Parker v Police
[2022] NZHC 2124
•25 August 2022
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2022-412-000012
[2022] NZHC 2124
BETWEEN MARIKA SAMUEL DONUMAIWAI PARKER
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 22 August 2022 Appearances:
L S Collins for Appellant C Flatley for Respondent
Judgment:
25 August 2022
JUDGMENT OF DOOGUE J
This judgment was delivered by me on 25 August 2022 at 10.30 am
Registrar/Deputy Registrar Date:
PARKER v NEW ZEALAND POLICE [2022] NZHC 2124 [25 August 2022]
Introduction
[1] The appellant, Mr Marika Parker, was sentenced together with five co-offenders in the Dunedin District Court on a charge of wounding with intent to injure.1 Mr Parker faced additional charges of injuring by an unlawful act,2 and two counts of common assault arising from the same incident.3 After pleading guilty to these charges, he was sentenced to two years and five months’ imprisonment.4
[2] Mr Parker now appeals that decision on the basis his sentence is manifestly excessive and that the appropriate sentence is one that would allow the Court to consider home detention.
Facts
[3] On the evening of 25 September 2021, Mr Parker was at a party at an address in Leith Street, Dunedin. His five co-offenders were making their way as a group to the party. This involved using a shortcut through a gap in a fence between the address of the victim (“T”) and a flat on Castle Street. T had just used the shortcut. When he got into the backyard of the Castle Street flat an altercation broke out between himself and the offenders at the gap in the fence. The five offenders started assaulting T.
[4] Mr Parker came out of the Leith Street address and looked over the back fence to see the assault taking place. He jumped over the fence and walked up to the victim (“G”). At the time, G was trying to assist T by pulling the offenders away from him. Mr Parker approached G and punched him once in the side of the head from behind. As a result, G was knocked unconscious and fell to the ground. G received a severe concussion and pain and bruising to his right jaw area.
[5] During the course of the attack on T, T was surrounded by the six offenders. He was knocked to the ground where each of the offenders, including Mr Parker, proceeded to punch, kick and stomp on him. T struggled to get to his feet a number of times and on each occasion the offenders pulled him back onto the ground and
1 Crimes Act 1961, s 188(2) – maximum penalty of seven years’ imprisonment.
2 Crimes Act, s 190 – maximum penalty of three years’ imprisonment.
3 Crimes Act, s 196 – maximum penalty of one year’s imprisonment.
4 R v Parker [2022] NZDC 4651.
continued the beating. He was punched in excess of 70 times and received multiple kicks and stomps to all areas of his body while he was on the ground, including a large number of blows to the head.
[6] Efforts by T’s friends, (“D”) and (“K”), to assist him resulted in them being assaulted by Mr Parker. When D tried to intervene, Mr Parker punched him approximately six times in the head before being pulled away by an associate. Near the end of the assault on T, Mr Parker turned around and again punched D once in the face. When K tried to come to T’s aid, Mr Parker punched him twice in the head. He also attempted to hit K a third time but the punch missed and he accidentally punched one of his co-offenders. As a result of being assaulted by Mr Parker, D and K sustained pain and bruising to their faces.
[7] At one point during the assault one of Mr Parker’s co-offenders, (“W”), searched the immediate area looking for a weapon. He picked up a beer bottle and returned to where T was being assaulted. When he was within range, W forcefully struck T on the top of his head with the bottle.
[8] As a result of the offending, T sustained a concussion and received multiple cuts and grazes to his body, head and face, a large wound to the left lumbar region and a split left ear.
[9] In explanation for the offending, Mr Parker initially stated that he looked over the fence and saw his friends being beaten up by a group of guys so went over to help them. However, after viewing the CCTV footage of the incident, he acknowledged he assaulted the victims but he continued to minimise his involvement.
District Court decision
[10] In sentencing each of the six offenders, the Judge adopted a collective starting point before reviewing the particular circumstances as they related to each individual. The Judge described the offending as two minutes of alcohol-fuelled drunken violence committed with a pack mentality against a person who was largely defenceless. The attack, which was captured on video, was in the Judge’s view aggravated by the fact that it continued despite T’s pleas to his assailants for them to stop. The Judge noted
the very significant harm to the community caused by alcohol-related offending and the consequent need for the sentence to provide deterrence.
[11] The Judge reviewed the significant and ongoing physical and psychological effects of the assault on the victims, particularly T who was unable to continue studying at university and has been diagnosed with PTSD. He was assessed as being unlikely to be able to “return to full function until about nine months post-injury” such had been the profound trauma he suffered. He continues to suffer headaches, vision loss, fatigue, reduced concentration, changes in memory, delayed information processing and mood changes. The Judge observed the ongoing effects on this young man had been severe.
[12] The Judge detailed that G had continued to suffer from headaches, tiredness, diminished memory and an inability to focus that had significantly affected his ability to study. His tendency to lose focus and inability to retain information caused him significant stress, anxiety and loss of confidence. He still struggles to understand why he was hit from behind without provocation, is more anxious around strangers and conscious of potential threats. K was noted as experiencing increased anxiety and fearfulness about going out, even in a community where he had previously felt safe. D was also recorded as being more wary of others.
[13] The aggravating features identified by the Crown were not disputed. They included extreme violence, serious injury, attacks to the head (which it was noted could be treated as similar to attacks where a weapon has been used), the vulnerability of the victim (who was on the ground for the majority of the attack) and the multiple attackers (six on one). After referring to a number of relevant authorities, a starting point of three years and six months’ imprisonment was adopted for each offender on the wounding with intent charge.5
[14] A full 25 per cent discount was afforded to each offender for their guilty pleas. The Judge acknowledged credit would be available for the offenders’ age, each of
5 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39; Webber v R [2012] NZCA 594; Wynd v Police [2013] NZHC 1270; Poi v R [2015] NZCA 300; Hammond v R [2021] NZHC 1064; Scanlan v Police [2021] NZHC 2071; and Wiki v R [2022] NZHC 340.
whom was 19 years at the time of the offending and likely influenced by peer pressure in joining in the assault.
[15] Turning specifically to Mr Parker, the Judge, having viewed the video, noted Mr Parker first felled G with a “king hit” or “coward’s punch” as he was being held by another offender. Thereafter, he found Mr Parker delivered sustained brutal violence against three different victims. The Judge rejected the argument Mr Parker was less culpable than the other offenders because he inserted himself into the assault later. While he accepted Mr Parker was not the instigator, he considered the lesser time of his involvement was made up for by the frequency and number of blows he delivered against multiple victims.
[16] The Judge acknowledged Mr Parker had prior contact with the Court by way of a discharge without conviction and expressed concern Mr Parker was beginning to demonstrate a pattern of violent behaviour. He considered Mr Parker had clearly abused the leniency previously afforded by the Court and that this gave rise to four conclusions:
(a)he was not entitled to any reduction for good character;
(b)the Stopping Violence programme and counselling he undertook would have made the link between alcohol and violence well known to him;
(c)by drinking he put himself and the community at risk; and
(d)his tendency towards alcohol-fuelled serious violence was relevant to his risk of reoffending and the need for public protection.
[17] The Judge observed a 12-month starting point was appropriate for the “king hit” offending,6 but determined the appropriate uplift on a totality basis was nine months’ imprisonment. He imposed a further uplift of three months for the two assault charges.
6 Referring to Prasad v Police [2017] NZHC 509; and Tutaki v Police [2015] NZHC 1177.
[18] In terms of personal mitigating considerations, the Judge found Mr Parker was entitled to allowance for his youth, offer of emotional harm reparation, remorse and rehabilitative prospects. However, the Judge expressed doubt Mr Parker had demonstrated specific evidence of such contrition and had tended to minimise his involvement. Taking into account all these matters, the Judge provided a discount of 20 per cent, in addition to the 25 per cent for his guilty pleas. An additional one-month discount was applied to reflect the time Mr Parker had spent on restrictive bail conditions.
[19] This resulted in a sentence of 29 months’ imprisonment. Accordingly, Mr Parker was not eligible for home detention. He was directed to make an emotional harm payment of $3,000 to be allocated between the victims.
[20] In sentencing Mr Parker’s co-offenders, the Judge remarked that, save for W, they were “right on the dividing line” between receiving sentences of home detention and imprisonment. W’s additional calculated use of a weapon took him over that line onto the side of imprisonment. The Judge emphasised that such offending required particular deterrence and denunciation for which a sentence of home detention would be insufficient.
[21]W received a sentence of 22 months’ imprisonment and was directed to pay
$2,000 for emotional harm and a further $3,000 in reparation. The four other co-offenders received sentences of between eight to nine months’ home detention, together with between 200 to 250 hours community work and were ordered to pay reparation of between $3,000 and $5,000.
Principles on appeal
[22] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.7 A Court will not intervene where the sentence is within the range that
7 Criminal Procedure Act 2011, ss 250(2) and 250(3).
can properly be justified by accepted sentencing principles.8 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.9
Submissions
Appellant’s submissions
[23] Counsel for Mr Parker, Mr Collins, submitted first that the Judge adopted a starting point that was excessive when considered with comparative cases. He submitted the starting point for the wounding offending was stern and the rest of the sentence construction should be viewed in light of this.
[24] Second, Mr Collins submitted the uplifts imposed were excessive. He submitted there was a lack of parity between the nine-month uplift imposed for the injuring by unlawful act offending and the nine-month uplift W received for the more serious charge of assault with a weapon. He argued W actively searched for a weapon and waited for an opportune moment to strike his victim on the head, which demonstrated a degree of premeditation and determination to inflict the maximum possible damage. By contrast, he submitted Mr Parker entered the fray wildly throwing punches with no element of planning and should therefore be considered less culpable.
[25] Mr Collins submitted the three-month uplift for the common assault offending was excessive as it would not have resulted in a sentence of imprisonment on its own. He submitted that, after applying these uplifts, the Judge also failed to consider totality when calculating the overall starting point.
[26] Third, Mr Collins submitted the Judge erred in taking into account Mr Parker’s previous discharge without conviction. He submitted this previous appearance was the only possible explanation for the fact Mr Parker received additional credit of only 20 per cent for his personal mitigating circumstances, as opposed to the 30 to
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
9 Ripia v R [2011] NZCA 101 at [15].
35 per cent received by the other defendants. He submitted he ought to have received credit in the region of 30 per cent for personal mitigating factors.
[27] Fourth, in assessing Mr Parker’s remorse, Mr Collins submitted it must be taken into account that his interview was conducted over the phone for COVID-related reasons, which meant he was unable to properly articulate his remorse to the probation officer. He emphasised the presentence report directly contradicts the multiple references speaking to his remorse and should be given reduced weight. In addition, Mr Collins submitted the Judge’s comment that Mr Parker’s remorse letters were similar to the one written in support of his discharge application was inappropriate, and that it was reasonable for an unsophisticated man such as Mr Parker to “build on” his previous letter.
[28] Fifth, on this basis Mr Collins submitted the appropriate sentence is one that would allow the Court to consider home detention. It was submitted such a sentence would best meet the interests of justice by allowing Mr Parker to engage in meaningful employment while being sufficiently severe to reflect the gravity of the offending.
[29] Mr Collins submitted the Judge overlooked the other relevant purposes and principles of sentencing in emphasising the need for denunciation and deterrence and that Mr Parker could be kept in the community without any material risk to its safety.
Respondent’s submissions
[30] For the Crown, Ms Flatley submitted the Judge had regard to all relevant matters and that the end sentence was appropriate.
[31] Ms Flatley submitted the starting point for the wounding charge was lenient as Mr Parker’s attack on T involved prolonged violence in a six-on-one scenario rather than the comparatively brief incidents of violence involved in similar cases.
[32] Ms Flatley also submitted the uplifts applied were within range and reflected the harm suffered by four different victims. She argued the fact the Judge adopted the same uplift for the injuring by unlawful act as that for W’s assault with a weapon charge is not reflective of their similarities to each other, but rather their relative
gravity when compared with offending within the different charges. In any event, she submitted Mr Parker’s decision to jump the fence and involve himself in the altercation also demonstrated a degree of premeditation and that it is notable he was involved until the very end of the group assault.
[33] In relation to the three-month uplift for Mr Parker’s two common assault charges, Ms Flatley submitted this was also generous as the offending was at least equally as serious as cases where a significantly higher starting point has been imposed. Both common assaults involved punches to the victims’ heads.
[34] Ms Flatley submitted the fact higher starting points on all three charges would have been sustainable demonstrates that the Judge took totality into account throughout. In these circumstances, Ms Flatley argued the overall starting point was within the available range.
[35] Turning to personal mitigating factors, Ms Flatley submitted the distinction of 10 to 15 per cent between the overall discounts provided to Mr Parker versus those afforded to his co-offenders was appropriate having regard to his previous discharge without conviction and doubts as to the extent of his remorse. She submitted the Judge was entitled not to adopt a discount for previous good character on account of the proceedings that led to the earlier discharge without conviction, and would arguably have been justified in imposing an uplift.
[36] Finally, Ms Flatley submitted that, even if the end sentence fell below the threshold of 24 months, a sentence of home detention would not adequately address the need for deterrence and denunciation and the ongoing risk of safety to the community that Mr Parker presents.
Analysis
Was the starting point for the wounding with intent to injure charge excessive?
[37] The guideline judgment for wounding with intent to injure is Nuku v R.10 In that case the Court of Appeal set out three bands to categorise the culpability of this
10 Nuku v R, above n 5.
type of offending, assessed by reference to the aggravating factors set out in R v Taueki.11 Offending falls within band three and attracts a starting point between two years’ imprisonment and the statutory maximum if three or more of those aggravating factors are present and the combination of those features is particularly serious.12
[38] The aggravating features engaged in the attack on T were the extreme violence inflicted, including targeted attacks to the head, the serious injury caused, the vulnerability of the victim (albeit only as a consequence of the attack), and the presence of multiple attackers. T was subject to a sustained and gratuitous assault from all angles by a group of six men and was repeatedly knocked to the ground with no ability to effectively defend himself. As a group, the men punched T over 70 times. He received multiple kicks and stomps to all areas of his body, including a large number of blows to the head which caused him to sustain a concussion with ongoing physical and psychological consequences in his daily life.
[39] This was serious and prolonged violence that the Judge was entitled to place within band three of Nuku. A starting point of three and a half years was within the permissible range. I am fortified in this conclusion by reference to the cases referred to by the Judge in which starting points of between three and three and a half years were adopted. While the offending was not as prolonged as in Poi v R, it was more sustained than in the comparatively brief incidents of violence in Hammond v R or Wynd v Police, and was aggravated in particular by the significant disparity involved in a six-on-one beating which was not so marked in these cases.13
Was the uplift of nine months for the injuring by unlawful act charge excessive?
[40] Mr Collins submitted the uplift of nine months for the charge of injuring by an unlawful act (reduced from 12 months on a totality basis) was excessive having regard to the corresponding nine-month uplift W received for what Mr Collins submitted was more serious offending of assault with a weapon.
11 At [38]-[43], citing R v Taueki [2005] 3 NZLR 372 (CA).
12 At [38(c)].
13 Hammond v R, above n 5; Wynd v Police, above n 5; Poi v R, above n 5.
[41] This offending involved Mr Parker felling G from behind with a “king hit” punch to the side of the head as he was trying to separate attackers from T. Mr Parker’s strike knocked G to the ground and rendered him unconscious. He received a severe concussion and pain and bruising to his jaw area.
[42] The assault with a weapon offending for which W received an uplift of nine months involved him breaking away from the ongoing assault on T to search the immediate area for a weapon. He picked up a beer bottle, which he carried back to the attack and used to forcefully strike T on the top of the head, after appearing to wait for the right moment to inflict the blow. Mr Collins submitted this offending demonstrated a greater degree of premeditation and intention to cause harm than Mr Parker’s conduct in “wildly throwing punches”. That submission minimises Mr Parker’s choice to join the melee, his choice to initiate violence immediately, his choice to use a “king hit” and finally his choice to remain in the fray for its duration.
[43] I accept the maximum penalty for the charge of injuring by an unlawful act of three years’ imprisonment14 is less than the maximum penalty for the charge of assault with a weapon of five years’ imprisonment.15 While assault with a weapon offending may have the potential to be more serious because of the higher maximum penalty it carries, the gravity of the offending must be considered in light of the particular circumstances and by comparison with analogous cases.
[44] Here, the Judge considered the uplifts for Mr Parker and W separately when calculating the appropriate overall starting point for each offender. This suggests that the fact the Judge happened to adopt the same uplift for each charge is not a reflection of the similarity between Mr Parker and W’s offending but rather the gravity of the offending in each case when compared with offending under the same charge in other cases, and within the available spectrum of seriousness each charge carries.
[45] In any event, not every difference between sentences or starting points for co-defendants will support an appeal on the grounds of disparity — any such disparity
14 Crimes Act, s 190.
15 Crimes Act, s 202C.
must be unjustifiable or gross, which clearly is not the case here.16 It is also notable that in W’s appeal against his sentence Mander J considered a standalone starting point in the vicinity of 14 to 16 months’ imprisonment would have been appropriate for the assault with a weapon offending.17 This indicates that, if anything, it was the lenient uplift provided to W that gave rise to any apparent inconsistency.
[46]I now turn to consider comparative cases.
[47] In Ngatae v R, the appellant was charged with injuring by an unlawful act.18 He was at a street party and approached the victim. He told the victim he wanted to punch him. He left only to return a short time later. He stood in front of the victim and punched him on the jaw, causing the victim to fall to the ground and to suffer a concussion. The Court noted the punch was severe enough to knock the victim to the ground and was totally unprovoked, and upheld a starting point of 12 months’ imprisonment on that charge.
[48] In Prasad v Police, the appellant pleaded guilty to a raft of charges, including injuring by unlawful act.19 He was at a restaurant in the early hours of the morning. The victim was also there. The two knew each other. The appellant demanded the victim meet him outside. The appellant began “dancing around in a fighting mode” and, without provocation, punched the victim in the jaw, instantly knocking him unconscious. The victim spent a night in hospital with stretched tendons and soreness to the jaw for a number of weeks. A starting point of 12 months’ imprisonment was considered to be at the higher end of the range.
[49] In Tutaki v Police, the appellant pleaded guilty to a charge of injuring by an unlawful act and two charges of assault.20 He was involved in a verbal altercation between two groups in a bar which led to a physical confrontation. He punched the victim in the head, knocking him to the ground. The appellant was then punched in the face and knocked to the ground but got up and used his elbow to strike another
16 Anderson v R [2019] NZCA 294 at [38]-[39].
17 Whittle v R [2022] NZHC 946 at [22].
18 Ngatae v R [2016] NZHC 3068.
19 Prasad v Police, above n 6.
20 Tutaki v Police, above n 6.
victim in the face, which knocked them unconscious. The victim fell backwards and hit his head on concrete tiles and, as a result, suffered a brain bleed. The appellant also punched someone else in the mouth. The Court considered the appellant was fortunate a starting point of only 12 months was adopted on the injuring offending.
[50] I agree with the Crown that a “king-hit” or “coward’s punch” is highly dangerous in its own right, which is illustrated here by the fact Mr Parker’s punch immediately knocked G unconscious. I note Mr Parker’s decision to scale the fence and involve himself in the altercation also demonstrates some degree of premeditation. On this basis, and in light of the above cases, I am satisfied the uplift of nine months was proportionate and appropriate.
Was the uplift of three months for the common assault charges excessive?
[51] The Judge found Mr Parker delivered sustained brutal violence by punching D six to seven times to the head and punching K one to two times to the head. This repeated violence to the heads of the victims occurred while the victims sought to intervene to assist their friend who continued to be subject to a vicious beating by six men. I do not accept Mr Collins’ submission that these assaults would not have attracted a sentence of imprisonment on their own. In my view, a three-month uplift for this offending was generous and cannot be regarded as excessive.
Totality
[52] While the Judge reduced the uplift for the injuring by unlawful act charge on account of totality, I acknowledge he did not expressly consider totality in relation to the common assault charges or on a more general basis in setting the overall starting point.
[53] However, the failure of the Judge to mention the totality principle is of no moment if the sentence imposed was not out of proportion to the gravity of the offending.21 Here, the rather lenient uplift for the assault offending suggests the Judge did take totality into account. In circumstances where Mr Parker jumped over a fence
21 Kite v R [2018] NZCA 485 at [21].
to insert himself into a group assault, delivered numerous blows to four different victims that targeted the head and appeared to be involved until the very end of the melee, I do not consider the overall starting point of four years and six months’ imprisonment was disproportionate or excessive. His overall involvement in the offending demonstrated a will to engage in serious street violence. No error arose on this ground.
Personal circumstances
[54] In addition to a 25 per cent discount for guilty pleas, the Judge applied discounts for Mr Parker’s personal mitigating circumstances totalling 20 per cent. This reflected the combination of his youth, remorse, offer of emotional harm reparation in the sum of $3,000, and his prospects of rehabilitation. Mr Collins took issue with the fact Mr Parker’s co-offenders received additional credit of 30 to 35 per cent. He submitted the Judge erred in taking into account Mr Parker’s previous discharge without conviction and his ostensible lack of remorse to temper the discounts provided.
Discharge without conviction
[55] The Judge took into consideration that Mr Parker received a discharge without conviction in the District Court in June 2021 on a charge of “with intent to injure caused grievous bodily harm”.22
[56] The facts of that charge involved a late-night confrontation in central Dunedin in October 2020. Mr Parker approached the victim in a bar and accused him of spending time with his ex-partner. He shoved the victim around his upper body before the victim broke away. After leaving the bar, Mr Parker approached the victim and made it clear he wanted a fight. The victim decided to fight Mr Parker and they shaped up to each other with their fists raised. The pair traded missed punches. Mr Parker then punched the victim in the face, causing the victim to fall to the ground. While attempting to get back to his feet he grabbed hold of Mr Parker’s leg before Mr Parker punched him in the head two more times. The victim fell to the ground where
22 Police v Parker [2021] NZDC 259594.
Mr Parker put him in a headlock and continued to punch the victim multiple times to the head while he was prone. Onlookers intervened to stop the altercation. As a result, the victim’s ankle and jaw were broken. He was hospitalised for some six days as he underwent surgery.
[57] In discharging Mr Parker without conviction, the Judge relied on his lack of previous convictions, his youth, his remorse in penning a letter of apology to the victim, payment of emotional harm reparation, completion of Stopping Violence and abstinence programmes and 102 hours of voluntary community work, and compliance with restrictive bail conditions for eight months. The Judge also placed emphasis on the impact of a conviction on his employment as an apprentice builder, his sporting aspirations and his ability to return to Fiji to connect with family. However, the Judge cautioned Mr Parker that “you cannot afford to come back before this Court on anything like this again”.
[58] I was not referred by counsel to any case where a Court has explicitly relied on a previous discharge without conviction to extinguish any reduction for good character. As identified by the Judge, a discharge is deemed to be an acquittal so cannot ordinarily be held against a defendant.23 However, in the context of discharge without conviction applications, it is well-established that a previous discharge without conviction for offending of the same type will count against a discharge on a later occasion.24 I also have regard to the fact the Court of Appeal has affirmed that a defendant’s previous appearances in the Youth Court, which are not considered convictions, can preclude any credit for previous good character, but should not result in an uplift.25
[59] On this basis, I consider the Judge was entitled to consider Mr Parker’s previous discharge without conviction was relevant to the sentencing exercise and was justified to refrain from applying a discount for Mr Parker’s good character on account of it. I note also that the incident occurred only three months before the current
23 Sentencing Act 2002, s 106(2).
24 Miller v Police [2015] NZHC 2747 at [16]-[19], citing Swami v Police [2012] NZHC 2725, [2012] NZFLR 962 at [25]; Morgan v Police HC Auckland CRI-2009-404-212, 8 October 2009 at [15]; and Police v McCabe [1985] 1 NZLR 361 (HC).
25 Waikato-Tuhega v R [2021] NZCA 503 at [33].
offending and involved very similar alcohol-fuelled violent offending committed at night on the streets of Dunedin.
[60] The Judge’s other comments in relation to the discharge were also well made. Given the proximity between that and the current offending, Mr Parker’s decision to continue to consume large quantities of alcohol represented an abuse of the Court’s leniency. His conduct undermined the rehabilitative steps he had taken following the original offending and showed a disregard of the warning he received from the Court on that occasion.
[61] As the Judge identified, Mr Parker heightened his risk of re-offending by drinking and a pattern of violent behaviour was beginning to take shape. In these circumstances, while I acknowledge the correspondence testifying to Mr Parker being a well-regarded young man capable of making a productive contribution to society, I consider the Judge was justified in emphasising the need for deterrence, denunciation and community protection in this case. These factors militate against providing full discounts for his previous good character and rehabilitative prospects.
Remorse
[62] In the absence of any evidence that Mr Parker laboured under any diagnosed communication difficulties, I consider the fact his presentence report interview took place over the phone did not deprive him of an opportunity to express genuine remorse for his actions.
[63] In that interview, the probation officer observed Mr Parker did not offer any thoughts as to the impact of his offending on his victims and that it was difficult to say whether he had any insight into how dangerous his actions were. Furthermore, the report writer noted Mr Parker did not appear to consider his drinking behaviour was excessive or problematic and that his employer had expressed disappointment in what he believed to be a lack of insight and remorse. He was assessed as being of a medium risk of harm to others and a medium likelihood of re-offending.
[64] I accept these observations contradict the multiple character references adduced in Mr Parker’s support and letters he has written to the victims. It is also
commendable that Mr Parker has re-engaged in a Stopping Violence programme and offered reparation by way of an emotional harm payment.
[65] However, concerns remain which in my view justify the Judge’s doubts that Mr Parker had demonstrated specific evidence of remorse. Mr Parker appeared to participate in celebrations after the event and minimised his involvement in his initial discussions with police despite overwhelming evidence.
[66] The similar phrasing used across the remorse letters submitted to each of the victims also does not indicate sincerity, especially as they also bear a marked similarity to the letter written to the victim of his previous offending. While Mr Parker may not find articulating his emotions an easy task, I would expect him to have at least recognised to each victim the individual harm he has caused each them.
[67] In summary, I find the Judge properly took into account all relevant matters and the discounts provided were not inadequate. No discernible error arose in the decision.
Result
[68]The appeal is dismissed.
Doogue J
Solicitors:
Crown Solicitor, Dunedin CC:
L Collins, Dunedin
3
14
0