R v Kirk [2016] NZHC 1250 (10 June 2016)

Last Updated: 16 February 2017

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2015-096-450 [2016] NZHC 1250

THE QUEEN

v

_{DARYLL KIRK}

Hearing:	10 June 2016
Appearances:	S W P Woods for Crown I M Antunovic for Defendant
Judgment:	10 June 2016

_{SENTENCING NOTES OF CLARK J}

Solicitors:

Crown Solicitor, Luke Cunningham, Wellington

R v DARYLL KIRK [2016] NZHC 1250 [10 June 2016]

[1] Daryll Kirk, you appear for sentence today having been found guilty of one charge of manslaughter by a jury on 20 April 2016. The maximum sentence for manslaughter is life imprisonment.¹

[2] The victim was Adam Watkins, your mother’s partner. The events which have brought your two families here today are distressing — on many levels. I must now sentence you and I must do that according to the law. As we all know, the law is inadequate in addressing the emotional impact of such events on everyone involved.

[3] The background facts are very important to deciding the appropriate sentence so I do need to cover them in some detail and I will also explain the matters which I am required by law to address in sentencing you.

Background to the offending

[4] On 5 February 2015 you shot and killed Adam Watkins.

[5] At that time you and your partner Kyle Barnden were living at High Street in Taita with your mother, Kelly, and Adam. You were living there because your mother did not think you were safe living where you had been. There was trouble with a gang. Shortly before coming to live at High Street you had been pursued by members of the gang. There is no suggestion that this trouble was of your making.

[6] That trouble was also the reason why there was a rifle in your bedroom at

High Street. Kyle had it for protection from the gang.

[7] On the evening of 5 February an argument began between Adam and Kelly. Hair dye had been spilled on a duvet. This angered Adam. He began to verbally abuse Kelly. Hanna Burke, a long-time friend of both Kelly and Adam, attempted to intervene. Adam turned his attention to Hanna. He variously screamed at her, threw

_{a can of drink at her head, and told her to come outside to fight him.}²

¹ _{Crimes Act 1961, s 177.}

² Notes of Evidence (NoE) at 19.

[8] Hanna attempted to pacify Adam but the row escalated to involve everyone in the house. Vaughan Anderson, Hanna’s partner, attempted to intervene. Adam turned his attention to Vaughan, punching and pushing him out of the house.³ Kelly said that around this time Kyle hit Adam and Adam chased Kyle into the lounge. You were screaming to Adam to leave Kyle alone.⁴ Kelly went to restrain Adam at one stage by coming up behind him and locking her arms through his to try and drag him away from the bedroom where he had trapped Hanna but he threw his head back, head butting her in the lips.

[9] At some point, Adam armed himself with a large meat cleaver which he kept sharpened and hanging from a nail beside his bed.⁵ Hanna said that he was becoming increasingly worked up, and was swinging the meat cleaver “around madly, like a madman.”⁶ He was chopping at everybody with it, she said, you and Vaughan included.

[10] Hanna was cornered by Adam with the meat cleaver and “feared for [her] life”.⁷ She said he had it raised, ready to swing at her when something distracted him.⁸ She said she didn’t think she’d be here any longer if something hadn’t distracted him.⁹

[11] Hanna was Adam’s friend and in the time she had known him she had seen him angry but never, to use her words, “that psycho”.¹⁰ Hanna said at trial:¹¹

... yes I was fearing for my life and yes I was fearing for pretty much everybody else’s that was there, ...

[12] You were close by. Hanna thought you were in the lounge but agreed you could have been in your bedroom. Everything was happening too fast.¹²

³ _{At 314.}

⁴ _{At 299.}

⁵ _{At 297.}

⁶ _{At 20.}

⁷ _{At 22 and 24.}

⁸ _{At 20 and 22.}

⁹ _{At 20.}

¹⁰ _{At 24.}

¹¹ _{At 34.}

¹² At 23.

[13] It seems everyone was chased outside to the front lawn. A Subaru car was parked in the driveway and Adam struck its windscreen with the cleaver.

[14] You ran back into the house to get the gun that you knew was in your bedroom. You said in your Police interview that you thought Adam turned around and was going to get the gun because he knew where it was and he’s really violent.¹³

[15] You said Adam followed you into your bedroom.¹⁴ You said Adam was coming towards you really slowly and swung the cleaver towards your face.¹⁵ You screamed at him to get out and you screamed for help. You kept taking steps back and screaming for help. You said you were pointing the gun at him to scare him.¹⁶

[16] You fired six shots in rapid succession.¹⁷ The forensic evidence goes some way to explaining where they were fired from although it does not confirm their exact sequence. Two hit Adam directly. Three did not. Another hit a wall and deflected striking Adam in the back when he was near the kitchen door.¹⁸

[17] What is known is that the chest wound, as Dr White described it, was the most serious wound resulting in major blood loss.¹⁹ Adam was possibly as close as one metre away, although I accept the Crown submission that the evidence shows it was 1.1 from the muzzle of the gun and facing it when the shot was fired. He was no further than 1.4 metres away.²⁰

[18] By witness accounts the shots were fired in very quick succession.²¹ Two were fired from within your bedroom.²² In respect of a third shot the evidence is that it was fired from inside your bedroom or the end of the gun may have been at your

_{bedroom door.}²³ _{A fourth shot was likely fired from your bedroom door frame.}²⁴ _In

¹³ _{Transcript D Kirk Interview at 17 and 18.}

¹⁴ _{At 19.}

¹⁵ _{At 20–21.}

¹⁶ _{At 22,}

¹⁷ _{Referred to during the trial as shots A, B, C, D, E and F.}

¹⁸ _{At 190–191.}

¹⁹ _{At 214 and 215.}

²⁰ _{At 196–197. This was shot F.}

²¹ _{At 32–33.}

²² _{At 202-203: shots A and B.}

²³ _{At 203: shot C.}

²⁴ At 203–204: shot D.

respect of the shot that deflected, Adam was at the kitchen doorway when he was struck.²⁵ I accept that Adam remained armed with the meat cleaver when you fired at him because the evidence shows he left the cleaver in the kitchen.

[19] You fled the house. Adam came outside and died on the driveway. [20] You were arrested two days later.

[21] The evidence of your communications with others suggests that you did not know how badly Adam had been hurt and you were shocked to find out that he had died.²⁶ It is also apparent that you intended to go to the Police once you had said goodbye to Kyle.

[22] At your trial your counsel argued that you had acted in self-defence. Clearly the jury must have been satisfied that you did not intend to kill Adam. In rejecting self defence it seems to me likely that the jury accepted you were initially acting to protect yourself when you shot Adam in the chest. He was close to you with the cleaver when that shot was discharged. But I accept Mr Antunovic’s submission that the likely explanation for the manslaughter verdict was because Adam was retreating when shot E, and others in the hallway, were fired. Bearing in mind the question trail it is a reasonable supposition that the jury believed the force you used at that time was not reasonable in the circumstances.

[23] I turn now to other matters relevant to my assessment of the appropriate sentence.

Your personal circumstances

[24] You are now 20 years old. At the time you were 19.

[25] All of the witnesses who spoke of your personality at trial said much the same thing. You are a quiet person. You keep to yourself. You are calm. You are

_{perhaps shy. And you have not been known to ever be violent or volatile or prone to}

²⁵ _{At 192: shot E.}

²⁶ At 92, 119.

losing control. A similar picture emerges in the letters of all those who have written in your support. You are a caring person and good with young children.

[26] Your maternal grandmother describes you as a gentle soul as a child but enduring a home life that was unpredictable, violent at times, never stable and lacking role models as you struggled to make your way as a teenager. But she also spoke of the potential you have for a healthy and fulfilling future.

[27] You have a close and happy relationship with Kyle. And you are close to and love your mother. Awaiting trial while on bail you were living with Kyle and working as a house painter.

[28] The assessment provided by Dr Barry-Walsh concludes that you have been traumatised by the events of 5 February and now suffer post-traumatic stress disorder, symptoms of which he described as a significant burden. The doctor suspected that you minimised or under reported these symptoms and he recommended ongoing treatment. Because of your exposure over four years to the extremely frightening episodes of violence by Adam towards you and others Dr Barry-Walsh concluded there was a convincing link between those past experiences and your fearful response to Adam’s behaviour leading up to the shooting. I turn to the victim impact statements.

Victim impacts statements

[29] I have read and I have heard the statement of Rachael Watkins, Adam’s older

sister. Ms Watkins has lost her only sibling.

[30] She and her family loved Adam dearly. She laments that he will now never meet his grandson. Adam’s death has brought great suffering and sadness upon her and the family. His mother has fallen ill, and his children are distraught. They miss Adam terribly. Ms Watkins also spoke of the significant financial hardship this has put upon the family, how she must now be the glue that holds it together, and the strain of that on her.

[31] I accept without hesitation the enormity of the loss Rachael and Adam’s

family are experiencing and the suffering caused by Adam’s death.

Department of Corrections advice to the Court

[32] There was advice to the Court from the Department of Corrections.

[33] The author of the pre-sentence report says you are very sorry for your actions; that you acknowledge you have robbed your brother of a father and your mother of love. You apparently sent an apology by way of Victim Support to those who have been affected by Adam’s death.

[34] You have two convictions for shoplifting in 2013. Because the offending history was not violent in nature you were assessed as having a low likelihood of reoffending.

[35] It seems however that because you are to be sentenced for manslaughter you were assessed as posing a high risk of harm to others.

[36] The two conclusions seem contradictory but I accept that you present a low likelihood of reoffending.

The Sentencing Act

[37] In sentencing you I am guided by the purposes and principles of the Sentencing Act. Because you have taken a life the purposes that are at the forefront of my mind are the need to hold you accountable for the harm you have done, and to promote in you a sense of responsibility for, and acknowledgment of, that harm. I recognise that your rehabilitation is important.

[38] While I must also impose the least restrictive sentence that is possible in the circumstances of the case it is necessary to maintain consistency with sentences for similar offending in similar circumstances. That is something I will return to.

[39] I must have regard to the protection of the community. There cannot be complete certainty in these things but, as the pre-sentencing report indicates, it seems

you are unlikely to offend in this way again. As I have said, the evidence before the

Court about your temperament is that you are a peaceful and not a violent person.

My assessment

[40] Ms Kirk, I am going to start my assessment by identifying what is called a starting point for sentence.

[41] In fixing the starting point for your sentence I need to consider what sentence would be appropriate for this offending for an adult offender, based on any aggravating or mitigating factors that relate to the offending. After that I must consider whether any factors personal to you should affect that sentence.

[42] Because of the varied circumstances that can lead to a conviction for manslaughter there is no guideline and no tariff judgment.²⁷ I have to be guided by similar past cases. The Court of Appeal has said that sometimes reference to R v Taueki , which is the guideline judgment for serious violent offences not involving death, should be used as a point of reference for manslaughter,²⁸ but not always.²⁹

[43] Counsel for the Crown has referred me to a number of decisions, and in particular R v Pira and R v Flavell, cases of manslaughter involving guns. As Mr Antunovic submitted, the facts of the present case are unique and there are no cases that are quite on point.

[44] Though neither counsel referred to it, I have found much assistance in the comprehensive and important work of the Law Commission in its very recent report on family violence which includes a chapter on sentencing for homicides in the context of family violence.³⁰ The report is so recent it notes in several places that at

_{the time of publication you had been convicted but were awaiting sentencing.}³¹

²⁷ _{Murray v R [2013] NZCA 177.}

²⁸ _{R v Tai [2010] NZCA 598 at [11] citing R v Jamieson [2009] NZCA 555.}

²⁹ _{Murray v R [2013] NZCA 177.}

³⁰ Law Commission Understanding Family Violence: Reforming the Criminal Law relating to

_{Homicide (NZLC R 139, 2016) at ch 11.}

³¹ See Law Commission Understanding Family Violence: Reforming the Criminal Law relating to

Homicide (NZLC R 139, 2016) at 20, n 47; 45, n 222; 71, n 392; 129, n 746; and [2.10].

[45] The cases I have found most useful for comparison are those involving victims who have killed abusive partners. Starting points in these decisions have been between three and a half years and five and a half years. I have also had some regard to cases involving young men who have killed an abusive father or step father,³² and cases involving manslaughter with firearms.³³

[46] The Crown submitted that there are several aggravating features.

[47] First, the use of a weapon. The use of a gun is an aggravating feature,³⁴ and makes your case more serious than those involving knives or heavy objects. The use of the weapon will feature in the starting point.

[48] Secondly, the Crown argues that your offending was deliberate on the basis that you re-entered the house and armed yourself. I will address my findings of fact on this point in more detail. But I accept that you re-entered the house because you wanted to stop Adam getting the gun from your bedroom rather than that you wanted to deliberately arm yourself. And the circumstances changed between the time you entered the house while Adam was still outside, to the moment when you shot him, by which time he was so close to you with the cleaver that you shot him from within your bedroom.

[49] The third aggravating feature the Crown points to is the extent of harm and of course this is inherent in the offending as death has resulted and it will feature in the starting point.

[50] Fourth, attacking the head on the basis that one of the shots hit Adam in the neck. I do not accept that your shots, haphazard and as prone to missing as they were, were directed at Adam’s head.

[51] Fifth, it is said there was a failure to offer assistance. I do not accept this as an aggravating feature in the context of this case. Adam remained armed throughout

³² R v Raivaru HC Rotorua CRI-2004-077-1667, 4 August 2005 and R v Erstich (2002) 19 CRNZ

_{419 (CA).}

³³ _{R v Pira HC Rotorua CRI-2006-063-329 and R v Flavell [2014] NZHC 3373.}

³⁴ Sentencing Act 2002, s 9(1)(a).

the incident. I do not think it would be expected of someone in your shoes to offer assistance. There were others nearby who certainly would and did render assistance.

[52] I agree with the Crown’s submission that a case of manslaughter with a firearm, with the aggravating features so far as I have accepted them, would ordinarily attract a starting point of six years imprisonment.

[53] I now turn to mitigating features of the offending itself. [54] The Crown submits there are none.

[55] Mr Antunovic submits that your culpability is at the low end of the scale for offences of manslaughter. He points to the whole circumstances of the offending and its background. And he submits that the jury may have reached the verdict it did on the basis that you acted in self-defence, but used excessive force.

[56] In my view there are several interrelated mitigating features.³⁵

Excessive self-defence

[57] First, and most significantly, I am of the view that you were acting in self-defence but used excessive force.³⁶

[58] Juries do not give reasons and we cannot know for sure what considerations led to the verdict of manslaughter. But the weight of the evidence is that Adam was extremely violent on that evening, behaving unpredictably, and was in your bedroom with a large meat cleaver. When you went back inside the house Adam chased after you.³⁷ The Crown submits that at that moment you were in no real peril. I do not accept that submission. This was a frenetic confrontation marked by aggression, volatility and fear. At the point that you faced him in your room it is plausible that

_{you may have thought there were no options remaining to you.}

³⁵ _{Compare R v Rakete [2013] NZHC 1230 at [34].}

³⁶ _{R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372, (2005) 21 CRNZ 769 (CA) at [32].}

³⁷ At 27.

[59] At the moment that you began to shoot at Adam I accept that you were acting in self-defence. But in firing six times and pursuing him in the hallway you failed to use violence proportionate in the circumstances, and accordingly the jury concluded you had brought about a death by an unlawful act, finding you guilty of manslaughter. A person who kills believing wrongly that the violence is necessary in self-defence is less culpable or blameworthy than a person who kills without that belief.

[60] Second and similarly I have regard to Adam’s conduct.³⁸ I address this within the topic of excessive self-defence because the family violence context which that conduct represents is intimately related to your actions and offending.

[61] That history bears on your culpability and the excessive self-defence. As Whata J considered the history of the victim’s abuse of the offender in Rakete alongside and in addition to the fact that the offender feared assault,³⁹ I consider Adam’s historical violence must amplify the mitigating effect of excessive self-defence on your culpability.

[62] Adam may have been well loved, and was, by Kelly as he was by his family, but he was and always had been the primary aggressor.⁴⁰ He was older than you, stronger than you, more practiced at violence than you. And, from your perspective and your experience you knew him to be dangerous. Adam is not on trial but the law requires me to examine the circumstances as they existed for you at the time of the shooting. The evidence at trial was that:

(a) Adam had chased you with a screwdriver. (b) He held a knife to your throat.

(c) He’d assaulted two of your boyfriends one of them, Axl, on more than

_{one occasion.}

³⁸ _{Sentencing Act 2002, s 9(2)(c).}

³⁹ _{R v Rakete [2013] NZHC 1230 at [34].}

⁴⁰ R v Rakete [2013] NZHC 1230 at [34].

(i) Axl gave evidence of Adam’s extreme assault on him with a builder’s level, which, in your mother’s words, opened up the top of his head.

(ii) On another occasion Adam burst into your room and attacked your boyfriend Darren. Your mother recalled that occasion vividly because she remembers seeing you with Darren’s blood on your face. You were traumatised by these incidents, she said.

(d) You had witnessed Adam beating a woman with an axe handle.

(e) You knew of an occasion where Adam stabbed his friend in the face with a filleting knife.

(f) And Adam attacked your girlfriend and punched her in the face at the party you helped to organise. She was 17.⁴¹

(g) And you knew Adam to be violent and abusive towards your mother

Kelly. She was frank about that in her evidence.

[63] I must take into account how you understood things on that day. From your point of view Adam was exceptionally aggressive and unpredictable. On the day of your offending, he was once more being menacingly and dangerously violent.

[64] Thirdly, the use of the gun appears impulsive, motivated by fear rather than premeditation. The forensic evidence indicates that Adam had trapped you in your bedroom. I do not accept you sought him out with the gun.

[65] Although I am required to have regard to other similar cases when setting a starting point that is not easy for the reasons I have given. As I have said, absent mitigating factors a starting point of six years imprisonment would be appropriate. In my view, the cumulative effect of the mitigating factors relating to the offending

itself substantially reduces your culpability. The culpability is markedly different from the cases the Crown points to (R v Pira and R v Flavell).

[66] On the basis of the cases I have considered and the factors I have outlined, I have come to the view that an appropriate starting point in your case is four years imprisonment. This starting point reflects also what the Law Commission describes as the reduced culpability of victims of family violence who kill their abusers.⁴² It is also within the range of three and a half to five and a half years for people who have killed abusive partners to which I’ve already referred.

Mitigating factors

[67] Having chosen a starting point it is necessary to consider whether there should be increases or decreases to take account of additional aggravating or mitigating factors that are personal to you. These are different from the aggravating and mitigating features relevant to the actual offence.

[68] In my view, there are no aggravating factors that are personal to you. There are some mitigating factors.

Mental health

[69] Dr Barry-Walsh conducted an assessment and produced a report to assist with sentencing. He concluded that while there was “little evidence of psychiatric disorder active at the time of the offending” you “frequently experienced first-hand [Adam’s] capacity for violence and had been repeatedly frightened and disturbed by these episodes.” Being at home with him made you anxious, and you were, the doctor records, “sensitised by previous events”, both those relating to Adam and your recent fear of attack by the gang. Dr Barry-Walsh concludes:

Noting her tendency to under report and to be a shy and self-contained individual, it is possible that she was more disturbed and distressed by these previous incidents than she described to me. Thus there appears to be a convincing link between her past experiences of violence and mistreatment at the hands of Mr Watkins and her description of a fearful response to his behaviour leading up to the offending.

[70] The Crown submits that the cases concerning the extent to which past violence by the primary aggressor amounts to a mitigating factor are not properly applicable on the basis that “while [you] had some previous encounters with Mr Watkins” these encounters were “not on a consistent or prolonged basis.” In my view the submission does not really reflect the facts. As well the focus must be on the extent to which the evidence shows the past violence by the primary aggressor

materially contributed to the offending⁴³ rather than a focus on the kinds of

categories the Crown points to.

[71] Dr Barry-Walsh’s expert opinion supports the conclusion that the violence you had experienced at the hands of Adam likely affected your ability to respond in a proportionate way on that day.⁴⁴ The Act requires that I take into account the possibility that you had a diminished ability to understand what was happening at the time of your offending.⁴⁵

[72] In this case, your past experience of violence meant that you responded to Adam’s violence on that day in a way that may have been different from a person who did not have those experiences. I consider that a discount of 20 per cent is appropriate.⁴⁶ On that basis and before considering other mitigating factors I reach a provisional sentence of 3 years and two months imprisonment.

Youth

[73] Then there is your youth.⁴⁷ As I have said you were 19 when this happened and 20 now. The authorities indicate that youth is a mitigating factor for a number of reasons. Anybody would have difficulty in making careful judgements in the circumstances you were in, but your age likely made it more difficult still.⁴⁸ Being

_{young would result in imprisonment having a disproportionate effect on you.}⁴⁹

⁴³ _{R v Whiu [2007] NZCA 591 at [32]}

⁴⁴ _{R v Rakete [2013] NZHC 1230 at [41].}

⁴⁵ _{Sentencing Act 2002, s 9(2)(e).}

⁴⁶ _{See R v Tagatauli [2016] NZHC 757 at [37]; R v Whiu [2007] NZCA 591 at [44].}

⁴⁷ _{Sentencing Act 2002, s 9(2)(a).}

⁴⁸ _{Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77(a)].}

49. Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [85]; R v Slade [2005] NZCA 19; [2005] 2 NZLR 526, (2005) 21 CRNZ 600 (CA) at [45].

Perversely, imprisonment might increase the likelihood of you reoffending in future.⁵⁰ And, finally, a young person has greater prospects of rehabilitation.⁵¹

[74] The Crown submits that any youth discount must be small because you were not so young and because the offending was very serious. The authorities concerning the effect of seriousness of the offending on a discount for youth say that the rationale for prioritising seriousness is that in some cases the very factors that have led a young person to commit a serious crime might themselves be indicators of

future public risk.⁵² But while taking a life is unquestionably serious I do not

consider that the seriousness of your offence is a factor indicating future public risk and, therefore, telling against what would otherwise be an appropriate discount for your youth.

[75] Consistent with authority I allow a reduction of six months in recognition of your age.

Remorse

[76] Second, remorse.⁵³ You have made apologies to the wider victims of your offending and report that you are very sorry for what you have done, taking away your brother’s father and mother’s partner. You reported to Dr Barry-Walsh that you thought about Adam and felt sadness, guilt, and regret for what you have done. You said your feelings would last for a couple of hours and you felt that way every day.

[77] I accept your feelings are real and that in the circumstances you are entitled to a discount of three months.⁵⁴

⁵⁰ R v Accused (CA518/99) (2000) 17 CRNZ 300 (CA) at [18]; R v Raivaru HC Rotorua

_{CRI-2004-077-1667, 5 August 2005 at [32].}

⁵¹ _{Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [88].}

⁵² _{Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [84].}

⁵³ _{Sentencing Act 2002, ss 9(2)(f) and 10.}

⁵⁴ Compare R v Wharerau [2014] NZHC 1857, upheld on appeal in Wharerau v R [2015] NZCA

299.

Previous good character

[78] Fourth, the law requires that I have regard to previous good character.⁵⁵ You have convictions for two charges of shoplifting in September 2013. You were ordered to come up for sentence if called upon. Apart from that minor offending you have been responsible and law abiding. The charges do not in my view detract from the quality of your character particularly in light of what might have been expected from someone who has not been led to expect stability or secure role modelling through your young life. I also take account of the consistent theme in the letters from your supporters as to your personal qualities and potential.

[79] I allow a discount of five months for this mitigating factor.

[80] On this basis I arrive at an end sentence of 24 months imprisonment.

[81] This means home detention is available for consideration. I accept the Crown’s submission that the offending involved the use of a firearm and the loss of a human life and that there is need to mark the sanctity of life. But I consider that in your case the relevant purposes and principles of the Sentencing Act will be met if you have to serve the maximum period of home detention. It is a real alternative to imprisonment and the Court of Appeal has said it carries with it in considerable measure the principles of deterrence and denunciation. It will be apparent from my analysis of the circumstances of your offending that I consider the principles of deterrence and denunciation, which would normally require a sentence of imprisonment for manslaughter, will be properly marked by home detention.

Sentence

[82] Ms Kirk will you please stand.

[83] I sentence you to 12 months home detention. You are to proceed directly to the approved address where you are to await the arrival of the Probation Officer.

_Thereafter:

⁵⁵ Sentencing Act 2002, s 9(2)(g).

(a) You are to reside at that address for the duration of the sentence. (b) You are not to possess or take illicit drugs.

(c) You are to consult with Dr Barry-Walsh for the purpose of his further assessment.

[84] Please stand down. Thank you Mr Antunovic and Mr Woods for your submissions.

Karen Clark J