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’ imprisonment.  If this figure were deducted from my original starting point of 22 months’ imprisonment, then the Crown says you should be re-sentenced to nine months’ imprisonment.

[11]     Mr Smith, your counsel, has suggested I should focus on the period of the sentence you have actually already served, which he says equates to 6.5 months of the eight months of home detention.  On this basis Mr Smith says that there is only

1.5 month’s home detention sentence remaining and you should therefore be sentenced to three months’ imprisonment.  Mr Smith also submits that if credit were given for the period of community work actually completed your sentence should be in the vicinity today of 3.75 months’ imprisonment.

Analysis

[12]     There are three underlying principles to my approach to re-sentencing you.

[13]     First, I start from the original starting point which I adopted on 1 May 2015, namely 22 months’ imprisonment.  I adopt that starting point because I must strive to impose the sentence which would originally had been imposed had I accepted at the time you were sentenced that home detention and community work were not the appropriate sentences.

[14]     Second, in re-sentencing you I am not going to punish you for the breaches of the conditions of the sentences I imposed on 1 May 2015.6   You have been charged in the District Court with breaching the conditions of your home detention sentence on five occasions.  You have been sentenced in the District Court in relation to three of those breaches.  Any remaining charges concerning breaches of the conditions of

the sentence I imposed can be dealt with in the District Court if necessary.

6      R v Morgan [2008] NZCA 232.

[15]     Third, I must give you credit for that part of your original sentence which you have completed in order to avoid punishing you twice for your offending.

Community work

[16]     The  sentence  of  160  hours’ community work  which  I imposed  reflected approximately six months of the 22 months’ imprisonment starting point.

[17]     You have completed less than one-third of the community work sentence, which equates to approximately two months’ imprisonment.   On this basis, in re- sentencing you, I adopt a provisional sentence of four months’ imprisonment in relation to the community work portion of your original sentence.

Home detention

[18]     Calculating the sentence which should now be imposed for your failure to comply with the home detention sentence is particularly challenging.  I have decided the best approach is to focus on the period of the sentence which you have actually already served.  As there is 1.5 month’s home detention sentence remaining, I adopt a sentence of three months’ imprisonment in relation to the home detention portion of your original sentence.

Overall assessment

[19]     Before re-sentencing you, I have reflected on whether a sentence of seven months’ imprisonment  fairly  reflects  the  purposes  and  principles  set  out  in  the Sentencing Act 2002, which I emphasised when sentencing you on 1 May 2015.

[20]     In my assessment, a substituted sentence of seven months’ imprisonment is the very minimum that can be imposed in the circumstances of your case.  That is the sentence which I will impose.

Conclusion

[21]     Ms Kirk, can you now please stand.

[22]     I  am  quashing  the  sentences  which  I  imposed  on  1  May  2015.    I  am substituting for the sentences of home detention and community work a sentence of seven months’ imprisonment.

[23]     You may now stand down.

D B Collins J

Solicitors:

Crown Solicitor, Wellington
Peter C Gilbert – Willis Street, Wellington for Prisoner