Kirk v Police HC Christchurch CRI 2010-409-162

[2010] NZHC 1828

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2010-409-000162

AARON CHRISTIAN KIRK

Appellant

v

POLICE

Respondent

Hearing:         14 October 2010

Counsel:         A Bailey for Appellant

C J Boshier for Respondent

Judgment:      14 October 2010

JUDGMENT OF FOGARTY J

[1]      This  is  an  appeal  against  sentence.    The  appellant  was  sentenced  in  the District Court (Judge M R Radford) to two years three months imprisonment on one charge of assault with intention to rob and one charge of common assault.

[2]      The  appeal  is  on  the  basis  that  the  sentence  was  manifestly  excessive. Included in that appeal is the argument that the Judge adopted a starting point that was too high and in that regard did not appropriately find a starting point which reflected the fact that the main charge was for an offence with a maximum penalty of

seven years, rather than 14 years for aggravated robbery.

KIRK V POLICE  HC CHCH CRI 2010-409-000162  14 October 2010

[3]      The Judge had said in his reasons that he did not find R v Mako [2000]

2 NZLR 170 to be a useful guide and he was not going to apply Mako’s principles and reduce them in a mathematical way.   Rather, what the Judge did was fix the starting point as being halfway along the scale of a maximum penalty of seven years imprisonment for this kind of assault.

[4]      Mr Bailey argued that paragraph [59] of Mako was a relevant analogy:

[59] At the other end of the scale would be street robbery by demanding that the victim hand over money or property such as an item of clothing, where a knife or similar weapon is produced or where offenders acting together by bullying or menacing conduct enforce the demand though no actual violence occurs. Depending upon the circumstances the starting point would be between 18 months and three years. Actual physical enforcement might well require a higher starting point.

(at 183)

[5]       In this case the serious assault was of a young man in a Main Road at Christchurch, approaching a woman standing at a bus stop at 7.20 am, asking her for money.   When she refused, coming right up to her face, repeatedly, aggressively asking for money, following her when she walked away, grabbing her suitcase.  She struggled for it and during the struggle pulling her on to the roadway and throwing a series of punches at her, at least one connecting with her head.  A member of the public stopped the incident and the victim was very distraught.

[6]      It is less serious than that discussed in paragraph [59] inasmuch as there was no weapon involved or there were no other persons involved.  But it is more serious than that in paragraph [59] inasmuch as it did involve violence.   It will be noted paragraph [59] stresses the situation of there being no actual violence.

[7]      The result is it is not easy to apply [59] even by way of discounting.  I can understand, accordingly, the Judge’s difficulty in getting guidance by way of derivation from the indications in Mako.   For these reasons I think the Judge was justified in taking the approach he did of finding an appropriate penalty along the scale of up to seven years imprisonment.

[8]      Mr Bailey also relied on a Court of Appeal decision of R v Whata CA169/08

3 July 2008.  That decision was largely addressing the importance of a discount for mental illness, on the facts of the case.  Although it did unsettle me to the point that I could understand why Ms Boshier was acknowledging this is a very stern sentence, which is code for the proposition that another sentencing Judge could have arrived at a lower sentence applying the same sentencing principles.

[9]      I have considered this young man’s previous criminal history, his family circumstances, and I have read the very good letter that he has written to the Court. The sentence is higher than I would have imposed.  But I am not satisfied that as an appeal Judge it is appropriate to intervene.  It is within the range, albeit at the outer extent of the range, open to the sentencing Judge and therefore I am dismissing the appeal.

Solicitors:

A Bailey, Christchurch, for Appellant

Raymond Donnelly & Co, Christchurch, for Respondent