Parkinson v Police
[2019] NZHC 1710
•19 July 2019
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 [9] and [11].
4 At [11].
(a)The reduction from a starting point of 29 months to an end sentence of 20 months represents a discount of 31 percent.
(b)Of that 31 percent discount, the guilty plea can be assumed to have attracted a 25 percent discount because the Judge intended to give “maximum discount” for the early guilty plea.5
(c)Remorse, rehabilitation and the other factors I have mentioned above at [4], are responsible for the remaining discount of 6 percent.
Discussion
Disproportionate uplift for previous convictions?
[6] Ms Woodcock submitted the 12-month uplift represented 70 percent of the starting point and was manifestly excessive. An uplift of 50 percent of the starting point (eight months imprisonment) represented a proportionate response that still emphasised personal deterrence.
[7] The general rule for uplifts for previous convictions is that they should be proportionate in the circumstances and bear a reasonable relationship to the starting point.6 Uplifts of 25 percent are common.7 But the approach for recidivist burglary is different and high uplifts have frequently been upheld as appropriate. R v Columbus provides useful guidance as to the treatment of previous convictions for recidivist burglars:8
[14] Thus, in sentencing for burglary as for other offences the circumstances of the offending predominate when fixing the starting point. However, as this Court noted in Lowe, previous dishonesty convictions, while aggravating personal circumstances, are often treated as components of the burglary starting point. The rationale is that, while prior dishonesty offending is not of itself an element of the offence, it is directly relevant to assessing the degree of the offender's culpability within the gravity of the particular offending (ss 8(a) and 9(1)(j) Sentencing Act 2002) and to the purposes of deterrence and community protection (s 7(f) and (g)). The justification for
5 At [9].
6 Adams at SA9.15(6).
7 At SA9.15(6). Wilson v R [2015] NZCA 235; and Reedy v Police [2015] NZHC 1069.
8 R v Columbus [2008] NZCA 192.
this greater weighting for prior offending is explained in Senior v Police
(2000) 18 CRNZ 340 at [27]-[30] (HC).
[15] Sentencing Judges must, however, guard against the risk of undue emphasis on past dishonesty convictions that lies in fixing the starting point by imposing a sentence which is primarily a punishment for previous offending: R v Ward [1976] 1 NZLR 588 (CA) and Power. The terms “recidivist” or “habitual”, while convenient descriptions, are not of themselves determinative. There are different types of recidivists, the most egregious being the professional burglar who burgles or steals for a living: Senior at [30]. The principal inquiry must be undertaken into the relationship between the nature of persistent offending and the crime itself.
[8]Ms Woodcock gave examples of uplifts for recidivist burglars:
(a)R v Columbus:9 The appellant had 89 previous convictions, 13 of which were for burglary. A starting point of one and a half years imprisonment was uplifted by 12 months to reflect previous convictions, as “his history shows a risk of re-offending…that is the risk of prevention to which past offending is relevant”.10
(b)King v New Zealand Police:11 A starting point of two years six months was uplifted by 12 months to reflect the appellant’s criminal history which included 45 previous convictions for burglary.
(c)Hayward v New Zealand Police:12 A starting point of two years imprisonment uplifted by 12 months for previous convictions. The appellant had a “significant history of burglary convictions, even though those convictions are not themselves recent”.13
[9] Moeroa New Zealand v Police is also relevant.14 A starting point of 15 months imprisonment was uplifted by 12 months to reflect the appellant’s 70 prior convictions of which 31 were for burglary.
9 R v Columbus, above n 8.
10 At [19].
11 King v New Zealand Police [2014] NZHC 2946.
12 Hayward v New Zealand Police [2014] NZHC 2286.
13 At [14].
14 Moeroa New Zealand v Police [2015] NZHC 2226.
[10] With a total 165 convictions15 (19 for burglary and 10 for theft) Mr Parkinson is unquestionably a recidivist burglar.
[11] Previous convictions are to be taken into account but a sentencing Judge must be careful not to increase the sentence in a way that results in the offender being punished further for crimes for which he or she has already been punished.16 With an uplift of 70 percent the Judge could be expected to indicate why an increase of that magnitude was thought to be required. Given the Judge’s several indications that Mr Parkinson seemed to have turned a corner and was “on a new pro-social path”, combined with his encouragement of a rehabilitative approach, it does not seem that the Judge had deterrence in mind or considered the likelihood of reoffending was an immediate risk. But the short point is that the reasons for an uplift of this magnitude 70 percent should be apparent but they are not.
[12] Incorrigible recidivism such as Mr Parkinson’s can be addressed in one of two ways: when fixing a starting point or by uplift.
[13] With an uplift of this magnitude it is hard to avoid the impression Mr Parkinson is being punished twice for past offending. On the other hand, the starting point of 16 months was arguably very light. While the 16-month starting point was the same starting point adopted for the co-offender, their respective personal circumstances were discrepant. The co-offender was young and had an innocuous criminal history by comparison to Mr Parkinson’s.
[14] In the end I have decided to stand back and ask whether a provisional sentence of 29 months is too high. Subject to my views on the cannabis possession charge I conclude it is justified by the nature of the offending and is not out of line with relevant authorities. The offending was premeditated. Mr Parkinson and his co-offender had visited the address a number of times knocking on the door and giving made-up explanations for being there. The offending had left its mark on the family.
15 Excluding Youth Court matters.
16 R v Casey [1931] NZLR 594 (CA), at [597].
[15] Twenty nine months imprisonment properly marks Mr Parkinson’s culpability in respect of the immediate offending and appropriately takes into account his extensive, previous, similar offending.
[16] I do however consider the uplift of one month for possession of the cannabis plant taken during the burglary, in combination with the 12 months uplift for previous convictions, was excessive. The possession was connected in time and circumstance to the burglary and, as Ms Woodcock submitted, on its own would have attracted a low-level fine or possibly a community sentence.
Time in pre-detention custody and on EM bail
[17] The conceptually different periods between time spent on EM bail and time spent on custodial remand was discussed by Simon France J in Longman v New Zealand Police.17 The inherent differences between time spent on each mean the relevance of each period is to be assessed at different points in the sentence process.18
[18] Credit for time spent on EM bail must be considered when fixing the appropriate length of a sentence of imprisonment.19 As France J emphasised the authorities make it clear that determining an appropriate reduction is not a matter of arithmetical equivalence:20
First, even the most restricted EM bail is not the same as serving time in jail; it is still considerably less restrictive. Second, there are many variables including length of time on EM bail, conditions, and compliance. Within a 24 hour curfew situation there can be considerable variance in the amount of absences permitted such as to mean that two apparently similar sets of conditions have operated vastly differently.
[19] Full equivalence should be the norm, however, when assessing what reduction there should be to a home detention sentence, the length of which is fixed by reference to a sentence of imprisonment.21 That is because, with a sentence of imprisonment, the prisoner will automatically obtain credit for time spent on custodial remand and
17 Longman v New Zealand Police [2017] NZHC 2928.
18 At [5].
19 Sentencing Act 2002, s 9(2)(h) and s 9(3A).
20 At [6].
21 At [9].
that time will be deducted from the sentence that is served.22 For this reason, in determining the length of any sentence of imprisonment, the Court is not to take into account any part of the period during which an offender was on presentence detention.23 But where the sentence of imprisonment is to be supplanted with home detention the Judge will have to take into account the time spent in custodial remand to ensure full credit is given for that time.
[20] That being the case, the 11 weeks which Mr Parkinson spent remanded in custody had to be deducted when Judge Hikaka decided on a sentence of home detention.24 That did not happen.
[21] I do not agree, however, there should be a discount for time served on EM bail. There is no information before the Court as to the EM bail conditions. As Simon France J observed, where an offender wishes credit for EM bail to be given, detail of its length, its conditions and any breaches should be given to the Court.25 There is no suggestion EM bail was breached but I am influenced by Simon France J’s observation that a two and a half month period of EM bail was sufficiently short it meant credit for it was far from inevitable. Here, Mr Parkinson spent only a matter of weeks on EM bail.
Conclusion
[22] For the reasons given in [16] above the 29-month provisional sentence is reduced by one month. The maximum discount which the Judge intended to give for the early guilty plea reduces the sentence to 21 months. From the 21 months the Judge intended to give a discount for remorse and rehabilitation. The time spent on remand was included in that global discount but must be dealt with separately. A one-month discount is appropriate for the mitigating factors the Judge identified, bringing the sentence to 20 months imprisonment.
22 Parole Act 2002, s 90.
23 Sentencing Act, s 82.
24 Mr Parkinson was apparently remanded in custody on 14 February 2019 before being released on compassionate grounds on 24 April 2019. He was on EM bail from that time until he returned to custody on 29 April. He was apparently readmitted to EM Bail on 2 May.
25 Longman v New Zealand Police, above n 17, at [12].
[23] That sentence is to be reduced by the equivalent time Mr Parkinson spent in pre-sentence detention, which was 11 weeks. The end sentence is 17 months imprisonment, which reduces to eight and a half months home detention.
Result
[24] The appeal is allowed. The sentence of 10 months home detention is quashed and substituted with one of eight and a half months home detention. The conditions are unchanged.
Karen Clark J
Solicitors:
Marsland Chambers, New Plymouth for Appellant Crown Solicitor, New Plymouth for Respondent
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