R v Tamaka - [2014] NZHC 182

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2012-032-2851 [2014] NZHC 182

THE QUEEN

v

KHARN TAMAKA

Hearing: 18 February 2014

Counsel: E M Light for Crown
K F Preston for Accused

Sentence: 18 February 2014

SENTENCE OF RONALD YOUNG J

[1] Mr Tamaka you have pleaded guilty to murder. Your plea of guilty came after a sentence indication given by me. I note I have already given a first strike warning to you.

[2] Firstly, the facts. The victim, Ms Donnelly, resided in Upper Hutt. She suffered from an intellectual disability and relied on a support worker who would take her shopping and check on her each week. But beyond that she lived her life unsupported. You had lived in an adjoining property to her in 2011 and it seems that the two of you may have known each other then although the extent is uncertain.

[3] On 29 August 2012 Ms Donnelly was walking from home to catch a bus at the Upper Hutt train station. Close circuit television pictures show you apparently following her for a period during this time. Eventually she caught a bus to the Hutt
Valley Disabled Resource Centre.

R v TAMAKA [2014] NZHC 182 [18 February 2014]

[4] Then mid afternoon she left and travelled back to the Upper Hutt train station. Mr Tamaka you were again seen in her vicinity when she boarded the bus. Ms Donnelly was last seen alive at about 5.30 that day and about that time you were seen inside her flat and you were heard to say that you would return later.

[5] At about 11 o’clock that night Ms Donnelly’s neighbour heard a knock on her door and she recognised your voice at the door but she did not open it. It seems that shortly after you entered Ms Donnelly’s house. It is not now possible to know precisely what happened but it seems clear that you put your hand or forearm across her throat and applied significant pressure. That pressure fractured her thyroid cartilage and ultimately caused her death. There were other injuries to her right hand including a fingernail which had been bent back and broken and a number of other scratches which would have caused her significant pain.

[6] At the scene it seems clear that some effort was made to try and disguise the fact that this was a killing or at least a killing by you. There was also some sexual contact between you and Ms Donnelly. A few days later you were arrested and you have now pleaded guilty.

[7] You have a significant past history of criminal offending. You have been convicted on a number of occasions of violent offending dating back to 2006 as well as some dishonesty offences. More recently, you were convicted of indecently assaulting a woman and injuring with intent to injure.

[8] I want to acknowledge the victim impact statements that I have read and heard read today. They are statements mostly…

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 Tamaka

Details

AGLC: R v Tamaka [2014] NZHC 182
Case: [2014] NZHC 182
Decision Date: 18 February 2014

CaseChat Overview and Summary

The case of R v Tamaka involved a conviction for murder, with the defendant pleading guilty to the offence. The case was heard in the High Court of New Zealand, Wellington Registry, with the defendant represented by K F Preston and the Crown represented by E M Light. The court was required to determine an appropriate sentence for the defendant, taking into account various aggravating and mitigating factors.

The legal issues the court had to consider included the nature and circumstances of the offence, the defendant's criminal history, and the impact of the offence on the victim and her family. The court also considered the psychiatric report on the defendant, which highlighted his troubled childhood, intellectual impairment, and history of aggressive sexual behaviour. The court was required to balance these factors against the severity of the offence and the need for deterrence and public protection.

The court found that the aggravating factors of the offence included the victim's intellectual impairment, the sexual element of the killing, and the defendant's attempts to conceal the crime. The only mitigating factor was the defendant's guilty plea. The court sentenced the defendant to life imprisonment with a minimum period of imprisonment of 12 years, taking into account the defendant's criminal history and the need for public protection.

The court's sentencing decision reflects the seriousness of the offence and the need to protect the community from the defendant's risk of reoffending. The sentence also acknowledges the impact of the offence on the victim and her family, as well as the defendant's troubled background and intellectual impairment. The sentence is intended to provide justice for the victim and her family, as well as to deter the defendant and others from committing similar offences.

Orders