid in bushes beside Mr Nyman’s driveway, waiting for him to leave his house.

[7] Mr Nyman came down his driveway at about 4.15 am. He walked toward his truck, parked on the street. As he reached the footpath, you emerged from the bushes.

1      Crimes Act 1961, s 175. Maximum penalty 10 years’ imprisonment.
2      Section 173. Maximum penalty 14 years’ imprisonment.
3      Sentencing Act 2002, s 24(1)(b).

You pointed the rifle at Mr Nyman. You directed him into the bushes. At some point, Mr Nyman lunged for the rifle. The two of you struggled. A shot is said to have been discharged during the struggle, although no bullet has been found, and there is some dispute if that discharge occurred at all.

[8] The struggle spilled out onto Mr Nyman’s property, where the two of you became separated on either side of the driveway. Mr…

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 Kiwi

Details

AGLC: R v Kiwi [2019] NZHC 3194
Case: [2019] NZHC 3194
Decision Date: 5 December 2019

CaseChat Overview and Summary

The case of R v Kiwi involves the sentencing of Warren Uata Kiwi for his convictions of conspiring to murder and attempting to murder Karl Nyman. The High Court of New Zealand heard the case on 5 December 2019, with C H Macklin appearing for the Crown and G R Tomlinson for Mr Kiwi. The legal issues before the court included determining the appropriate starting point for the sentence, considering both aggravating and mitigating factors, and applying the statutory purposes and principles of sentencing. The court was also required to decide whether to impose concurrent or cumulative sentences for the two convictions.

In determining the appropriate sentence, the court considered the gravity and seriousness of the offending, the impact on the victims, and Mr Kiwi's personal circumstances. The court set a starting point of eight and a half to nine years' imprisonment for the attempted murder conviction, taking into account the premeditation and use of a lethal weapon. The court increased the starting point by six months to account for the conspiracy to murder conviction, which involved agreeing to kill someone for reward. The court then assessed the personal circumstances of Mr Kiwi, including his age, health, and criminal history, and found no mitigating factors that warranted a discount. Ultimately, the court imposed a sentence of nine years' imprisonment for the attempted murder conviction and two years and six months' imprisonment for the conspiracy to murder conviction, to be served concurrently.

Orders