Te Kani v R [2020] NZCA 69 (19 March 2020)

Last Updated: 25 March 2020

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA11/2019 [2020] NZCA 69

	BETWEEN	RICHARD TUWHAKAKORONGO TE ROROA TE KANI Appellant
	AND	THE QUEEN Respondent

Hearing:	13 June 2019
Court:	Brown, Wylie and Moore JJ
Counsel:	A M M Schulze for Appellant K S Grau for Respondent
Judgment:	19 March 2020 at 11.00 am

JUDGMENT OF THE COURT

1. An extension of time to file the appeal is granted.
2. The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Moore J)

Introduction

[1] Before trial Mr Te Kani pleaded guilty to:

• (a) two charges of manslaughter;^[1]
• (b) one charge of manufacturing methamphetamine;^[2]
• (c) two charges of being an accessory after the fact of murder;^[3] and
• (d) four charges of neglect of a child.^[4]

[2] On 29 November 2018 Davison J in the High Court at Rotorua sentenced him to 15 years’ imprisonment.^[5]
[3] Mr Te Kani appeals his sentence. He says:

• (a) the starting point for the two charges of manslaughter was too high; and
• (b) the discount for totality was insufficient.

Procedural background

[4] In addition to Mr Te Kani, three other men faced charges arising out of the deaths of Raymond and James Fleet on 7 August 2017. The principal was Martin Hone. He beat the Fleets to death with a spade. Before trial Mr Hone pleaded guilty to two charges of murder as well as a related charge of manufacturing methamphetamine and two charges of threatening to kill.^[6] On each murder charge he was sentenced to life imprisonment with a minimum period of imprisonment of 20 years.
[5] The two other men were Zen Pulemoana and Mikaere Hura. Each faced two charges of murder. Both went to trial. Mr Hura faced an additional charge of possessing equipment capable of being used in the manufacture of methamphetamine and one charge of possessing materials capable of being used in such manufacture. The jury found Mr Pulemoana guilty of James Fleet’s murder and guilty of manslaughter in respect of Raymond Fleet. Mr Hura was found guilty of the manslaughter of both Fleets and guilty on both methamphetamine charges.
[6] Mr Pulemoana appealed his murder conviction. That appeal was dismissed by this Court.^[7]

Application to extend the time allowed for filing

[7] Mr Te Kani filed an application to extend the time allowed for filing. This was because the appeal was filed two days late. He has filed an affidavit in support. By way of explanation he said the delay was caused by a combination of factors, including changes to his custodial arrangements and the intervention of the Christmas holiday period. These led to difficulties instructing his counsel, Mr Schulze. We grant the application without opposition.^[8]

Facts

[8] In anticipation of Mr Te Kani entering pleas of guilty an agreed summary of facts was prepared. The narrative which follows is drawn from that document.
[9] Messrs Te Kani, Hone, Pulemoana and Hura are members of the Rotorua Chapter of Black Power, Mangu Kaha.
[10] In early August 2017 an arrangement was made between members of that chapter and Raymond Fleet to manufacture methamphetamine. In preparing for this venture Raymond Fleet secured the use of the upper level of a house his son, Darius, was renting in Tarena Street, Mamaku. Mamaku is a small rural and forestry settlement about 20 kilometres west of Rotorua. To advise and assist with the manufacturing process, an associate of Mr Hone’s, Sheene Holloway, was recruited from Auckland. Mr Te Kani and Mr Hone, who are brothers, picked up Sheene Holloway from Auckland. It was agreed he would be paid $20,000 for his services.
[11] During the manufacturing process various people were seen moving in and out of Tarena Street. These included Mr Pulemoana, Mr Hura and Darius Fleet.
[12] Despite the apparent injection of Sheene Holloway’s expertise, the manufacturing process did not run smoothly. It was disorganised and, in certain respects, bungled. Additional ingredients and equipment had to be purchased. As a consequence, the first batch yielded less methamphetamine than expected. This led Mr Hone and Mr Te Kani to suspect that either Sheene Holloway or one of the Fleets was stealing product.
[13] A few days after the manufacturing process commenced, Mr Te Kani overflowed the upstairs bath when he was cooling down equipment used in the manufacturing process. Water poured downstairs and woke up the landlord. Fearing the Police might be called, the operation was moved to Raymond Fleet’s nearby home in Mamaku Street. However, the problems with yield continued as did the increasing paranoia of the four defendants. They directed their aggression towards Raymond Fleet and Sheene Holloway.
[14] The manufacturing was completed about four days after it started. But the men’s suspicions lingered. They were convinced methamphetamine had been stolen.
[15] And so, on Monday, 7 August 2017, they decided to do something about it. First Mr Te Kani, assisted by Mr Pulemoana, searched Tarena Street. They found nothing. Then, in the mid-afternoon, Mr Hone and Mr Te Kani drove to Tarena Street in a Mazda MPV (the MPV) where they picked up Raymond and Darius Fleet. They took them to a secluded area on Cecil Road about 4 kilometres from the township of Mamaku. This is an area which borders farmland and bush. The road turns into an almost impassable track accessible only by four-wheel drive vehicles. There, under threat, Mr Hone and Mr Te Kani demanded that Raymond Fleet tell them where the stolen methamphetamine was. Mr Hone threatened to kill both Raymond and Darius Fleet. At this point Mr Pulemoana and Mr Hura arrived in an Isuzu Bighorn (the Bighorn). After a while the situation calmed. The Fleets were returned to Tarena Street.
[16] However, that calm proved short-lived. In the early evening the MPV and the Bighorn turned up again at Tarena Street. Mr Te Kani and Mr Hura were in the Bighorn. Mr Hone and Mr Pulemoana were in the MPV.
[17] On seeing the group arrive, Raymond Fleet went outside. He handed his telephone to Mr Te Kani. He got into his own car and, in convoy with the Bighorn and the MPV, the group drove to Mamaku Street. There Raymond Fleet parked his car and got into the MPV. The vehicles separated.
[18] Mr Hura and Mr Hone took the Bighorn back out to Cecil Road and onto the track. They buried the clandestine laboratory.
[19] In the meantime, Mr Te Kani, Mr Pulemoana and Raymond Fleet drove back to another address in the MPV. Mr Pulemoana asked to speak with James Fleet, Raymond Fleet’s nephew. It appears to be common ground that he was unconnected to the methamphetamine enterprise involving his uncle and cousin. James Fleet went outside. Shortly afterwards he left with the other men, including his uncle, in the MPV. On Cecil Road they rendezvoused with Mr Hone and Mr Hura in the Bighorn.
[20] Over the next hour or so a series of assaults on Raymond and James Fleet took place in an effort by the four defendants to locate the methamphetamine they suspected had been stolen. At one point, Mr Te Kani left in the MPV. This was before the fatal attacks. At the time he left he appreciated the risk that further assaults might occur in the pursuit of information on the “missing” product. Following this Raymond and James Fleet were driven in the Bighorn up Cecil Road and onto the track.
[21] This was where the second and decidedly more aggressive phase of assaults took place leading to the Fleets’ deaths. At one point James Fleet was attacked in the back seat of the Bighorn.
[22] Mr Hone was the primary aggressor. He first turned his attention to Raymond Fleet who attempted to fight back. This enraged Mr Hone who took hold of a spade and “smashed” Raymond around the head and body causing him to fall to the ground unconscious and probably mortally wounded. The summary records that Mr Hura, in the Bighorn, drove over him several times.^[9]
[23] Mr Hone then turned his attention to James Fleet. He pulled him out of the car and attacked him with the spade inflicting fatal injuries.
[24] Leaving the bodies of Raymond and James Fleet by the roadside Messrs Hone, Hura and Pulemoana drove to Mr Te Kani’s address in Mamaku and from there towards Rotorua. Mr Te Kani dropped Mr Hone off in Ngongotahā before carrying on to the city.
[25] Shortly afterwards Mr Te Kani contacted Mr Pulemoana and Mr Hura. He told them to return with him to the Cecil Road scene to hide the bodies.
[26] The three men drove back to the scene. They moved James Fleet’s body into a nearby blackberry patch a few metres from the road. Raymond Fleet’s body was dragged some distance into the bush where it was also hidden in blackberry bushes.
[27] Ten days later the Police found the bodies. Following post mortem examinations it was revealed that Raymond Fleet died from massive blunt force trauma to his head delivered by multiple blows consistent with a spade. His head was “massively deformed”. He suffered multiple rib fractures. His lungs contained a large quantity of blood indicating that he had been subjected to a violent beating before his death. As with his uncle, James Fleet died from blunt force trauma as a consequence of at least six blows to the head delivered by a blunt instrument such as a spade.
[28] A forensic examination of the Bighorn revealed blood splatter on the right rear seat consistent with a violent assault. DNA taken from a sample of the blood revealed it came from James Fleet.
[29] At his sentencing Mr Te Kani also faced four separate, unrelated charges of neglect of a child. Approximately three months before the events described above the Police executed a search warrant at his address in Mamaku. They were met by an overpowering stench; a combination of rubbish and dog faeces. Faeces were visible throughout the house, trampled into the floor and carpet as well as smeared on furniture and children’s toys. The children, who were aged 3, 4, 5 and 6, were removed by Oranga Tamariki but later returned following a property inspection. Then, on 16 August 2017, the Police executed a search warrant at the address, presumably in relation to the death of the Fleets. They were confronted by a scene similar to that which they had encountered three months earlier. Two of the children were removed and Mr Te Kani and his partner charged with these offences.

Sentence

How it was set

[30] The Judge calculated the sentence in the following way:^[10]

• (a) a starting point of eight years’ imprisonment for the manslaughter of Raymond Fleet uplifted by three years for the manslaughter of James Fleet;
• (b) cumulatively a further 18 months for the accessory after the fact charges;
• (c) cumulatively a further seven years’ imprisonment for manufacturing methamphetamine; and
• (d) cumulatively a one-month sentence of imprisonment for the child neglect charges.^[11]

[31] This led to an overall starting point of 19 years and seven months’ imprisonment. The Judge applied a 10 per cent discount for Mr Te Kani’s guilty pleas. This brought the sentence down to 17 years and eight months. The Judge then made a totality adjustment reducing the final sentence to 15 years’ imprisonment.^[12]

Formulation

[32] In formulating the starting point of eight years’ imprisonment for Raymond Fleet’s manslaughter, the Judge observed that the summary revealed Mr Te Kani played more than a peripheral role in the offending. He cited examples to support that conclusion.
[33] Against these the Judge took into account the fact that Mr Te Kani was not present at the time of the fatal assaults and did not know that a spade or other weapon would be used against the Fleets.^[13]
[34] Noting that cases of manslaughter where the defendant did not take part in the fatal assault have attracted starting points of between four and eight years’ imprisonment,^[14] the Judge assessed Mr Te Kani’s offending as sitting towards the “upper end” of that range given his “active participation” in the earlier assaults, his anticipation that further assaults would take place and his “key role” in isolating the victims.^[15] In the Judge’s view, this warranted a starting point of eight years for the manslaughter of Raymond Fleet, uplifted by three years for the death of James.
[35] On the accessory after the fact charges, the Judge described Mr Te Kani as the instigator behind the decision to conceal the bodies. He noted that although unsophisticated, the acts of dragging the men’s bodies into remote bush meant they were not found for 10 days.^[16] With starting points of two-and-a-half years adopted in cases where the body suffered indignities or was treated callously,^[17] and three years for disposal at sea,^[18] the Judge arrived at a starting point of two years. He considered the appropriate uplift was 18 months.
[36] On the charge of manufacturing methamphetamine, the Judge noted that the summary of facts did not specify the quantity involved. But he inferred it was around 120 grams, since this was the basis on which Messrs Hone and Holloway were sentenced.^[19] Given that Mr Te Kani was an organiser of the manufacture and actively participated in the process by arranging the Tarena Street property and collecting Mr Holloway from Auckland, he adopted a starting point of seven years.^[20] This was the same starting point as had been adopted for Mr Hone.
[37] On the neglect charges the Judge noted Mr Te Kani’s partner had received a community-based sentence. But for the other charges he observed he would also have imposed such a sentence. He adopted the Crown’s submission and imposed a cumulative sentence of one month’s imprisonment.

Appellant’s submissions

[38] Focusing on the manslaughter sentence, Mr Schulze accepted that none of the cases referred to by the Judge is on all fours with Mr Te Kani’s offending. But he argued they provide helpful guidance. He did, however, distinguish them on the basis that unlike Mr Te Kani, the offenders in those cases knew or suspected the presence of the weapon used to kill the victims. In contrast Mr Te Kani had no such knowledge.
[39] Further, Mr Schulze submitted that Mr Te Kani’s senior position in the gang structure was taken into account both in relation to forming the manslaughter starting point as well as setting the starting point for the methamphetamine offending. To view that status as an aggravating factor for both sets of offending amounted to double counting given that there was no evidence Mr Te Kani assumed a lead role in the violence.
[40] Mr Schulze was also critical of the Judge’s finding that an aggravating factor was Mr Te Kani’s active role in the earlier assaults. This, he submitted, was contrary to the summary of facts which recorded:

5.8. Raymond and James FLEET were then driven out to the same area on Cecil Road (the location where Raymond and Darius were taken earlier in the day). HONE and HURA were already in the vicinity, burying the Clan Lab. They drove out of the bush and met up with the others.

5.9. Over approximately the next hour a series of assaults took place in an effort by TE KANI, HONE, HURA and PULEMOANA to locate the methamphetamine that they suspected had been taken.

[41] However, the Judge described Mr Te Kani’s role in the following way:^[21]

Mr Te Kani you yourself took part in the initial assaults on the victims and at the point when you left them, you were aware that further assaults would take place in an effort to locate the methamphetamine the group believed to have been stolen.

[42] Later the Judge said:^[22]

In my view the present case falls towards the upper end of that range, [4‑8 years] given your active participation in the early assaults, your anticipation that further assaults would take place, and your key role in isolating the victims. Accordingly, I adopt a starting point of eight years’ imprisonment on the first manslaughter charge, uplifting that starting point by three years to reflect the second manslaughter charge.

[43] Mr Schulze also criticised the Judge’s decision to place little weight on his submission that Mr Te Kani actively attempted to protect the victims and that he intervened to prevent further assaults. In support of this submission Mr Schulze referred to the contents of two written statements taken by the Police as well as Mr Te Kani’s own comments in the pre-sentence report.
[44] On the issue of the correct starting point, Mr Schulze submitted that it was arguable that Mr Hura’s culpability was greater than Mr Te Kani’s, by reason of the former being present and effectively restricting the Fleets’ ability to flee. Mr Schulze disputed the eight-year starting point, but stated that he could not cavil with an overall starting point comparable to Mr Hura’s with an appropriate uplift in recognition of the other offending. Fitzgerald J adopted a combined starting point of nine and a half years’ imprisonment when sentencing Mr Hura for the manslaughter of the Fleets.^[23]
[45] Finally, Mr Schulze also submitted that the adjustment for totality was inadequate. It was said that the reduction should have been higher to recognise the interconnected nature of the offending. The reduction that was awarded resulted in a period of imprisonment wholly out of proportion to the gravity of the offending. Mr Schulze submitted that an overall starting point of 10 to 13 years’ imprisonment would be appropriate, taking into account totality and before application of the guilty plea discount.

Discussion

[46] We must allow the appeal if we are satisfied that there is an error in the sentence appealed from such that a different sentence should be imposed.^[24] Ultimately, the focus is on the sentence imposed, rather than the process by which it is reached.^[25]

Was the starting point for Raymond Fleet’s manslaughter too high?

[47] In our view it cannot be said that the Judge erred in determining that Mr Te Kani actively participated in the early assaults. He did not say that Mr Te Kani actually hit either of the Fleets. His reference to active participation reflected the wording of the summary; that the assaults were for the purpose of the four defendants attempting to locate the missing methamphetamine. Given Mr Te Kani’s leading role in the manufacturing enterprise, he was a central figure in the events which followed. Despite the summary being silent on which of the defendants actually applied force to the victims it is a reasonable inference Mr Te Kani, given his position and involvement in the enterprise, was a good deal more than a mere passive bystander. And that is the way the Judge put it when he said:

[52] However, the summary of facts indicates that you Mr [Te] Kani played more than a peripheral role in the overall incident: like the others, you were angry at the suspected theft of methamphetamine, and wanted Mr Raymond Fleet to account for the methamphetamine that you believed to be missing. For that reason you went with Mr Hone, your brother, when he threatened to kill Raymond and Darius Fleet earlier that day, and you took the two victims to the location at Cecil Road prior to the fatal assaults. Despite what is said in the cultural report, in my view there is nothing in the summary of facts to suggest that you were under the influence of your co‑offenders, let alone subject to any form of pressure or duress. ...

[48] Thus the extracts from the Judge’s remarks recorded at [41] and [42] above, describing that Mr Te Kani took an active part in the earlier assaults, need to be read in context. His conclusion was drawn from the summary.
[49] Furthermore, we do not regard it as double counting that the Judge took into account Mr Te Kani’s senior position in respect of both the methamphetamine and manslaughter offending. The attacks on the Fleets were inextricably connected to the manufacturing operation, which was recognised by the Judge.^[26] It is plain from the summary that Mr Te Kani, with Mr Hone, played a leading role in respect of the methamphetamine manufacturing operation. Mr Te Kani paid for Darius Fleet’s accommodation after he moved out of the Tarena Street address. He, with Mr Hone, picked Sheene Holloway up from Auckland and took him to Mamaku. Mr Te Kani was actively involved in the manufacturing process as evidenced by the occasion he overflowed the bath. He, with Mr Hone, harboured suspicions that product was being stolen. It was he and Mr Pulemoana who undertook the search of Tarena Street. With Mr Hone he picked up Raymond and Darius Fleet and took them to Cecil Road for the first time where they were interrogated over the stolen product and threatened.
[50] Given the inextricable connection between the manufacturing process and the motive for threatening and assaulting the Fleets, it is plain that Mr Te Kani played a central role. He was part of a community of shared interest in ensuring the profitability of the manufacturing operation, which extended throughout the enterprise to the final phase of the events on 7 August 2017 when he directed Mr Hura and Mr Pulemoana to assist him in moving and concealing the bodies.
[51] For these reasons it was not double counting for the Judge to take into account Mr Te Kani’s senior position. It was simply the Judge’s recognition of the level of influence played by Mr Te Kani throughout the enterprise from start to finish. In our view not to have taken the prominence of his role into account would have introduced an artificiality; namely to limit the role he played to the manufacture but not the killings of the Fleets.
[52] The next question is whether the Judge was wrong to give little weight to the submission that Mr Te Kani attempted to intervene to protect the Fleets in the course of the earlier assaults. In support of this submission Mr Schulze relied on excerpts taken from the formal written statements of two Crown witnesses. The first was Darius Fleet whose statement suggested Mr Te Kani attempted to calm his brother during the first trip to Cecil Road with Darius and Raymond Fleet. The other came from a witness present at the initial assaults on the second trip who described Mr Te Kani jumping out of the car and saying to “grab” Mr Hone when Mr Hone was attacking Raymond Fleet. The witness then restrained Mr Hone in a “bear hug”.
[53] The difficulty with that submission is that the Judge was sentencing Mr Te Kani on the basis of an agreed summary of facts. ^[27] Neither of these incidents was referred to in the summary. Nor was it suggested, either to the Judge or in submissions on this appeal, that a disputed facts hearing should have been undertaken.^[28]
[54] As for the comparison drawn with Mr Hura’s starting point, that submission must be viewed in context. Fitzgerald J identified several mitigating factors present in Mr Hura’s offending which were not applicable to the case against Mr Te Kani. In her mind these justified a lower starting point. This is what she said:

[30] Dr Eggleston assessed your vocabulary, attention range, processing speed, verbal reasoning, fluency and working memory. His opinion is you have low cognitive functioning in a number of areas. He established that your general IQ places you in a very low percentile of the population. Ultimately, his opinion is that your borderline levels of functioning in certain areas, notably vocabulary and decision making, will present in difficulties across your entire life and will set you apart from the general population. It is clear from Dr Eggleston's report that he formed the view that these issues could have had an impact on your decision-making in your offending, though he says it is difficult to separate this out from another factor he identified, namely what he said is the clear factor of fear.

...

[34] I accept that at first blush, being present at the scene is perhaps more serious than Mr Te Kani's role in the offending. But this is mitigated by your low level of actual involvement in Raymond's death and the events which gave rise to it. Your secondary or limited part in his actual death reduces your culpability and hence the starting point. So too, in my view, do the factors identified by Dr Eggleston. I am also satisfied that while not relevant to conviction, your fear of the more senior members of the gang, which I accept was genuine and real, further reduces your personal culpability.

[55] Fitzgerald J’s comments are instructive. They explain how, despite his presence during the killings, the starting point adopted for Mr Hura for the two manslaughters was lower than Mr Te Kani’s. In any case, a disparity between sentences imposed on co-offenders needs to be unjustifiable or gross to warrant appellate intervention.^[29] This is not such a case.

The uplifts

[56] Because Mr Schulze does not take issue with the uplift for James Fleet’s death (subject to a reduced initial starting point comparable to Hura) or the sentences imposed for the methamphetamine manufacture, the disposing of the bodies and the neglect of children, it is unnecessary to consider those aspects of the sentencing in any detail. We would simply observe that the combination of cumulative and concurrent sentences was appropriate in this case and the sentences imposed were all within range.

Methamphetamine manufacturing and Zhang v R^[30]

[57] At the conclusion of the hearing we asked Mr Schulze if he wished to reserve his position in respect of the methamphetamine manufacturing charge. We did so on the basis that a Full Court of this Court was shortly expected to deliver its decision reviewing R v Fatu.^[31] Mr Schulze accepted our invitation and we made timetabling directions in the event he wished to make further submissions.
[58] On 21 October 2019 Zhang v R was delivered. On 4 November 2019 Mr Schulze advised he did not wish to file further submissions. He accepted that the starting point of seven years’ imprisonment adopted by Davison J was within range. We agree.

Totality adjustment

[59] This brings us to the final question which is whether the adjustment for totality was adequate.
[60] We are satisfied that the final sentence of 15 years’ imprisonment, while stern, was within the sentencing range available to the Judge. This reflects Mr Te Kani’s active and leading role in the manufacturing enterprise which was central to the tragic events which followed. Furthermore, Mr Te Kani was closely engaged in the initial assaults in an attempt to have Raymond and Darius Fleet account for the methamphetamine believed to be missing. And although not physically present at the time Raymond and James Fleet were bludgeoned to death, it cannot be overlooked that Mr Te Kani was present when the group arrived at Raymond Fleet’s address earlier in the afternoon. Raymond Fleet handed his telephone to Mr Te Kani. It was with Mr Te Kani that Mr Pulemoana and Raymond Fleet drove to Mamaku Street to pick up James Fleet. Mr Te Kani was present with Messrs Hone, Hura and Pulemoana when the two men were assaulted before being taken further into the bush where the fatal attacks took place. It was only then that Mr Te Kani separated himself from the others. But he knew further assaults may occur. Given his prominent role within the operation, we do not view Mr Te Kani remaining behind as any sort of significant withdrawal from the criminal enterprise. Rather, it was akin to a general remaining behind the battle lines.
[61] We also regard it as significant in terms of assessing the prominence of Mr Te Kani’s role that Messrs Hone, Hura and Pulemoana returned to Mr Te Kani’s Mamaku address immediately after the killings. And then Mr Te Kani delivered Mr Hone to his home near Rotorua. Finally, it was Mr Te Kani who assumed the lead role when he recruited Messrs Hura and Pulemoana to return to the homicide scene for the purpose of removing and concealing the bodies of Raymond and James Fleet.
[62] This sequence, in our view, reveals Mr Te Kani as a central and active figure throughout the events. In those circumstances, it cannot be said that a sentence of 15 years’ imprisonment was manifestly excessive.

Result

[63] An extension of time to file the appeal is granted.
[64] The appeal is dismissed.

Solicitors:
Lance Lawson, Rotorua for Appellant
Crown Law Office, Wellington for Respondent

---

^[1] Crimes Act 1961, ss 160, 171 and 177; the maximum sentence is life imprisonment.

^[2] Misuse of Drugs Act 1975, s 6(1)(b) and (2)(a); the maximum penalty is life imprisonment.

^[3] Crimes Act 1961, s 176; the maximum penalty is seven years’ imprisonment.

^[4] Section 195; the maximum penalty is 10 years’ imprisonment.

^[5] R v Te Kani [2018] NZHC 3134.

^[6] R v Hone [2018] NZHC 2605.

^[7] Pulemoana v R [2019] NZCA 293; leave to appeal refused in Pulemoana v R [2019] NZSC 131.

^[8] Criminal Procedure Act 2011, s 248(4)(a).

^[9] In the summing-up in Mr Pulemoana and Mr Hura’s trial three scenarios were put to the jury in respect of how Raymond Fleet met his death. These included: (i) Mr Hone running over him in the Bighorn; (ii) Mr Hura running over him in the Bighorn; or (iii) blows to the head and body with a spade wielded by Mr Hone. The jury’s deliberations revealed that they accepted scenario (iii); Raymond Fleet died as a result of blows struck by Mr Hone.

^[10] R v Te Kani, above n 5, at [55]–[64].

^[11] The four child neglect charges were concurrent with each other but cumulative with the other charges at this point in the sentence calculation.

^[12] R v Te Kani, above n 5, at [73]–[74].

^[13] At [53].

^[14] At [55], citing R v Madams [2017] NZHC 81; R v Brider HC Wellington CRI-2004-241-116, 3 September 2009; R v Innes [2016] NZHC 1195; R v Ahsin [2015] NZHC 1884; Rafiee v R [2010] NZCA 180; and R v Parker [2012] NZHC 2458.

^[15] At [55].

^[16] At [58].

^[17] Citing R v Leach HC Wellington CRI-2006-085-4461, 27 October 2006; and also R v Wilkie‑Morris [2016] NZHC 259 where the body was pushed off a cliff.

^[18] Citing R v Raroa [1987] 2 NZLR 486 (CA).

^[19] At [61].

^[20] At [62].

^[21] R v Te Kani, above n 5, at [52].

^[22] At [55].

^[23] R v Hura [2018] NZHC 3347 at [35].

^[24] Criminal Procedure Act 2011, s 250(2).

^[25] Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

^[26] R v Te Kani, above n 5, at [10].

^[27] R v Te Kani, above n 5, at [54].

^[28] Sentencing Act 2002, s 24.

^[29] Macfarlane v R [2012] NZCA 317 at [24].

^[30] Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

^[31] R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA).