R v Balkind - [2019] NZHC 2095

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CRI-2018-006-96

[2019] NZHC 2095

THE QUEEN

v

ANN SHIRLEY BALKIND

Hearing: 23 August 2019

Counsel:

J W Cameron for Crown

R A Harrison and E J Riddell for Defendant

Date:

23 August 2019

SENTENCING OF CLARK J

[1] Ms Balkind, you appear for sentence today having been found guilty of one charge of manslaughter by a jury on 6 June 2019. The maximum penalty for manslaughter is life imprisonment.

[2] The victim was Peter James McPherson, your husband. I wish to acknowledge Mr McPherson’s immediate and extended family members who are attending today
— here in Court, and by way of AVL. The event which sees us all here today is distressing — on many levels. The fact it has been said before, makes it is no less true that the law is scarcely adequate in responding to the emotional impact on those involved, of events such as these.

[3] Ms Balkind you have not appeared in the Courts in this way before, so you may not be familiar with the sentencing process. It is a public process and one that

R v BALKIND [2019] NZHC 2095 [23 August 2019]

requires me to step through certain matters and to assist your understanding of what those matters are I will briefly summarise them.

(a)First, I will set out the background to the offending. The circumstances in which offending takes place are very relevant to deciding the appropriate sentence so I need to cover the background facts in some detail;

(b)Then I will turn to victim impact statements;

(c)I will then turn to the question of the appropriate starting point for your sentence and whether there should be any adjustments up or down from that starting point; and

(d)Lastly, I will impose a final sentence.

Background

[4] Mr McPherson was known affectionately to his friends and family — and to you — as “Dingle”. He was referred to as Dingle throughout the trial and as that was his name in life I shall continue to refer to him as Dingle.

[5] On 27 January 2018 the two of you arrived in Kaikoura in your campervan. You checked into the motor camp on the afternoon of the 27th for two nights. A short while later you returned to reception to book an Albatross Encounter tour.

[6] Later that evening, in your campervan, you began to argue. You had both been drinking. It appears the argument may have initially over the cost of the Albatross tour. On your account, Dingle was shouting at you because of your drinking and then he started to go on about the cat and that you didn’t deserve the cat and he was going to kill the cat. You got up to see if you could find the cat and you said Dingle just started thumping you. You described it as a surprise attack. One you just didn’t expect. It came…

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 R v Balkind

Details

AGLC: R v Balkind [2019] NZHC 2095
Case: [2019] NZHC 2095
Decision Date: 23 August 2019

CaseChat Overview and Summary

The case of R v Balkind involved sentencing Balkind for the manslaughter of her husband, Peter James McPherson, following a stabbing incident in a campervan. The case was heard by Clark J in the High Court of New Zealand, Blenheim Registry. The primary legal issue was determining the appropriate sentence for Balkind, considering the circumstances of the manslaughter and relevant mitigating and aggravating factors.

The court examined the background of the incident, which involved extreme violence, including Balkind stabbing McPherson multiple times, despite not intending to kill him. The court also considered victim impact statements, which highlighted the profound grief and trauma experienced by McPherson's family. In setting the appropriate starting point for sentencing, Clark J compared Balkind's case to other manslaughter cases with similar features, particularly focusing on cases involving domestic violence and the proportionality of the response.

Clark J determined that a starting point of four years and nine months was appropriate, given the severity of the violence and the disproportionate nature of Balkind's response. The court considered mitigating factors such as Balkind's history of family violence and alcohol dependence but found insufficient evidence of genuine remorse to warrant a further reduction in sentence. Clark J concluded that Balkind should serve four years and three months in imprisonment.

The final orders of the court reflect the comprehensive consideration of the circumstances surrounding the manslaughter, the impact on the victim's family, and the relevant mitigating and aggravating factors in determining the sentence.

Orders