R v Kirk - [2017] NZHC 673

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-039 [2017] NZHC 673

BETWEEN THE QUEEN Appellant

ANDSAMMIE-JO KIRK Respondent

CRI-2016-404-040

BETWEEN THE QUEEN Appellant

ANDALAVINYA VAEAFISI Respondent

Hearing: 27 March 2017

Appearances: JEL Carruthers for Appellant
JH Wiles for S Kirk
RM Mansfield for A Vaeafisi

Judgment: 10 April 2017

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 10 April 2017 at 11.00 am
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

THE QUEEN v SAMMIE-JO KIRK [2017] NZHC 673 [10 April 2017]

Table of Contents Paragraph

Number

Introduction [1]

The offending [8] Grand Vue Diary, Manurewa [8] Great Takeaways, Papatoetoe [9] High Street Diary, Otahuhu [10]

7a Kopara Place, Clendon [11]

Eric Baker Place, Papatoetoe [12]

1/100 Station Road [13]

Ms Vaeafisi’s and Ms Kirk’s responses to Police [14] The District Court [15] The sentence indications [18] The indicated sentences [19]

Post-plea events  [22] The sentencing  [24] Ms Vaeafisi            [25]
Ms Kirk  [30] Summary of appellant’s submissions  [34] Summary of respondents’ submissions  [39] Ms Vaeafisi   [39]
Ms Kirk  [46] Considerations on a sentence appeal  [53] Did the Judge err in his approach?  [54] Starting point  [55]

Uplift to reflect total offending [61]

Culpability [68]

Table of Contents Paragraph

Number

Conclusions on adjusted starting points [72]

Personal aggravating and mitigating factors – Ms Vaeafisi [73]

Personal mitigating factors - Ms Kirk [78]

Dothe Judge’s errors require a different sentence to be imposed?

[84]

Ms Vaeafisi [86] Ms Kirk [88] Result [92]

Introduction

[1] Alavinya Vaeafisi and Sammie-Jo Kirk are sisters. They and other members of their extended family (including Ms Vaeafisi’s partner) formed a criminal gang which planned and executed aggravated robberies and like offending in South Auckland between 10 February and 16 March 2015. The targets of this serious criminal activity were innocent members of the public in their homes, in dairies, a takeaway shop and in the street. The summary of the facts alleged by the prosecution refers to a total of 11 separate offences committed by various members of the group: eight aggravated robberies and one of each of attempted aggravated robbery, burglary and theft. Ms Vaeafisi and Ms Kirk were charged with being
involved in six of the aggravated robberies.1

[2] At the time of the offending, Ms Vaeafisi was aged 31 and Ms Kirk was

18 years old. They were living in the same household. It was alleged that Ms Vaeafisi was one of the planners and co-ordinators of the robberies (including acting as an adviser by cell phone while the offending was in progress) and she was said to have acted as a lookout and getaway driver in two of the robberies. Ms Kirk was physically present during all six robberies, taking on various roles including acting as a lookout (armed with a crowbar on one occasion) and stealing property. Each of them shared in the proceeds of the offending which was of modest proportions except in the case of the High Street dairy in which cash and cigarettes

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 Kirk

Details

AGLC: R v Kirk [2017] NZHC 673
Case: [2017] NZHC 673
Decision Date: 10 April 2017

CaseChat Overview and Summary

The case of R v Kirk involves an appeal by the Crown against the sentences imposed on Alavinya Vaeafisi and Sammie-Jo Kirk, sisters who were part of a criminal gang involved in multiple aggravated robberies in South Auckland. The Crown argues that the sentences are manifestly inadequate and wrong in principle. The High Court found that the District Court judge made several material errors in his sentencing approach, including applying an inadequate uplift to the initial starting point, allowing overly generous deductions for culpability, and misapplying the discounts for guilty pleas and personal mitigating factors. The Court concluded that the judge's errors required a different sentence to be imposed on Ms Vaeafisi, who should have received a sentence of five years and six months' imprisonment. However, for Ms Kirk, despite the errors in sentencing, a different sentence should not be imposed due to her special personal circumstances and the fact that she has already partly served the sentence of home detention. The appeal against Ms Kirk's sentence was dismissed, while the appeal against Ms Vaeafisi's sentence was allowed, and her sentence was increased to five years and six months' imprisonment to be served concurrently.

Orders