Parker v Police

[2020] NZHC 479

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2020-443-2

[2020] NZHC 479

DONALD CHARLES PARKER

v

NEW ZEALAND POLICE

Hearing:	3 March 2020
Appearances:	N P Bourke for Appellant G N Milne for Respondent
Judgment:	11 March 2020

JUDGMENT OF CLARK J

Introduction

[1]                 Mr Parker appeals his sentence of 20 months’ imprisonment on the following charges:1

(a)one charge of strangulation;2

(b)three charges of assault on a person in a family relationship;3 and

(c)three charges of intentional damage.4

1      Parker v New Zealand Police [2019] NZDC 25954 [Sentencing Notes].

2      Crimes Act 1961, s 189A, maximum penalty seven years’ imprisonment.

3      Section 194A, maximum penalty two years’ imprisonment.

4      Summary Offences Act 1981, s 11(1)(a), maximum penalty three months’ imprisonment or $2,000 fine.

PARKER v NEW ZEALAND POLICE [2020] NZHC 479 [11 March 2020]

[2]                 The primary question raised by the appeal is whether the starting point adopted by the Judge was too high.

Background to the offending

Assault and strangulation charges

[3]                 Mr Parker and the victim, who I refer to as “A”, had been in a relationship for three months. A has four young children from a previous relationship. The children were aged five and under and were present in the home at the time of the assault and strangulation although they did not witness the offending.

[4]                 At about 8 am on 1 July 2019 Mr Parker was arguing with A in her bedroom. He stood in the bedroom doorway and pushed her in the chest five times, preventing her from leaving the room. He stopped when his mother arrived at the address.

[5]                 On 11 July 2019 Mr Parker  and A  were  again  arguing  in  her  bedroom. Mr Parker, who had been sitting on the bed, lunged at A and punched her in the eye and then her ribs. A sustained bruising to her eye.

[6]                 On 7 August Mr Parker and A were at her home. There was tension between them as A no longer wanted to be in the relationship. A asked Mr Parker to leave but he refused. He told her to “fuck up” and that he was not leaving the house. Continuing to argue in the kitchen, Mr Parker punched A in the jaw. He immediately punched a hole in the lounge door. Mr Parker continued his abuse when A insisted she did not want to be in the relationship. A was now sitting on the couch when he grabbed her around the throat, squeezing with his right hand. While strangling her, Mr Parker told her “it’s not over until I say it is, do you hear me”? When Mr Parker let go A jumped out the window and ran to a neighbour to call for help.

Intentional damage charges

[7]                 On Thursday 23 May Mr Parker was at a family member’s address. On hearing that an incident had occurred at the address a relative arrived. She parked in the driveway. Mr Parker heard her arrive, grabbed an axe, and approached her car telling her to “fuck off”. With the axe, he dealt blows to the windscreen, bonnet, roof, driver’s

mirror and driver’s window. The attack lasted about two minutes ending only when the victim reversed and drove away.

[8]                 On 4 August Mr Parker was at A’s home. She asked him to leave the property and locked him out of the house. Mr Parker then smashed a pane of glass in her front door.

Decision under appeal

[9]                 On 6 November 2019 Judge Sygrove remanded Mr Parker in custody for sentencing on 11 December 2019. The Judge was concerned to give counsel adequate time to prepare and file written submissions well in advance of the sentencing date.

[10]            In sentencing Judge Sygrove outlined the factual circumstances giving rise to the charges. He noted Mr Parker’s “14 pages of previous convictions” identifying two in particular: a conviction in 2013 for assaulting a child and a conviction in 2014 for assault with intent to injure (family violence). The pre-sentence report recommended imprisonment.

[11]            Having considered the High Court decisions in Ackland v Police5 and Houkamau v New Zealand Police6 as well as three District Court decisions,7 the Judge identified the following features as increasing Mr Parker’s culpability:8

(a)The strangulation was accompanied by a threat.

(b)The strangulation took place in the context of a domestic relationship.

(c)The setting was a family home in which children were present.

(d)Other violence was involved.

5      Ackland v New Zealand Police [2019] NZHC 312, [2019] NZAR 1112.

6      Houkamau v New Zealand Police [2019] NZHC 2743.

7      New Zealand Police v Retikaukau-Peke [2019] NZDC 9554; New Zealand Police v Gray [2019] NZDC 11276 and New Zealand Police v Foulkes [2019] NZDC 12324.

8      Sentencing Notes, above n 1, at [3] and [4].

[12]            In light of these aggravating factors, and on the basis of the authorities which he had cited, Judge Sygrove was satisfied a sentence of imprisonment was required and that two years was the appropriate starting point.

[13]            Turning to personal aggravating or mitigating factors, “the offence” was aggravated by the fact it was committed while Mr Parker was on bail. I take the Judge to be referring to the strangulation offence as that was clearly the lead offence in relation to which the Judge was setting a starting point.

[14]            Judge Sygrove considered the number, seriousness, date, relevance and nature of Mr Parker’s previous convictions further aggravated the offending as did the “other convictions” for which he was being sentenced. For the assault charges and wilful damage with an axe, and previous offending, six months imprisonment was added to the starting point.

[15]            A discount of four months was applied to reflect the difficulties in Mr Parker’s past, and his demonstrated remorse. A further six-month discount was applied to reflect Mr Parker’s early guilty plea. The end sentence for the strangulation charge was a sentence of 20  months’ imprisonment  with  special  release  conditions  for six months. Twenty months’ imprisonment was also imposed for the assault charges. For the wilful damage to the station wagon and the other two intentional damage charges, concurrent sentences of two months and one month respectively were imposed.

The appeal

Appellant’s submissions

[16]            For Mr Parker, Mr Bourke  submitted  the  appropriate  starting  point  was  18 months’ imprisonment. Mr Bourke characterised the Judge’s approach as formulaic when the authorities require a nuanced analysis. For example, the Judge had not taken into account that Mr Parker has been abused in State care; that the relationship with the victim was of short duration (three months) and that Mr Parker lacks coping mechanisms and life skills. Mr Bourke argued that if the Judge had

undertaken the “nuanced analysis” required by Houkamau9 these matters would have been taken into account.

[17]            Further, Mr Bourke queried the relevance of the Judge’s observation that the victim had been sitting not standing. Additional error is said to be in the Judge’s double counting of the offending on 4 and 7 August by both factoring it in when reaching a starting point and adding six months to the sentence for those very charges.

Respondent’s submissions

[18]            In contending the appeal should be dismissed, Ms Milne emphasised the intimate partner setting in which the strangling took place and the fact it was accompanied by other assaults and a threat. Ms Milne submitted the offending was more serious than in Houkamau where no threat was made by the appellant. The starting point was within range and no error was made in the uplifts or discounts applied by the Judge.

Principles relevant to the offence of strangulation

[19]            Following the recommendations of the Law Commission in its report Strangulation: The Case for a New Offence10 an offence of strangulation was introduced under the Family Violence (Amendments) Act 2018. The new offence, enacted in s 189A of the Crimes Act, came into force on 3 December 2018.

[20]            The first sentence appeal in relation to strangulation came before Cooke J in Ackland v New Zealand Police.11 In order to understand where the case before him sat within the range of cases that might arise under s 189A, Cooke J considered it appropriate to attempt to identify factors relevant to sentencing for strangulation.12

9      Houkamau v New Zealand Police, above n 6.

10     Law Commission Strangulation: The Case for a New Offence (NZLC R138, 2016).

11     Ackland v New Zealand Police, above n 5.

12 At [23].

[21]            That guidance has been complemented in the subsequent decisions of the High Court in Houkamau v New Zealand Police and T v New Zealand Police.13 T was delivered on 18 December 2019, a week after Mr Parker’s sentence.

[22]            The background to the introduction of the new offence of strangulation is traversed by their Honours in Ackland, Houkamau and T. I do not repeat that background here. What does bear repeating is a point made in all three judgments by all three Judges.

(a)In Ackland, Cooke J recognised some force in the submission of counsel for the New Zealand Police that “the use of bands as a means of assessing culpability was inappropriate as it did not take into account the complex environments in which this sort of offending occurred”.14

(b)In Houkamau, Thomas J emphasised the need for “proper consideration of the subtleties of the offending” as family violence is an extremely complex area and care is needed to avoid “falling into the trap” of a mathematical approach focussing unduly, or only, on “key factors”.15

(c)In T, Doogue J recognised the limited assistance to be derived from past cases in which strangulation formed part of the offence because an understanding of the complexities of, and consequences for, the victims of this kind of offending was imperfect.16 A rigid banding approach to sentencing potentially restricts an examination of the complexities of the offending particularly in a domestic violence setting. Her Honour drew the distinction between a strangulation occurring in a spur of the moment street fight, and in a domestic setting. “While the charge is the same, the contexts are extremely different.”17 On this point Doogue J stated:18

13     Houkamau v New Zealand Police, above n 6; and T v New Zealand Police [2019] NZHC 3375.

14     Ackland v New Zealand Police, above n 5, at [28].

15     Houkamau v New Zealand Police, above n 6, at [33].

16     T v New Zealand Police, above n 13, at [36].

17 At [43].

18 At [38].

It may be that with an increased body of case law and authority from the higher courts bands are ultimately accepted. But at this stage, I consider a particularised focus on all the complexities in the singular case (armed with our increased scientific and psychological knowledge) is a more appropriate initial point of reference for sentencing.

[23]            I take from Ackland, as enlarged by Houkamau and T, the following reference points as potentially relevant to my assessment of the gravity of the offending and the degree of culpability of the offender in a case of strangulation.19 In doing so, I align myself with the observation of their Honours that the number of factors will be less important than the overall nature and culpability of the offending.20

(a)Strangulation in a domestic or intimate relationship context: Strangulation in a family violence context is a recognised risk factor for a future fatal attack. In this setting, strangulation is recognised as a means of achieving coercion and control over the victim. It appeared to Thomas J in Houkamau that this aspect (a means to achieve coercion and control) was at the heart of the Law Commission’s report and the principal rationale for the new offence.21 Thomas J quoted the following passage from the Commission’s report:22

It is the terror that results from strangulation that is at the heart of this kind of criminal contact. That terror is likely to seriously affect all aspects of the victim’s life. In our view, the terror that results from this “worst case class of case” is greater than the harm of a minor injury and at least equivalent to a serious physical injury.

(b)Threats, particularly threats to kill: Citing the Law Commission report, Cooke J noted the issuing of threats, particularly those involving an element of coercion, is part of the adverse psychological impact of the offence on the victim.

(c)Loss of consciousness: Loss of consciousness indicates a longer,

19     As required by s 8(a) of the Sentencing Act 2002.

20     Ackland, above n 5, at [31]; Houkamau, above n 6, at [31] and T, above n 13, at [35].

21     Houkamau v New Zealand Police, above n 6, at [31].

22 At [31].

purposeful period of strangulation suggesting a greater degree of culpability.

(d)Multiple events: Where there is a pattern showing more than one event of strangulation, the intimidation and fear is accentuated and the adverse psychological impacts are exacerbated.

(e)Other violence/injury: As with most offending involving violence, it will aggravate the offending if strangulation is accompanied by other violence.

(f)Impact on others: As with other offending, offending in the presence of children is regarded as carrying the potential for psychological harm and may be regarded as aggravating the offending.

(g)Breach of protection order: As with other domestic offending, strangulation in the face of a breach of a protection order is likely to be regarded as more culpable.

Discussion

[24]            The first point concerns the District Court Judge’s observation when assessing the nature of Mr Parker’s offending for the purpose of setting a starting point:23

Although there was no loss of consciousness the victim had trouble breathing during and after the strangulation.

[25]            Mr Bourke submitted that the fact the victim had trouble breathing cannot be regarded as an aggravating feature. To impede a person’s breathing is an element of the offence of strangulation.

[26]            Mr Bourke is correct to submit that if breathing is not impeded there can be no offence under s 189A. Section 189A provides:

189A   Strangulation or suffocation

Everyone is liable to imprisonment for a term not exceeding 7 years who intentionally or recklessly impedes another person’s normal breathing, blood

23     Sentencing Notes, above n 1, at [3].

circulation, or both, by doing (manually, or using any aid) all or any of the following:

(a)blocking that other person’s nose, mouth, or both:

(b)applying pressure on, or to, that other person’s throat, neck, or both.

[27]            Plainly, the impediment of normal breathing is part of the actus reus of the offence. To the extent the Judge suggested A’s “trouble” breathing during the strangulation was an aggravating feature, he was in error. But that is not all the Judge said. The Judge observed A had trouble breathing during “and after the strangulation”. Reflecting the summary of facts to which Mr Parker has pleaded guilty, the Judge had earlier noted that A “… had a very sore throat and was gasping for air while she was trying to get help”.24

[28]            On this aspect of the appeal the Judge was not in error. A had escaped, through a window, and even at the point when she was trying to get help she was gasping for air. I agree with the Judge’s assessment of this trouble breathing after the strangulation as an aggravating factor.

[29]            More broadly, I do not consider a starting point of two years’ imprisonment as being in error.

[30]            The assault took place in the victim’s home, where she ought to have been safe, and where young children were present.25 The strangulation itself was the culmination of a series of increasingly violent assaults on A within a short period of time. The pushing on 1 July to prevent her leaving her bedroom escalated to punches to her ribs and face on 11 July. When he was locked out of the house on 4 August Mr Parker smashed the glass in her front door. A few days later on 7 August, when he was told that A no longer wished to be in a relationship with him, he responded by punching her in the face and strangling her.

[31]            It can be inferred that the increase in violence was in response to A attempting to pull away from Mr Parker, who had become her abuser. The strangulation,

24 At [2].

25     As I have mentioned, although present in the home, the children did not witness the offending.

accompanied by his threat — “it’s not over until I say it is, do you hear me” — became the means by which Mr Parker sought to exert maximum control and coercion over A. The implication of his threat was that she was powerless to leave the relationship and the psychological damage from such offending is now well understood. Indeed, in her victim impact statement, A described feeling too scared to say “no” to Mr Parker and frightened about what he will do. She described feeling unhappy and depressed, drained all the time, feeling trapped and controlled and worried that he would return and things would get worse. A described being “scared for the life of me and my children”.

[32]            The starting point of two years’ imprisonment was also in  line  with  the High Court sentence appeal decisions that I have discussed.

[33]            In Ackland the appellant had been in a relationship with the victim for 18 years and the pair had five children together.26 Following an argument the appellant struck the victim’s face several times and forcibly put both hands around her neck, causing her to gag. He yelled at her saying “if you want I can end it all now”. She lost consciousness. The starting point of two years’ imprisonment was upheld on appeal.

[34]            In Houkamau the appellant had been in a relationship with the victim for around three years.27 After an argument the appellant grabbed the victim by her clothing and pushed her out the front door of the house. He punched her in the forehead and began choking her by putting both hands around her neck and squeezing. She fought back and tried to pull his hands off and asking him to let go. He continued to squeeze for a short period before shoving her back into the ground, causing her neck to hit wooden edging on the ground. On appeal Thomas J upheld the two year starting point adopted by the Judge but noted it could be considered stern.

[35]            In T v New Zealand Police the appellant and the victim had been in a nine year relationship and had two children together.28 After an argument the victim left the house and the appellant began smashing up the furniture. When she returned to the

26     Ackland v New Zealand Police, above n 5.

27     Houkamau v New Zealand Police, above n 6.

28     T v New Zealand Police, above n 13.

property the appellant ran at the victim and kicked her forcefully to the forehead, causing her to fall to the ground and lose consciousness. She awoke to the appellant dragging her across the ground. He forced her into a bedroom. When she tried to escape through a window the appellant grabbed her around the neck and hauled her onto the bed. She lost consciousness and lost control of her bladder. On appeal Doogue J upheld the three-year starting point although describing it as “lenient”.29

[36]            Mr Parker’s offending is not as serious as the offending in T v New Zealand Police or Ackland. In those case both victims lost consciousness. Although not similar in kind, the offending is broadly similar in seriousness to that in Houkamau. Thomas J’s description of a two-year starting point as “stern” is to be understood in the context of that case. The offending took place in Mr Houkamau’s home and it was not in dispute that part of his frustration was that she would not leave his home.30

[37]            Mr Bourke contended there was a real risk Ackland would become “a tariff decision by stealth” in which the important context of the offending would be overlooked. I understand Mr Bourke’s concern but Cooke J was at pains to emphasise the nature of the offending in any particular case should not be subordinated to a factorial approach. That point was also underscored in the decisions of Thomas and Doogue JJ.

[38]            The concern underlying Mr Bourke’s submission is that Mr Parker’s own abusive upbringing, and his drug and grief issues would have greater prominence in sentencing, if the Judge had undertaken the “nuanced analysis” required by the Sentencing Act. Referring to the regular arguments between Mr Parker and A about her care of her children, counsel submitted Mr Parker’s offending was less about coercion and control than about his “lack of anger management skills and misguided desire to ‘fix’ everyone else’s problems”.

[39]            First, if Mr Parker does expect his own misguided and mishandled attempt to fix a problem as justifying assault and strangulation, he misjudges the position. There is no justification. Secondly, the Judge did take into account Mr Parker’s remorse and

29 At [57].

30     Houkamau v New Zealand Police, above n 6, at [34].

personal circumstances when he reduced the sentence by four months. I agree with Mr Bourke’s submission that the four-month discount was within the available range albeit not particularly generous.

[40]            The remaining  question  is  whether  the  Judge  twice  took  into  account Mr Parker’s previous offending. In determining a starting point the seriousness of the offence and culpability of the offender is assessed by reference to a number of features which may include a history of similar offending. In assessing at the next stage whether personal circumstances aggravate or mitigate the offender’s overall criminality, previous convictions may be taken into account. The important point is not so much the stage at which the relevant history is taken into account but that the history or convictions are not counted twice against the offender.31

[41]            I have carefully considered the  Judge’s  sentencing  notes.  I am  satisfied  Mr Parker’s previous convictions were not brought into account more than once. In setting the starting point, the factors the Judge regarded as aggravating the offending did not include Mr Parker’s previous convictions for assault.

[42]            Having set the starting point, the Judge turned to personal mitigating or aggravating factors. Mr Parker’s previous convictions were aggravating factors as were “the other convictions for which [Mr Parker was] being sentenced”.32 The Judge uplifted the starting point by six months for the “other offending and previous offending”. It is not apparent from the Judge’s approach what component of the additional six months reflected historic offending and what component reflected a sentence for the other offending for which Mr Parker was being sentenced. But it does not matter. The material point is that Mr Parker’s historic offending did not prejudice him twice. Further, the six-month uplift, even absent historic offending, appropriately reflected the seriousness of Mr Parker’s other offending against A and his second victim.

31     See for example Singh v R [2011] NZCA 139 at [15].

32 At [5].

Result

[43]There being no error in the Judge’s approach, the appeal is dismissed.

Karen Clark J

Solicitors:
Crown Solicitor, New Plymouth for Respondent