R v Neketai [2013] NZHC 2711 (18 October 2013)

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Charges: Pleas:	Murder (Neketai) Manslaughter (Rewiri) Not Guilty (Neketai) Guilty (Rewiri)
Counsel:	N Belton for Crown AC Balme for Neketai AF Rickard-Simms and K Cihan for Rewiri
Sentenced:	18 October 2013

Solicitors: Ronayne Hollister-Jones Lellman (Tauranga) for Crown Anthony Balme (Tauranga) for Neketai

[2] Mr Rewiri, you pleaded part way through trial to the manslaughter of Mr Kimura.

[5] Mr Rewiri is a prisoner serving a life sentence for murder since 2008. Nevertheless, he had access to a cellphone. In late September 2011, Mr Rewiri used the cellphone to make arrangements with Mr Neketai to collect an alleged drug debt of $35,000 from Mr Kimura, a 44 year old man who was living in Tauranga with his family. In the text message conversation, Mr Rewiri encouraged Mr Neketai to seriously assault Mr Kimura during the course of the debt collection. Mr Neketai agreed. The motive for both men was to get money, namely a share of the debt.

[6] On 5 October 2011, Mr Neketai borrowed a car and with two associates drove to Mr Kimura’s home. In accordance with a plan to lure Mr Kimura outside, one of the associates knocked on the door. He was a young man not known to Mr Kimura. Mr Kimura’s daughter answered the door and the associate asked for Mr Kimura. The daughter fetched Mr Kimura who came to the door and went outside. He was confronted by Mr Neketai on the driveway in front of the garage. Mr Neketai demanded the money. When Mr Kimura refused, Mr Neketai punched Mr Kimura in the head very hard. The force of the blow caused the 109 kg Mr Kimura to fly through the air and land on the concrete, hitting his head.

[7] I find as a fact that Mr Neketai then kicked Mr Kimura at least once in the head while he lay on the ground already bleeding profusely. I accept that it was the punch which was the fatal blow but the jury was entitled to regard the kick as evidence of Mr Neketai’s intent when he punched Mr Kimura.

[8] The Crown’s case was not that Mr Neketai went to Mr Kimura’s house intending to kill him. Neither was it the Crown’s case that Mr Neketai intended to kill Mr Kimura when he punched him. The Crown’s case, which the jury found proved, was that when Mr Neketai punched Mr Kimura he intended to cause Mr Kimura bodily injury which he knew was likely to cause death and he was reckless whether death ensued or not.

[9] Following the attack on Mr Kimura, Mr Neketai and his associates left the address. Text messages were later exchanged between Mr Rewiri and Mr Neketai. These messages conveyed to Mr Rewiri the seriousness of the attack and the fact that Mr Kimura was now in a coma. This was expressed to be, in effect, solely for the benefit of Mr Rewiri. Mr Rewiri’s reply thanked Mr Neketai for assaulting Mr Kimura. Mr Neketai and Mr Rewiri expressed amusement at what had occurred.

[11] I have received victim impact statements from the family of Mr Kimura. You have heard two senior members of his whanau read their victim impact statements. All of the statements show what a caring and loving man Mr Kimura was and how he was the stable rock for the family. The victim impact statements detail that family members no longer feel safe in their family home. The two whanau members who read their statements did so with evident grief but also with great dignity. Some of the other members of the whanau, unsurprisingly, express feelings of great anger towards you. That is only natural.

[12] It is important that everybody in the Court realises that what I have to do today is sentence you two in accordance with the law. Sentencing is not about revenge. Sentencing is not about taking away from your lives that which you have taken away from your victims’ lives. That would be impossible. Instead, sentencing is about a measured response to your offending in accordance with the law as Parliament has enacted and as the Courts have interpreted.

[14] Mr Neketai, there is only one sentence that I can pass on you. It is a sentence of life imprisonment. That means what it says. It means that you will spend the rest of your life in prison unless at some point in the distant future you are able to satisfy the Parole Board that it is no longer necessary for you to stay in prison in order for the community to be protected from you. Some prisoners are never able to satisfy the Parole Board of that. Those prisoners just stay in prison. But prisoners who do satisfy the Parole Board that they are no longer a danger to the community are released on parole. If you are released on parole, your life sentence will not cease to apply. For the rest of your life, if you ever give cause for concern again you will be recalled to prison.

[15] There is one other aspect of your sentence that I have to address. The law requires me to set a minimum period of imprisonment. What that means is that instead of the Parole Board having to assess you for suitability for parole right from the beginning of your sentence, I have to set a period in which the Parole Board does not have to do that, and indeed cannot do that. That is why it is called a minimum period of imprisonment.

[16] When a person commits a murder, the standard minimum period of imprisonment is 10 years. If you had killed Mr Kimura in his home then the law would almost certainly have required me to adopt a minimum period of imprisonment of 17 years. However, the driveway in front of Mr Kimura’s garage is not part of his dwelling place and so I have to look at the circumstances of your offending and your personal circumstances to see whether the standard minimum period of imprisonment of 10 years should be increased or not.

[17] Mr Neketai, you are 36 years old and you have an extensive criminal history. Among them are convictions for violence. You have five previous convictions for assault, one conviction of threatening to kill and a conviction for aggravated robbery for which you received a four year term of imprisonment.

[18] I also note that on the day you murdered Mr Kimura, you had a Court appearance. You actually drove from the Court to Mr Kimura’s home and killed him.

[19] I accept that you had a troubled upbringing, growing up in an environment where you witnessed regular domestic violence. You left home at 16 and your girlfriend shortly became pregnant. You have seven children to a number of different partners. You have not maintained any long term relationship. Your father died recently and you lack any significant whanau support.

[20] In looking at the circumstances of your offending, I conclude that the level of violence you used would not, by itself, justify an increase on the standard 10 years minimum period of imprisonment. But there are factors which take your case beyond that. You went to Mr Kimura’s home as part of a plan to extort money from him. You expected to use violence. Your motive was to obtain money through your criminal acts. You went to Mr Kimura’s home with two associates. You used one of the associates to lure Mr Kimura from his home, a place where he was entitled to be safe. You left him dying to be discovered by his family who then had to react to and deal with that very traumatic event.

[21] I have looked at the cases referred to by your lawyer and by the Crown’s lawyer.[1] None are very similar to your circumstances and many involve much greater and more prolonged violence. But, in my view, I need to mark the context of your offending by an increase in the minimum period of imprisonment of three years, taking the minimum period to 13 years. In my view, the context of your offending goes directly to your danger to the community in the future.

[22] Normally, I would consider uplifting the minimum period of imprisonment by a year to take into account your history of violent offending. But, standing back

and looking at the totality of your situation, I will leave the minimum period of imprisonment at 13 years. When that period expires, it will be up to the Parole Board to assess you and decide whether you should continue serving your sentence of life imprisonment or be released on parole.

[24] You are a prisoner already serving a life sentence. You committed a murder in 2006 and in 2008 you were sentenced to life imprisonment with a minimum period of imprisonment of 14 years. You will be in prison on that sentence well beyond any sentence I can impose on you today. The sentence I impose on you today must run alongside your life sentence. It is not possible to add a sentence to one of life imprisonment for the simple reason that life imprisonment lasts for life.

[25] The real effect of the sentence I will impose today is that it will be taken into account by the Parole Board when the 14 years expires. The Parole Board will look at what you have done now, and at the sentence that I will impose, when it decides whether you are a continuing danger to the community or not. Given the fact that you have organised extortion with violence from inside prison, which resulted in the death of the person targeted, I would not be surprised if the Parole Board extended your period of imprisonment. However, that will be for the Parole Board to consider.

[26] I am told that you are a man who enjoys good relationships with your four young adult children. You are supported by your mother and other extended family members. Your current partner visits you regularly. Your mother attributes your offending and behaviour to drug use and the neglect and violence you experienced as a child. You have a long history of misuse of alcohol and drugs. You also have a long and serious criminal history. You have served over 20 sentences of imprisonment, although most of those have been concurrent sentences. Of significance are your convictions for murder in 2008 and injuring with intent in 2002.

[27] The Crown has, correctly, not made submissions for a sentence of Preventive Detention. I have received the requisite reports relating to Preventive Detention. I do consider that you are at risk of serious violent reoffending but I also consider that risk can be managed by the Parole Board within the context of your existing sentence of life imprisonment.

[28] I will now assess the starting point appropriate for your offending. The Crown’s submission is that that point is between eight and nine years’ imprisonment. Your lawyer submits that a starting point of six years’ imprisonment is appropriate.

[29] I have looked at the cases which your lawyer has drawn to my attention and also the cases which the Crown has referred to. The important point is that you did not participate physically in the attack. However, you instigated the attempt to extort money from Mr Kimura. You encouraged the use of violence and you expected there to be violence. You did not, of course, expect Mr Kimura to be killed, nor did you want him to be killed. You cannot get money out of a dead man. So, just like Mr Neketai, your purpose for this criminal behaviour was to obtain money.

[30] To give some flavour to what happened, I note that after Mr Neketai had enlisted his associates he advised you by text message that “the boys are keen as hahaha”. He told you they were going to visit Mr Kimura on 5 October 2011, to which you replied:

Hehehe wish I was there ... would love to tweak the cunt up for a bit ... hammer him 1st please cuz haha then sit him back up for good long talk. Fat pieceashit.

[31] After the assault, Mr Neketai advised you that Mr Kimura was in a coma “jst for you”, to which you replied “top man cousin”. There are other texts where you encouraged others to keep quiet about the assault.

[32] Having looked at the cases and considered the context in which you operated, I adopt a starting point of eight years’ imprisonment.

[33] I will uplift your sentence by two years to account for your criminal record of violence, particularly the recent sentence for murder. This is not double counting. I

have taken your status as a serving prisoner into account in fixing the starting point. I did not consider in doing so what offence you had committed to become a sentenced prisoner. That brings the start point to 10 years’ imprisonment.

[34] I do not consider that you are entitled to a discount for remorse. I have read the material to which your lawyer has referred. I have taken into account that you offered to attend a restorative justice conference with Mr Kimura’s family. Understandably, they declined. I think it would be wrong, when considering your text messages after the event, to accept that there is genuine remorse of such a kind that you should be entitled to a discount now.

[35] I do think you are entitled to some discount for your plea of guilty. I do not accept that I should treat you as though you had entered a plea of guilty close to the first reasonable opportunity. It is always open for someone charged with murder to state that they accept blame for the homicide but that murderous intent was absent. You did not do that. When the trial began you made no such admission. You put the Crown to the proof of all matters. After the charge against you was reduced from murder to manslaughter you promptly instructed your lawyer to enter a plea to manslaughter. By that stage the evidence had been completed and the case against you on manslaughter was overwhelming. But your plea did save time, lessen anxiety and assist the jury. I will give you a 10% reduction, which reduces your sentence to nine years’ imprisonment.

[36] Mr Neketai, you are sentenced to life imprisonment with a minimum period of imprisonment of 13 years. Mr Rewiri, you are sentenced to nine years’ imprisonment. This sentence will be served concurrently with your sentence of life imprisonment. You may both stand down.

[1] Pahau v R [2011] NZCA 147; Simeon v R [2010] NZCA 559; Katene v R [2010] NZCA 394; Pahau v R [2011] NZSC 88; R v Tuporo [2008] NZCA 22; R v Williams & Olsen [2004] NZCA 328; (2004) 21 CRNZ 352; R v Howse [2003] 3 NZLR 676 (CA); R v Houma [2009] NZCA 512; R v AJN HC Hamilton CRI-2009-019-9786, 30 September 2010; R v Moala HC Auckland CRI-2006-092- 000461, 12 December 2007; R v Maclaughlin HC Auckland CRI-2004-092-4430, 11 October 2005; R v Sullivan HC Wellington CRI-2009-485-000086, 10 February 2010; R v Key HC Auckland CRI-2006-092-12705, 14 May 2009; R v Mills HC Palmerston North CRI-2009-054- 3808, 16 June 2010.

High Court of New Zealand Decisions

R v Neketai [2013] NZHC 2711 (18 October 2013)