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Parkin v R

Parkin v R

Case [2018] NZCA 404 5 October 2018

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NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF THE COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA290/2018
[2018] NZCA 404

BETWEEN	WILLIAM ARTHUR PARKIN Appellant
AND	THE QUEEN Respondent

Hearing:	4 September 2018
Court:	Brown, Duffy and Peters JJ
Counsel:	A M Harvey for Appellant M H Cooke for Respondent
Judgment:	5 October 2018 at 12.30 pm

JUDGMENT OF THE COURT

A The appeal against sentence is allowed.
B The sentences of 20 months’ imprisonment are quashed.

CSentences of four months’ home detention for each charge are imposed. The second sentence is to be served concurrently with the first.

D The appellant is also ordered to undertake 400 hours of community work.

REASONS OF THE COURT

(Given by Peters J)

Following a jury trial before Judge Ronayne in the District Court at Auckland, the appellant was convicted of two charges of indecent assault on a girl aged between 12 and 16 years.[1]
[1]Crimes Act 1961, s 134(2)(a), since replaced by s 7 of the Crimes Amendment Act 2005.
In May 2018, the Judge sentenced the appellant to one year and eight months’ imprisonment on each charge, to be served concurrently.[2] The Judge declined to impose a sentence of home detention.
[2]R v Parkin [2018] NZDC 10598 [Sentencing Notes].
Originally the appellant appealed both conviction and sentence. The appeal is now against sentence only, on the grounds that it is manifestly excessive, both in terms of the end sentence and the Judge’s refusal of home detention.
Counsel for the appellant, Mr Harvey, does not dispute the Judge’s starting point of 22 months’ imprisonment. He submitted, however, that the appellant was entitled to a greater discount for good character and the lapse in time, being 37 years, since the offending. The Judge gave a two-month discount for these matters.[3] Mr Harvey submitted the discount should be at least six months. Mr Harvey also submitted to us that an additional “month or two” should be given for the consequences of the appellant’s public “fall from grace”.
[3]At [21].
Mr Harvey also submitted that the Judge erred in declining to impose a sentence of home detention.

Background

The appellant committed the offences between 14 May 1980 and 28 August 1981. He was aged 28 or 29 at the time of the offending, and the complainant 11 or 12.
The complainant, a young relative of the appellant’s then wife, had stayed overnight at the appellant’s house. The first charge arose from the appellant lying behind the complainant on a couch, putting his hand inside her pyjama top and fondling her chest around her nipples. He then caressed her inner thighs and vagina.
In relation to the second charge, the appellant was sitting at the dining table in his house as the complainant passed by to get a glass of water. He exposed his erect penis to her and made her sit on…

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.

Continue reading Parkin v R

Details

AGLC: Parkin v R [2018] NZCA 404
Case: [2018] NZCA 404
Decision Date: 5 October 2018 at 12.30 pm

CaseChat Overview and Summary

In this appeal, William Arthur Parkin challenges the sentences imposed on him for two counts of indecent assault against a child, arguing that they are manifestly excessive and that the sentencing judge erred in refusing to impose a sentence of home detention instead of imprisonment. The appeal was heard by the Court of Appeal of New Zealand on 4 September 2018, with judgment delivered on 5 October 2018. The appeal was allowed, with the sentences of imprisonment quashed and replaced with sentences of home detention. The appellant was also ordered to undertake 400 hours of community work.

The court considered two main issues. The first was whether the appellant was entitled to a greater discount for good character and the length of time since the offending. The second was whether the sentencing judge erred in not imposing a sentence of home detention. The court found that the appellant's good character and the 37-year period since the offending warranted a greater discount, and that the judge had erred in not considering home detention as a sentencing option.

The court found that the appellant's good character and the length of time since the offending warranted a greater discount than the two months given by the sentencing judge. The court found that a discount of four months was appropriate, reducing the appellant's end sentence to 18 months' imprisonment. The court also found that the sentencing judge had erred in not considering home detention as a sentencing option, as the purposes and principles of sentencing could be met by a sentence of home detention. The court quashed the sentences of imprisonment and imposed sentences of four months' home detention, to be served concurrently with 400 hours of community work.

Orders