R v Day

[2014] NZHC 3412

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2013-042-001827 [2014] NZHC 3412

THE QUEEN

V

KIRKLAND JOHN DAY

Counsel:

J M Webber and S K O'Donoghue for Crown

A J D Bamford and L S B Acland for Prisoner

Sentencing:

7 November 2014

SENTENCING NOTES OF WILLIAMS J

[1]      Kirkland  John  Day  you  appear  before  me  to  be  sentenced  for  the manslaughter of Carl Joblin, a jury of your peers having found you guilty of that offence in September this year.

[2]      It is no easy task to pass sentence in a case such as this Mr Day.  The life of a man  was  needlessly  taken.    A man  with  a  family,  children  and  prospects.    A peacemaker in the context of the events that led to his death.   Nothing I say in sentencing today can bring him back.  But I must pass sentence on you Mr Day – publicly and before your community.  That community includes your own grieving family and the grieving family of Carl Joblin.  That family has lost a son forever, and in a sense your family loses a son too for the period of your incarceration.

[3]      I must mark on behalf of all, the seriousness of your offending – the needless and grisly taking of a human life, the terrible toll taken through destructive lifestyles such as the one you led over that period.  The terrible toll such lifestyles can take on and  in  our communities.    But  it  is  not my job  to  wreak  revenge on  behalf  of

Mr Joblin’s family, even if that were possible.  Rather, it’s my job to find a sentence

R v DAY (SENTENCING NOTES) [2014] NZHC 3412 [7 November 2014]

that fits the seriousness of your offence and your circumstances as the offender – both of those things – both the terrible offence and your own personal circumstances. That requires a sentence that reflects the stern judgement of your community on your actions Mr Day – it must.  But also the hope of the community that you will change in due course.  This is the balance today that I must strike in passing sentence on you.

[4]      I acknowledge also the victim impact statements of Veronica Greenslade, Kylee Joblin read by Lauren Scott and Cheena-Michellene Windleburn, and you heard two of those read out in open court today.  They attest to the pain and suffering you caused not just to Carl Joblin himself but to those who were close to him.  They reflect the bewilderment of those survivors Mr Day, and their understandable anger at you.  You must own your central role in creating that sense in those survivors of bewilderment and anger – you must own that.

[5]      On the evening of 4 August 2013, you stabbed Carl Joblin several times in the stomach, chest and arm in an altercation at your residence in Nelson.   The incisions punctured major organs and severed his aorta, wounds which he could not survive and he died at the scene.

[6]      The altercation was fuelled by a day of drinking and smoking cannabis and was triggered by an unfortunate sequence of events.  You became, as you know, very angry at someone lighting a cigarette inside the house that you had been allowed to occupy by your parents.  You jumped on the smoker and pinned him to the ground. Carl Joblin pushed you off him causing you to roll onto your own electric guitar snapping it along the neck at the machine head.

[7]      What happened next was a matter of great controversy in the case.  You said you had a panic attack at that point when your guitar was broken.   You had no recollection after that, you said, but during the course of the attack you got a knife, confronted Carl Joblin, tried to remove him from the house, stabbing him in the process.  All of this, you said, occurred during your panic attack.  You said you were not aware of your actions and you were not behaving in a rational way.  Psychiatric

evidence called during the trial confirmed that you did have an anxiety disorder and that you had suffered panic attacks in the past.

[8]      The Crown said that while you might have suffered a panic attack in the beginning when the guitar broke, any attack had subsided after you went into the bathroom to regain your composure and you were no longer suffering from it when you obtained a knife from the kitchen and confronted Mr Joblin in an angry state.

[9]      The jury believed that at the point when you stabbed Carl Joblin it was a reasonable possibility that you were still suffering from the panic attack.  They were not satisfied beyond reasonable doubt that you intended to kill Mr Joblin.  Nor, was the jury satisfied that when you stabbed him you knew that there was a real risk this could cause his death, and then consciously took that risk.   That’s why you were convicted of manslaughter and not murder.

[10]     What is clear to me on the evidence though, is that by forming a plan, albeit in the immediacy of the moment, to get a knife – a big knife, as you said you did, to underscore how serious you were about getting Carl and the other guests out of the house and to avoid being perceived as a “wuss” (I think that was your word); and then in confronting and stabbing him; you knew that you could cause him significant harm.

[11]   I do not accept the suggestion that the knife was obtained purely opportunistically in the moment as it were, as you retreated to the kitchen.  It is more likely that you retreated to the solitude of the bathroom, in my view, having heard all of evidence, where you could be safe in order to cope with your anxiety.  In my view that’s where you went first.  Your recollection of seeing your reflection in the mirror, and it had to be a bathroom mirror, in your view, I consider to be accurate.

[12]     Mr Bamford impressed upon me the evidence of Nathan Innes who said that you went to the kitchen, not to the bathroom.  But that evidence is inconsistent with yours and likely to be mistaken, in my view.  You went to the kitchen specifically to fetch the knife.

[13]     I do not accept Mr Bamford’s submission that the jury’s verdict must mean the Crown did not prove you intended Carl serious harm.  That was not the basis upon which the jury considered its verdicts.  Rather, to convict you of murder, the jury had to be satisfied you knew of the risk that your actions could cause Carl’s death, not the risk, of causing him serious harm.  That was the risk, the risk of death that the jury felt you may not have understood.  Knowledge of the risk of serious harm is not precluded by the verdict.

[14]     In  your  case  Mr  Day,  the  evidence  was  you  were  not  suffering  from  a complete mind fade in which you inflicted the wounds utterly spontaneously and without intention or without understanding any of the consequences of your actions. You were not bereft of cognitive function.   That would be to take the mitigating effect of the verdict too far.   It  would reduce  your culpability to  less than the evidence dictates.

[15]     You see in my view Mr Day, you knew then at least, basically what had happened – and why.  You recalled as much to those with whom you spoke after leaving the scene.  You knew you had stabbed Carl Joblin.  You thought it was in the neck.  But perhaps that confusion was understandable given it had occurred in the altercation.   You feared that you had probably killed him and you knew that this happened because he had broken your guitar.   That means, to me, you must have been processing, consciously at some level, what you were doing, as you were doing it, even if the jury felt that in the moment you may not have recognised the risk of death.

[16]     As the psychiatrists suggested, your long term memory failed to fix these recollections due to your alcohol addiction.  And you still don’t recall them in fact – you have been honest about that.  But your short term memory held them for a few hours after the events and you repeated those recollections to people with whom you communicated at that time.

[17]     So the only sensible way to decode your fetching of the knife out of anger, you said it was out of anger, and to underscore your demand that Carl leave, that this demand should be taken seriously; your use of that knife in the attack on Carl; the

delivering of several stabs to the chest, abdomen and arms; and then your fleeing of the scene; together with your recollection immediately afterwards of what had happened; is that you knew, albeit at a diminished level, what you were doing and that you intended serious harm to Carl Joblin when you stabbed him.

[18]     You see you thought the stabs were to the neck but in a sense that is just as bad as the stabs that were actually delivered to the abdomen.  You were cognisant of that at the time.

[19]     So, even if, because of the continuous effects of your panic attack you didn’t understand the risk that if you used the knife on Carl you could kill him or consciously take that risk, you must nonetheless have been aware that real and serious harm could result in presenting and using a knife on Carl as you did.  The verdict cannot be taken to preclude that scenario.

[20]     One additional point is worth reiterating.  The evidence you and others gave made it  clear that  the panic attack  was  fuelled  by significant  drug and  alcohol consumption.   You said three bottles of wine and the evidence was that this was consistent with regular intake on your part anyway.  Anger, irrational, over the top utterly disproportionate  anger  was  in  the  end  a  key element  of  your  attack  on Mr Joblin.

[21]     I consider this mix of factors as I have discussed them requires a relatively serious starting point, even given the panic attack scenario.

[22]     You see, drunk and stoned you used a lethal weapon. You planned to use it to intimidate, you intentionally inflicted the wounds that ultimately caused Carl Joblin’s death knowing that they were likely to cause him real harm, and you fled the scene.

[23]     I consider a starting point of nine years’ imprisonment is appropriate in your case.   This takes into account your reduced levels of intention due to the panic attack.  A starting point could well have been higher but for that.  But it also reflects your intention to harm, combined with the ultimate, if unintended consequence of your action Carl Joblin’s death.

[24]     So that’s the starting point.

[25]     I do not consider that your limited past history of offending in the period immediately before the killing of Carl Joblin warrants any further uplift.  I accept that drugs and alcohol were involved in that earlier offending together with modest violence, but those offences frankly pale into insignificance in the context of the serious crime of manslaughter for which I sentence you today, and no uplift can be justified accordingly.

[26]     On the other hand, nor do I think there should be a discount from that starting point to reflect the anxiety attack.   I agree with the Crown that you have already gained significant advantage from that consideration as a result of the downgrading of the offence of murder to the included charge of manslaughter unquestionably on the basis of that panic attack.  A further reduction would, in my view, amount to double-counting.

[27]     I do however consider that you are entitled to a discount for your offer to plead guilty to manslaughter towards the end of 2013, a few months after the offence itself.

[28]     The Crown fairly points out that this was a matter that would inevitably have gone to trial because a murder verdict was always open on the evidence.  This was clearly a case in which a jury had to decide your fate.  But your offer to plead guilty to manslaughter at an early stage is nonetheless significant.   It represented early acceptance of responsibility at least to that extent.  And you remained consistent in your stance in that regard throughout. As it was, the jury saw it your way.

[29]     Some recognition in your early acceptance is warranted although perhaps less than the full 25 per cent.

[30]     I acknowledge also your remorse.   I see no evidence of the overwhelming remorse one sometimes sees in cases such as this entitling a very large discount. Nonetheless remorse is present, and I acknowledge that you may not be particularly demonstrative in character.

[31]     Finally, I acknowledge your willingness to engage in restorative justice with Carl Joblin’s family if they were willing, and my hope is that one day they will be, even if they are not able to take that step today.  There is also remorse inherent in your acceptance at an early stage of your responsibility for Carl’s death.

[32]     While the victim  impact  statements  were being  read  out,  I watched  you closely.  After a time, your reaction was quiet and emotional.  You are not, in my view, impassive to the harm that you have caused, even if you are not demonstrative about your remorse.

[33]     I also acknowledge your emerging self-awareness in relation to your alcohol addiction.  The killing of Carl Joblin is a hell of a way for the message to get through to you that you are destructively addicted to alcohol, but it does seem to have got through.   You  have written  me a  letter  isolating alcohol  addiction  as  your  key gremlin, and that you are fixed in your objective of removing it from your back.  I applaud that.   It is a step that takes courage that only those who suffer from the addiction truly understand.   Your counsel says you have completed two courses related to your rehabilitation and your alcohol addiction.   That’s great too and I encourage it.

[34]     So, I would discount a starting point by two years for the offer of an early plea, and by six months for remorse and your prospects of rehabilitation.

[35]     The Crown seeks a minimum period of imprisonment of at least 50 per cent of the sentence.  This is presumably to mark the seriousness of the offending and its consequences, as well as your needs to undertake long term programmes of rehabilitation before you are ready to return to the community.  Mr Webber in his oral submissions indicated that such minimum periods of imprisonment set at around

50 per cent are relatively common in cases such as this, and he is right.

[36]     In this case, I consider it to be a relatively fine call.  On reflection, I do not think a minimum period of imprisonment is warranted in this case.  I much prefer to leave it to the Parole Board to make its expert assessment of your progress in rehabilitation,  and  your  prospects  of  reintegration  in  the ordinary course of the

Board’s work.  I am pleased to say it seems you have already made some progress in that regard.

[37]     You see Mr Day you are an offender who is well capable of turning his life around following this horrendous crime that you have committed.  It will require you to gain victory over your addiction, and you will need to convince the Parole Board in due course that you are a safe bet in that and other respects.  It is in the interests of the community generally that you be encouraged to make that transition as quickly as possible.  So in your case, I see a minimum period of imprisonment as counter- productive to that objective.

[38]     You are lucky in that you have had the support of your family throughout as they have stuck by you through the most testing of times.  Their support in the time to come will be enormously important for you.  Your mother has confirmed in her letter to the Court that this support will be present, strong and unconditional for as long as it takes.  You are lucky Mr Day because many of the offenders sitting in the spot you are sitting in today do not have that advantage.

[39]     With growing self-awareness on your part and the support of your family, there is room to be cautiously optimistic that you will return to the community in due course to take a more positive place than the destructive place you occupied before August 2013.

[40]     So, for the crime of the manslaughter of Carl Joblin, Mr Day I sentence you to six and a half years’ imprisonment.

[41]     Stand down please.

Williams J

Solicitors:

Crown Solicitor, Nelson

Bamford Law, Nelson