Parker v Police - [2022] NZHC 2124

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NZHC 2124
Decision Date: 25 August 2022

CaseChat Overview and Summary

The appellant, Mr Marika Parker, appealed against his sentence of two years and five months’ imprisonment, arguing it was manifestly excessive and that the appropriate sentence would allow for consideration of home detention. The Crown opposed the appeal, submitting the sentence was appropriate and within the permissible range. The key issues before the Court were whether the starting point and uplifts imposed by the District Court were excessive and whether the personal circumstances discount was inadequate. The Court found the starting point of three and a half years for the wounding with intent to injure charge was within the permissible range. The nine-month uplift for the injuring by unlawful act charge and three-month uplift for the common assault charges were proportionate and appropriate. The sentence imposed was not disproportionate or excessive. The Court also found no error in the personal circumstances discount of 20 per cent, which properly took into account Mr Parker's previous discharge without conviction and doubts as to the extent of his remorse. The appeal was dismissed.

Orders