R v Van Hemert
[2021] NZHC 2076
•11 August 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2019-009-012005
[2021] NZHC 2076
THE QUEEN v
KAINE VAN HEMERT
Hearing: 11 August 2021 Appearances:
D L Elsmore for the Crown
J R Rapley Q C for the Defendant
Judgment:
11 August 2021
SENTENCE INDICATION OF NATION J
[1] Just before I give you my indication Mr Van Hemert, I do acknowledge family and friends of the victim who are at the back of the Court. You need to know that I have read the victim impact reports and, Mr Van Hemert, I can tell you I have read carefully the submissions that have been made by both counsel. I have considered the cases they have referred me to. And, obviously I have considered what the Judge has said previously and what the Judges in the Court of Appeal said.
[2] You know I have to indicate the sentence I would impose if you maintain your guilty plea. I have to do that because the Court of Appeal allowed the Crown appeal and said another Judge was wrong not to have sentenced you to life imprisonment, as will normally happen when someone pleads guilty to murder.1
1 R v Van Hemert [2021] NZCA 261.
R v VAN HEMERT [2021] NZHC 2076 [11 August 2021]
[3] What I must decide is what the minimum term of imprisonment should be before you can be considered for parole. Your counsel, in his written submissions, relying heavily on another Court of Appeal case R v Smith, says it should be a minimum period of 10 years.2 And obviously, in addition to his written submissions, he has made very thorough submissions for you today. The Crown says it should be about 12 years.
[4] As Mr Rapley acknowledged and as you no doubt realise, at the end of whatever minimum period it is, you will not necessarily be released on parole. It will be for the Parole Board to decide if and when it is safe for you to be in the community on parole. And, at that time, the Parole Board will no doubt take account of people like Dr Panckhurst and the opinions he has expressed as to the way you have engaged with those who will be endeavouring to assist you to come to terms with what you need to do to avoid the risk of anything like this happening again in the future.
[5] I am not going to go through all the facts of what happened or the very thorough submissions that have been presented now on different occasions by the Crown and by your counsel. I am also not going to summarise what you did. Again, that is recorded in the earlier sentencing remarks in this Court and by the Court of Appeal. And, probably those who are in Court today may well have heard that summary previously.
[6] I adopt a starting point minimum term of 17 years’ imprisonment in accordance with s 104 of the Sentencing Act 2002. That is, firstly, because of the brutality of what you did, in your words, slicing and dicing the victim. The knife wounds which killed Ms Te Pania were horrific. In addition, there were blunt force injuries with a rock which was found in your car.
[7] Ms Te Pania was particularly vulnerable. She was vulnerable because she was on her own when she got into your vehicle and you had decided to use her services as revenge sex. She was vulnerable because you drove her to a place where there were no people she could turn to for help. She was vulnerable because, even before she got into the vehicle, you had armed yourself with a large knife with a blade of
2 R v Smith [2021] NZCA 318.
approximately 20 cm. She was also vulnerable because you had chosen to engage her services from the outset when you were feeling angry and aggressive because of your resentment that your former partner, from whom you had been separated for some time, had begun a new relationship.
[8] There is no dispute that, after you had killed Ms Te Pania, you knew what you had done was wrong. You knew you had committed murder. You may not have planned to kill a working girl that morning when you left home but I am satisfied, from the summary of facts and information in the psychiatric reports, that you knew you were going to be in a situation with her where you thought you had to be armed and you did not want others to know what you were doing. There was, in that sense, significant premeditation in what happened.
[9] I am also satisfied that, with the way you were thinking and acting before you met with the victim, with the difference in your size and her vulnerability in being alone, what you did would not have started with her attacking you and you then acting in self-defence. And, I note Mr Rapley this morning had said that he is not really pushing the suggestion of self-defence, and Dr Duff’s reference to the fact that in no way was Ms Te Pania to blame for what happened. Something that was said or happened between the two of you may have been the trigger that set you off but, once that happened, you were in a blind rage, consumed by anger. That is what led to the killing being so brutal.
[10]So, the starting point minimum period of imprisonment is 17 years.
[11] The Crown accepts you are entitled to a credit for a guilty plea and, with your mental illness to be brought into account, it would be manifestly unjust to keep the minimum term at 17 years. Mr Rapley said today that the Crown did not accept that you were suffering from a mental illness at the time the actual killing occurred. That was not the Crown submission. The Crown acknowledge that mental illness is a factor which has to be significant in the sentencing.
[12] With a guilty plea, you are accepting responsibility for your actions, acknowledging not only that you killed someone but that you did so either intending to kill her or knowing she could die from what you were doing, and not caring if you did kill her. It is a significant acknowledgement.
[13] Where the application of s 104 requires a minimum term of 17 years or more, the credit for a guilty plea to murder is usually between one to two years. Consistent with Crown submissions, I give you a credit of two years.
[14] You have no previous convictions for violence. You have a tendency towards violence and serious aggression when you become manic through your bipolar illness. Those episodes have been aggravated and have become more intense through your tendency to indulge heavily in alcohol and illicit drug use at such times. You and the community have been fortunate that, at such times, through the support of family, including previous partners, you have had the medical help you needed and those episodes have passed without you doing yourself or others serious harm.
[15] I take your lack of a criminal record into account when deciding what adjustment there should be for your mental illness. The fact that you do not have such a record does indicate that your mental illness at the time of these events was a significant factor in your offending. That illness is a significant matter in the indication I have to give.
[16] The psychiatrists were agreed that, at the time you killed your victim, Ms Te Pania, you were suffering from mania, that is that you were manic with delusional beliefs consistent with your history of being diagnosed with bipolar 1 disorder. Features of that illness being exacerbated through background, and it is by way of background, heavy use of alcohol and cannabis. Dr Duff concluded this would have impaired your judgment and insight into what you were doing, but the illness did not render you incapable of knowing that what you were doing was morally wrong. As Dr Duff said, your actions after the killing also indicated that, at the time, you knew what you had done was legally wrong.
[17] It seems that, because of a miscommunication between the Mental Health Crisis Team and your brother, you were left alone on the night of the murder, having taken medication which was thought would sedate you and avoid the risk of you being a danger to yourself or to anyone else. The plan was for you to voluntarily engage with psychiatric services the next day.
[18] Ms Te Pania was however killed because you, knowing what you were doing, armed yourself with a weapon, took her to an undisclosed place where no one could come to her aid and attacked her in a rage.
[19] Your judgment was however significantly impaired at the time you did that through mental illness. It is consistent with the Court of Appeal’s judgment and with the submissions made by the Crown, and of course your own counsel, that there must be some significant allowance for that.
[20] In R v Smith, the Court of Appeal noted Ms Smith’s profound remorse for what she had done, saying she was racked with guilt. That is not a feature of your response. The information provided in reports, after extensive discussions with you, indicated that you did not then have real remorse for what you did and have not been able to demonstrate empathy for the death you caused, for instance the way a very young girl has suffered the loss of her mother, and family and friends have suffered the loss of someone they treasured.
[21] Your lack of remorse is not to be regarded as an aggravating feature of the murder. It is however relevant to assessing the extent to which your personality, way of thinking, in combination with your bipolar illness, puts others at risk of harm and thus the need for a minimum period of imprisonment to assist in providing protection for the public.
[22] In R v Smith, the Court of Appeal noted that Smith was not a risk to others in society. That is not so with you to the same extent because your bipolar manic episodes have a tendency towards anger which has led, according to the reports, to physical altercations. The risk associated with this are exacerbated by excessive alcohol and illicit drug use. Acute episodes have been associated with aggressive behaviour.
[23] In contrast to the Court’s assessment of risk in relation to Ms Smith, here, the Court of Appeal referred to Dr Duff’s analysis of your psychiatric history and history of aggression. The Court of Appeal said:3
There appears to be a close correlation between Mr Van Hemert’s use of drugs and alcohol, which in turn triggers mental health relapses that on occasions involve acts of violence or aggression towards others. Unlike in R v Reid, we do not think it was right to characterise Mr Van Hemert’s offending as totally out of character or entirely out of step with his general life pattern.
[24] Although I make that distinction with R v Smith, it is consistent with the Court of Appeal’s judgment and the submissions made by the Crown that there be some significant allowance for the way your mental illness significantly contributed to this murder.
[25] In taking into account your lack of any convictions for previous offences of violence and the way your mental illness contributed to what you did, I would reduce the starting point sentence by 20 per cent on account of such matters.
[26] Against a starting point minimum period of 17 years [and taking into account the credit for a guilty plea], that would result in a credit of a little less than five and half years, commensurate with a minimum period of imprisonment of 11 and a half years. That minimum period of imprisonment is, I consider, the minimum required to recognise the principles of accountability and deterrence, and the importance of protection for others.
[27] Accordingly, I indicate now that, if you maintain your guilty plea to the charge of murder, your sentence will be life imprisonment with a minimum period of imprisonment of 11 and a half years.
[28] I consider that indication appropriately recognises the way in which the Court of Appeal said your sentencing should now be approached.
3 R v Van Hemert, above n 1, at [52], citing R v Reid HC Auckland CRI-2008-090-2203, 4 February 2011.
[29] You have already pleaded guilty to this charge and remain convicted of it. The Court of Appeal however recognise that you must be allowed to consider whether you wish to withdraw that guilty plea, knowing the sentence the Court will impose will be greater than was earlier indicated when you pleaded guilty. I recognise however that you may wish to maintain your guilty plea without accepting this indication.
[30] I consider the appropriate way to proceed is that you will now be remanded in custody to appear again on Friday 20 August 2021 at 9.15 am. You are to advise the Court then whether you wish to maintain your guilty plea or whether you seek leave to withdraw the plea on the basis that you are now facing a sentence in excess of what was indicated when you pleaded guilty. If you indicate to the Court on 20 August 2021 that you wish to withdraw your guilty plea, I anticipate the Judge dealing with the matter will allow you to do so, but I do not make a decision about that. If that happens, your conviction will be set aside. You will be remanded in custody in the normal way on the basis this charge will go to trial.
[31] If on 20 August 2021 you indicate to the Court that you are maintaining your plea of guilty, you must then indicate whether you accept this sentence indication. You will be remanded again for sentencing either in accordance with the indication that has been given or, if that indication has not been accepted, for the Court to hear further submissions from both the Crown and the defence.
[32] So, that is the indication I have given. This is a sentencing indication so obviously there is complete suppression in relation to everything that has been said today and what has happened.
Solicitors:
Crown Solicitor’s Office, Christchurch J R Rapley QC, Barrister, Christchurch.