R v Wikaira

[2014] NZHC 1628

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2013-068-000382 [2014] NZHC 1628

THE QUEEN

v

BENJAMIN WIKAIRA

Hearing:	11 July 2014
Appearances:	J Foster for Crown K Tustin for the Defendant
Judgment:	11 July 2014

SENTENCING NOTES OF ANDREWS J

R v WIKAIRA [2014] NZHC 1628 [11 July 2014]

Introduction

[1]      Before I begin this, I note that as counsel have said, we have already had a sentencing indication hearing when all of the matters relevant to your sentencing were canvassed.    I am  however,  today,  for  the benefit  of people who  are here listening, going to go through again, the matters that were covered in the sentencing indication judgment.

[2]      Mr Wikaira, following the sentencing indication, you have pleaded guilty to and were convicted on a charge of murder.   On a charge of murder you must be sentenced to life imprisonment.  The only issue is the length of the period you must serve in prison before you will be eligible to be considered to be released on parole. At my sentencing indication I said to you that if you were to plead guilty I would order that you serve a minimum period of imprisonment of 12 years before you could apply for release on parole. As has been noted, you pleaded guilty after having received that indication.

Facts

[3]      On 9 November 2013, you went to your cousin’s home address at Ongarue (north of Taumarunui) with a loaded Lee Enfield 303 calibre bolt action rifle.  Your older brother, Nikora, was present at the address.  You walked toward the house and chambered a round into the rifle.   Inside the house you asked Nikora where the

$6,000 you believed your brother owed you was.  You then shot your brother as he went to get up out of an armchair.   The projectile entered through your brother’s upper chest before striking the pelvic bone. You then kicked your brother once to the head as he fell to the floor, then you stood over him for approximately five minutes watching as he died.

[4]      You tied a piece of cable around your brother’s feet and dragged him 50 metres out of the house.   You laid a piece of corrugated iron over his body and placed a pile of leaves on top.  You cleaned up the blood in the house with water and then left the address. On the way back to your own house you hid the rifle at a small creek.

[5]      Sometime  before  12 am  on  11  November  you  returned  to  your  cousin’s address.  Your brother’s motor vehicle was parked there.  You loaded your brother’s property into the vehicle and drove it to your home address.   You removed the property and put it in your house.  You removed all identification that would link the motor vehicle to your brother.

[6]      You asked your cousin to help you dispose of the body and he would not do that.  You then tried, using a block and tackle pulley system, to load your brother’s body into your car but you did not succeed in that.  You then used a tarpaulin and a wool fadge to wrap the body, you tied a rope around your brother’s upper torso, the other end of the rope you tied to his car. You drove for 1.4 kilometres, dragging your brother’s body along the tar sealed road, then continued when it became a gravel road.   You stopped outside the gate leading to the family bush block.   As you reversed  you accidentally drove over your brother’s body.   The vehicle became lodged and you were unable to free it.  However, you then tried using your block and tackle to lift the car. That was not successful so you dug a hole around the rear of the vehicle in order to lower the body and free it.   That was successful.   Then, as daylight was approaching, you decided you would bury your brother’s body where it lay. You covered it with soil before placing lengths of timber over the grave.

[7]      You then drove to where you had hidden the rifle.  You drove approximately one kilometre into pine forest and threw the rifle, bolt and magazine into a river. You then tried to drive the car into the river but it became stuck. You got out to push the car over a cliff but it was too heavy.  You asked a farmhand to help push the car into the river but the farmhand refused that.

Victim impact statements

[8]      I have been provided with victim impact statements first, from your brother’s daughter and secondly, from two of your brothers, also of course Nikora’s brothers. Nikora Wikaira’s daughter expressed the very deep shock and loss caused to her and her family by the loss of her father, and the grandfather of her children, and in particular the horrible manner in which it occurred.  She sorely misses her father.  It

is in her heart however, to express forgiveness, as she herself feels she has been forgiven.

[9]      Of your two brothers one talked of what is evident friction between yourself and Nikora, and the division in the family that appears to have resulted from that friction.   That brother, Harry, has suffered both emotionally and financially as a result of Nikora’s death, as has your other brother, Ted, whose victim impact statement I have also read.

Personal circumstances

[10]     You are 58 years old.  You have 16 previous convictions, mostly related to driving  offences.    The  convictions  do  not  need  to  be  taken  into  account  in considering your sentence.

[11]     I have received a pre-sentence report, prepared after the sentence indication hearing.   I understand that you were the fourth of six boys in the family, and you were raised by your mother after your parents separated when you were very young. You left school at 15 and you have worked as a sheep shearer and a diver.  You have two adult daughters.

[12]     Before the sentence indication hearing, I was referred to reports prepared by Dr Peter Dean, in December 2013, and Dr Shailesh Kumar, in April 2014.  Neither of them concluded that you suffer from any form of psychiatric illness, although both referred to your issues with alcohol.  Dr Kumar also referred to your report of a long- standing conflict with Nikora, having been abused by him by having been stood over, humiliated and assaulted by him since your childhood.  Dr Kumar also reported you saying that your brother had threatened to kill you, and had made a similar threat to your daughter.  Dr Kumar also said that your statements were corroborated by the statements of other people.

[13]     I have read the letter, from you, that has been given to me this morning.  I read it as shedding some light on your relationship with Nikora, and I also read you as expressing some remorse to Nikora’s family for what has occurred.

[14]     Your lawyer, Ms Tustin, has also given me a letter from your eldest brother, Charles.  He talked about the conflict with Nikora and he supported what you have said about Nikora’s treatment of you.  He also talked about the family relationships.

[15]     Your daughter spoke of you warmly as an honest, caring, loyal and well respected man.

Section 104 of the Sentencing Act

[16]    As I said at the start, the sole issue is as to what minimum period of imprisonment should be imposed.   As I said in the sentence indication, the first question is whether s 104 of the Sentencing Act 2002 applies.  If it does apply then I have to consider whether the minimum period of imprisonment should be 17 years. If  it  does  not  apply,  the  second  issue  is  whether  the  minimum  period  of imprisonment should be ten years, or a greater period.

[17]     In my sentence indication I concluded that s 104 did not apply.  I have not changed in my view.  You were not unlawfully in your cousin’s house; you had been an ongoing and welcome visitor there for many years.  I accept that you did not go to the house specifically to kill Nikora, you went there to ask for money owed to you, after your power had been cut off.  There is nothing in the Police summary of facts which suggests to me that you forced your way into the house, or that you did not at least have permission to be there.

[18]     At the sentence indication hearing, it was submitted to me that there was a high level of brutality, cruelty, depravity or callousness in your treatment of your brother’s body following the fatal shot.  At that hearing Ms Tustin submitted that what you did after you had shot your brother, was out of respect for your cousin (whose house it was) and secondly, in order that you could bury your brother on family land, with respect.    Ms Tustin submitted to me that while you were dealing with your brother’s body you prayed, with karakia, and you repeatedly told your brother you were sorry.   Ms Tustin submitted that you did not have the physical strength to place your brother’s body into the boot of the car, which is why you did what you did with towing it, and that running over your brother’s body was accidental.  Ms Tustin also said that when you were approached by the police you

immediately admitted the killing, told them what happened, and took them to the grave.

[19]     I accept that your actions in standing over your brother and not assisting him or calling for help after you had shot him were indeed callous, but in my view they do not reach the degree of callousness that would trigger s 104.  So, here, the facts of the murder itself do not make it callous or brutal to the required level.

[20]      As I said at the sentence indication hearing, conduct following a murder can be used in assessing whether the murder comes within s 104(1)(e),1 but in my view, your conduct after the murder does not reflect on the nature of the murder itself.  It reflects your efforts to deal with your brother’s body.  Whether what you did was for the purposes of concealing the murder from the authorities, or, as you said, to bury your brother on family land, your actions were not in any way appropriate.   You

could have dealt with your brother’s body with respect by informing the authorities straightaway and then dealing with the issue of having your brother buried on family land.  However, as I concluded at the sentence indication hearing, your actions after killing your brother do not lead me to conclude that the high level of brutality and callousness required for s 104 was reached.

[21]     In my sentence indication I recorded, also, Mr Douch’s submission for the Crown that even if s 104 did apply, factors such as  your guilty plea, and  your remorse, could lead to a conclusion that it would have been manifestly unjust to impose a minimum period of imprisonment of 17 years.  He submitted that, taking those factors into account, the appropriate period would be 12 years.

The minimum period of imprisonment under s 103 of the Sentencing Act

[22]     I turn next to s 103 of the Sentencing Act, under which the minimum period of imprisonment must not be less than ten years, and must be as long as is necessary to hold you accountable for the harm done to the victim and the community, to denounce your conduct, to deter you and others from committing the same or a

similar offence, and to protect the community from you.  The focus of the enquiry

1      See R v Frost [2008] NZCA 406 at [37]–[40].

when I fix a minimum term is how much more than the minimum ten years is required to achieve those purposes.2    The primary focus is on the circumstances of the offence, not on you.3   I take into account the principles in s 8 of the Sentencing Act, and the aggravating and mitigating factors in s 9, to the extent that they are relevant for my inquiry.4

[23]     At the sentence indication, Mr Douch submitted that a minimum term of

12 years would be appropriate and would achieve consistency with similar cases, and would recognise your age and your personal circumstances.5    He submitted that no further deduction for mitigating factors was required, and that the impact of your guilty plea, your remorse and other factors is already recognised in concluding that the minimum period of imprisonment should not be 17 years.

[24]     Ms Tustin submitted that the minimum period of imprisonment should be ten years.   She submitted that this was appropriate to satisfy the purposes of the Sentencing  Act,  to  achieve  consistency,  to  recognise  your  guilty  plea,  and  to recognise the background issues with your brother.  Ms Tustin submitted then that the victim impact statements tended to demonstrate that the extent of loss might not be as great as in other cases. As to that, I did not in my sentence indication, and I do not now, accept that that is what the victim impact statements tell me.   As I said earlier, those statements make it clear that your brother’s death has been a great loss to the family.   However, as I noted then, the victims have also understood and recognised that you now appreciate the seriousness of the matter and the gravity of your situation.  But that does not lessen in any way the loss that they feel.

[25]     Ms Tustin also submitted that the offending was out of character and unlikely to ever be repeated and that your age and health issues could well make it more difficult for you to serve a prison sentence than it would be for a younger person.

She  also  submitted  that  you  had  co-operated  fully with  the  police.    Ms Tustin

2      R v Howse [2003] 3 NZLR 767 (CA).

3      R v Brown [2002] 3 NZLR 670 (CA).

4      R v Walsh (2005) 21 CRNZ 946 (CA).

5      Referring to  R v  Oakley HC Rotorua CRI 2004-87-1618, 19 August 2005; R v  Mills HC Palmerston North CRI 2009-54-3808, 16 June 2010; R v Ham HC Rotorua CRI 2009-69-1181,

20 October 2010; R v Meads CRI 2009-019-8828, 31 March 2011; and R v Johnston [2012] NZHC 387.

submitted that the circumstances of your offending were similar to those in a number or cases referred to me at the sentence indication hearing, each of which were what might be called “domestic” killings.6     In those cases minimum periods of imprisonment had been imposed of either ten or 11 years.

[26]     Your case does involve pre-meditation, as you took a loaded rifle to the house and you had the bolt in the “ready position”.   In that respect, it is similar to the offending in Meads that was referred to me, and it is more serious than the offending in Ham because it involved not only shooting your brother but kicking him too, and you did nothing to help the victim.  Nor do any of the cases referred to me involve actions following the murder that are similar to yours.  As to your guilty plea, the application for a discount for a plea of guilty is not simply a matter of applying a certain percentage, rather your sentence and your minimum period of imprisonment

must reflect the relevant principles of sentencing.7

[27]     Taking all of the relevant factors into account, Mr Wikaira, including what was at that time your possible guilty plea, I concluded in my sentence indication that the appropriate minimum period of imprisonment is 12 years’ imprisonment.

[28]     Now, at your actual sentencing, Ms Tustin has acknowledged that there are no new significant aggravating or mitigating facts which are likely to persuade me to reconsider the sentence indication.   However, she noted that you were seeking a further reduction in the minimum period of imprisonment to reflect your age, your guilty plea and background history with your brother – in particular your fear that he would kill you, and your remorse.  As you heard Ms Foster say earlier, the Crown submits that there are no new grounds, or further grounds, on which I should make any change to the sentence I indicated earlier.

[29]     I have carefully considered the recent submissions and the further victim impact statements and statements from you and your brother and your daughter that

have been provided to me before today.   However, I am satisfied that all of the

6      See R v Oakley HC Rotorua CRI 2004-087-1618 18 August 2005; R v Ham HC Rotorua CRI

2009-069-1181, 20 October 2010; R v Meads HC Hamilton CRI 2009-019-8828, 31 March

2011; and R v Johnston [2012] NZHC 387.

7      See R v Kinghorn [2013] NZHC 2316 at [48], citing R v Walsh (2005) 21 CRNZ 946 (CA).

matters that could be taken into account, were taken into account when I gave the sentence indication.   There are no grounds on which I could reach a different conclusion now.

[30]      Would you please stand.

Sentence

[31]     Mr Wikaira, on the charge of murder to which you have pleaded guilty and been convicted, you are sentenced to life imprisonment,  You are ordered to serve a minimum period of imprisonment of twelve years before you are eligible for consideration for parole.

[32]     Please stand down.

Andrews  J