Parkinson v Police - [2019] NZHC 1710

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2019-443-15

[2019] NZHC 1710

SHAYE KIEL PARKINSON

v

NEW ZEALAND POLICE

Hearing: 16 July 2019

Appearances:

J N Woodcock for Appellant S J Simpkin for Respondent

Judgment:

19 July 2019

JUDGMENT OF CLARK J

Introduction

[1] Mr Parkinson appeals a sentence of 10 months home detention. The basis of his appeal is that a 12-month uplift for previous convictions was too high and insufficient credit was given for time spent in custody and on electronically monitored (EM) bail prior to sentencing. The respondent submits the uplift was probably at the high end but within the available range and although there was some irregularity in the District Court Judge’s calculations the end sentence was not manifestly excessive.

PARKINSON v NEW ZEALAND POLICE [2019] NZHC 1710 [19 July 2019]

Facts

[2] Mr Parkinson pleaded guilty to one charge of burglary and one charge of possession of cannabis.1 The burglary was of a private residence. With his co-offender Mr Parkinson smashed a window, entered the address and took several electronic items including an Xbox and two laptops. The two then decamped and were located by police a short time later still in possession of the stolen property. Inside a bag Mr Parkinson dropped when he ran off to avoid police, was a single cannabis plant, the subject of the charge of possession.

[3] Mr Parkinson has a significant criminal history. Between 2004 and 2018 he amassed 125 convictions primarily for theft and fraud-related offending. Overall he has 19 convictions for burglary the most recent being in November 2016 for which he was sentenced to one year, eight months imprisonment.

[4] In taking a starting point of 16 months imprisonment, Judge Hikaka adopted the same starting point as Mr Parkinson’s co-offender who was younger than Mr Parkinson. The starting point was uplifted by one month for the possession charge then by 12 months for the previous convictions. The resulting 29 months imprisonment was reduced to 20 months to recognise an early guilty plea, remorse, the steps Mr Parkinson had taken towards rehabilitation, time spent on electronically monitored bail and on remand in custody.2 The end sentence of 20 months imprisonment was converted to 10 months home detention. Reparation in the sum of
$167.50 was ordered to be paid within 28 days and post-detention conditions for 10 months were imposed “to provide … the maximum assistance in staying on the right track and moving forward positively …”.3

[5] Beyond describing as “loose”4 the deductions he gave, the Judge did not ascribe specific discounts to specific mitigating factors. I proceed, however, on the following basis which seems reasonably apparent from the decision itself.

1      New Zealand Police v Parkinson [2019] NZDC 10086; and Crimes Act 1961, s 231(1)(a), maximum penalty 10 years imprisonment; and Misuse of Drugs Act 1975, s 7(1)(a) and (2), maximum penalty three months imprisonment or $500 fine.
2      At [7] and [9].
3      At…

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: [2019] NZHC 1710
Decision Date: 19 July 2019

CaseChat Overview and Summary

The appellant, Mr. Parkinson, appealed against his sentence of 10 months home detention, arguing that the 12-month uplift for previous convictions was excessive and insufficient credit was given for time spent in custody and on electronically monitored bail prior to sentencing. The District Court Judge had imposed a 16-month starting point, increased by 12 months for previous convictions and one month for the possession charge, before reducing it to 20 months to account for mitigating factors. The appeal was heard by Clark J in the High Court of New Zealand, New Plymouth Registry.

The key legal issues were whether the uplift for previous convictions was disproportionate and whether sufficient credit was given for time spent in custody and on electronically monitored bail. Ms. Woodcock submitted that the 12-month uplift was excessive and an uplift of 50 percent (eight months) would have been more proportionate. She also argued that credit should be given for the time Mr. Parkinson spent on electronically monitored bail and in custody prior to sentencing. The respondent maintained that the uplift was within the available range and the sentence was not manifestly excessive.

Clark J found that while the 29-month provisional sentence was justified, the 12-month uplift for previous convictions was excessive. The Judge had not clearly explained why such a high uplift was required. The uplift of one month for possession of the cannabis plant was also considered excessive. The Court found that credit should be given for the time Mr. Parkinson spent in pre-sentence detention, but not for time spent on electronically monitored bail as there was insufficient information about the conditions and compliance.

The appeal was allowed. The sentence of 10 months home detention was quashed and substituted with one of eight and a half months home detention. The conditions of the home detention sentence were unchanged.

Orders