R v Van Hemert - [2021] NZHC 2877

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2019-009-012005

[2021] NZHC 2877

THE QUEEN

v

KAINE VAN HEMERT

Hearing: 28 October 2021

Appearances:

D L Elsmore for the Crown

J R Rapley QC for the Defendant

Judgment:

28 October 2021

SENTENCING REMARKS OF NATION J

[1] Mr Van Hemert, you pleaded guilty today. Following the case going to the Court of Appeal, it was necessary for you to go through that procedure again. You had indicated previously through your counsel that you were accepting the sentence indication I gave earlier and would be pleading guilty, so your plea of guilty today was simply, in one sense, a formality, recognising what had happened previously. So, it is now necessary that I sentence you.

[2] On 11 August 2021, I provided you with a sentencing indication on the charge of murder.1 The context of this sentence indication and the decisions leading up to it have previously been explained.2 You accepted the indicated sentence of life

1 R v Van Hemert [2021] NZHC 2076.
2 At [1]; and R v Van Hemert [2021] NZCA 261.

R v VAN HEMERT [2021] NZHC 2877 [28 October 2021]

imprisonment with a minimum period of imprisonment of 11 and a half years. So, you are now, as a result, before the Court for sentence on one charge of murder.3

[3] I again acknowledge the family and friends of the victim, Ms Te Pania, who are at the back of the Court today. And, I also acknowledge the arduous process that everyone has had to go through with these Court proceedings and recognise that there have been many occasions on which you have had to come to Court to follow all that has happened.

[4] I have again read the victim impact statements. I want to acknowledge the care, thoughtfulness, insights and understanding of other people’s difficulties that is apparent in those statements but also the anguish that has been caused by Ms Te Pania’s murder. I appreciate that no sentence I pass will ever address the loss of Ms Te Pania or the pain you suffer because of it. For Ms Te Pania’s daughter, who cannot understand where her mum has gone, nothing can take the place of the loyal and loving person who cared for her. Those who worked alongside Ms Te Pania on a project to end violence against sex workers, for which Ms Te Pania won a Volunteering Canterbury Award, emphasise that Ms Te Pania’s daughter must grow up in a safe community that values her mother’s life and place in the world.

[5] Mr Van Hemert, the facts of your offending have been presented before but I need to outline them briefly again now.4

[6] Over the Christmas period of 2019, you found out that your former partner, and the mother of your child, had entered a new relationship. After finding this out, you consumed very significant quantities of alcohol and cannabis,…

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 Van Hemert

Details

AGLC: R v Van Hemert [2021] NZHC 2877
Case: [2021] NZHC 2877
Decision Date: 28 October 2021

CaseChat Overview and Summary

Kaine Van Hemert pleaded guilty to the murder of Ms Te Pania and was sentenced in the High Court of New Zealand. The Court had to determine the appropriate minimum term of imprisonment before Van Hemert could be considered for parole. Factors considered included the brutality of the crime, the vulnerability of the victim, and the presence of premeditation. Van Hemert's guilty plea and his mental health issues were also considered. The Court found that Van Hemert's mental illness significantly contributed to the offending, but his lack of previous violent offending suggested his judgment was impaired. The Court decided to reduce the starting point sentence by 20 per cent, resulting in a minimum period of imprisonment of 11 and a half years. Van Hemert was sentenced to life imprisonment with a minimum period of imprisonment of 11 and a half years. The Court also entered a conviction on the charge of murder and provided a first strike warning.

Orders