Glazebrook, O’Regan, Ellen France, Williams and Kós JJ
Counsel:
J R Rapley KC and S J Bird for Appellant M J Lillico and E J Hoskin for Respondent L A Scott for Criminal Bar Association New Zealand as Intervener E A Hall, D A Ewen and C A Hardy for Te Matakahi | Defence Lawyers Association New Zealand
Judgment:
31 August 2023
JUDGMENT OF THE COURT
A The appeal against sentence is allowed.
BThe minimum period of imprisonment of 11 years and six months is quashed and a minimum period of imprisonment of 10 years is substituted.
REASONS
Para No
Glazebrook, O’Regan, Ellen France and Kós JJ
[1]
Williams J
[99]
GLAZEBROOK, O’REGAN, ELLEN FRANCE AND KÓS JJ (Given by Kós J)
Table of Contents
Para No
Introduction
[1]
What happened
[4]
Why it happened
[11]
Mental impairment causative?
[12]
Other factors causative?
[23]
The legislation: s 102 of the Sentencing Act
[27]
Procedural history
[35]
Sentence indication (November 2020)
[38]
Sentencing (December 2020)
[40]
Court of Appeal (June 2021)
[44]
Re-sentencing (October 2021)
[51]
This appeal
[54]
Did the Court of Appeal interpret s 102 correctly?
[56]
Did the Court of Appeal apply s 102 correctly?
[63]
Brutality and vulnerability
[64]
Substance abuse and anger
[70]
Mental impairment and public safety
[71]
Our assessment
[78]
Minimum period of imprisonment
[96]
Result
[98]
Introduction
Discovering his former partner had entered a new relationship propelled Mr Van Hemert into a severe psychotic episode. Mental health professionals attempted to manage this by medication, believing care of Mr Van Hemert by his family would be maintained. Owing to a misunderstanding it was not and he was left alone. Mr Van Hemert quit his house in the early morning, taking with him a large knife for “protection”. He went looking for “revenge sex” with a sex worker. A disagreement broke out between him and Ms Te Pania, the young woman he selected. He attacked her with the knife and killed her.
Mr Van Hemert pleaded guilty to her murder. Three matters are not contested. First, that he was fit to stand trial; secondly, that he was not legally insane (i.e. he would have appreciated the nature of his actions and that they were morally wrong); and, thirdly, that but for his psychotic state, Ms Te Pania would be alive today.
The issue in this appeal is whether Mr Van Hemert’s psychotic state at the time of the killing of Ms Te Pania means it would be manifestly unjust that he be sentenced to life imprisonment.[1] The High Court initially held that it would be manifestly unjust to impose a life sentence.[2] The Court of Appeal set that conclusion aside.[3] Mr Van Hemert was re-sentenced in the High Court to…
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.
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Details
AGLC
Van Hemert v R [2023] NZSC 116
Case
[2023] NZSC 116
Decision Date
CaseChat Overview and Summary
In Van Hemert v R, the Supreme Court of New Zealand considered the appeal against the sentence imposed on Kaine Van Hemert, who was convicted of murdering Ms Te Pania in a brutal and frenzied attack. The key issue in the appeal was whether the High Court erred in re-sentencing Van Hemert to life imprisonment, and whether the Court of Appeal's interpretation and application of section 102 of the Sentencing Act was correct. The majority of the Supreme Court found that the Court of Appeal had misconstrued section 102, but ultimately upheld the life sentence imposed by the High Court. The majority held that while Van Hemert's mental impairment was a significant mitigating factor, the lack of remorse and potential risk to public safety justified the imposition of a life sentence. The dissenting judge, Williams J, argued that there was insufficient evidence to conclude that Van Hemert was a continuing safety risk, and that a life sentence without such evidence would also be manifestly unjust. Williams J would have preferred a finite sentence, accompanied by appropriate risk management measures, rather than a life sentence.