THE QUEEN v GARY DONALD KIRBY [2000] NZCA 214 (26 September 2000)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca183/00

THE QUEEN

V

GARY DONALD KIRBY

Hearing:	26 September 2000 (at Auckland)
Coram:	Heron ACJ Tipping J Anderson J
Appearances:	D P H Jones for Appellant J G Krebs for Crown
Judgment:	26 September 2000

judgment of the court DELIVERED BY TIPPING j

[1] Mr Kirby appeals against sentences of 6 months periodic detention and 9 months supervision imposed in the District Court at Auckland.These sentences followed his conviction on a charge that being a male he did assault a female.The complainant and the appellant had been in a relationship for a time.It had been a rather tempestuous affair.Mr Kirby was charged with 5 offences of assault under s194 of the Crimes Act 1961.Counts 1, 2 and 3 related to a succession of events which occurred on the same day in December 1998.Count 4 related to events which occurred on 10 May 1999, and count 5 to events on 12 May 1999.The jury convicted on count 1, could not agree on counts 2 and 3, and acquitted on counts 4 and 5.A retrial was ordered on counts 2 and 3, and is due to take place on 27 November 2000.

[2] The Judge suggested to counsel for Mr Kirby that sentencing on count 1 should be deferred until after the retrial on counts 2 and 3.Counsel, however, submitted that sentence should be imposed immediately on count 1, and the Judge followed that course.With respect, we consider sentencing on count 1 should have been deferred until after the retrial on counts 2 and 3.The events comprised by the 3 counts represent a continuum.They all occurred in close succession on the same day and were essentially all part of the one sequence of events.The appropriate sentence on count 1 will 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 will have to be assessed accordingly.

[3] Having considered everything put before us, we are of the view that it would be in the interests of justice to all concerned to have the sentencing on count 1 take place in the light of the verdicts on counts 2 and 3.The appeal is accordingly allowed, we quash the sentences imposed on count 1, and direct that the appellant be sentenced on that count following the disposition of counts 2 and 3.The appellant's present bail on those counts shall be deemed to apply to count 1 until the retrial, at which point the issue of bail overall will be for the trial Judge.

Solicitors

Antony Mahon, Auckland, for Appellant

Crown Solicitor, Auckland