R v Liev

Case [2017] NZHC 2253 18 September 2017

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-092-5315 [2017] NZHC 2253

THE QUEEN

v

SENG LEK LIEV APHICHART KORHOMKLANG LUIGI HAVEA
TAFITO MASI VAIFALE JOSEPH BENJAMIN HAURUA SODARITH SAO

Hearing: 18 September 2017

Appearances:

G R Kayes, L Radich and H Benson-Pope for Crown
M W Ryan for S L Liev
H B Leabourn and A M M Ives for A Korhomklang
M Kan, F Pereira and J Yang for L Havea
J Munro, D S Niven and J N Olsen for M Vaifale
I D Tucker for J B Haurua
L Cordwell for S Sao

Minute:

18 September 2017

SENTENCING BY PALMER J

Solicitor/Counsel:
Crown Solicitor, Manukau
M W Ryan, Barrister, Auckland
H B Leabourn and A M M Ives, Barristers, Auckland
Michael Kan Law Ltd, Auckland
J D Munro, D S Niven and J N Olsen, Barristers, Auckland
Tucker & Co, Auckland
L B Cordwell, Barrister, Auckland
Copy to:
M Gibson, Barrister, Auckland

R v LIEV & ORS [2017] NZHC 2253 [18 September 2017]

Introduction

[1] Around 9.30 pm on Monday 29 February 2016, outside her house in Waterview Auckland, Ms Jindarat Prutsiriporn was taken, under threat of being shot, from the back of one car and put in another. Some 22 hours later, just before
7.00 pm on Tuesday 1 March 2016, Ms Prutsiriporn came out of the boot of another car on Huia Road, Papatoetoe. She sustained serious head injuries in doing so. She died in hospital of her injuries.

[2] Ms Cecilia Hansen, Mr Becoylee Paleaasina, Mr Raymond Brown and Mr Panepasa Havea all pleaded guilty to kidnapping. They were convicted and have already been sentenced.

[3] Mr Seng Lek Liev, Mr Aphichart Korhomklang, Mr Luigi Havea, Mr Tafito Masi Vaifale, Mr Joseph Benjamin Haurua and Mr Sodarith Sao have been convicted of the kidnapping and manslaughter of Ms Prutsiriporn. Mr Sao pleaded guilty to both charges just before trial. Mr Vaifale and Mr Haurua pleaded guilty to kidnapping but not guilty to manslaughter. Mr Liev, Mr Korhomklang and Mr Havea pleaded not guilty to both charges. But you were each convicted of kidnapping and manslaughter on 12 July 2017. I am to sentence you today.

[4] Kidnapping carries a maximum sentence of 14 years’ imprisonment. Manslaughter carries a maximum sentence of life imprisonment. These are, obviously, serious offences. I now have to decide what sentences should be imposed. I will do that in five parts:

(a) First, I will mention the purposes and principles of sentencing. (b) Second, I go through what happened here, in general terms.
(c) Third, I set a starting point for sentencing each offender based on the

offending here compared with other cases.1

1 R v Taueki [2005] 3 NZLR 372 (CA); Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

(d)Fourth, for each offender, I consider any adjustments for aggravating or mitigating factors based on their personal circumstances or guilty pleas.

(e) Fifth, I consider whether to order minimum periods of imprisonment.

Part One:…

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 Liev

Details

AGLC: R v Liev [2017] NZHC 2253
Case: [2017] NZHC 2253
Decision Date: 18 September 2017

CaseChat Overview and Summary

The case of R v Liev concerns a premeditated kidnapping and the manslaughter of Ms Jindarat Prutsiriporn. The court was required to decide on appropriate sentences for six offenders convicted of kidnapping and manslaughter. The legal issues involved determining starting points for sentencing based on the gravity of the offending, culpability, and consistency with other cases, and then adjusting those starting points for mitigating or aggravating factors. The court considered the personal circumstances of each offender, including their previous criminal history, remorse, and prospects for rehabilitation. It also assessed whether minimum periods of imprisonment were necessary to ensure the sentences served the purposes of accountability, denunciation, deterrence, and community protection.

The court first established starting points for sentencing based on comparisons with other kidnapping cases, considering factors such as the level of premeditation, the number of offenders, and the involvement of gangs. It then adjusted those starting points for each offender based on their individual roles and culpability. Finally, the court imposed minimum periods of imprisonment for all offenders, considering the need to denounce the offending and deter similar future conduct. The court aimed to balance the seriousness of the offences with the personal circumstances of the offenders, ensuring sentences were consistent with those imposed on other offenders in similar cases.

Orders