Kirk v R

[2019] NZHC 3361

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-000491

[2019] NZHC 3361

UNDER

Section 244 of the Criminal Procedure Act 2011

BETWEEN

RAHERA KIRK

Appellant

AND

THE QUEEN

Respondent

Hearing:

17 December 2019

Appearances:

C Merrick for the Appellant

E J Hoskin for the Respondent

Judgment:

17 December 2019

JUDGMENT OF WOOLFORD J

Solicitors:           Crown Law, Wellington Counsel:      C Merrick, Manukau

KIRK v R [2019] NZHC 3361 [17 December 2019]

[1]    On 17 October 2019, Rahera Kirk was sentenced in the Manukau District Court to 11 months’ home detention on charges of aggravated robbery, assault with intent to injure and unlawfully getting into a motor vehicle. Ms Kirk now appeals against sentence. The appeal can be dealt with shortly because Crown Law accepts that the District Court Judge was in error.

District Court sentence

[2]    In the District Court, the Judge adopted a global starting point of three years’ imprisonment before giving Ms Kirk a 15 per cent discount for her background of economic and cultural depravation and a 25 per cent discount for her guilty pleas. He, accordingly, arrived at a sentence of 22 months’ imprisonment, which he converted to 11 months’ home detention.

Grounds of appeal

[3]    Ms Kirk submits that the Judge failed to have regard to her youth and time she spent in custody.

[4]    Ms Kirk was 18 years old when she committed the aggravated robbery, which was a stand-over offence committed against two 14-year-old girls on a train during which a jacket was taken. At sentencing, both the appellant’s counsel and Crown counsel submitted that a discount was warranted on account of her age. None was specified, nor given.

[5]    At the time of sentencing, the appellant had also been in custody for four and a half months. No recognition was given in the sentence imposed to time spent in custody.

Decision

[6]    It is commonly accepted that a discount is available to acknowledge the youth of offenders.1 In this case a 15 per cent discount is appropriate. I accept that when

1      Churchward v R [2011] NZCA 531 at [76] – [92]; DP v R [2015] NZCA 476 at [12]; Millar v R

[2019] NZCA 570.

seen alongside the 15 per cent discount applied for the appellant’s background (which the Judge had noted would have been 25 per cent were it not for offending on bail), the total discount is not excessive.

[7]    It is also usual to take time spent in custody into account when determining the length of a sentence of home detention. Unlike a sentence of imprisonment,2 there is no statutory provision that automatically gives credit for time spent in custody when subject to a sentence of home detention. As for time deducted, full equivalence is the norm.3 In this case, four and a half months should have been deducted from the end sentence of home detention.

Result

[8]    The appeal is allowed. The sentence of 11 months’ home detention is quashed and substituted with a sentence of three months and one week’s home detention starting today on the same terms and conditions as the quashed sentence.

[9]The calculation of the substituted sentence is as follows:

(a)Starting point – three years’ imprisonment.

(b)Fifteen per cent discount for background – 30 and a half months’ imprisonment.

(c)Fifteen per cent discount for youth – 26 months’ imprisonment.

(d)Twenty five per cent discount for guilty pleas – 19.5 months’ imprisonment.

(e)Converted to home detention – 9.75 months’ home detention.

(f)Reduced by 4.5 months for time spent in custody – 5.25 months’ home detention.

2      Parole Act 2002, s 90.

3      Longman v R [2017] NZHC 2928; Parkinson v New Zealand Police [2019] NZHC 1710.

(g)Reduced by two months for time already spent on home detention –

3.25 months’ home detention.

[10]Order accordingly.

Woolford J