R v Whenuaroa - [2023] NZHC 3620

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2022-031-691

[2023] NZHC 3620

THE KING

v

XAVIER AMELIO ZAVONNIE WHENUAROA

Hearing: 11 December 2023

Appearances:

G J C Carter for Crown

S N Hewson for Defendant

Judgment:

11 December 2023

SENTENCE OF LA HOOD J

Introduction

[1] Xavier Whenuaroa, you appear for sentence having pleaded guilty to charges of murder1 and arson.2 It is agreed that a sentence of life imprisonment must be imposed on you today. What I need to decide is how long you must remain in prison before you are eligible to apply to be released on parole. Whether you are granted parole at the end of that period will be a matter for the Parole Board.

1 Crimes Act 1961, s 172(1): the presumptive sentence for murder is life imprisonment.
2 Section 267(1) carries a maximum penalty of 14 years imprisonment.

R v WHENUAROA [2023] NZHC 3620 [11 December 2023]

[2] In setting that minimum period of imprisonment, I must apply a specific section of the Sentencing Act 2002,3 which states that the minimum period of imprisonment must not be less than 10 years, and must be the minimum necessary to satisfy certain purposes of sentencing. Those purposes are holding you to account for the harm you have done; to denounce your offending; to deter you and others from committing similar offending, and to protect the public from you. Other purposes and principles of sentencing are only relevant to the extent that they impact on that assessment.4

The offending

[3] Turning to the offending itself, you were 25 years old at the time. On 6 September 2022, you had travelled from where you were living in Christchurch to Levin. We have heard this morning that that was a condition of bail from a family violence offence you were charged with down in Christchurch. In Levin, you visited the victim James Ingle at his address.5 It seems you may have gone to his house for some support with the difficulties that you were in. You were enjoying an evening of drinking before you started talking about ways in which you believed Mr Ingle may have wronged your family.

[4] There was a hammer in the kitchen at Mr Ingle’s place. You got up and armed yourself with it, before going back to the lounge to resume the conversation. After more talking, you struck Mr Ingle in the head with the hammer. A struggle followed with you and Mr Ingle both on the floor of the house. The fighting continued with you hitting Mr Ingle with the hammer several times more rendering him semi-conscious.

[5] You then dragged Mr Ingle to a bedroom. You later told police that you heard Mr Ingle making gurgling noises, so you struck him again in the head with the hammer before taking his car keys from his pocket. This is all said to have happened past 10 pm.

3 Sentencing Act 2002,…

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 Whenuaroa

Details

AGLC: R v Whenuaroa [2023] NZHC 3620
Case: [2023] NZHC 3620
Decision Date: 11 December 2023

CaseChat Overview and Summary

The case of R v Whenuaroa involved Xavier Whenuaroa, who was sentenced for charges of murder and arson. The court had to decide on the appropriate minimum period of imprisonment for the murder charge, considering the purposes of sentencing, including accountability, denunciation, deterrence, and public protection. The legal issues centered on the aggravating factors of the crime, such as the use of a hammer in a frenzied attack, the setting of a fire, and the use of the victim's bank card post-offence, against mitigating factors like the defendant's young age, lack of prior convictions, and immediate surrender to police. The court weighed these factors and decided on a starting point for the minimum period of imprisonment, considering comparable cases and the specific circumstances of Whenuaroa's offending. The outcome was a sentence of life imprisonment for murder, with a minimum period of 13 years, and a concurrent four-year sentence for the arson charge. This decision was based on a balance of the severity of the crime and the mitigating personal factors of the defendant.

Orders