Parish v Police

[2023] NZHC 2272

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2023-412-054 CRI-2023-412-055

CRI-2023-412-056 [2023] NZHC 2272

BETWEEN

JASON PARISH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	17 August 2023
Counsel:	B P Kilkelly for Appellant M Brosnan for Respondent
Judgment:	22 August 2023

JUDGMENT OF CHURCHMAN J

Introduction

[1]    Mr Jason Parish, 49 years old and of Ngāpuhi descent, was convicted in the District Court at Palmerston North on 7 March 2023 in respect of four charges of breaching home detention. He was ordered to come up for sentence if called upon within one year.

[2]    Not long after this conviction, Mr Parish engaged in further offending.  On  10 and 12 March 2023, he shoplifted property at two different stores in Palmerston North. On 12 April 2023, Mr Parish pleaded guilty to the following charges:

(a)theft (exceeding $500 but not exceeding $1,000);1 and

1      Crimes Act 1961, ss 219 and 223(c). Maximum penalty of one year imprisonment.

PARISH v NEW ZEALAND POLICE [2023] NZHC 2272 [22 August 2023]

(b)theft (exceeding $1,000).2

[3]    On 26 June 2023, Corrections made an application for the breaches of home detention to be brought before the Court for sentencing pursuant to s 111(2) of the Sentencing Act 2002.   This application was granted.   Mr Parish was sentenced on   4 July 2023 in the District Court at Dunedin by Judge Turner to 10 months and two weeks’ imprisonment. Mr Parish now appeals his sentence.

Background

Offending

[4]    Mr Parish was sentenced to nine months’ home detention on 26 April 2022. The underlying charges for this were: six charges of theft; one charge of theft from a motor vehicle; four charges of burglary; and one charge of behaving threateningly. Whilst on home detention, Mr Parish breached four times between 3 November 2022 and 17 January 2023. The breaches involved Mr Parish leaving the home detention address without an approved absence, failing to comply with a direction notice, failing to attend a programme as part of his special conditions, diverting from the route which has been approved when he was granted permission to leave the address, and failing to charge the battery on his monitoring device. These breaches gave rise to the convictions Mr Parish received on 7 March 2023.

[5]    The first charge of theft arose from offending that occurred on 10 March 2023 at around 1:44pm. Mr Parish entered Jaycar Electronics in Palmerston North and stole a 3000-Watt Inverter worth $819. The second charge of theft arose from offending that occurred on 12 March 2023 at around 1:15pm. Mr Parish entered Briscoes in Palmerston North and stole two sets of bedsheets that had a combined value of

$1,179.98.

Sentencing decision

[6]    After setting out the facts of the offending, the Judge noted that while on bail awaiting sentencing Mr Parish moved from Palmerston North to Dunedin and

2      Sections 219 and 223(b). Maximum penalty of seven years’ imprisonment.

breached his bail curfew twice. Mr Parish was also remanded in custody on 23 June 2023 in respect of later bail breaches. On the date of sentencing, it was admitted that he had breached bail on another four occasions before being remanded in custody.

[7]    The Judge further noted Mr Parish’s extensive criminal history. He has had multiple burglary, theft and dishonesty convictions as well as a significant history of violent convictions for grievous bodily harm, threatening to kill and aggravated robbery in particular. Mr Parish has also spent a significant amount of his life in prison.

[8]    From the outset, the Judge ruled out the possibility of an EM sentence or a sentence of community work. This was because Mr Parish’s home did not have power at the time the probation report was prepared. Further, Mr Parish’s recent history of breaching home detention and breaching community detention showed Mr Parish’s inability to “comply with sentences of the Court”, making a community sentence inappropriate. The Judge disagreed  with  the  probation  report’s  suggestion  that Mr Parish was “moving in the right direction”, considering his recent history.

[9]    Taking into account Mr Parish’s personal circumstances, the Judge also ruled out an order for reparation. Mr Parish currently owes over $15,000 in fines and reparations and is only paying it off at about $10 per week.   The Judge held that   Mr Parish had no ability to pay any reparation.

[10]   The Judge said he would take into account the support Mr Parish was receiving from the local marae, the steps he is slowly taking to get his life on track, and the fact his partner was due to have a baby, into account. The Judge held, however, that personal deterrence and accountability required a sentence of imprisonment. The Judge adopted a starting point of seven months’ imprisonment for the theft from Briscoes, uplifted this by two months for the Jaycar theft and three months for the home detention breaches on  a  totality  basis.  The  starting  point  was,  therefore, 12 months’ imprisonment.

[11]   The Judge uplifted the sentence by 10 per cent for relevant dishonesty convictions and a further five per cent for the fact he was on sentence at the time of

the offences. The Judge gave a 25 per cent discount for early guilty pleas, reducing the end sentence to 10 months and two weeks’ imprisonment. Mr Parish was also sentenced to the following concurrently:

(a)two months’ imprisonment for theft from Jaycar; and

(b)three months’ imprisonment for the four breaches of home detention.

[12]   Finally, the Judge refused leave for Mr Parish to apply for a substituted sentence.

Appeal principles

[13]   As this is an appeal against sentence under s 250 of the Criminal Procedure Act 2011 (CPA), the appeal will be allowed if the Court is satisfied that:

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

[14]   Despite the lack of express reference to the sentence being “manifestly excessive” under s 250(2) of the CPA, the sentence must be considered as to whether it is manifestly excessive.3 The focus is to be on whether the end sentence imposed by the Judge was within range, not on whether the process adopted to reach that end sentence was correct.4

Submissions

Appellant submissions

[15]   Mr Kilkelly, for Mr Parish, submits that the Judge gave too little regard to the positive steps Mr Parish has taken to get his life back on track and that in these circumstances, in line with s 8(g) of the Sentencing Act 2002, the least restrictive

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27], [33], and [35].

4      Ripia v R [2011] NZCA 101 at [15].

outcome in these circumstances would have been a sentence of home detention with sentences of community work and intensive supervision. He further submits that the Court could have granted leave for Mr Parish to apply for a substituted sentence.

[16]   Mr Kilkelly states that at the time of the shoplifting, Mr Parish had been suffering a lack of finances and housing – living in a car with his partner at the time of the offending. Mr Parish was also depressed and not taking is ADHD medication, leading him to make bad decisions. Mr Kilkelly submits that Mr Parish’s circumstances have now changed. He is now living at the Puketeraki Marae north of Dunedin, in his grandmother’s old house, allowing him to establish a support network with his wider whānau and being able learn more about his whakapapa.

[17]   Mr Kilkelly submits this house is now suitable for an EM sentence, as power has now been restored at the address, removing the barrier to electronic monitoring as discussed in the District Court decision. He further submits that the Judge placed too great of a weight on Mr Parish’s failure to finish the programmes he needed to complete for  his  special  conditions  in  his  previous  home  detention  sentence.  Mr Kilkelly states that he could not attend one of the programmes because of contracting COVID-19 and, since he missed sessions that were too important, he was asked to leave. Mr Parish left the other programme as he was finding the content personally challenging, which Mr Kilkelly submits is not unusual in a therapeutic setting. It was, therefore, wrong for the Judge to characterise this as mere failure to comply with Court orders.

Crown/Police submissions

[18]   Ms Brosnan, for the Crown/Police, submits Judge Turner did not err in his decision and that the sentence  imposed  on  Mr  Parish  is  not  manifestly  unjust. Ms Brosnan submits that even if Mr Parish now has power connected at his new address, there was not enough information available to Judge Turner to be able to impose an EM sentence and there is still not enough information for this Court to impose one. Neither the suitability of the address nor the suitability of the occupant have been assessed by Corrections. Ms Brosnan notes there have been multiple family harm incidents between Mr Parish and the other occupant.

[19]   Ms Brosnan also submits that an EM sentence could not be imposed legally, as there is no information on the conditions to be imposed nor whether Mr Parish consents and agrees to comply with them.5 Ms Brosnan argues an EM sentence would not promote a sense of responsibility in Mr Parish nor deter him from further offending. This is because it may be likely there are issues with Mr Parish’s compliance with this sentence, considering the nearest Corrections Community Probation office is 40km away from the proposed address. Further, Mr Parish has a “footprint” of breaching EM sentences and reoffending on curfew. The need for deterrence and accountability was high, EM sentences have not had this effect on  Mr Parish previously, Corrections deemed Mr Parish an unsuitable candidate, and it was open for the Judge to refuse to grant an EM sentence.

[20]   Ms Brosnan submits it is hard to accept that Mr Parish is on the right track in terms of his rehabilitation. Regarding the rehabilitative courses he failed to complete, Mr Parish never advised Corrections he had COVID-19 and there was no evidence to support this explanation. Mr Parish has been offered the opportunity to take part in alternative courses which he has either failed to attend or has refused to take part in. Further, even while Mr Parish has been living in Dunedin away from “anti-social peers”, he has breached bail on several conditions at his Dunedin address.

[21]   Finally, Ms Brosnan submits that intensive supervision is also not appropriate as Mr Parish has previously served a sentence of intensive supervision and reoffended within one month.

Should Mr Parish be sentenced to home detention, community work and intensive supervision?

[22]   I deal with each alleged error in turn. Although s 8(g) of the Sentencing Act states that a Judge must impose the least restrictive outcome that is appropriate in the circumstances, I do not agree with Mr Kilkelly that it was appropriate in these circumstances for the Judge to impose a combined sentence of home detention, community work, and intensive supervision. What is evident from Mr Parish’s criminal history is that there needs to be a clear focus on deterrence to prevent

5      KM v Police [2012] NZHC 3066 [34]–[37].

Mr Parish from continuing to offend and denunciation of his conduct.6 Community work and home detention sentences for previous property offences have not deterred Mr Parish as he has committed further property offending. Further, Mr Parish was sentenced for four breaches of home detention and one breach of community work at the same time as the latest property offences he has committed. I agree with the District Court Judge this represents an inability for Mr Parish to comply with sentences of the Court.

[23]   I have some sympathy for the circumstances Mr Parish found himself in and acknowledge that these circumstances have now changed. However, I am not satisfied his circumstances have changed to the extent that it would be appropriate in these circumstances to sentence Mr Parish to a non-custodial sentence. As the restrictions Mr Parish would experience on home detention would be greater than on bail, I fear Mr Parish will not be able to comply with this sentence even in his new environment.

[24]   I agree with Ms Brosnan that home detention could also not be imposed in these circumstances as there are no proposed conditions that have been agreed to.7 There is also no information provided as to the suitability for EM monitoring nor the suitability of the occupant. Mr Parish has also been deemed by Corrections to be an unsuitable candidate for home detention.

[25]   I do not agree that the Judge placed too great a weight on Mr Parish’s inability to complete rehabilitative programmes. There was no evidence in front of the Judge that Mr Parish indeed had COVID-19 nor that he informed Corrections that this was the reason for his non-attendance. Further, completing the programmes were conditions of his home detention sentences, making it relevant within the Judge’s assessment of whether it would have been appropriate to sentence Mr Parish to home detention.

[26]   Finally, intensive supervision is not an appropriate sentence for Mr Parish. The Court may impose this sentence if it would reduce the likelihood of further offending

6      Sentencing Act 2000, ss 7(e) and 7(f).

7      Section 80A.

by the offender through the rehabilitation and reintegration of the offender.8 Intensive supervision has not reduced Mr Parish’s likelihood of reoffending in the past, as he reoffended within one month after  a  sentence  of intensive supervision.  Further,  Mr Parish does not seem willing to participate in rehabilitative treatment and I am unconvinced as to his ability to do so considering the isolation of the address he proposes to reside at and the fact he is on a learner driver’s licence which would make driving to appointments problematic.

[27]   Overall, I consider that the Judge was correct in sentencing Mr Parish to a sentence of imprisonment. A non-custodial sentence would not have been appropriate in these circumstances.

Conclusion

[28]Appeal dismissed.

Churchman J

Solicitors:
Crown Solicitor, Dunedin for Respondent

8      Section 54C.