KAINE VAN HEMERT v R [2022] NZSC 94

KAINE VAN HEMERT v R [2022] NZSC 94 [3 August 2022]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUI O AOTEAROASC 38/2022[2022] NZSC 94BETWEEN KAINE VAN HEMERTApplicantAND THE QUEENRespondentHearing: 27 July 2022Court: Ellen France, Williams and Kós JJCounsel: J R Rapley QC and S J Bird for ApplicantM J Lillico for RespondentJudgment: 3 August 2022JUDGMENT OF THE COURTA The applications for an extension of time to apply for leaveto appeal against the decision of the Court of Appeal(R v Van Hemert [2021] NZCA 261) [the Court of Appealjudgment] and the decision of the High Court(R v Van Hemert [2021] NZHC 2877) resentencingMr Van Hemert [the resentencing judgment] are granted.B Leave to appeal against the Court of Appeal judgment andthe resentencing judgment is granted.C The approved question is whether the Court of Appeal wascorrect to conclude that the presumption in favour of lifeimprisonment in s 102 of the Sentencing Act 2002 was notdisplaced given the circumstances of the offence and of theapplicant.____________________________________________________________________REASONS[1] We held an oral hearing to consider the application for leave to appeal in partbecause of the procedural muddle created by the way in which this matter hasproceeded. We need to briefly explain the way in which matters unfolded.[2] Following a sentence indication, the applicant pleaded guilty to the murder ofMs Te Pania. In sentencing the applicant, the High Court Judge determined a sentenceof life imprisonment would be manifestly unjust so that the presumption in favour oflife imprisonment in s 102 of the Sentencing Act 2002 did not apply.1 A finite sentenceof 10 years' imprisonment with the requirement that the applicant serve a minimumperiod of imprisonment (MPI) of six years and eight months was imposed.[3] On appeal against sentence by the Solicitor-General to the Court of Appeal, theCourt concluded the High Court had misapplied s 102 with the result that there wasno basis to depart from the presumption that life imprisonment should be imposed.2The appeal was allowed. The Court did not resentence the applicant but, rather, thematter was remitted back to the High Court for a further sentence indication whichwas to be consistent with the reasons given by the Court of Appeal in allowing theappeal. A further sentence indication was provided and the applicant maintained hisguilty plea. He was resentenced by Nation J to life imprisonment with an MPI of 11and a half years.3[4] Against this background, the applicant filed a notice of application for leave tothis Court to appeal against the resentencing judgment in the High Court. However,his real challenge is to the earlier Court of Appeal judgment, in particular, to theapproach taken by the Court to the presumption in s 102. Given that focus, as wediscussed with counsel, the better course would have been for the applicant to appealagainst the Court of Appeal judgment at the time.[5] Counsel provided some explanation for the procedural course adopted and weaccept that there was no attempt to gain any tactical advantage by the process followed.1 R v Van Hemert [2020] NZHC 3203 (Doogue J).2 R v Van Hemert [2021] NZCA 261 (French, Brown and Collins JJ) [Court of Appeal judgment].3 R v Van Hemert [2021] NZHC 2877.In these circumstances, we agree with the parties that the better course is to grant anextension of time to enable the applicant to appeal against the Court of Appealjudgment. However, because the sentence ultimately imposed is that of Nation J inthe resentencing judgment, we also grant an extension of time and leave to appealagainst that judgment. That will avoid any possibility of further procedural problems.[6] As will be apparent from this narrative and from the terms of the approvedquestion, on the appeal counsel should focus on the correctness of theCourt of Appeal's interpretation, and application, of s 102. There are two particularissues arising from the approach to s 102 in this case which counsel should alsoaddress. They are, first, whether the Court was correct to treat the circumstances ofthe offending (the brutality of the murder and Ms Te Pania's vulnerability) as having"precluded" a departure from the presumption of life imprisonment.4 The secondmatter relates to the correctness of the Court's assessment of the applicant'scircumstances. In particular, we refer to the discussion of the extent to which theapplicant's mental health contributed to the offending and whether his mental illnesscan or should be treated as distinct from other aspects of the applicant's behaviour,such as his heavy use of alcohol and drugs, and his anger over the relevant period.5[7] Given the nature of the issues raised by the appeal, it may be that theCriminal Bar Association of New Zealand and/or the Defence Lawyers AssociationNew Zealand | Te Matakahi may wish to seek leave to intervene to present submissionsat the hearing or file written submissions. The Registrar is asked to provide copies ofthis judgment to both bodies. It would assist the Court if any applications in this regardwere filed promptly.Solicitors:Crown Law Office, Wellington for Respondent4 Court of Appeal judgment, above n 2, at [47].5 At [50]–[51].