R v Mitchell [2018] NZDC 12812 (15 June 2018)

Last Updated: 15 August 2019

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS]

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NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF ANY COMPLAINANT(S)/ PERSON(S) UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204

OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE DISTRICT COURT AT AUCKLAND

CRI-2017-004-008997

[2018] NZDC 12812

THE QUEEN

v

[KIRK MITCHELL]

Hearing:	15 June 2018
Appearances:	H Steele for the Crown J Corby for the Defendant
Judgment:	15 June 2018

NOTES OF JUDGE R J COLLINS ON SENTENCING

[1] Mr [Mitchell], I will commence giving my sentencing judgment in a moment. It is vital that Judges in passing sentence remain objective, remain dispassionate and resist, as far as humanly possible, being influenced by emotions but before I commence sentencing, even in the totally unfriendly environment of a courtroom, it would be less than human of me not to address a few words to your victim.

[2] She has shown extraordinary courage today. I trust that it is a courage that never departs her. I hope that all attempts that she might wish on her own life have

R v [KIRK MITCHELL] [2018] NZDC 12812 [15 June 2018]

left her and that she takes huge comfort, and even more courage, from those who will support her and those who appreciate the absolute inherent value of her life.

[3] Having said that and implicit in that is that it is clear that we are today dealing with grave offending. You are for sentence with respect to seven charges of sexual violation, a charge of attempting sexual violation and a representative charge of indecent conduct with a young person. Two of the charges of sexual violation are representative charges.

[4] In preparing for this sentencing today, it had been my intention to record the facts on which I sentence you. That is traditional. It is what is expected of Judges, that they record in their sentencing judgment what actually happened, but I am not going to do that. The summary of facts can be attached to what I am saying now when these comments are typed up. The reason I am not going to do it is that you know what happened. Mr Corby, your counsel, knows what happened. Mr Steele knows what happened. I know what happened. Your victim knows what happened. I just simply do not see that recounting that in Court and subjecting her to that is in any way in her interests at all but that record will be there for those in the future who may wish to review that or make decisions based on it.

[5] You have no history of any other offending. I have read the pre-sentence report. It is as helpful as it possibly can be in all the circumstances. The report writer is really, though, left with little that can be said. The probation officer, as I read matters, really queried just how candid and open you were prepared to be. The report writer refers to your ill health, and Mr Corby has had that set out very, very clearly for me.

[6] In his very helpful written submissions, Mr Corby has isolated the issues that confront me as a sentencing Judge today. The first is I have to identify a starting point. For people involved in what is an intensely human process, that may well seem artificial and somewhat arithmetic but it is important and it achieves consistency between those who offend in a like way. In setting that starting point, I am guided by what is known as a tariff case. That is the tariff decision of the Court of Appeal in a

case known as R v AM.1 From that, Mr Corby has also then set out for me the other issues which I need to address on this sentencing and that is the extent of credit you are given or discount you are given from that starting point for your age and ill health. Mr Corby then also argues for credit for you from your previous good character and he argues that you are entitled to further credit for remorse.

[7] Unquestionably, your offending falls into what is known as band 4 in the case of AM’s four bands. Band 4 is the most serious. That suggests or dictates a starting point between 16 and 20 years. That just simply reinforces the comments I made earlier that we are dealing with very grave offending. Taking the most favourable approach that I can as far as you are concerned, as I will adopt the bottom of that band and adopt the starting point of 16 years, I am satisfied that that still does accord with principle. There is always a range in these things and a higher starting point could also be within the range but I am satisfied that on a principled approach that a 16 year starting point is within the available range for me to reflect your offending.

[8] Your aggravating factors or the aggravating factors that see that starting point adopted are multiple. There is the frequency of the violations, the range of violations, the degree of the violation, the premeditation and planning, the harm to your victim and the breach of trust and her vulnerability. Many of those overlap and I have been careful not to double count. I think that is reflected in the fact that I have adopted the bottom of band 4 in setting the starting point of 16 years.

[9] There needs to be some adjustment to that on account of your age and your health. It cannot be to the extent sought by Mr Corby. This is not offending which happened many, many years ago when you would, say, be a much younger man and then had lived an offence-free life for many years. This offending is relatively recent but again, looking at the matter in the terms of the broad interests of justice, I am prepared to give you a credit of 25 percent or four years for that. Coupled into that or built into that thinking is that unquestionably at your age and health a prison sentence will be a harsher sentence for you to endure than for a young, fit man.

1 R v AM [2010] NZCA 114

[10] From that position then of 12 years, I am prepared to grant you the maximum discount for guilty plea that the Supreme Court has said is available, and that is one of 25 percent or three years. Mr Corby points to the fact that other than this offending you have no previous convictions and says that you are entitled to credit for that. Had this been a one-off offence then that is a submission that I would have acceded to but this offending occurred over a lengthy period of time and, in those circumstances, I am not prepared to grant any further credit for good character, nor am I satisfied that on your behalf there is any objective remorse in the sense that you are truly sorry for what you have done to your victim. I have no doubt that you are now sorry for the situation in which you find yourself but I am simply not satisfied that you are objectively sorry for the harm that you have caused your young granddaughter.

[11] There was one matter I should add. Had you been a younger man in good health, then I unquestionably would have imposed a minimum period of imprisonment; that is a non-parole period which is higher than that provided for in the legislation. The Crown do not seek it and I will not be imposing it. In not seeking that, the Crown prosecutor has very fairly also given recognition to your age and health.

[12] On charge 8 and 9 which are the representative charges of sexual violation, you are sentenced to nine years’ imprisonment. On charges 1 to 6 which are also charges of either sexual violation or in charge 3 the charge of attempted sexual violation, you are sentenced to six years’ imprisonment. On charge 7, three years’ imprisonment.

[13] All terms of imprisonment are concurrent. The total term of imprisonment is nine years.

R J Collins

District Court Judge