Te Kani v The King
[2025] NZHC 423
•7 March 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-643
CRI-2024-404-644 [2025] NZHC 423
BETWEEN WAATA TE KANI
Appellant
AND
THE KING
Defendant
Hearing: 3 March 2025 Appearances:
S McColgan for the Appellant S Wakefield for the Respondent
Judgment:
7 March 2025
JUDGMENT OF GORDON J
This judgment was delivered by me on 7 March 2025 at 12 pm
Registrar/Deputy Registrar Date:
Solicitors/Counsel:
Meredith Connell, Auckland
S McColgan, Barrister, Auckland
TE KANI v R [2025] NZHC 423 [7 March 2025]
Introduction
[1] The appellant, Waata Te Kani, was sentenced to five years’ imprisonment by Judge Gibson in the Auckland District Court on 18 October 2024,1 having pleaded guilty to the following charges:
(a)possessing methamphetamine for supply (x 2);2
(b)kidnapping;3 and
(c)failing to carry out an obligation in relation to a computer search.4
[2]Mr Te Kani now appeals this sentence on the basis that:
(a)the global starting point imposed by the Judge was too high, and the Judge failed to appropriately consider parity with Mr Te Kani’s co-offender for the kidnapping offence;
(b)there should be a totality reduction of two years to the reduced global starting point; and
(c)the discount for Mr Te Kani’s guilty pleas was inadequate.
[3] Mr Te Kani says that these three grounds cumulatively and/or severally resulted in a sentence that was outside the range that could properly be justified by accepted sentencing principles. The respondent opposes the appeal.
Offending
[4] Mr Te Kani’s offending relates to separate events that occurred on 16–17 June 2022 and 2 December 2022.
1 R v Waata Wally Te Kani [2024] NZDC 26342.
2 Misuse of Drugs Act 1975, s 6(1); maximum penalty life imprisonment.
3 Crimes Act 1961, s 209; maximum penalty 14 years’ imprisonment.
4 Search and Surveillance Act 2012, s 178; maximum penalty three months’ imprisonment.
Kidnapping
[5] The kidnapping offending took place on 16–17 June 2022. Judge Gibson described this offending as follows:5
The kidnapping was in the context of a business dispute between a Chinese businessman in Rotorua [Qiang Liu] and the victim, who was also Chinese, over the failure to pay an invoice that was allegedly due to [Mr Liu]. He commissioned, or engaged, [Mr Te Kani] to carry out the kidnapping and so [Mr Te Kani] went from Rotorua with two others and abducted the [victim] from his home in Henderson. He was roughed up, but I accept the violence was not severe, and then told to pay his bill. He was tied up and then he was driven to Rotorua the next day and, eventually, returned to Auckland but left half naked, blindfolded and crying on the side of the road near his home when he was found.
Other offending
[6] Mr Te Kani’s other offending for possessing methamphetamine for supply and failing to carry out an obligation in relation to a computer search occurred on 2 December 2022. On that day, Police executed a search warrant of Mr Te Kani’s vehicle and address. As the Judge explained:6
[Mr Te Kani’s] vehicle was searched by the police and 14 small bags were found which had 13.5 grams of methamphetamine packed in them and the purity was 80 per cent, which is a high grade, and then that, of course, led to a search of [his] own home and 196.8 grams of methamphetamine, again at 80 per cent purity, was located together with drug paraphernalia which supports the submission [that Mr Te Kani was] engaging as a retail dealer of methamphetamine. So, overall, 210.3 grams of methamphetamine.
[7] Later that same day, Mr Te Kani was arrested for an unrelated matter. Subsequently, Mr Te Kani’s phone was seized by Police, and he was asked to provide the pin code for his phone. He failed to do so.
District Court decision
[8] In the District Court, Judge Gibson calculated Mr Te Kani’s end sentence of five years’ imprisonment on the following basis.
5 R v Waata Wally Te Kani, above n 1, at [3].
6 At [4].
[9] First, the Judge set a cumulative starting point of 11 years’ imprisonment (five years and six months’ each for the kidnaping and drug offending). The Judge then applied a totality adjustment of two years to reduce the global starting point to nine years’ imprisonment. The Judge then applied the following discounts:
(a)15 per cent discount for guilty pleas;
(b)15 per cent discount for cultural factors;
(c)five per cent discount for rehabilitation; and
(d)an eight-month deduction for time on bail.
The law: approach on appeal
[10] An appeal against sentence can be brought as of right.7 The appeal court can only allow the appeal if there is an error in the sentence imposed and a different sentence should be imposed.8 However, the court “will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.9 The sentence must be “manifestly excessive” for the appeal court to substitute its own views. Whether the sentence is manifestly excessive is to be assessed in terms of the sentence given, rather than the process by which it is reached.10
[11] In the present case, the assessment I must make is whether Mr Te Kani’s end sentence of five years’ imprisonment is manifestly excessive.
Appellant’s submissions
[12] Mr McColgan, counsel for Mr Te Kani, submits that the end sentence of five years’ imprisonment is manifestly excessive. In advancing this submission, Mr McColgan makes three key points.
7 Criminal Procedure Act 2011, s 244.
8 Criminal Procedure Act 2011, s 250.
9 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [36].
10 Ripia v R [2011] NZCA 101 at [15].
Lack of parity with Mr Liu’s starting point for kidnapping
[13] First, Mr McColgan submits that the starting point for the kidnapping offending was too high. While Mr McColgan accepts both the starting point imposed for the drug offending and the two-year totality reduction, he says that the Judge failed to appropriately consider parity with Mr Te Kani’s co-offender for the kidnapping, Mr Liu, when determining the starting point for the kidnapping.
[14] Mr Liu was sentenced by Judge E Paul in the Rotorua District Court on 23 June 2023.11 In calculating Mr Liu’s sentence, Judge Paul adopted a starting point of three years and nine months imprisonment for Mr Liu’s role in the offending.12
[15] Mr McColgan acknowledges that Mr Te Kani’s role in the kidnapping was distinct from Mr Liu’s role. However, Mr McColgan submits that it is erroneous to say that Mr Liu is not equally as culpable as Mr Te Kani. Mr McColgan says that while Mr Te Kani was the ‘muscle’ who carried out the kidnapping, Mr Liu was the ‘mastermind’ who organised the kidnapping and the offending would not have taken place if it were not for Mr Liu.
[16] Accordingly, Mr McColgan submits that a starting point of three years and nine months’ imprisonment in parity to Mr Liu’s starting point is appropriate, leading to a reduced global starting point of nine years and three months’ imprisonment.
Reduction for totality
[17] Following from the above submission, Mr McColgan accepts that the Judge’s totality reduction of two years is appropriate but submits that the same reduction should be applied to the reduced global starting point of nine years and three months. This, Mr McColgan says, means the appropriate global starting point is seven years and three months’ imprisonment.
11 R v Qiang Liu [2023] NZDC 12894.
12 At [39].
Inadequate guilty plea discount
[18] As to the 15 percent discount for Mr Te Kani’s guilty plea, Mr McColgan submits that a discount of 20 per cent should have been given.
[19] In relation to the kidnapping offence, Mr McColgan acknowledges that Mr Te Kani entered a guilty plea on the first day scheduled for his trial, a Monday. However, Mr McColgan says Mr Te Kani entered this plea after Mr Liu gave a formal statement on the preceding Friday. Mr McColgan submits that this statement fundamentally altered the Crown’s case as it was the first piece of direct evidence identifying Mr Te Kani’s involvement in the proceeding.
[20] Mr McColgan submits that once Mr Liu’s formal statement was made, Mr Te Kani entered a guilty plea at the earliest possible opportunity. Mr McColgan says that Mr Te Kani’s immediate decision to enter a guilty plea indicates that had disclosure been made earlier, Mr Te Kani would have entered a guilty plea at an earlier stage.
[21] As to the drug offences, Mr McColgan acknowledges that Mr Te Kani’s guilty plea did come late in the proceeding and there was a strong case against Mr Te Kani. However, Mr McColgan submits that these delays were through no fault of Mr Te Kani. Mr McColgan explains that he took on Mr Te Kani’s file in October 2023 following a relationship breakdown between Mr Te Kani and his previous counsel and that Mr Te Kani, upon receiving informed advice about his legal position, raised his intention to plead guilty two months prior to trial (which was scheduled for the beginning of March 2024).
Respondent’s submissions
[22] Ms Wakefield, counsel for the Crown, submits that the Judge made no error and that the final sentence of five years’ imprisonment was appropriate.
[23] In relation to parity, Ms Wakefield submits that the difference in starting points between Mr Te Kani and Mr Liu was a considered and deliberate result of differing roles.
[24] As to the totality reduction, Ms Wakefield says that the defence submissions do not address why the totality reduction of two years was an insufficient discount or how it created a sentence wholly out of proportion to the gravity of Mr Te Kani’s overall offending. She submits the end sentence of five years’ imprisonment appropriately reflects the gravity of the overall offending.
[25] In relation to the discount for Mr Te Kani’s guilty pleas, Ms Wakefield says that the 15 per cent discount given by the Judge was generous in the circumstances. In relation to the guilty plea for the kidnapping, Ms Wakefield says that although Mr Liu’s formal statement was important to the Crown case, it was not determinative, and there were other pieces of evidence that the Crown intended to rely on at trial.
[26]As to the drug offending, Ms Wakefield says that:
(a)Mr Te Kani’s intention to plead guilty to the offending two months prior to trial was not notification at an early opportunity; and
(b)the Crown’s evidence against Mr Te Kani in relation to the drug offending was always strong.
Discussion
Starting point – parity with Mr Liu
[27] In sentencing Mr Te Kani’s co-offender, Mr Liu, Judge Paul referred to and applied the factors in R v Liev that Palmer J considered were useful in setting the starting point in a kidnapping case.13 Judge Paul said:14
Firstly, the length of time the victim was detained was significant, 34 hours. Also, he was blindfolded, bound for periods, and also transported between various locations in Auckland through to the Bay of Plenty. It cannot be avoided: there was premeditation on the defendant’s behalf.
The defendant provided the kidnappers with the identity of the victim, a photograph to identify the victim, contact details, the outstanding invoice, and also a promise to pay for the kidnappers’ services, albeit no money ever
13 R v Liev & Ors [2017] NZHC 2253.
14 R v Qiang Liu, above n 11, at [34]–[39].
changed hands because, as with these activities, it is unprofessional and unsuccessful.
I cannot ignore the number of offenders here: three kidnappers directly involved in the taking and detention of the victim, but also Mr Liu, making four offenders.
I further find that the level of violence was low and I have noted one punch in the summary and there appears to be no injuries sustained to the victim. Clearly, there must have been some harm to the victim and that is really informed by the duration of the detention and how that man was detained.
Stepping back from it, I see three factors of particular significance here: the premeditation in the steps taken by the defendant, the number of offenders involved and, clearly, the duration of the detention. I balance that against the limited violence that occurred and the fact that the defendant was not the actual kidnapper.
My assessment is that the starting point will be three years, nine months imprisonment. ...
[28] It is clear that Judge Paul took into account, in Mr Liu’s favour, that he was not the actual kidnapper.
[29] Having said that, the starting point of three years and nine months falls within the range of cases with a limited amount of violence. In Liev, as regards starting points, Palmer J said:15
To the extent a pattern in the sentences is discernible, and while there are exceptions, I consider it is the cases involving aggravated violence which tend to have justified starting points of 10 years’ imprisonment or more. Cases involving moderate or less violence tend, generally, to have starting points in a range from around three years to just over seven years.
[30]I respectfully agree with what Justice Palmer said above as regards the range.
[31] The starting point for Mr Liu was towards the lower end of the range but I do not consider it could be said to be unduly lenient. Thus, if I were to adjust the starting point for Mr Te Kani, as Mr McColgan urges the Court to do, it would not be a case of an inadequate sentence being used to justify another inadequate sentence. As the Court of Appeal has said, a disparity argument cannot be built on an unjustifiable
15 R v Liev & Ors, above n 13, at [26].
sentence.16 A lenient or unusually merciful sentence extended to one offender cannot create an expectation that another offender would receive the same indulgence.17
[32] Section 8(e) of the Sentencing Act 2002 provides that in sentencing an offender the Court must take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances.
[33]The Court of Appeal in R v Kohey when discussing parity said:18
Whilst it is vital for a sentencing court to strive for parity in sentencing co-offenders (whether sentenced separately or together), parity will not be achieved by a simple measurement against a co-offenders culpability. Parity means treating like cases alike and others with due regard for relative differences. It is best achieved by sentencing each offender appropriately for his role in the overall offending, in light of any relevant antecedents and taking into account any aggravating or mitigating features personal to the offender.
[34] Both Mr McColgan and Ms Wakefield referred to R v Mahaki & Te Moni19 and R v Monk.20 Neither case was a kidnapping case but each involved the sentencing of co-offenders.
[35] As Mr McColgan submits, the courts have recognised that the party most culpable for group offending may not be one of the persons performing the acts that constitute the offending. In that regard, Mr McColgan noted the strong statement by the Court of Appeal in R v Mahaki where the Court said:21
We do not propose to give the slightest encouragement to any view that those who mastermind serious crimes of this kind [armed robbery of a bank] can lessen their culpability by remaining at a safe distance from the action.
16 R v Feterika [2008] NZCA 127 at [47].
17 Steigrad v R [2012] NZCA 417 at [35].
18 R v Kohey (2003) 20 CRNZ 62 (CA) at [20].
19 R v Mahaki & Te Moni CA309/97, 8 April 1998.
20 R v Monk and Peeti [2022] NZHC 3427.
21 R v Mahaki & Te Moni, above n 19, at 3.
[36] In R v Monk, which was a sentencing in relation to an aggravated burglary, while Mr Monk was not physically involved in the offending, the sentencing Judge said that:22
But for Mr Monk’s instrumental role, it is self-evident this aggravated burglary would not have taken place. He was the organiser. It was his property he wanted returned. He directed his co-offenders to go there to get his property back. I am satisfied that he directed them to use violence or at least expected that violence would occur. He must be held accountable for the harm he instructed them to cause. There is no principled basis to distinguish his culpability as any lesser than theirs. Indeed, there would be a principled basis to increase the starting point in Mr Monk’s case given that he was the instigator and co-ordinator of what followed. However, the Crown does not seek such an increase here and accordingly, I will not increase the starting point.
[37] Ms Wakefield distinguishes both of those cases and submits that in each, the instigator remained involved as a coordinator in what followed whereas Mr Liu did not. Accordingly, Ms Wakefield submits the higher starting point is justified for Mr Te Kani.
[38] While Mr Liu did not remain involved during the course of the kidnapping in the same way as Mr Mahaki and Mr Monk did, he had a central role in instigating the kidnapping and giving Mr Te Kani instructions as to what he should do.
[39] Mr Te Kani and Mr Liu had distinct roles but I do not consider that amounts to a distinction in culpability. First, without Mr Liu instigating the kidnapping, it would never have happened.
[40] Second, the summary of facts sets out Mr Liu’s involvement and instructions to Mr Te Kani as follows:
On 2 June 2022, Mr Te Kani met with Mr Liu at Mr Liu’s shop in Rotorua. Mr Liu engaged Mr Te Kani to capture [the victim] and drive him to Rotorua to scare him into repaying the money owed to [the business owned by Mr Liu’s uncle and operated by Mr Liu]. As part of the arrangement Mr Liu told Mr Te Kani to kidnap [the victim] and hold him in the boot of a vehicle overnight.
Mr Liu provided Mr Te Kani with [the victim’s] photograph and a copy of the invoice for the transaction between [Mr Liu’s business] and [the victim’s business].
22 R v Monk and Peeti, above n 20, at [27].
[41] There was a limited amount of violence meted out to the victim which Mr Liu can be taken to have anticipated when instructing Mr Te Kani to “scare” the victim. No weapon was provided or used.
[42] The kidnapping proceeded broadly as directed by Mr Liu. The victim was held overnight and was driven to Rotorua. While the victim was held for a while at an address and while Mr Te Kani recruited two others to assist, I do not consider this was a divergence to the extent that Mr Te Kani can be said to have been “doing his own thing” and departing from Mr Liu’s instructions.
[43] The culpability being the same, although they had different roles, it is difficult to justify a higher starting point for Mr Te Kani. I consider this is a case where parity between co-offenders needs to be recognised by the same starting point.
[44] The starting point of five years and six months for the kidnapping charge was therefore too high. It should have been the same as the starting point for Mr Liu, namely three years and nine months.
Totality discount
[45] Judge Gibson adopted a starting point of 11 years (five years and six months for each of the kidnapping and drug charges). The Judge then gave a discount of two years for totality reasons.
[46] Mr McColgan submits that notwithstanding the lower starting point of nine years and three months, the same totality discount of two years should be given.
[47]I do not accept that submission.
[48] Section 85(2) of the Sentencing Act provides that if cumulative sentences of imprisonment are imposed, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending. The essence of the totality principle is that, in arriving at the appropriate sentence for several offences, the sentencing Judge must not only consider each offence individually, but also must
assess the offender’s overall culpability and determine what effective sentence is appropriate for the totality of their conduct.
[49] An adjustment to individual sentences imposed cumulatively is not automatic. Where the end sentence achieved by aggregating the individually appropriate sentences is not “wholly out of proportion to the gravity of the overall offending”, no reduction is required.23
[50] As the above principles make clear, the Court considers the overall gravity of the offending.
[51] Although I have decided the starting point should be reduced in this case, the overall gravity of Mr Te Kani’s offending remains the same. It is not suggested that the Judge overstated the gravity of the offending. Rather, he reached an adjusted starting point of nine years’ imprisonment to accord with the totality principle.
[52] I consider nine years’ imprisonment remains an appropriate adjusted starting point. It reflects the gravity of the total offending. I therefore make a reduction of three months, which results in the same adjusted starting point of nine years reached by the Judge.
Guilty plea discount
[53] The Judge applied a 15 per cent discount across both the kidnapping and drug charges. Mr McColgan submits the discount should have been 20 per cent across both charges. In fact, he says had Mr Te Kani been sentenced on the kidnapping alone, the discount should have been 25 per cent.
[54] In that regard Mr McColgan refers the Court to R v Blowers24 where Mr Blowers received a full 25 per cent reduction despite entering a plea of guilty after the trial had started, on the basis that the plea was entered immediately following very
23 Ashcroft v R [2014] NZCA 551 at [32].
24 R v Blowers [2014] NZHC 3062.
late disclosure. The Judge accepted the submission that had the disclosure been made earlier, Mr Blowers would have pleaded guilty at a much earlier stage.25
[55] Mr McColgan submits that the situation for Mr Te Kani was exactly the same having only received a copy of Mr Liu’s statement on the Friday before the trial was due to commence.
[56] However, there was other evidence available to the Crown even without Mr Liu’s statement as follows:
(a)photographs of Mr Te Kani (in which he is recognisable) holding and looking at a photograph of the victim and also a photograph of the outstanding invoice, both from Mr Liu’s phone;
(b)the jacket Mr Te Kani is wearing in the photograph was located at his home by the Police;
(c)polling data for Mr Te Kani’s cell phone was consistent with the victim’s recall of the route of travel in the car; and
(d)CCTV footage of the victim being taken by the offenders (Mr Te Kani is not recognisable in the CCTV footage).
[57] Mr McColgan submits that the jacket was a very common one and also the victim did not know the route of his travel as he was blindfolded.
[58] Notwithstanding those criticisms I consider the Crown had a respectable circumstantial case even without Mr Liu’s statement identifying Mr Te Kani. It would not have been a strong circumstantial case, but it would have been a reasonable one.
[59] In relation to the drug offending, on its face, the plea was not entered at an early opportunity. Further, I accept that the Crown evidence on the drug offending was always strong. Mr Te Kani was found driving his car with 14 zip lock bags of
25 At [25].
methamphetamine inside the car. His house was searched, and a commercial supply set-up was located, along with the bulk of the methamphetamine.
[60] I note Mr McColgan’s submission that Mr Te Kani changed counsel. It is not known why (beyond that there was a breakdown in the relationship). So that does not assist one way or the other. I accept that Mr McColgan acted promptly to advise Mr Te Kani as regards the legality of the search of his car. But in the end, it was a late plea in the context of a strong Crown case.
[61] Having regard to all of the above, I accept that the 15 per cent discount given by the Judge was appropriate.
Summary
[62] I have reached the view that the starting point for the kidnapping charge needs to be adjusted. But that adjustment is netted off against a much smaller totality reduction so that the final starting point is the same. The guilty plea discount given by the Judge was appropriate. There is no error in the end sentence.
Result
[63]The appeal against sentence is dismissed.
Gordon J
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