R v Van Hemert - [2020] NZHC 3203

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2019-009-012005

[2020] NZHC 3203

THE QUEEN

v

KAINE VAN HEMERT

Hearing: 4 December 2020

Counsel:

D L Elsmore for the Crown

J Rapley QC for Mr Van Hemert

Judgment:

7 December 2020

SENTENCING NOTES OF DOOGUE J

Introduction

[1] Kaine Van Hemert, you appear for sentence having pleaded guilty to one charge of murder.1

Background

The offending

[2] Over the period of Christmas 2019, you were experiencing a deterioration in your mental health. Mental health services were notified, and they attended on you on 30 December 2019. They decided, in consultation with your family, that your

1 Crimes Act 1961, s 172; maximum penalty life imprisonment.

R v VAN HEMERT [2020] NZHC 3203 [7 December 2020]

mental health could be managed with medication and a voluntary appearance at Hillmorton Hospital the following day.

[3] At approximately 3.47 am the following day (31 December 2019), you were seen driving your vehicle in the area of Manchester Street, Christchurch. Around
4.00 am, you fixed a different number plate to your vehicle, using cable ties, effectively concealing the correct registration of your vehicle.

[4] At this time, the victim, Bella Te Pania, was working on Manchester Street as a sex worker, standing between Aberdeen Street and Salisbury Street. You stopped and spoke to her briefly, before she got into the front passenger seat of your vehicle. You drove to an unidentified location, near Grahams Road in Burnside, and had a discussion about payment and services offered by Ms Te Pania.

[5] You stated that Ms Te Pania attempted to strike you with a weapon. You then pulled out a large knife with a 20 cm blade, similar to a fish filleting knife, and stabbed Ms Te Pania multiple times. You also hit her on the head with a weapon, more than once.

[6] Your vehicle was then tracked on CCTV footage driving erratically through the wider Christchurch area. You drove north out of Christchurch, and then back towards the airport. At about 6.45 am, you drove into the secure Air New Zealand engineering site at Orchard Road, Christchurch, where Air New Zealand staff called the police.

[7] Ms Te Pania was found in the front passenger seat of your vehicle. The front windscreen of your vehicle was smashed. A footprint from Ms Te Pania’s shoe was detected on the windscreen. A search of the vehicle revealed two knives, an awl, and a rock in the vicinity of the passenger seat of the vehicle. A sledgehammer was found in the rear of the vehicle. The rock found in the passenger seat of the vehicle was found to contain both your blood and Ms Te Pania’s blood, and could have caused some of Ms Te Pania’s injuries.

[8] Ms Te Pania suffered extensive external injuries, of both sharp force cutting and blunt force, as follows:

(a)A large slash wound to the lower lateral left thigh, which penetrated deeply…

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 [2020] NZHC 3203
Case: [2020] NZHC 3203
Decision Date: 7 December 2020

CaseChat Overview and Summary

The case of R v Van Hemert involved Kaine Van Hemert, who was sentenced for the murder of Bella Te Pania. The primary legal issue was whether a sentence of life imprisonment would be manifestly unjust considering Van Hemert's severe mental illness at the time of the offence. The court found that Van Hemert's actions were a direct result of his untreated serious mental illness and inadequate supervision. The court reasoned that while a life sentence is typically imposed for murder, it would be manifestly unjust in this case due to the mitigating factors of Van Hemert's mental health condition and his genuine remorse. Consequently, the court sentenced Van Hemert to a finite term of 10 years' imprisonment, with a minimum period of six years and eight months, acknowledging the need for accountability and public protection. This decision underscores the high threshold for considering a life sentence manifestly unjust and the importance of individual circumstances in sentencing.

Orders