R v Kirk - [2015] NZHC 2892

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2015-096-000450 [2015] NZHC 2892

THE QUEEN

v

KELLY JANE LYNETTE KIRK

Hearing: 20 November 2015

Counsel:

J M O'Sullivan for Crown
K R Smith for Prisoner

Re-sentence:

20 November 2015

RE-SENTENCE OF COLLINS J

Introduction

[1] Ms Kirk, you appear for re-sentencing in relation to one charge of attempting to pervert the course of justice.1

[2] I sentenced you in relation to that offence on 1 May 2015.2 At the time I adopted a starting point of 22 months’ imprisonment, but ultimately sentenced you to eight months’ home detention and 160 hours’ community work.

[3] You appear today because the Department of Corrections (the Department)

has applied to have the sentences I imposed cancelled and substituted with a

1 Crimes Act 1961, s 117(e). The maximum penalty is seven years’ imprisonment.
2 R v Kirk [2015] NZHC 875.

R v KIRK [2015] NZHC 2892 [20 November 2015]

sentence of imprisonment.3 That application is based upon your repeated failures to comply with the sentences of home detention and community work.

Background

[4] The circumstances of your offending are set out in the reasons I gave when I

sentenced you on 1 May 2015.

[5] The affidavits filed in support of the Department’s application make it clear that you have repeatedly failed to comply with the terms of both the home detention and community work sentences which I imposed.

[6] I accept you have undertaken 47.5 hours of community work and approximately 6.5 months have elapsed since the sentence of home detention was imposed.

[7] The affidavit from the Department makes it clear, however, that you have breached the terms of the home detention sentence and responded poorly to the sentence of community work. For example, by now you should have completed
100 hours of community work.4

Original sentence

[8] When sentencing you on 1 May 2015, I explained that I was prepared to give you the benefit of a community-based sentence on that occasion. In doing so, I said that:5

… If it were not for the strong evidence of your motivation for rehabilitation and the positive steps you [had] already taken in … recovery in order to one day be reunited with your youngest child, I would have sentenced you to a term of 22 months’ imprisonment …

[9] Unfortunately, you have consistently failed to comply with the sentence which I imposed. It is clear to me your inability to comply with the sentence is
primarily driven by your heavy drug addiction issues. I acknowledge your letter to

3 Sentencing Act 2002, ss 68(1)(a) and 80F(1)(a).
4 Second affidavit of K Frame-Reid, 6 November 2015 at [9].
5 R v Kirk, above n 2, at [38].

me this morning and that you candidly acknowledge how difficult it was for you to try to complete a sentence of home detention.

Submissions

[10] The Crown submits that you should today be treated as having served the equivalent of about 13 months’…

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 [2015] NZHC 2892
Case: [2015] NZHC 2892
Decision Date: 20 November 2015

CaseChat Overview and Summary

The case of R v Kirk involved a re-sentencing hearing for Ms Kelly Jane Lynette Kirk, who was originally sentenced on May 1, 2015, for an offence of attempting to pervert the course of justice. The original sentence imposed by the court was eight months of home detention and 160 hours of community work. However, the Department of Corrections applied for the sentences to be cancelled and replaced with a sentence of imprisonment due to Ms Kirk's repeated failures to comply with the terms of her original sentence. The key legal issues for the court were whether to punish Ms Kirk for her non-compliance with the original sentence, and if so, how much credit to give her for the time she had already served.

The court noted that it was not appropriate to punish Ms Kirk for her breaches as this would amount to double punishment for the same offence. Instead, the court decided to give credit for the time Ms Kirk had already served, focusing on the period of the sentence which she had actually already served. The court calculated that Ms Kirk had completed less than one-third of the community work sentence, which equated to approximately two months’ imprisonment. For the home detention portion, the court decided to focus on the period of the sentence which Ms Kirk had already served. The court imposed a sentence of three months’ imprisonment in relation to the home detention portion of the original sentence.

The court ultimately decided that a sentence of seven months’ imprisonment was the minimum that could be imposed in the circumstances of the case, fairly reflecting the purposes and principles set out in the Sentencing Act 2002. The court quashed the original sentences and substituted a sentence of seven months’ imprisonment for Ms Kirk.

Orders