Appeal court ponders murder sentences

File photo / NZ Herald

The Court of Appeal today reserved decisions on two murder cases which test the limits of when a life sentence is clearly unfair.

Both featured repeated stabbing of victims but the penalties were vastly different.

And both accused pleaded not guilty but were convicted.

At the first hearing, the Solicitor General appealed the eight-year prison sentence a judge gave Napier woman Jacqueline Elaine Wihongi, 33, for fatally stabbing her partner of 17 years with a steak knife.

It is believed only one other convicted murderer in New Zealand has not been given a life term.

Under the Sentencing Act, life imprisonment is compulsory on a murder conviction, with finite penalties only available if the judge determines a life term would be manifestly unjust.

The second appeal was by 21-year-old Christchurch man Adam Gempton, who wants his compulsory sentence for murdering Timothy Constable downgraded.

He had admitted inflicting a fatal wound to Mr Constable's aorta but said he was provoked, acting in self defence, and did not intend to kill.

Gempton's lawyer, Rupert Glover, told the Court of Appeal that he had strongly considered running a defence of provocation. But that was "not an attractive proposition," given that the trial in the High Court at Christchurch had followed close on the heels of the controversial Clayton Weatherston hearing.

Such was the public outcry that Parliament subsequently removed provocation as a defence from the statute books.

Although Gempton's court case pre-dated the law change, Mr Glover believed that Christchurch people would not have been in a mood to hear another provocation argument.

"I seriously believed the chances of (a) murder (conviction) opposed to manslaughter would be slim. I was seriously wrong in that," he told Justices Mark O'Regan, Terence Arnold and Lynton Stevens.

Gempton was the only one of three accused to be convicted for 24-year-old Timothy Constable's murder. Trial judge Justice Lester Chisholm was not convinced to impose less than a life term with a minimum non-parole period of 10 years.

Fiona Guy-Kidd, who appeared for the Solicitor General at both appeals, argued that Jacqueline Wihongi should have got a similar sentence.

In a premeditated move, the mother of six had stabbed her long term partner Vivian Hirini, 38, twice in the chest in front of one of their children.

"He was not threatening her and he was unarmed," said Mrs Guy-Kidd.

At sentencing in Napier last August, Justice John Wild had said it would be manifestly unjust to sentence Wihongi to life imprisonment due to her "history of victimhood".

He considered she deserved help and could be helped.

However, Mrs Guy-Kidd argued against Justice Wild's contention that Wihongi's "alcohol abuse disorder" was treatable and said the alcohol dependency could not be taken into account in mitigation.

The court could not be satisfied Wihongi would not pose a real risk of violence to others in the future, she said.

Evidence was given of Wihongi's tragic life, including suffering a brain injury while young, alcohol and drug abuse, rape, home invasion by a gang member and subsequent traumatic stress disorder, plus a long violent relationship with her partner.

At trial more than 500 pages of police reports on domestic incidents between the couple were produced.

The murder was not the first time Wihongi had stabbed Mr Hirini and he had lost an eye when she hit him with a bottle.

Lawyer Russell Fairbrother said his client -- currently in hospital -- was now able to get intensive treatment and management of her "issues."

She was responding well.

"By all accounts the prognosis is very good."

But he admitted: "I cannot stand here and say there is no risk."

- NZPA