The Queen v Gary Donald Kirby

IN THE COURT OF APPEAL OF NEW ZEALAND

CA229/01

THE QUEEN

GARY DONALD KIRBY

Hearing:	24 September 2001
Coram:	McGrath J Salmon J Paterson J
Appearances:	M N Pecotic and W Matthews for Appellant B H Dickey and T Epati for Crown
Judgment:	1 October 2001

JUDGMENT OF THE COURT DELIVERED BY SALMON J

Mr Kirby appeals against his sentence of five months’ periodic detention imposed after he was found guilty by a jury of assault on a female. This matter has a rather unusual history. Mr Kirby originally faced five charges of assault on a female. They all concerned the same complainant with whom Mr Kirby had been in a relationship for some two years.
The first three of the episodes related to consecutive assaults said to have occurred on 28 December 1998. The first of these, in respect of which Mr Kirby was found guilty, occurred at Muriwai Beach. Difficulties in their relationship were discussed during this visit to Muriwai. The discussions deteriorated to the extent where, when Mr Kirby wished to return to Auckland, the complainant refused to accompany him. She says that she was grabbed by the arms and shoulders and forcibly put into the Landrover. She resisted and got out of the vehicle. The appellant came over to her pushed her onto the sand and kicked her a number of times on the upper thighs and her bottom.
Mr Kirby, on the other hand, says that he slapped the complainant because she was hysterical and put her into the vehicle because he was concerned for her safety should she be left behind. He denies kicking her while she was on the ground.
Charges two and three related to alleged assaults later the same day. In respect of count 2, the complainant said that she made one more attempt at getting out of the Landrover while it was driving away from Muriwai Beach. She asked the appellant to stop. She says he slowed down and she got out. She said she did not suffer any injury getting out of the Landrover, but that the appellant then came to where she was standing, pushed her over onto the gravel, hit her and then dragged her back into the Landrover.
The appellant said that the complainant jumped out of the Landrover while it was moving at about 30 kph and that she suffered injuries, including the injuries which the complainant said she suffered when kicked at the beach as a result of jumping out.
Count 3 relates to an incident when the couple got back to the appellant’s house. She says that while there she telephoned her husband from whom she was separated. The appellant came into the room while she was on the telephone and punched her in the head. The appellant denied any assault at the house.
What is clear is that the following day, when the complainant consulted a doctor, a number of injuries were found. The complainant had a minor bruise in her right upper chest wall, extensive finger-mark bruises over both upper arms, a boggy feeling bruise on the back of her head, a perforation of her ear drum, pain and tenderness on the lower right side of the rib cage, to an extent where the doctor was concerned that she might have a rib fracture or might have damaged her liver. She also had a large bruise on her left elbow and large bruises on both thighs.
The jury was unable to agree in relation to counts 2 and 3 and a re-trial was ordered. The fourth and fifth charges related to unconnected events on 10 and 12 May 1999 in respect of which not guilty verdicts were returned.
At the conclusion of the first trial the District Court Judge suggested to the appellant’s counsel that sentencing on count 1 should be deferred until the re-trial on counts 2 and 3. Counsel, however, submitted that sentence should be imposed immediately on count 1 and the Judge followed that course, sentencing Mr Kirby to six months’ periodic detention.
Immediately prior to the sentencing the Judge gave a decision as to the facts on which the sentence was to proceed. He effectively rejected the appellant’s account and said that the injuries were inconsistent with it. In view of the conflict in the evidence and the inability to draw too much from the jury’s verdict he sentenced on the basis that the bruising to the arms and to the legs, at least on one side of the body, were occasioned by rough handling of some kind by the appellant in getting the complainant into the vehicle. He said that these injuries would not have occurred if the appellant had not been determined upon following that course against her will. He said:
Not that you deliberately struck her, but that she nevertheless suffered quite serious injury as a result of your determination to put her into the vehicle.
On 26 September last year this Court allowed the appellant’s appeal against sentence. The Court decided that sentencing on count 1 should have been deferred until after the re-trial. It noted that the events comprised by the three counts represented a continuum. They all occurred in close succession on the same day and were essentially all part of the one sequence of events. The Court expressed the view that the appropriate sentence on count 1 would depend materially on the outcome of counts 2 and 3:
For example if there are convictions on counts 2 and 3 it may not be so necessary to isolate which of the various injuries the complainant suffered were caused at which precise stage of the sequence of events. And if there are acquittals on counts 2 and 3 the overall gravity of the events of 28 December 1998 would have to be assessed accordingly. (para.2)
There was a re-trial on counts 2 and 3 in July of this year. A different District Court Judge presided. The appellant was acquitted on both counts. The Judge who presided over that re-trial sentenced the appellant on count 1. Again that sentencing involved the need for the Judge to reach a decision on contested facts. He expressed surprise that the jury had acquitted Mr Kirby on counts 2 and 3 and said:
I am bound to say that I had great difficulty in understanding how the jury could possibly have reached those verdicts but, of course, it is not for a sentencing Judge to look behind the verdict of the jury.
He noted the appellant’s contention that all he did at the beach was to manhandle the complainant by her wrists and upper arms and that he denied kicking her. The Judge said, correctly, that he was entitled to exercise his own judgment on the evidence so long as he did not assume the existence of a fact that had been expressly negated, even by implication, by the finding of guilt. Applying that principle he said that he was of the view that it was inescapable on the evidence before the jury that the bruised buttocks and thighs suffered by the complainant were as a result of kicks from the prisoner. He put to one side other injuries she had suffered, such as an injured rib, the ruptured ear drum and the injury to her eye because on the evidence they did not occur during the time of the first assault. He proceeded to sentence the prisoner solely on the basis of the guilty verdict on the original count –
… but on the basis that the complainant was kicked by the prisoner with the result that she sustained the bruises that I have referred to …
He then considered the appellant’s circumstances, his age, the fact that he had no previous convictions and the numerous references before him. He said that a s.19 discharge was inappropriate. He noted the submissions as to the difficulties that the appellant might have in getting employment if a conviction was entered. He concluded that a sentence of five months’ periodic detention was appropriate.
It should be noted that amongst the facts which the Judge took into account in reaching the conclusions that he did about the bruising to the complainant’s thighs, was medical and other evidence given at the trial on counts 2 and 3.

The arguments in this Court

Ms Pecotic, for the appellant, argued that the sentence imposed was manifestly excessive and that no consideration or inadequate consideration was given to a discharge without conviction pursuant to s.19 of the Criminal Justice Act 1985. Ms Pecotic submitted that the sentencing Judge had adopted his own view of the facts which was inconsistent with the evidence placed before the Court and with the verdict of two juries. She submitted that the proper conclusion to be taken from the verdicts of not guilty was that the juries had accepted the appellant’s evidence as to the facts.
In particular, in relation to count 1, she submitted that the only Judge who had heard the full evidence on that count was the first District Court Judge and that his decision as to the facts on count 1 should have been accepted by the second Judge. It may be that the Judge at the first trial heard more evidence in relation to count 1 than did the second Judge. However, the facts of the first assault were the subject of evidence at the second trial and indeed, were of some relevance to the prosecution case.
As to the medical evidence relied upon by the sentencing Judge, she submitted that it was wrong in principle for that Judge to use the medical evidence called in relation to counts 2 and 3 for the purposes of sentencing on count 1. She submitted, but without providing authority, that as a matter of law the Judge was not entitled to use evidence given at the second trial to make findings of fact in relation to the guilty verdict reached at the first trial.
In the circumstances of this case we do not accept that submission. The sentencing Judge is, of course, bound to accept the verdict of the jury. But in this case the not guilty verdict on counts 2 and 3 left entirely open the question as to where and how the bruising to the complainant’s thighs occurred. In a contested facts sentencing the Judge is entitled to draw his own conclusions based on the evidence, as long as those conclusions are not inconsistent with the verdict of the jury.
In this case, at the second trial, the Judge heard full medical evidence which was tested by cross-examination. The Judge noted in his sentencing remarks that the appellant claimed that the bruising to the thighs and other injuries were caused when the complainant leapt from his Landrover while it was travelling at a speed of some 30 kph. The Judge said that that scenario had been put to the doctors and to a specialist Crown witness, Sergeant Garrett, all three of whom said it was impossible.
Ms Pecotic contested that finding on the facts and claimed that the injuries were in fact consistent with that evidence. We have reviewed the evidence and we conclude that it was open to the Judge to find that it was highly improbable that the bruising to the thighs was caused as a result of jumping from the vehicle. Accordingly, we hold that the Judge was entitled to sentence on the basis that the thigh injuries were caused during the assault on the beach. That approach was consistent with the complainant’s evidence and with the expert medical and police evidence.
The remaining question is whether the sentencing Judge correctly exercised his discretion in refusing a s.19 discharge. In fact, of course, two experienced Judges determined that a discharge was inappropriate in the circumstances of the case. Ms Pecotic referred to a number of decisions of the High Court relating to discharges under s.19. She referred to the hardship that would be caused to the appellant by a conviction and the consequences for his employment. She referred to the fact that the appellant had had no previous convictions and the cost to the appellant, both psychologically and in a monetary way, of these proceedings.
These matters were before the District Court Judges. We are not satisfied that the sentencing Judge wrongly exercised his discretion. In fact, we go further and say that on the basis of the Judge’s factual findings the assault was of a nature that would make a s.19 discharge quite inappropriate. The results to the appellant of a conviction are no different to those which apply to anyone in similar circumstances.
Overall we are satisfied that the Judge was correct in his assessment of which matters were relevant to sentencing the appellant on count 1 and that the sentence imposed of five months’ periodic detention was appropriate. Accordingly, the appeal is dismissed. The appellant must report to the Henderson Periodic Detention Work Centre on Tuesday, 9 October 2001 between 4.00 p.m. and 6.00 p.m. and thereafter as directed.

Solicitors

Otene & Ellis, Onehunga, Auckland for Appellant
Crown Solicitor, Auckland

[2001] NZCA 264

1 October 2001