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…

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: [2020] NZHC 479
Decision Date: 11 March 2020

CaseChat Overview and Summary

Donald Charles Parker appeals his sentence of 20 months' imprisonment for various charges, including strangulation and assault on a person in a family relationship, as well as intentional damage. The primary question raised by the appeal is whether the starting point adopted by the District Court Judge was too high. The offending occurred in the context of a domestic relationship, and the Judge identified several aggravating factors, including the strangulation being accompanied by a threat, the setting being a family home in which children were present, and the fact that other violence was involved. The Judge determined that a sentence of imprisonment was required, and a starting point of two years was appropriate. The appeal argues that the starting point was too high, and that the Judge did not adequately consider the appellant's personal circumstances and history of abuse in State care.

The Court considers the principles relevant to the offence of strangulation, including the need for a nuanced analysis that takes into account the complex environments in which this type of offending occurs. The Court notes that the starting point of two years' imprisonment was in line with other High Court sentence appeal decisions. The Court also considers the appellant's previous convictions and personal circumstances, and determines that they were appropriately taken into account in the sentencing process. The Court concludes that there was no error in the Judge's approach, and the appeal is dismissed.

Orders