R v Kirkwood

[2021] NZHC 2202

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2020-019-5021

[2021] NZHC 2202

THE QUEEN

v

MANUAO TCHETON KIRKWOOD

Hearing:	26 August 2021
Appearances:	D McWilliam for Crown B Hunt for Defendant
Judgment:	26 August 2021

SENTENCING REMARKS OF LANG J

Solicitors:

Hamilton Legal, Hamilton

R v KIRKWOOD [2021] NZHC 2202 [26 August 2021]

[1]    Mr Kirkwood, you appear for sentence today having pleaded guilty to charges of kidnapping1 and wounding with intent to cause grievous bodily harm.2 You are to be sentenced on the basis of an agreed summary of facts dated 2 February 2021. This is supplemented by material contained in a joint memorandum that counsel filed on 16 August 2021.

[2]    Before proceeding to outline the factual basis for your offending I now discharge you under s 147 of the Criminal Procedure Act 2011 on Charge 5. The Crown has offered no evidence on that charge.

Background

[3]    The summary of facts records that your offending had its origin in events that occurred at, and following, a New Year’s Eve party held at a residential address in Hamilton on 31 December 2019. Several persons who attended the party consumed a powdered substance they believed to be the controlled drug MDMA, or ecstasy. Several of them suffered adverse reactions and one subsequently died. A subsequent analysis of the substance they had consumed showed that it contained traces of heroin.

[4]    Associates of the person who died decided they would try to find the person or persons who had supplied the substance that led to their friend’s death. Their object was to mete out punishment to that person.

[5]    On 12 March 2020 a person by the name of Jesse Whitiora was taken to the address at which you were staying by an associate. Also present at the address were your two half-sisters. One of them in particular had been actively endeavouring to track down the person who had supplied the drug at the party on New Year’s Eve.  Mr Whitiora, who was evidently a suspect, entered the address and was met by at least one of your half-sisters. You then came out of your bedroom when you heard a commotion going on outside. You say that you believed that Mr Whitiora, whom you did not know and had never met before, was acting in an aggressive manner towards your sister. I have no way of knowing whether that is correct. What is clear, however,

1      Crimes Act 1961, s 181(1): maximum penalty 14 years imprisonment.

2      Section 209(b): maximum penalty 14 years imprisonment.

is that Mr Whitiora must have realised very shortly after entering the address that he was in a position of some danger.

[6]    The charges that you face were laid as a result of the events that occurred after you left your bedroom. The summary of facts records that you and your two half- sisters set about beating Mr Whitiora. You used weapons in the form of a baseball bat and a taser. You deny having used a weapon but at least one witness saw you in possession of a baseball bat.

[7]    The physical assaults on Mr Whitiora contained for some time. Your part in events ended at or about the time two further persons arrived at the address. The summary records that by this stage Mr Whitiora had been moved from the house to the garage. Subsequently, Mr Whitiora was taken from the address by the two persons who arrived at the end of the assaults. You face no further charges arising out of what happened to him from that point.

Starting point

[8]    In order to set a starting point for the sentence to be imposed for your offending I need to determine your role as disclosed by the summary of facts. I am satisfied that it was as a principal protagonist in the sense that you were one of the persons actively assaulting Mr Whitiora and that you used a weapon in the form of a baseball bat as you did so.

[9]    The attack on Mr Whitiora resulted in several injuries to him. The most serious was a deep wound that opened a flap of skin on the right side of his head just above the ear. This also resulted in a blown blood vessel in Mr Whitiora’s right eye. In addition, he had a deep wound above his left eyebrow, together with bruising all over his body and in particular on the left leg above the knee.

[10]   The Crown initially submitted that you were part of a premeditated attempt to lure Mr Whitiora to the address so that he could be physically assault. On the Crown’s behalf Mr McWilliam now accepts that you were not part of any planning that occurred prior to Mr Whitiora’s arrival. Rather, your participation must be assessed having regard to what you did after he arrived. As I have said, this involved physical assaults

with a baseball bat in the knowledge that your half-sisters were also assaulting Mr Whitiora, one of them using a taser.

[11]   One of the aggravating factors is that this attack appeared to have lasted for a considerable period. The summary of facts records that it lasted for upwards of two hours. I cannot be sure that the physical attack occurred for this length of time because, if it had, I am sure Mr Whitiora would have suffered greater injuries than he did. I suspect that it ended before two hours had elapsed.  It probably ended when  Mr Whitiora was placed in the garage.

[12]   The Crown initially suggested a starting point of eight to eight and a half years imprisonment. On reflection, and putting to one side the aggravating factor of premeditation, Mr McWilliam now accepts that a starting point of seven to seven and a half years imprisonment is appropriate. On your behalf, Ms Hunt suggests a starting point of six and a half years imprisonment is justified.

[13]   Both counsel have referred to several cases, but as always, they have factual differences.3 Nevertheless, they demonstrate that a starting point of somewhere in the vicinity suggested by both counsel is appropriate. I select a starting point of seven years imprisonment. This reflects your culpability not only in relation to the physical assaults in which you participated but also the detention of Mr Whitiora over a significant period.

Aggravating factors

[14]   You have several previous convictions, but these are mainly for driving offences. The Crown accepts no uplift is justified to reflect aggravating factors personal to you.

Mitigating factors

[15]   It is now necessary to consider the extent to which the sentence should be reduced to reflect mitigating factors personal to you. The first of these relates to your

3      Kreegher v R [2021] NZCA 22; R v Kalepo [2021] NZHC 578; R v Malua-Bentley [2021] NZHC 2286.

guilty pleas. You did not enter these at the earliest possible moment, but they were entered after some discussion between your counsel and counsel for the Crown. This resulted in two charges of wounding with intent to cause grievous bodily harm being reflected in a single representative charge. Overall, I consider a reduction of 18 months, or just over 20 per cent, is warranted to reflect your guilty pleas.

[16]   You were also on restrictive EM bail conditions for a period of approximately three months before being remanded in custody following your arraignment. I allow a further discount of one month to reflect that factor.

[17]   You have expressed your remorse both to the writer to the pre-sentence report and to the person who compiled the report your counsel has tendered to me under s 27 of the Sentencing Act 2002. You have also offered to undertake a restorative justice conference with the victim, but he declined. I am satisfied, as is the Crown, that your remorse is genuine and that an allowance should be made for this. I would allow five months, or approximately five per cent, to reflect this factor.

[18]   Your counsel submits you should also receive a discount to reflect your previous good character but I accept the Crown’s submissions that your previous convictions preclude this. You have in fact been required to serve a short sentence of imprisonment because you were unable to complete a sentence of community work imposed on driving offences. However, I am satisfied that the reports that I have received suggest you are amenable to rehabilitation and this is supported by the fact that for most of your adult life you have been able to hold down stable employment. I apply a further discount of five months, or approximately five per cent, to reflect this factor.

[19]   Finally, I have the benefit of a psychiatric report and the s 27 report. These provide considerable illumination into the events that shaped you, and that had some bearing on the offending for which you now appear for sentence. Both reports suggest that your upbringing was relatively normal but a signal feature of it was that you suffered physical and emotional abuse at the hands of your stepfather. This has now resulted in a diagnosis of PTSD, or post-traumatic stress disorder. The psychiatrist says that the heightened arousal you are likely to have suffered when you emerged

from your bedroom may well have played an important part in the way in which you reacted to Mr Whitiora’s arrival at the address. The s 27 report also confirms that you continue to have significant aftereffects as a result of the physical and emotional abuse you suffered at your stepfather’s hands and this is likely to have played a role in the present offending.

[20]   I propose to allow a further discount of eight months, or ten per cent, to reflect these factors.

[21]   This means I have applied discounts totalling 37 months. This reduces the starting point from one of seven years imprisonment to one of three years 11 months imprisonment.

Sentence

[22]   On the charge of wounding with intent to cause grievous bodily harm, I impose a sentence of three years 11 months imprisonment. On the kidnapping charge, I impose a sentence of three and a half years imprisonment. Both sentences are to be served concurrently. This means you will serve an effective sentence of three years 11 months imprisonment.

[23]Stand down.

Lang J