Kirby-Parker v R - [2017] NZHC 2548

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2017-443-25 [2017] NZHC 2548

BETWEEN
JACOB KIRBY-PARKER

Appellant

AND

THE QUEEN Respondent

Hearing:
26 September 2017

2 October 2017 (further submissions filed)

Appearances:

K Marriner for the Appellant
R Thomson for the Respondent

Judgment:

18 October 2017

JUDGMENT OF CULL J

[1] Mr Kirby-Parker pleaded guilty to one charge of blackmail1 and one charge of indecent communication with a young person.2 On 2 August 2017, Judge Sygrove sentenced Mr Kirby-Parker to two years’ imprisonment.3

[2] Mr Kirby-Parker now appeals his sentence on the basis that the sentencing Judge adopted the wrong starting point, imposed excessive uplifts and should have considered home detention. The Crown opposes this appeal and submits the sentence was within the available range and was appropriate in light of Mr Kirby-Parker’s
circumstances.

1      Crimes Act 1961, ss 237(1) and 238. Maximum penalty is 14 years’ imprisonment.
2      Section 124A. Maximum penalty is three years’ imprisonment.
3      R v Kirby-Parker [2017] NZDC 16943.

KIRBY-PARKER v THE QUEEN [2017] NZHC 2548 [18 October 2017]

Factual background

[3] At the time of the offending, between October 2016 and January 2017,

Mr Kirby-Parker was on home detention for previous offending of an almost identical nature. For that offending, he was sentenced to nine months’ home detention with numerous conditions imposed, with the goal of reducing the risk of further offending.

[4] The complainant was a 15 year old female now residing in Australia.

Mr Kirby-Parker, aged 25 at the time of the offending, knew the complainant as the younger sister of a friend. He communicated with the complainant using social media, including Facebook, Snapchat, Instagram and email. Mr Kirby-Parker asked for nude pictures and videos from the complainant and sent images in return.

[5] In November 2016, Mr Kirby-Parker became obsessive and was messaging the complainant constantly. Sexual images and videos were sent by both parties. When the complainant stopped replying, Mr Kirby-Parker told her that if she did not start replying he would show the pictures to her brother.

[6] When the complainant told Mr Kirby-Parker to leave her alone or she would go to the police, Mr Kirby-Parker left a voice message saying she would get what was coming to her and that she only had one warning.

[7] Mr Kirby-Parker pleaded guilty to the two charges and was sentenced to two years’ imprisonment on 2 August 2017.

District Court decision

[8] In sentencing Mr Kirby-Parker, Judge Sygrove noted that if he imposed a sentence of imprisonment Mr Kirby-Parker would be added to the Child Sex Offender Register.4

[9] The Judge identified the following aggravating factors:5

(a) Mr Kirby-Parker was subject to a sentence of home detention for identical offending at the time he committed the present offending;

(b) considerable harm is inherent in this type of offending;

(c) the complainant’s age was known to Mr Kirby-Parker and made her vulnerable;

(d) there was premeditation;

(e) the offending occurred over several…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kirby-Parker v R

Details

AGLC: Kirby-Parker v R [2017] NZHC 2548
Case: [2017] NZHC 2548
Decision Date: 18 October 2017

CaseChat Overview and Summary

Jacob Kirby-Parker appeals his two-year imprisonment sentence imposed by Judge Sygrove for charges of blackmail and indecent communication with a young person. Kirby-Parker argues that the starting point for his sentence was too high and that the Judge should have considered home detention. The Crown opposes the appeal, submitting that the sentence was appropriate and within the available range. The court first considered the starting point for the sentence. The court found that the starting point of two years was appropriate, but there was a double counting of aggravating factors that led to an excessive sentence. The court found that a sentence of 19 months was appropriate. The court then considered whether home detention should have been considered as an alternative to imprisonment. The court found that although the rehabilitative needs of the appellant were important, a short sentence of imprisonment was more appropriate in light of the repeat offending and the seriousness of the crime. The court allowed the appeal to the extent of the error in double counting the appellant's previous offending while on home detention. The sentence of two years' imprisonment was quashed and a sentence of 19 months' imprisonment was imposed. The court also ordered that special conditions apply to the appellant on his release from imprisonment.

Orders