R v Neketai - [2015] NZHC 396

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2012-070-1557 [2015] NZHC 396

THE QUEEN

v

WITERI AHOMIRO NEKETAI

Charge:
Plea:

Manslaughter (substituted conviction)

Not Guilty

Counsel:

GC Hollister-Jones and NG Belton for Crown
CJ Tennet for Prisoner

Sentenced:

9 March 2015

SENTENCING NOTES OF BREWER J

Solicitors/Counsel: Ronayne Hollister-Jones Lellman (Tauranga) for Crown
CJ Tennet (Wellington) for Prisoner

R v NEKETAI [2015] NZHC 396 [9 March 2015]

Introduction

[1] Mr Neketai, on 18 October 2013, in accordance with the verdict of the jury, I sentenced you on your conviction for the murder of Gary Kimura.1 The Court of Appeal has overturned that conviction and substituted a conviction for Mr Kimura’s manslaughter.2 Accordingly, I must now sentence you for that manslaughter.

Facts

[2] The facts, of course, have not changed and I will set them out briefly.

[3] In late September 2011, Mr Rewiri, a prisoner serving a life sentence for murder, used a cellphone to make arrangements with you to collect an alleged drug debt of $35,000 from Mr Kimura. He was then a 44 year old man who was living in Tauranga with his family. In the text messages, Mr Rewiri encouraged you to seriously assault Mr Kimura during the course of the debt collection. You agreed. Your motive was to get money, namely a share of the debt.

[4] On 5 October 2011, you borrowed a car and, with two associates, drove to Mr Kimura’s home. You had a plan to lure Mr Kimura outside and so you sent one of your young associates to knock on the door. He was not known to Mr Kimura. Mr Kimura’s daughter answered the door and your associate asked for Mr Kimura. The daughter fetched Mr Kimura who came to the door and went outside. You then confronted Mr Kimura on the driveway in front of the garage and demanded money. Mr Kimura refused to pay and, without warning, you punched Mr Kimura in the head very hard. The force of the blow caused the 109 kg Mr Kimura to fly through the air and land on the concrete, hitting his head.

[5] I find as a fact that you then kicked Mr Kimura at least once in the head while he lay on the ground already bleeding profusely. I accept it was the punch which was the fatal blow but the kick is evidence of your intent when you punched
Mr Kimura.

1 R v Neketai and Rewiri [2013] NZHC 2711.

[6] On the evidence I heard, I find that when you punched and kicked Mr Kimura you intended to cause him very serious bodily injury. I take into account that you are an experienced kick boxer. Following the judgment of the Court of Appeal, I make it plain that you are not to be sentenced on any basis that you had an intention or an appreciation that your attack on Mr Kimura might cause his death. However, the fact is that Mr Kimura did die.

[7] Following…

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 Neketai

Details

AGLC: R v Neketai [2015] NZHC 396
Case: [2015] NZHC 396
Decision Date: 9 March 2015

CaseChat Overview and Summary

In the case of R v Neketai, the Court of Appeal had substituted a conviction for manslaughter in place of the defendant's original conviction for murder. The defendant, Mr Neketai, had attacked a man named Mr Kimura in order to collect an alleged drug debt. The attack resulted in Mr Kimura's death. Mr Neketai had a history of violent offending and had committed two further acts of serious violence while on remand for the manslaughter of Mr Kimura. The court was required to decide the appropriate sentence for the manslaughter, and whether preventive detention was warranted.

The court assessed the appropriate sentence for the manslaughter by considering the aggravating features of the offending, including the premeditated nature of the attack, the extreme violence used, and the fact that the attack was for a criminal purpose. The court also considered Mr Neketai's personal circumstances, including his lengthy criminal history and his lack of remorse for the offending. The court determined that Mr Neketai's offending fit within the highest sentencing band for manslaughter, which had a range of nine to fourteen years' imprisonment. The court imposed a starting point of twelve years' imprisonment, and adjusted it based on the mitigating and aggravating factors. The court also considered the principle of totality, which required the court to ensure that the overall sentence was not disproportionate to the overall criminality. The court imposed a sentence of nine years' imprisonment for the manslaughter of Mr Kimura, with a minimum period of imprisonment of six years.

The court also considered whether preventive detention was appropriate, given Mr Neketai's history of serious offending and his lack of efforts to address the causes of his offending. The court considered the risk that Mr Neketai posed to the community if released from prison, and the likelihood that he would reoffend if released. The court concluded that preventive detention was appropriate, as it provided ongoing protection for the community and an incentive for Mr Neketai to change his behaviour. The court imposed a sentence of preventive detention with a minimum period of imprisonment of six years.

In summary, the court imposed a sentence of preventive detention with a minimum period of imprisonment of six years for the manslaughter of Mr Kimura. The court also imposed a sentence of nine years' imprisonment for the manslaughter, with a minimum period of imprisonment of six years. The court considered the aggravating features of the offending, Mr Neketai's personal circumstances, and the risk he posed to the community in determining the appropriate sentence.

Orders