R V CHRISTOPHER WHARUA KIHI AND ANOR HC HAM CRI 2008-019-166 [2009] NZHC 749 (3 July 2009)

IN THE HIGH COURT OF NEW ZEALAND
HAMILTON REGISTRY
                                                                 CRI 2008-019-166



                                   THE QUEEN



                                         v



                       CHRISTOPHER
WHARUA KIHI
                          ADRIAN JEAN BROWN



Hearing:      3 July 2009

Counsel:      R G Douch for Crown
        
     M Curran for Kihi
              B J Hesketh for Brown

Sentence:     3 July 2009


              SENTENCING REMARKS OF SIMON
FRANCE J



[1]    It is necessary to begin by identifying the facts on which sentencing will
proceed. Counsel have addressed me
in relation to what inferences I should draw.
As a general observation I reject the idea that the length of the deliberation can
be
used as significant. Why that occurred is not known, although we are aware there
was disagreement on the more serious charge of
attempted murder.




R V CHRISTOPHER WHARUA KIHI AND ANOR HC HAM CRI 2008-019-166 3 July 2009

Sentencing facts


[2]    The victim,
Mr Leonard Brown, was shot at close range with a shotgun
wielded by Mr Kihi. Mr Kihi and his partner, Adrian Brown, were as a result
charged with attempted murder. Ms Brown is the victim's sister. The defence was
self-defence, it being alleged that it was Leonard
Brown who had brought the
shotgun to the scene. The jury could not agree on the attempted murder charge, but
reached a guilty verdict
on the alternative allegation of wounding with intent to
cause grievous bodily harm. I accepted the verdict on the lesser charge
and
discharged both accused on attempted murder.


[3]    The background to what happened was a dispute over the management of
Leonard
and Adrian Brown's mother's estate. There had been accusations of theft
and in response to that, threats of retaliation. On the day
in question there had been
two prior confrontations. The first had been initiated by the victim who came to
Taupiri where the accused
live and effectively called Mr Kihi out. Ms Brown
instead went out and told him to leave. The second confrontation involved the
accused
going to Ngaruawahia where the victim lived, and in turn calling Mr Brown
out. When he responded, a gun was pointed at him form the
accused's vehicle
before they drove off.


[4]    Inevitably, a short time later Mr Brown went back to Taupiri to confront
them.
There is a schoolyard adjacent to where the accused lived. It was here that
Mr Brown again loudly called for the accused to come
out and fight. On this
occasion the ultimate outcome was that Mr Brown was shot.


[5]    Mr Kihi's version of events was that when
Leonard Brown returned and
called out, Mr kihi went, but he took with him his .22 gun. He fired a shot in the air
to warn Mr Brown
off. It was unsuccessful. Mr Brown had himself come armed
with a shotgun. In response to Mr Kihi firing the .22 in the air, Mr Brown
threw the
shotgun on the ground, and said to Mr Kihi that he should try with a real gun.
Mr Kihi took the shotgun and fired what
he intended to be a warning shot near
Mr Brown who was still across the other side of the tennis court. Although intended
as a warning
shot, some pellets hit Mr Brown who thereupon became incensed and

advanced on Mr Kihi. Mr Kihi then shot Mr Brown in the stomach
from quite close
range in self-defence.


[6]     The prosecution case was that the gun was not brought to the scene by the
victim.
Rather it belonged to Mr Kihi, and that both accused had embarked upon a
plan to lure Leonard Brown back to Taupiri in order to shoot
him. The three shots
that were fired were the culmination of that plan. The last two of these shots hit
Mr Brown. The final shot
was to the stomach from relatively close range. In
support of its allegation, the Crown relied not only on the evidence of the victim,
but
also on several other witnesses who heard the shots and who all described a similar
sequence: bang, pause, bang bang. Two of
the witnesses, including one called by the
defence, were familiar with guns and were both sure it was a shotgun sound.


[7]     The jury verdict indicates it accepted the Crown
case. Further it is clear that
it was not a decision based on excessive force, but rather a rejection altogether of self
defence.
The jury were instructed that if they found Mr Kihi had acted in
self-defence, but had used excessive force, then Ms Brown should
be acquitted
altogether. Her conviction therefore indicates that the jury rejected the proposition
that Mr Kihi was acting in self-defence.
As trial judge, I have no difficulty in
accepting that and sentencing on that basis.


[8]     To add my own observations, there
is no doubt that the dispute over the estate
of Joe and Adrian Brown's mother led to these events. Accusations were being
made, and
tensions flared. On the particular day, undoubtedly fuelled by alcohol,
Leonard Brown went down to Taupiri to have it out with Chris
Kihi.            He called
Mr Kihi out, he insulted him, he would have caused Mr Kihi to feel his pride had
been wounded. It is plain
that Mr Kihi had already been angered by Mr Brown's
allegations of theft from the estate and it did not take much for his emotions
to boil
over.


[9]     I accept the evidence of another family member, Mrs Clifton, and of her
daughter Abbey, that the accused
stopped and spoke to them before they headed
back into Ngaruawahia on the occasion the gun was pointed. Likewise I accept that
there
was a gun visible in the car at that time. I note in his statement Mr Kihi accepts

that they told Ms Clifton at this time that
they would "shoot the wanker". In my
view it is plain that the plan to shoot Mr Brown was already now in place. Both the
Cliftons
were told by Ms Brown in Mr Kihi's presence that they were going to shoot
Mr Brown. Both Cliftons heard it said that Chris now had
a gun that he didn't have
before when he failed to respond to Mr Brown's challenge. Luring him back to
Taupiri for the purpose of
shooting him was also mentioned.


[10]     The jury verdict necessarily carries the implication that the shotgun was
introduced
into the fray by Mr Kihi. It must have been obtained after the first
incident at the school.     Four people testified that they
saw a gun pointed at
Mr Brown in Ngaruawahia; two said it was the shotgun. Whilst there is a small
chance that the gun Mrs Clifton
saw in the car was Mr Kihi's .22, I have no doubt
the shotgun was already in the accused's possession and was probably the gun in
the
car.


[11]     It is also my view that the incident in Ngaruawahia must have been intended
to have the effect of luring Joe
Brown back to Taupiri.


[12]     The jury verdict indicates that some of its members had a doubt about an
intention to kill.   I
am comfortable with this in that it seems to me that the most
likely intention was simply to seriously shoot Mr Brown and if he died,
so be it. The
circumstances could well have been murder (recklessness as to death) had Mr Brown
died, but the jury were not sure
about the specific intent required for attempted
murder.


[13]     I turn to the situation of Ms Brown, which I have reflected on
for some time.
In doing so I specifically note that my conclusions are sourced only in the evidence
admissible against her. Mr Hesketh
submits that it should be found that Ms Brown
knew of the gun only at the last moment. For reasons already given I do not accept
that. I am of the view that it is not credible that she did not see the gun when it was
pointed at Ngaruawahia. I have no doubt that
she was aware that Mr Kihi had the
gun and intended to use it.      Ms Brown's comments to the Cliftons indicate a
commitment to
the endeavour that went on for longer than just a rash moment of
anger.

[14]   I have reflected on Mr Hesketh's submission that
the reactions of the two
accused to Mr Brown's provocation should be separately viewed. It is said to be not
a situation of a couple
acting together, but individual responses to the same event. I
cannot accept that. The course of conduct involved in going to Ngaruawahia with
the specific purpose of luring Mr Brown back, and
Ms Browns comments to the
Cliftons tell strongly against that idea. Ms Brown was charged as a party and I
consider she is guilty
of significant encouragement of Mr Kihi in his endeavour. I
am not sure beyond reasonable doubt that Ms Brown incited the shooting,
but she
plainly at least knew of it and supported it once Mr Kihi was committed to this
course of action.


Personal circumstances


(a)    Mr Brown ­ the victim


[15]   The impact on Mr Brown has not surprisingly been significant. Portions of
his bowel have
been removed, the surgery has proved difficult and dangerous, and
there is a need for on-going surgery to try and repair his stomach.
At the time of the
original injury he was in intensive care for just over 2 weeks. There have also been
significant psychological
consequences with a diagnosis of post-traumatic stress
disorder. That has produced its own difficulties which will be very familiar
to those
aware of the impact PTSD can have.


(b)    Mr Kihi


[16]   Mr Kihi is thirty-seven years old.     Prior to the offending
he lived with
Ms Brown and their six children in Taupiri. He has been in regular employment.


[17]   Mr Kihi's previous offending
record relates primarily to driving offending.
He has permanent injuries to his shoulder and hips due to previous car accidents,
and
in 2006 was convicted of careless driving causing injury.        Apart from the car
accident injuries, he suffers from epilepsy
but has noted this has not impaired his
ability to hold down full time work.

[18]     In the pre-sentence report Mr Kihi maintains
his position that he acted in
self-defence and that Mr Brown brought the gun to the scene. He is assessed as
being a low risk of
re-offending, although the report recommends caution as regards
that.    Mr Kihi made a restorative justice officer which the victim
rejected as
insincere.


(c)      Ms Brown


[19]     Ms Brown is thirty-eight years old. She lived at Taupiri with Mr Kihi and
their
children. She was the youngest by a margin of the four children in her family,
and indicates that this meant she was particularly
close to her mother. It was the
death of her mother in 2007 and the subsequent issues concerning her mother's
estate that led to
the events to which this sentencing relates.


[20]     When young Ms Brown contracted leukaemia and was hospitalised. There
was
intensive treatment for a year, and then ongoing follow up treatment. The
present assessment is that the treatment has been successful.
     The children in her
care range from the ages of three years old to fifteen years old. She is described as
an exemplary mother,
and an excellent housekeeper whose total focus has been on
caring for her partner and her children. She has no previous convictions.
She is
assessed at a low risk of re-offending, and is suitable for home detention. Again,
however, the report notes that its `recommendation"
is subject to the assessment of
what role Ms brown played.


[21]     Both offenders have submitted a large number of letters in
support. The
primary focus on those letters is that they are very good parents, hard working and
that these events are out of character.
The impact of jail terms on the children is also
noted.


Competing submissions


[22]     The Crown suggests a starting point for
the offending of twelve years. It is
said the offending involves a high level of violence and significant premeditation. It

is
disputed that any provocation by the victim merits particular recognition. The
impact on the victim is severe and on-going. Concerning
the respective roles, it is
submitted that the reduction for Ms Brown's lesser role should be minimal. It was a
joint enterprise
from the time when the shotgun was obtained. In terms of personal
circumstances it is submitted that Mr Kihi's efforts at restorative
justice were rightly
rejected by the victim as insincere. A 50% minimum non-parole term is sought to
reflect the unacceptability of such conduct.


[23]      On behalf of
Mr Kihi, Mr Curran submits a starting point between nine to
ten years is appropriate. It is noted that there was provocation and
that the victim on
both occasions went to taupiri with the purpose of doing violence to Mr Kihi. It is
said there are strong mitigating
factors ­ previous good character, a good family man
who had been in consistent employment and genuine remorse.


[24]      Mr Hesketh
likewise submits there was significant provocation. He submits
that the events of the day unfolded rapidly and that there was not
a lot of time for
reflection.     I have addressed already submissions about Ms Brown's role.
Concerning positive features, Mr Hesketh
notes the testimonials to Ms Brown's
otherwise good character, the undisputed fact that until now she has been a good
mother who
dedicated herself to her family. He notes that Ms brown did not seek to
be reconciled to her brother because she accepts the reality
of the final breakdown of
their relationship. For myself, I note I respect that; it would have seemed hollow to
me to have suggested
otherwise given the depth of feeling displayed by her
throughout the video interview and the trial, and as evidenced by her participation
in
shooting her brother.


Starting Point


[25]      The relevant authority is the well-known case of R v Taueki  [2005] 3
NZLR 372. That case identifies three broad brands into which offending of this
nature will fall. The two relevant bands in this case are bands
two (five to ten years)
and band three (nine to fourteen years). In my view this case falls plainly within
band 3.

[26]     The
two overwhelming aggravating factors are the premeditation, and then
the discharge of a shotgun from close range at the victim. The
premeditation is
significant. My assessment of the facts is that although the victim initiated the
sequence of events that was to
occur on the day, both accused responded by going
somewhere to obtain the gun in question, and then visiting the victim and pointing
a
gun at him with the specific purpose of annoying him so that he would eventually
return to Taupiri. This is what happened, and
having achieved that purpose the
accused then shot the victim. This was a calculated shooting of a family member
because of family
arguments.


[27]     The factors of extreme violence and use of a weapon overlap. Within the
context of shooting a shotgun at someone,
one might not describe the violence as
extreme, but that does not mask the fact that a shotgun was discharged at the victim's
stomach
from close range. The seriousness of that form of violence cannot be
understated. The consequence was very serious injury to the
victim who has had
ongoing complications. It was however a one-off act of violence of short duration.


[28]     These factors would
lead to a starting point of ten and a half years
imprisonment1. Some adjustment is needed to reflect the context of the offending
and the victim's role. The reality is that although there had been bad blood between
the two sides for some time, on the day in question
it was a drunk Mr Brown who
started the sequence of events. It was he who came to Taupiri and called Mr Kihi
out. Mr Kihi did not
respond. He said, at trial, it was because he knew he could not
fight with Mr Brown because of his shoulder injuries. Having been
told to leave by
Ms Brown, the victim did so. At that point the offenders' offending began.


[29]     Thereafter the events that
occurred were controlled by them. Accordingly I
find that the provocation to which they are responding is the background of
allegations
about stealing from their mother's estate, and the actions of Mr Brown
earlier in coming to the vicinity of the offenders' home and
challenging them to what
would undoubtedly have been an episode of violence.


1
         I have considered the Crown authority ­
R v Murray CA 382/02. It took a starting point of
10 years. There are as always similarities and differences. The risk to the public
is lesser here, but the
premeditation is worse and the shot is fired from close range.

[30]   The response of the accused was wholly
out of proportion to that. It involved
a calculated process of acquiring a shotgun from somewhere, deciding upon a plan to
get Mr
Brown back to Taupiri, carrying out that plan by going to Ngaruawahia and
pointing a gun at him before driving off, and then finishing
the plan when he
inevitably returned to Taupiri.


[31]   In that context I do not think that the significance of the provocation
should
be overstated, but it must be acknowledged that Mr Brown started it on the day and
intended "it" to involve violence to Mr
Kihi. Weighing these various factors I am of
the view that the appropriate starting point is nine years. That is the figure I take
for
Mr Kihi.


Ms Brown's role


[32]   It was Mr Kihi who acquired the gun and fired the shot. This creates a
significant point
of difference between them. Reflecting on Ms Brown's role, I am of
the view that it was more than that of a long-term partner who
foolishly went along
with the incident or failed to dissuade it. Rather the degree of planning involved,
and the conversation with
the Cliftons, makes it plain that there was a level of active
encouragement.     The reality is that this couple let each other down
by both
committing to the enterprise rather than providing the brake that one needs from a
partner in these situations of high emotion.


[33]   The Crown position remains that
Ms Brown has equal responsibility. It was
her fight, she went with him, and knew what was happening. It was her who told the
younger
Ms Clifton to take her children to safety, in obvious awareness of what is
going to happen.


[34]   It is in many ways a tragedy
that this good mother of six children has acted in
this way. But that cannot deter me from properly assessing her culpability. Exactly
what Ms Brown was doing at the Taupiri School at the time of the shooting has
never emerged, and I do not speculate.         I sentence
her on the basis of active
encouragement of her husband in full knowledge of what he was to do. There is, I
believe, an element of
generosity in an assessment of just over half the culpability of

her partner, but I consider the acquiring of the gun and the shooting
of it to be
primarily Mr Kihi's responsibility. Ms Brown would not have gone that far if left to
her own devices, but she certainly
positively encouraged Mr Kihi in his plans and
was involved for a considerable period of time leading up to the events. I take a
starting point of five years six months.


Mitigation and minimum non-parole


[35]     I discuss these two things together because
I see them as related. The issue
here is the amount of the sentence you are required to serve before release becomes
possible. If
I leave things as they are that figure is one third. The Crown submits
that it is necessary to give a message that what you did here
and how you responded
is unacceptable in a civilised society. I suggest it should be increased to one half.


[36]     I have been
persuaded against that in part by the strong support you have
received and by the evidence that until these events you were good
parents who were
caring for your children and doing your best. There is a case to say that a message
should be given but I consider
that it should not be done by extending your time in
jail. The mitigating factors relied on can be given primary recognition by accepting
the lack of any need for individual deterrence and seeing that as outweighing the
case for further denunciation or general deterrence.


[37]     The lead sentence of nine years on Mr Kihi is message enough and I prefer to
then to acknowledge your past efforts. I
see no basis on which to further reduce the
sentence. Although you have no offences of violence your driving record cannot be
ignored
and itself represents a level of past endangering of public safety.


[38]     Remorse is always difficult to assess. That there
is regret for the situation
that now exists is undoubtedly true, but what motivates that is never easy to identify.
It is undoubtedly
the case that he appreciates the dreadful impact this has on third
parties. I consider a sentence of nine years but with no minimum
term represents an
appropriate balancing of the factors. Once cannot get away from the fact that with a
degree of planning you shot
someone in the stomach with a shotgun from close
range.

[39]   Concerning Ms Brown, you are entitled to credit for your lack of
any
previous offending. You are plainly a good mother with care of six children. You
cannot be in any way proud or happy with the
example that you have set them. The
offending is out of character and inexplicable. Like Mr Kihi I decline to set an
increased period
of non-parole. Your offending free past deserves specific
recognition in addition to that and I allow a further credit of twelve
months. That
means your sentence will be four years six months.


[40]   Please stand. On the offence of wounding with intention
to cause grievous
bodily harm I sentence Mr Kihi to nine years' imprisonment and Ms Brown to four
years six months' imprisonment.
Please stand down.




                                                      ___________________________
                       
                                             Simon France J

Solicitors:
R G Douch, Almao Douch, PO Box 19173, Hamilton, email: [e-mail]
M Curran
B J Hesketh,
Barrister, Hamilton, email: [e-mail]