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…

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 Kirkwood

Details

AGLC: R v Kirkwood [2021] NZHC 2202
Case: [2021] NZHC 2202
Decision Date: 26 August 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Hamilton Registry, the case of R v Kirkwood involved the defendant, Manuao Tchetan Kirkwood, who was sentenced after pleading guilty to charges of kidnapping and wounding with intent to cause grievous bodily harm. The case was heard on 26 August 2021, with D McWilliam appearing for the Crown and B Hunt for the defendant. The sentencing remarks were delivered by Lang J.

The legal issues the court needed to address included determining the appropriate starting point for the sentence, considering the aggravating and mitigating factors, and ultimately deciding on the sentences for the charges of kidnapping and wounding with intent to cause grievous bodily harm. The court had to balance the severity of the offences with the defendant's personal circumstances and mitigating factors, including his guilty pleas, his previous good character, and his diagnosed post-traumatic stress disorder (PTSD) resulting from past physical and emotional abuse.

The court reasoned that the defendant's role as a principal protagonist in the assault warranted a starting point of seven years imprisonment. However, after applying various mitigating factors, including the defendant's guilty pleas, his time on restrictive bail, his genuine remorse, and his diagnosed PTSD, the court reduced the starting point to three years 11 months imprisonment. The sentences for the kidnapping and wounding charges were set at three and a half years and three years 11 months respectively, to be served concurrently, resulting in an effective sentence of three years 11 months imprisonment.

The final orders of the court were that the defendant would serve an effective sentence of three years 11 months imprisonment for the charges of kidnapping and wounding with intent to cause grievous bodily harm, to be served concurrently.

Orders