Department of Corrections v Kirk

[2017] NZHC 191

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2016-035-1294 [2017] NZHC 191

DEPARTMENT OF CORRECTIONS

v

DARYLL KIRK

Hearing:	17 February 2017
Appearances:	SWP Woods for Applicant I R Hard for Respondent
Judgment:	17 February 2017

JUDGMENT OF CLARK J (APPLICATION TO VARY SENTENCE)

Solicitors:

Crown Solicitor, Luke Cunningham, Wellington

DEPARTMENT OF CORRECTIONS v KIRK [2017] NZHC 191 [17 February 2017]

[1]      This is an application under s 80F of the Sentencing Act 2002 for an order that Ms Kirk’s sentence of home detention be cancelled and substituted with a term of imprisonment.  It is said that Ms Kirk is unable to comply or has failed to comply with detention conditions.1

[2]      Following  a  jury  trial  Ms  Kirk  was  found  guilty  on  one  charge  of manslaughter.   I sentenced her on 10 June 2016.2    In sentencing her I recognised Ms Kirk’s reduced culpability because she was a victim of family violence who was sensitised by that violence to respond fearfully to the deceased’s aggression on the day Ms Kirk shot and killed him. I recognised also Ms Kirk’s relative youth at the time of the offending and that her rehabilitation was important.   I considered the

principles of deterrence and denunciation would be properly marked in the circumstances by a sentence of 12 months home detention.  One of the conditions of the sentence was not to possess or take illicit drugs.

[3]      On 15 December 2016 police executed a search warrant at Ms Kirk’s home detention address and found five cannabis plants in the house.  She and her partner, Mr Kyle Barnden, were arrested and charged with possession of cannabis.

[4]      Mr Barnden has since pleaded guilty to possession of the cannabis while

Ms Kirk has entered a not guilty plea.

[5]      There is a legal issue about whether in fact Ms Kirk was in possession of the cannabis.   On behalf of the Department of Corrections Mr Woods submitted that Ms Kirk’s possession is readily made out because the cannabis was found growing in her room.  She shared that room with her partner.  It was her room and her property.

[6]      For Ms Kirk, Mr Hard submitted that the case against Ms Kirk may appear to be made out at first glance but that a closer evaluation of her living circumstances and the fragility of her own situation allows, on the present facts, a defence of

reasonable  excuse.     In  written  submissions  Mr  Hard  emphasised  Ms  Kirk’s

1      Sentencing Act 2002, s 80F(1)(a).

2      R v Kirk [2016] 1249.

helplessness  in  the face  of the apparently difficult  choices  between  alerting the authorities thereby losing her freedom and relationship, and doing nothing.

[7]      Ms Kirk gave evidence.   She agreed the cannabis plants were in the spare room of the two-bedroom house.  She said they were there for only one day – some

20 hours.  She wanted them gone.  She did not water them or in any other way tend to them.   Ms Kirk accepted that when she found out about them she should have asked for them to be removed but did not do so.  Mr Barnden had brought the plants into the house but Ms Kirk did not ask him to do anything about them at that stage. Nor  did  she  want  to  contact  the  authorities  because  of  her  concern  for  the relationship but also her fear that her sentence of home detention would be lost and she would be sent to jail.

[8]      I intend to proceed on the basis that the breach of condition is established. Even accepting that the plants may only have been in the house for 20–24 hours there is no doubt about Ms Kirk’s awareness of the plants in the room.  She knew they were cannabis plants and she knew they shouldn’t have been there.  Cannabis is an illegal substance and it was a condition of her home detention not to possess illicit substances.   She possessed the plants in the sense of having physical custody of them.  She said she would have asked her partner to get rid of them.  Her ability and willingness to do that can be seen as asserting control even if in a minor way.  I do not accept that the sense of helplessness which Mr Hard highlights provides a reasonable excuse to the charge.

[9]      But in deciding whether her sentence of home detention should be substituted with a term of imprisonment, I am able to take into account Ms Kirk’s sense of powerlessness.

[10]     I make two observations about this aspect of Ms Kirk’s case — about her sense of helplessness.

(a)      I accept that it is real.   There was evidence at trial that Ms Kirk’s disposition is shy, quiet and self-contained.   I am aware of material that suggests Ms Kirk is not accustomed to asserting herself.  And I

am aware of the central part that Mr Barnden plays in her life and has done for some years.

(b)But, in a situation where it is necessary to comply with conditions of sentence this kind of reticence is not an excuse.  I accept Mr Woods’ submission that it would be inappropriate for the Court to sanction breaches of conditions where the excuse for the breach is a concern about getting someone into trouble or a concern about how someone may react.

[11]     I do not propose, on this occasion, to cancel the sentence of home detention. Ms Kirk’s Probation Officer reports that she has been compliant with her sentence up until this point.  My understanding from the evidence before me on this application is that the search warrant was executed for reasons that have nothing to do with suspicion about Ms Kirk’s activities.

[12]     The  purposes  and  reasons  for  which  Ms  Kirk  was  sentenced  to  home detention have not, in my view, being thwarted by this one-off breach and I do not consider the breach of itself requires variation of the sentence and a term of imprisonment to be substituted.3

[13]     Nor do I accept the suggestion that the sentence of home detention “may be seen as an indulgence or a fragile privilege”.  Serving a maximum sentence of home detention is, as the Court of Appeal has observed, a real alternative to imprisonment. Despite the fact that Ms Kirk intensely dislikes her present accommodation (but seems to have no options in that regard) she has been compliant during the whole period of the sentence.

[14]     It is of course disappointing that Ms Kirk’s partner, who she looks to for support, has by his own admissions and guilty plea created this difficulty for her.  By deciding after all to give evidence today, Ms Kirk demonstrated that she has the character  and  strength  to  face  difficulties  and  successfully  so.    Ms Kirk  must

safeguard  herself  from  decisions  that  others  may  make  which  have  negative

3      See also R v Ellernton HC WN CRI-2006-032-3536, 11 May 2009.

consequences for her.  And, of course, Ms Kirk must be aware that further breaches may lead to quite different results.

[15]     I decline the application.    The present sentence of home detention is not varied and the conditions of sentence remain.

[16]     On the charge of breaching the condition of home detention by being in possession of illicit drugs Ms Kirk is convicted and discharged.

Karen Clark J