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…

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 Wikaira

Details

AGLC: R v Wikaira [2014] NZHC 1628
Case: [2014] NZHC 1628
Decision Date: 11 July 2014

CaseChat Overview and Summary

Benjamin Wikaira was convicted of murder following a guilty plea. The only issue before the court was the length of the minimum period of imprisonment Wikaira must serve before he can be considered for parole. The court considered submissions from both the Crown and the defence, as well as victim impact statements and relevant case law. The court determined that while Wikaira's actions following the murder were callous, they did not meet the threshold for the application of section 104 of the Sentencing Act. The court ultimately decided that a minimum period of imprisonment of twelve years was appropriate, taking into account the circumstances of the offence, Wikaira's age, personal circumstances, and mitigating factors such as his guilty plea and remorse. Wikaira was sentenced to life imprisonment with a minimum period of imprisonment of twelve years before he can be considered for parole.

In summary, the court found that while Wikaira's actions following the murder were callous, they did not meet the threshold for the application of section 104 of the Sentencing Act. The court determined that a minimum period of imprisonment of twelve years was appropriate, taking into account the circumstances of the offence, Wikaira's age, personal circumstances, and mitigating factors such as his guilty plea and remorse. Wikaira was sentenced to life imprisonment with a minimum period of imprisonment of twelve years before he can be considered for parole.

Orders