Paraha v Police
[2017] NZHC 1887
•7 August 2017
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2017-488-000020 [2017] NZHC 1887
BETWEEN SHANE PARAHA
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 7 August 2017 Appearances:
N Leader for the Appellant
J P R Scott for the RespondentJudgment:
7 August 2017
ORAL JUDGMENT OF HINTON J
Counsel/Solicitors:
Nicholas Leader, Barrister, Auckland
Marsden Woods Inskip & Smith, Whangarei
SHANE PARAHA v NEW ZEALAND POLICE [2017] NZHC 1887 [7 August 2017]
Introduction
[1] On 22 May 2017, Mr Paraha was sentenced in the Whangarei District Court by Judge McDonald.1 Mr Paraha was sentenced to 25 months’ imprisonment for causing grievous bodily harm with reckless disregard,2 and 18 months’ imprisonment for five charges of assault with a weapon.3 These sentences were to be served concurrently.
[2] Mr Paraha appeals against his sentence.
Factual background
[3] On the night of Saturday 17 December 2016, a group of about six young people went to the Business District in Whangarei to visit local bars and have a night out. At about 2.00 am, when waiting for a taxi to pick them up, members of that group became involved in an argument with Mr Paraha and two of his companions. Around an hour-and-a-half later, at 3.30am, Mr Paraha was sitting in the front passenger seat of a silver Chrysler, which was being driven down Bank Street. The victims were sitting outside a commercial property on the corner of Water and Bank Streets. As the car approached the intersection of Bank Street and Water Street, Mr Paraha wound down the front passenger window of the Chrysler, and rested a paintball gun on the window. He then fired that gun in rapid fire mode at the victims.
[4] Six of the eight members of the group who were sitting outside the property on the corner of Water and Bank Streets were hit by the paintball rounds fired from Mr Paraha’s gun. One of the victims was hit in her right eye and was permanently blinded. She also consequently suffered eye strain, headaches and anxiety after the incident. The other victims were hit with one paintball each, the paintballs striking at different locations on each victim’s body, ranging from the stomach, upper arm,
upper thigh, right side of back and the chest. All those struck to the body suffered
1 Police v Paraha [2017] NZDC 10689.
2 Crimes Act 1961, s 188(2). The maximum penalty is seven years’ imprisonment.
3 Crimes Act 1961, s 202C(1). The maximum penalty is five years’ imprisonment.
welts and bruising from being hit with the paintball rounds. One victim stated that they also suffered ongoing emotional effects. I fully expect others did too.
[5] Mr Paraha then quickly left the scene.
[6] When the police located Mr Paraha, he told them that the verbal argument led him and his friends to formulate a plan to retaliate, which was to fire at the other group with a paintball gun if they found them. Mr Paraha said he shot up to ten rounds at the group, deliberately aiming at them, but he did not realise the paintballs would cause as much damage as they did.
District Court Decision
[7] Judge McDonald took the charge of grievous bodily harm as the lead offence. His Honour considered that there was premeditation and that Mr Paraha deliberately aimed at the group, specifically at their upper bodies. His Honour then noted that there is no tariff or guideline judgment to assist him. He set the starting point for the lead offence at two years and seven months’ imprisonment.
[8] Judge McDonald then uplifted the starting point by seven months to take into account the other charges against Mr Paraha. He did not consider that there were any relevant personal aggravating factors, and he considered that Mr Paraha was entitled to discounts for his youth and his remorse. He also considered that a discount of 20 per cent was appropriate for his guilty plea.
[9] Judge McDonald imposed an end sentence of 25 months’ imprisonment for the lead offence, and sentences of 18 months’ imprisonment for the other charges, all to be served concurrently.
Grounds of appeal
[10] Mr Paraha appeals his sentence on the following grounds:
(a) the starting point was adopted in error and as a result was too high;
(b)an insufficient discount was given for Mr Paraha’s personal mitigating factors, namely his personal circumstances, which include his remorse, age, employment, lack of previous relevant convictions, and his assistance to police; and
(c) an insufficient discount was given for Mr Paraha’s guilty plea.
Approach on appeal
[11] An appeal against sentence is brought under s 244 of the Criminal Procedure Act 2011. The appeal must be determined in accordance with s 250 of the Act, which states that the Court must allow the appeal if satisfied that:
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
[12] In any other case, the Court must dismiss the appeal.4
[13] The Court of Appeal in Tutakangahau v R confirmed that s 250 was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.5 While s 250 does not make an express reference to “manifestly excessive”, this principle is “well-engrained” in the court’s approach to sentence appeals.6
[14] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the
process by which the sentence is reached.7
4 Criminal Procedure Act 2011, s 250(3).
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
6 At [33] and [35].
7 Ripia v R [2011] NZCA 101 at [15].
Analysis
The starting point
[15] Judge McDonald’s reasoning with respect to the starting point of two years and seven months’ imprisonment included assessing Mr Paraha’s actions as involving intent. Judge McDonald stated:8
This was serious offending although the most serious charge says with reckless disregard for the safety in my view this was a planned and deliberate action on your part. (sic)
[16] The charge that Mr Paraha pleaded guilty to under s 188(2) of the Crimes Act, and that he was sentenced on, was causing grievous bodily harm with reckless disregard for the safety of others.9 He was not charged with, nor did he plead guilty to, the alternative mens rea offence of doing so with intent.
[17] Brewer J in Hepi v Police identified the difference between charging wounding with intent, or charging wounding with reckless disregard. His Honour stated:10
… the Police did not charge wounding with intent to injure. Instead, the charge was wounding with reckless disregard. That has a very different element of intent. This is recognised by the Court of Appeal in Nuku. At [37] of the judgment, the Court of Appeal states that it will replace an earlier decision of the Court (Harris) with guidance which will be applicable, inter alia, to offending under s 188(2). However, in footnote 39 which follows that decision, the Court of Appeal states:
Other considerations are likely to arise where the mens rea is reckless disregard for the safety of others, so we do not comment on those cases.
[18] Brewer J also considered the distinction between intent and reckless disregard for the safety of others. His Honour stated that reckless disregard is not an actual intent, but rather:11
The gravamen of a charge of wounding with reckless disregard to the safety of others is that the offender must be taken to have had an actual and conscious appreciation of the danger of her actions to the safety of others and with that actual and conscious appreciation proceeded with her actions regardless of the risk to the safety of others.
8 Police v Paraha, above n 1, at [8].
9 Crimes Act 1961, s 188(2).
10 Hepi v Police [2013] NZHC 2690 at [11].
[19] Here, the appellant accepts that he deliberately aimed his weapon at the victims and shot at them, but he was not charged with and nor does he accept that he intended to cause grievous bodily harm. I accept the appellant’s proposition that Judge McDonald erred by setting the starting point on the apparent basis that the appellant intended to cause serious harm.
[20] Further, I do not consider that the starting point of two years and seven months’ imprisonment is consistent with other “reckless disregard” cases.
[21] In reaching this conclusion, I have considered the cases Brewer J referred to in Hepi and the facts of that case itself.12 I agree these cases are more analogous to the present than for example proceeding from R v Nuku13 or R v Taueki.14 Even then, this case seems to be in a different category to Hepi and the cases to which I now refer.
[22] In Hepi, the defendant stabbed her partner in the neck with a 33 centimetre carving knife after a domestic argument. The victim received a second wound in his hand after he turned towards the defendant. Brewer J, after considering the relevant case law, assessed the level of recklessness as very high, and that a starting point of three years’ imprisonment was justified.
[23] Brewer J, in reaching that conclusion, considered two cases that he considered to be less serious, Macdonald v Police and Brooking v Police. In both, the victim was punched in the head. In Macdonald, the victim was knocked unconscious and suffered a fractured skull, a blown eardrum, and a brain haemorrhage. A starting point of two years and six months’ imprisonment was upheld on appeal. In Brooking v Police, the punch caused the victim to lose consciousness, her eye was lacerated, her glasses smashed, and she sustained abrasions and bruising to one of her arms. On appeal, Fogarty J considered that a starting point of two years would have been appropriate, but did not disturb the
District Court Judge’s starting point of two years and four months’ imprisonment.
12 Macdonald v Police [2012] NZHC 1767; Brooking v Police [2012] NZHC 3219;
Grimshaw-Jones v R [2010] NZCA 490; Middlemiss v Police HC Dunedin CRI-2009-412-38,
11 February 2010.
13 R v Nuku [2012] NZCA 584, [2013] 2 NZLR 39.
14 R v Taueki [2005] 3 NZLR 372 (CA).
[24] Two cases Brewer J considered to be more serious than Hepi were Grimshaw-Jones v R and Middlemiss v Police. In the former, the appellant had slapped a female victim across her face and attacked the male victim with a knife, causing a cut along the male victim’s jaw that was 11 centimetres long, two centimetres deep and required 24 stitches. The sentencing Judge set a starting point of two years and eight months’ imprisonment, and this was not disturbed on appeal. Brewer J considered, rightly so, that such a starting point was at the lowest end of
the available range.15 Clifford J in Hannay v Police agreed with Brewer J that the
sentence in Grimshaw-Jones was an outlier.16
[25] Middlemiss v Police involved the defendant using a boning knife to stab the victim in the stomach. The victim suffered a perforated bowel and was in hospital for three weeks. A starting point of three years was set, which was upheld on appeal.
[26] I also note that in Hannay v Police, the defendant had struck the male victim with a drinking glass to the back of the head. The strike caused a significant laceration to the back of the victim’s head, and required surgical repair. He then struck another blow with the jagged edge of the drinking glass to the forehead of a female victim. Clifford J considered that a starting point of two years and
three months’ imprisonment was appropriate for those two attacks.17
[27] While the facts in those cases differ from the circumstances here, I find them helpful in showing the range of starting points that have been reached in situations involving different degrees of harm and different aggravating factors.
[28] Here, the use of the paintball gun was dangerous, as evidenced by the harm caused to the eye of the main victim, harm from which she cannot recover. She will remain blind in that eye for the rest of her life. The damage done has had significant consequences for her. However, while the offending was clearly reckless and had terrible consequences, as it did in the other cases I have cited, it did not have the
viciousness or brutality that featured in those cases.
15 Hepi v Police, above n 10, at [15].
16 Hannay v Police [2014] NZHC 2015 at [30].
[29] Considering the overall circumstances, the cases given to me by Mr Leader, 18 and the cases above, in my view, the starting point reached was outside of the range available to Judge McDonald on the basis of proper sentencing principles. The starting point would have been in the realm of two years and four months’ imprisonment.
[30] I emphasise that this is only the starting point in respect of the offending against the main victim. This assessment alone cannot determine the appeal. It is whether the end sentence itself is manifestly unjust that must be determined. I therefore also turn to the remaining steps in the sentencing process.
The uplift
[31] The appellant accepts Judge McDonald’s uplift of seven months’ imprisonment for the five charges of assault with a weapon. I consider it was an appropriate uplift. That would bring the prison sentence to a total of two years,
11 months.
Mitigating factors
[32] The appellant submits that Judge McDonald erred by failing to give a sufficient discount for the appellant’s remorse, youth, employment, lack of relevant previous convictions, and assistance to the police. Judge McDonald, from his judgment, appeared to give a combined discount for remorse and youth of seven months. He did not discuss the other factors, or give a discount for them.
[33] Using traditional sentencing methodology of applying discounts personal to the offender prior to granting a discount for the guilty plea, the remorse and youth discount was just under 20 per cent. I accept submissions for the appellant that he has shown remorse through his willingness to make amends by way of an emotional harm payment, payments to replace the clothing of the victims and offering to attend
a restorative justice conference. He was also only aged 18 at the time of the
18 Hepi v Police, above n 10; R v Galvin CA330/95, 19 October 1995.
offending. However, I do not consider that the discount Judge McDonald gave was insufficient.
[34] I do not consider that the appellant’s lack of relevant previous convictions, namely convictions relating to violent offending, amounts to a mitigating factor. Absence of such convictions is not on its own an adequate indicator of previous good character, particularly where the appellant does not have a clean record, as he does have previous driving-related convictions.
[35] I also do not consider that the appellant’s previous employment in the forestry industry prior to being charged has any bearing in this matter. As a bare fact, it does not contribute to a finding of good character.
[36] Regarding “assistance to the Police”, it is submitted by the appellant that he made a full and frank confession to the Police, and that this merited a discount. I do not consider this justifies any discount in itself. I consider it is relevant to the guilty plea discount, to which I turn next.
[37] Applying the seven-month discount for mitigating factors that Judge McDonald applied would bring the sentence back down to two years, four months.
Guilty plea
[38] The appellant submits that a full 25 per cent discount for the guilty pleas should have been granted. The appellant comments that he pleaded promptly to the five charges of assault with a weapon, and while there was a delay in pleading guilty to the charge of grievous bodily harm, this was only as a result of waiting to obtain appropriate medical evidence to establish the extent of the injury to the victim whose eye was struck by a paintball. Such evidence was relevant to determining whether the correct charge had been laid. Once the damage to the victim’s eye was confirmed by independent medical evidence, the plea of guilty was entered.
[39] I consider in these circumstances the guilty plea was entered at a sufficiently early time to justify the full 25 per cent discount. The appellant did not contest his
involvement in the offending, and had already admitted to the other charges. The reason for waiting to plead to the most serious charge was justified.
[40] The Judge seemed to reduce the 25 per cent discount that would normally be available for early guilty pleas on the basis that there was no defence. The Courts have taken different views as to whether and when that is appropriate. I agree that the Crown had a strong case, but that was at least in part because of the appellant’s full and frank confession at the outset. In my view, in all the circumstances, the discount should have been the full 25 per cent that is generally available for prompt guilty pleas.
[41] The effect of the 25 per cent discount would be to reduce the sentence to one year, nine months’ imprisonment. Because this is below two years’ imprisonment, a sentence of home detention would be available if considered appropriate. As the Court of Appeal stated, in a case where the sentence was reduced by only two months from two years, one month to one year, 11 months’ imprisonment: 19
Appellate courts are generally reluctant to impose small changes to
sentences. … However, a sentence of two years or less is a short-term sentence of imprisonment under s 15A(1)(b) of the Sentencing Act. This means that a sentence of home detention is available. The Court must impose the least restrictive outcome that is appropriate in the circumstances: citing s 8(g) of the Sentencing Act.
[42] Home detention is a real alternative to imprisonment and as is often said, carries with it in considerable measure, the principles of deterrence and denunciation.20 Home detention is not an easy option, as it might seem viewed from the outside. It is not uncommon for a defendant ordered to attend home detention to find the restrictions and isolation intolerable and to request a prison sentence instead. The important point is that there are considerable benefits to home detention for the public, including low rates of re-conviction and positive support for offenders’
reintegration and rehabilitation.21 There is a greater chance that someone like this
19 R v Gledhill [2009] NZCA 415 at [32].
20 R v Iosefa [2008] NZCA 453 at [41].
21 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [33]. See also, Shaw v R [2015] NZHC 2866 at [32].
offender will not cause further serious harm to innocent people like the victims in this case.
[43] I consider that home detention would be the least restrictive sentence appropriate in the circumstances. My reasons are that:
(a) This is the first violent offence committed by the appellant. The fact this is effectively the appellant’s first conviction has not otherwise been taken into account at all in his sentencing.
(b) The appellant is genuinely remorseful. (c) The appellant is young.
(d)The appellant’s actions were clearly terrible, with long-term consequences for the victim, but a sentence of home detention is still a punitive sentence that serves the principles and purposes of deterrence and denunciation.
(e) It is a principle of sentencing to assist in the offender’s rehabilitation and reintegration.22 Attendance at counselling and rehabilitative programmes in a positive environment with his whānau would best assist the appellant’s rehabilitation.
(f) There is an appropriate home detention address.
[44] I must also consider the appropriate conversion of a term of imprisonment to a term of home detention. There is a general practice in calculating the term of home detention of halving the end point of the imprisonment calculation. This reflects the fact that a sentence of home detention must be served in full. In contrast, the statutory release date of a short term sentence of imprisonment is half that sentence. If I were to halve the end point of a one year, nine-month imprisonment term, that would come to ten-and-a-half months’ home detention.
[45] The Court of Appeal in R v Bisschop accepted that the practice of halving the end point is not required as a matter of law. They said:23
We do not accept that any mathematical process should be adopted. The proper approach … is an evaluative assessment of all the circumstances. While the maximum period of home detention that can be imposed (12 months), equates with the maximum period an offender sentenced to a short-term sentence of imprisonment is required to serve, it does not automatically follow that the appropriate term of home detention will be half the appropriate sentence of imprisonment in every case.
[46] I consider in these circumstances that a sentence of ten-and-a-half months’
home detention would have been appropriate.
[47] Overall, taking the view as I do that the starting point was too high and that a
25 per cent discount was merited in this situation, the sentence imposed was manifestly unjust on the basis that the sentence itself was too severe, and in particular, because home detention would have been the appropriate sentence.
[48] The appellant has already been in prison for two-and-a-half months. It is necessary to take account of that time in fixing the final sentence. The Courts often deduct the prison sentence served from the home detention sentence, but also regularly deduct either two-thirds or one half. I am not going to allow a full deduction. Rather, I will deduct one-and-a-half months to reach a sentence of nine months’ home detention.
Result
[49] The appeal is allowed. I quash the sentence of two years and one month’s imprisonment and substitute a sentence of nine months’ home detention on all charges, taking into account the time already served in prison. The following conditions will apply to the sentence of home detention:
(a) The appellant is to travel directly to the address of 31 Tauroa Street, Raumanga, Whangarei, and await the arrival of a probation officer and a security officer.
(b)The appellant is to reside at 31 Tauroa Street, Raumanga, Whangarei for the duration of his sentence.
(c) The appellant is to remain at the approved address for 24 hours each day unless granted an approved absence by the probation officer.
(d)The appellant is not to purchase, possess or consume alcohol while subject to the conditions of home detention and is to submit to any breath or blood alcohol screening procedures as administered by New Zealand Police upon the direction, or at the request of the probation officer.
(e) The appellant is not to possess or be in control of firearms or paintball guns for the duration of the period of home detention.
(f) The appellant is to attend a full assessment and undertake such counselling and/or treatment for alcohol dependency as directed by the probation officer to the satisfaction of the programme provider and the probation officer.
(g) The appellant is to attend such courses and/or programmes including a
Tikanga Māori Programme as directed by the probation officer.
(h)The appellant is to undertake such other treatment, counselling, or courses as deemed appropriate by the probation officer.
[50] A post-detention condition will apply as follows:
The appellant is to undertake and complete any remaining rehabilitative programme, counselling, treatment and maintenance follow-up programme as directed by the probation officer.
[51] It is important these conditions are fully complied with. There is constant monitoring of offenders on home detention. Failure to comply will likely result in a return to prison.
---------------------------------------- Hinton J
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