R v Kirk

Case [2016] NZHC 1249 10 June 2016

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2015-096-450 [2016] NZHC 1249

THE QUEEN

v

DARYLL KIRK

Hearing: 10 June 2016

Appearances:

S W P Woods for Crown
I M Antunovic for Defendant

Charges:

Manslaughter

Plea:

Not Guilty

Sentenced:

10 June 2016

SENTENCING NOTES OF CLARK J

Solicitors:
Crown Solicitor, Luke Cunningham, Wellington

R v KIRK [2016] NZHC 1249 [10 June 2016]

[1] Daryll Kirk, you appear for sentence today having been found guilty of one charge of manslaughter by a jury on 20 April 2016. The maximum sentence for manslaughter is life imprisonment.1

[2] The victim was Adam Watkins, your mother’s partner. The events which have brought your two families here today are distressing — on many levels. I must now sentence you and I must do that according to the law. As we all know, the law is inadequate in addressing the emotional impact of such events on everyone involved.

[3] The background facts are very important to deciding the appropriate sentence so I do need to cover them in some detail and I will also explain the matters which I am required by law to address in sentencing you.

Background to the offending

[4] On 5 February 2015 you shot and killed Adam Watkins.

[5] At that time you and your partner Kyle Barnden were living at High Street in Taita with your mother, Kelly, and Adam. You were living there because your mother did not think you were safe living where you had been. There was trouble with a gang. Shortly before coming to live at High Street you had been pursued by members of the gang. There is no suggestion that this trouble was of your making.

[6] That trouble was also the reason why there was a rifle in your bedroom at

High Street. Kyle had it for protection from the gang.

[7] On the evening of 5 February an argument began between Adam and Kelly. Hair dye had been spilled on a duvet. This angered Adam. He began to verbally abuse Kelly. Hanna Burke, a long-time friend of both Kelly and Adam, attempted to intervene. Adam turned his attention to Hanna. He variously screamed at her, threw
a can of drink at her head, and told her to come outside to fight him.2

1 Crimes Act 1961, s 177.
2 Notes of Evidence (NoE) at 19.

[8] Hanna attempted to pacify Adam but the row escalated to involve everyone in the house. Vaughan Anderson, Hanna’s partner, attempted to intervene. Adam turned his attention to Vaughan, punching and pushing him out of the house.3 Kelly said that around this time Kyle hit Adam and Adam chased Kyle into the lounge. You were screaming to Adam to leave Kyle alone.4 Kelly went to restrain Adam at one stage by coming up behind him and locking her arms through his to try and drag him away from the bedroom where he had trapped Hanna but he threw his head back, head butting her in the…

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 [2016] NZHC 1249
Case: [2016] NZHC 1249
Decision Date: 10 June 2016

CaseChat Overview and Summary

Darryl Kirk was found guilty of manslaughter by a jury on 20 April 2016. The maximum sentence for manslaughter is life imprisonment. On 5 February 2015, Darryl Kirk shot and killed Adam Watkins, his mother's partner. The parties disputed whether Darryl acted in self-defence. The court found that Darryl was acting in self-defence but used excessive force. The court sentenced Darryl to 12 months home detention. The court considered the circumstances of the offence, Darryl's age, his remorse, and his previous good character. The court found that home detention was an appropriate sentence because it would mark the sanctity of life while also meeting the purposes and principles of the Sentencing Act.

The court held that Darryl was acting in self-defence but used excessive force. The court found that Darryl's culpability was markedly different from the cases the Crown pointed to. The court found that Darryl's past experience of violence at the hands of Adam likely affected his ability to respond in a proportionate way on the day of the offence. The court found that Darryl's youth was a mitigating factor and allowed a reduction of six months. The court also found that Darryl's remorse was a mitigating factor and allowed a discount of three months. The court found that Darryl's previous good character was a mitigating factor and allowed a discount of five months. The court sentenced Darryl to 12 months home detention. The court found that home detention was an appropriate sentence because it would mark the sanctity of life while also meeting the purposes and principles of the Sentencing Act.

Orders