Kaine Van Hemert appears in the High Court at Christchurch to be sentenced for the December 31, 2019 murder of Bella Te Pania. Photo / Kurt Bayer
Kaine Van Hemert appears in the High Court at Christchurch to be sentenced for the December 31, 2019 murder of Bella Te Pania. Photo / Kurt Bayer
A Christchurch man who was suffering a severe psychotic episode when he fatally stabbed a prostitute with a large fishing knife - just hours before he was set to be dropped off at a residential psychiatric facility for treatment - has had a new sentence imposed for the third time in as many years.
The Supreme Court handed down a 51-page judgement today for inmate Kaine van Hemert, who was initially sentenced in December 2020 after pleading guilty to the murder of 33-year-old Bella Te Pania one year earlier.
The two had been arguing over payment when he repeatedly hit her in the head with a rock and cut her, including inflicting a wound to her throat that “virtually severed” her right internal jugular vein. He had been looking for “revenge sex” after learning from his young child on Christmas Day his former partner had entered a new relationship, court documents state.
The original sentence - 10 years, with a minimum term of imprisonment of six years and eight months - was later quashed by the Court of Appeal after the Crown protested it was too lenient. While murder generally carries a life sentence with a minimum term of imprisonment of at least 10 years, judges can impose lesser sentences if they are convinced it would be “manifestly unjust” not to.
Upon resentencing in the High Court at Christchurch in October 2021, van Hemert received a life sentence with a minimum term of imprisonment of 11 and a half years.
But the Supreme Court decided today that the second sentence was too harsh and instead replaced it with a third sentence that landed in the middle ground between the two prior decisions: a life term, but with a shorter minimum term of imprisonment of 10 years.
Although suffering from psychosis, it is uncontested that van Hemert didn’t meet the legal standard for being deemed not guilty by reason of insanity because he understood his actions that morning were morally wrong. However, it is also uncontested that had he not been in a psychotic state, Te Pania would not have died.
“The issue in this appeal is whether Mr van Hemert’s psychotic state at the time of the killing of Ms Te Pania means it would be manifestly unjust that he be sentenced to life imprisonment,” Justice Stephen Kos wrote on behalf of four of the five judges who reviewed the case.
Justice Joe Williams offered a dissenting opinion, suggesting a life sentence should not have been allowed to remain in place without further assessment of van Hemert’s future risk to the public.
‘Cruel and brutal’
Van Hemert, who was 42 at the time of the killing, had a documented history of psychotic episodes, starting in his teens. On one occasion at age 21, he thought he could communicate with a deceased aunt and swim through the ground.
There had been years between each documented episode, but his mental health began to spiral again on Christmas Day 2019 and continued in the days that followed, to the point where his former partner alerted the Canterbury District Health Board Mental Health Service.
A registered nurse and junior doctor came to his home on the afternoon of December 30, but he refused to get out of the shower despite having been in there for two hours, muttering and shouting incoherently. It was decided to admit him at a mental health facility, but after a discussion with his brother, the health officials decided to try putting him on medication first rather than getting police involved immediately to take him against his will.
Bella Te Pania, 33, was murdered in the early hours of New Year's Eve near Christchurch International Airport.
“This was seen as both the least restrictive approach, and less embarrassing to him given that he might otherwise have to be removed from his house naked,” the Supreme Court noted.
The plan was for his brother to stay with him until the next day, when van Hemert would voluntarily be admitted to the hospital. But due to a misunderstanding, his brother left the house after van Hemert had fallen asleep.
He woke up just before 4am on New Year’s Eve and went looking for a prostitute, stealing the rego from another vehicle to disguise his own. He took with him a fishing knife with a 30-centimetre blade that he later said was for “protection”.
What followed, the court said, was a “cruel and brutal slaying”. Afterwards, he drove erratically through the Christchurch area, arriving at a secure Air New Zealand engineering site around 6.45am. Airline staff called police and Te Pania’s body was found still in the front seat.
“I sliced and diced her,” he would tell police in an interview later that morning, adding: “I murdered her.” However, he also said a number of damning but demonstrably untruthful things, such as having stolen the ute he was driving and having burned the victim’s body in a riverbed.
Road to Supreme Court
During a sentence indication in November 2020, Justice Jan‑Marie Doogue indicated a life sentence would be manifestly unjust due to the extent of his mental illness.
“I have no doubt whatsoever that he would not have killed Ms Te Pania but for his illness, and for the poor response of the mental health assessors in this case,” she noted. “It was plain that the illness had been developing over time and that it was not recognised and not properly treated.”
She described the attack on Te Pania as “entirely out of character, entirely out of step with his general life pattern”.
“He gave himself up. His remorse is palpable,” she said.
But the Court of Appeal would later find that decision to be incorrect, suggesting the “brutal and frenzied” nature of the murder, paired with Te Pania’s vulnerability, should have excluded any sentence other than life.
The Court of Appeal also indicated the High Court judge misstated his mental illness as “the sole motivation” for the murder. It also took issue with his level of remorse, noting that a pre-sentence report writer and psychiatrists all indicated the opposite.
The case was returned to the High Court for re-sentencing, and a new judge agreed with the Court of Appeal that the defendant showed a lack of genuine remorse.
The Supreme Court initially heard Van Hemert’s appeal last November, with further submissions filed in December, June and again last month.
The decision released today states the Court of Appeal “fell into error” in determining that there was no avenue for van Hemert to receive a sentence of less than life.
“In short, it remains possible that the circumstances of the offence may tend towards life imprisonment but be outweighed by overwhelmingly mitigatory circumstances of the offender,” the judgment states.
However, that doesn’t mean the Court of Appeal was ultimately wrong in determining that in this particular case, a life sentence was the correct outcome, the Supreme Court said, explaining that it is also important to consider the protection of the public.
If allowed to serve a determinate sentence like what was initially imposed, post-release conditions could be in place for no longer than six months after the statutory release date, the court said. But a life sentence brings with it the potential for post-release conditions for life, including special conditions ensuring he receives mental health help, takes his prescribed medication and refrains from using alcohol or cannabis.
“Mr van Hemert lacks an inherent propensity for violence and the offending would not have occurred but for the onset of an uncontrollable psychotic episode. These facts point in favour of finding a sentence of life imprisonment to be manifestly unjust,” the Supreme Court decision states. “Nevertheless, other sentencing principles require that conclusion to be set alongside public safety considerations, and it is here the appeal runs into real difficulty.”
The court also agreed with previous justices that he “remains troublingly unremorseful”.
“Once Mr van Hemert returned to his baseline mood after his psychotic episode, the least self-insight would have propelled a sense of profound remorse at having taken, at random, the life of Ms Te Pania, and having destroyed the happiness of her family, in particular that of her two-year-old daughter,” the justices wrote.
Craig Kapitan is an Auckland-based journalist covering courts and justice. He joined the Herald in 2021 and has reported on courts since 2002 in three newsrooms in the US and New Zealand.
