Parkinson v The Queen
[2017] NZHC 2623
•26 October 2017
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2017-425-000042 [2017] NZHC 2623
BETWEEN RION ROTOHIKO PARKINSON
Appellant
AND
THE QUEEN Defendant
Hearing: 25 October 2017 Appearances:
H T Young for the Appellant
R W Donnelly for the CrownJudgment:
26 October 2017
JUDGMENT OF DUNNINGHAM J
[1] The appellant was charged with, and pleaded guilty to, six charges relating to drug and firearms offending. On 27 April 2017 he was sentenced by Judge Farnan to two years’ imprisonment.
[2] The appellant appeals against his sentence on two grounds:
(a) the overall starting point of three years four months’ imprisonment was too high; and
(b)the Judge erred by failing to grant him leave to apply for home detention.
PARKINSON v THE QUEEN [2017] NZHC 2623 [26 October 2017]
Leave to appeal out of time
[3] Although the appellant was sentenced in April 2017, the notice of appeal was not filed until 7 September 2017. Section 248(2) of the Criminal Procedure Act 2011 requires a notice of appeal against sentence to be filed within 20 working days of the decision. However, the Court may grant leave to appeal out of time.1 The grant of leave to appeal out of time turns on whether it is in the interests of justice to do so in the particular case.2 Normally this will hinge on two factors: the extent and reasons for the delay, and the merits of the appeal.3
[4] In this case the delay is approximately four and a half months. However, the appellant has provided some explanation for that. He says that three days after the sentencing hearing he told the lawyer acting at the time of sentencing that he wanted to appeal, but nothing was immediately progressed. Towards the end of the 20 day period, the appellant was told that the appeal was outside the lawyer’s jurisdiction and he sought alternate counsel. It was not until 15 August 2017 that Mr Young, the appellant’s present lawyer, was assigned. It was only then that Mr Young confirmed that the proper course was an appeal to this Court, not the Court of Appeal as the appellant had understood, and a notice of appeal was promptly filed.
[5] The Crown did not object to leave to appeal being granted in the circumstances and I also consider there is merit in allowing the substantive issues to be canvassed, particularly in light of the appellant’s co-offender succeeding on appeal and having her sentence for drug related offending reduced.
[6] Accordingly, leave to appeal out of time is granted.
Circumstances of the offending
[7] On 8 October 2015 police executed a search warrant at the appellant’s home address. They located a .22 calibre rifle with scope under his bed, as well as a
Mossberg .270 rifle, along with a quantity of ammunition for both rifles. In the garage
1 Criminal Procedure Act 2011, ss 231(3) and 248(4).
2 R v Lee [2006] 3 NZLR 42 (CA).
3 R v Slavich [2008] NZCA 116 at [14].
there was a fully established cannabis growing set up, including growing equipment and 40 cannabis seedlings.
[8] A further search warrant was executed at the appellant’s home address on
16 December 2015. On that occasion police located two further .22 rifles and a
.308 Tikka rifle, along with four tasers and further ammunition.
[9] A subsequent analysis of the appellant’s phone and that of his co-offender demonstrated that he had received three ounces of cannabis which was then offered to a number of individuals. The text messages also showed a connection between the firearms and the cannabis operation, as a text sent by the appellant said:
I tell ya now bro. I’m local and know heaps of people. If they think im going to let them billy me or stand over my shit. They best have guns, cos I know I have!!!! Fkers lol
District Court sentencing
[10] When sentencing, the Judge adopted a global starting point of three years four months’ imprisonment. This appears to be on the basis of a two year six months starting point for the cannabis offending and an uplift of one year for the firearms charges, but with an adjustment of two months to reflect the totality principle. From that starting point the Judge allowed a combined discount of 40 per cent for the guilty pleas and assistance to authorities. This resulted in an end sentence of two years’ imprisonment, which meant the Judge was required to turn her mind to whether home detention should be imposed.
[11] It seems that the possibility of home detention had not been anticipated as a higher sentence was discussed when an earlier sentencing indication was given, and the pre-sentence report had not considered this issue, on the basis that a sentence of imprisonment was the “only outcome available”. Nevertheless, the Judge addressed whether leave should be granted to apply for home detention, but concluded as follows:
[26] In any event, the purposes and principles of sentencing, in my view, would not be met by a home detention sentence. This is serious offending. There is no address available to you today. I had considered whether I would grant you leave to apply for home detention, but I do not see you as an
appropriate candidate for home detention. The purposes and principles of sentencing of deterrence and denunciation do not, in my view, allow me to make that decision for you. The least restrictive sentence, in my view, is a fulltime prison sentence, albeit for two years.
Principles on appeal
[12] Appeals against sentence are brought under s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. Specifically, this Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence, and that in the event, a different sentence should be imposed.4 The Court will not engage in an exercise which amounts to mere tinkering with the sentence.5
[13] If the sentence under appeal may be properly justified having regard to the relevant sentencing principles, it is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge. It is only if the sentence is “manifestly excessive” that the Court should interfere with the exercise of the Judge’s discretion. As Toogood J said (citing Ripia v R6) in Larkin v Ministry of Development:7
[26] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.
[14] A decision to grant home detention in lieu of a short sentence of imprisonment is a discretionary one. Therefore, on appeal the Court’s primary focus is on the identification of any error, bearing in mind the discretionary nature of such decision.8
Such an error may be failure to take into account a relevant consideration or taking into account an irrelevant consideration, however, the weight to be given to each factor
is properly at the discretion of the court below.9
4 Criminal Procedure Act 2011, ss 250(2) and 250(3).
5 Maihi v R [2013] NZCA 69.
6 Ripia v R [2011] NZCA 101 at [15].
7 Larkin v Ministry of Development [2015] NZHC 680.
8 Doolan v R [2011] NZCA 542 at [39].
9 McConnel v R [2013] NZCA 303 at [15].
[15] In Fairbrother v R, the Court of Appeal discussed the two situations in which an appeal against a failure to grant home detention may be brought:10
[29] Sentences of imprisonment have been quashed and home detention substituted for two errors of law. One is where the sentencing judge has assumed that the offence category lies beyond a sentence of home detention. The other is where the purpose of deterrence has been given complete priority without regard to any of the countervailing purposes of sentence.
[30] That does not mean that a short-term period of imprisonment must always be commuted to a sentence of home detention. That equally would be an error of law. What it does mean is that the judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.
Was the starting point too high?
[16] The appellant contends that the starting point of three years four months was too high, as the starting point for both the cannabis offending and the firearms offending was too high, while the Crown submits that the starting points for each set of offending were properly available to the Judge and within range.
The cannabis offending
[17] The appellant’s argument in respect of the cannabis offending relies on the sentencing of his co-offender, Ms Grainger, which was recently altered on appeal.11
Ms Grainger was implicated in the cannabis offending which, for the most part, mirrored the offending for which the appellant was sentenced. However, as was noted by the Judge sentencing her in the District Court, a lesser starting point was justified than for the appellant, because she did not face the cultivation of cannabis charge which the appellant did.
[18] On appeal, Mander J discussed Ms Grainger’s co-offending, and his assessment of the appropriate starting point, as follows:12
[20] In the present case, the amount of cannabis, three ounces; the ongoing nature of this offending, which despite the Judge’s error in relation to the
10 Fairbrother v R [2013] NZCA 340 (footnotes omitted).
11 Grainger v R [2017] NZHC 2483.
12 Grainger v R, above n [11].
number of texts was still a feature; and the joint nature of Ms Grainger and her partner’s cannabis operation were all factors which the sentencing Court was entitled to take into account in setting a starting point.
[21] As I have already observed, each case must necessarily turn on its own circumstances. There are limitations on the extent to which comparisons can be made with other cases because there will always be a range of sentence available to a sentencing Court in the exercise of its discretion. However, there is also the need for some level of consistency in the starting points adopted for like offending. Subject to considerations of tinkering when assessing the resulting ultimate sentence, I consider some adjustment to the starting point is justified.
[22] A starting point of two years imprisonment appears to me to more accurately reflect where Ms Grainger’s cannabis offending fits across the spectrum of category 2 offending. While a lesser starting point could have been taken as I have already observed, the amount of cannabis, the apparent ongoing nature of the offending, and the joint enterprise between the two offenders, means a sentencing Court would be entitled to conclude a term of imprisonment at the bottom of the nominated range was available, but perhaps no more. A two year sentence also better reflects the fact that Ms Grainger was not facing the additional charge of being a party to her partner’s cultivation.
[19] The appellant also refers to Crutchley v R,13 a decision of the Court of Appeal which involved a combination of cannabis offending and firearms charges. The quantities of cannabis were greater in that case (possession of 35 ounces, compared to
3 ounces here), although there was not the cultivation aspect. The starting point for the cannabis offending in that case was two years six months. Given the appellant’s cannabis offending was less serious, the appellant argues that a lesser starting point of two years two months is indicated.
[20] The Crown, however, submits that the six month difference in starting points between the appellant and his co-offender is not too great. Mr Donnelly submits that the additional cultivation offending is significant as it is indicative of a long term commercial operation involving a high level of culpability. He accepts that sentencing Courts are permitted a degree of flexibility in determining starting points for cultivation cannabis, in light of a recent decision of this Court, in Devereux v Police.14
However, he maintains that the degree of offending here is such that the starting point
of two years six months was justified.
13 Crutchley v R [2015] NZCA 473.
14 Devereux v Police [2017] NZHC 167.
[21] Given the need for consistency and parity, it must also be asked whether the difference of some six months, between Ms Grainger’s reduced-on-appeal starting point of two years (which Mander J acknowledged could possibly have been lower), and the apparent starting point of two and a half years here, can be justified by reason only of the extra cultivation charge. Overall, I consider that it cannot.
[22] Were it not for the treatment of his co-offender, Ms Grainger’s, sentence, it would perhaps be a more finely balanced point. As is the case for relatively low level drug offending of this kind, and as Mander J emphasised in Grainger, there is a range of sentencing points available, and comparable cases may assist, but they are unlikely to be determinative. However, here I consider that, in view of the offending as a whole and in particular taking into account the need for parity between co-offenders, where properly warranted, the starting point of two and a half years for the cannabis offending was too high. The appellant contends that the adjusted starting point for this part of the offending should be two years two months. I consider that a starting point of two years three months is appropriate.
The firearms offending
[23] I then turn to consider the starting point on the firearms charges. Mr Young referred again to Crutchley where there was an uplift for the firearm charges of six months. In that case there was just one firearm involved, although it was a cut-down point .22 calibre rifle which was classified as a pistol. Similarly, in McDonald v R, the Court of Appeal upheld a six month uplift on cannabis charges, for firearms offending which involved the unlawful possession of a shotgun and a taser.15
Mr Young relied on these cases to suggest that a six month uplift was more appropriate
on the firearms charges and not the 12 month starting point which the Judge appears to have taken.
[24] However, I consider the firearms offending in this case is clearly more serious than that in both McDonald and Crutchley. The firearms were recovered in two separate searches of the appellant’s home address, conducted two months apart,
they involved more firearms than either of the comparator cases, and there was a clear
15 McDonald v R [2011] NZCA 97.
link between the possession of firearms and the cannabis offending as demonstrated by the text message. While none of the firearms were illegally modified, the sheer number of firearms and the associated possession of ammunition, including loaded magazines which were not securely stored being found in close proximity to one of the rifles, make this more serious offending. I therefore do not consider there is any need to adjust the starting point imposed for the firearms related offending.
Should the sentence be reduced?
[25] While I do not consider the sentence was manifestly excessive because of the uplift for the Arms Act charges, I have already considered that an allowance should be made in relation to the cannabis offending component of the overall starting point which, particularly taking into account the principle of parity, should have been one of approximately three years two months’ imprisonment.
[26] No issue was taken by either party with respect to the quantum of the
20 per cent discounts given for the appellant’s assistance to authorities and for his guilty pleas. However, as the Crown correctly point out, strictly speaking, the guilty plea discount should have been applied after the deduction of the discount for assistance to authorities. This would have slightly reduced the overall discount granted. I accept this is the case. However, I am not prepared to disturb the fact that, however it was calculated, the overall effect of the discounts for these two mitigating factors should reduce the starting point by 40 per cent.
[27] With starting points of 27 months and 12 months for the cannabis offending and firearms offending respectively (rather than 30 months for the cannabis offending) and then adjusting for totality by two months as the Judge did, the sentence is 37 months. If that is then adjusted by the amount the Judge accepted was reasonable to reflect assistance to authorities and then the guilty plea, a sentence of 22 months’ imprisonment is reached.
[28] I accept Mr Donnelly’s submissions that a difference of not quite two months borders on the realm of tinkering. However, I note that in the circumstances of this case, where there is a heightened need for parity in light of Ms Grainger’s reduced sentence, it is appropriate that a different sentence should be imposed.
Failure to grant leave to apply for home detention
[29] Section 80I of the Sentencing Act 2002 provides that a Court must grant leave to substitute a short sentence of imprisonment for one of home detention if, “at the time of sentencing, the court would have sentenced the offender to a sentence of home detention if a suitable residence had been available”.16 That necessarily requires consideration on the part of the Judge as to whether or not home detention would be appropriate, even if an address is not proposed at the time of sentencing.
[30] As already set out in [11] above, the Judge did address the question of leave, but dismissed this on the grounds that the appellant was not “an appropriate candidate for home detention” and also that the purposes and principles of deterrence and denunciation pointed to a prison sentence.
[31] The appellant, however, submits that his co-operation with the authorities should have been taken into account by the Judge, as a factor in favour of granting leave. He also points to what he identifies as “protective factors” including the cessation of his relationship with the co-offender, the presence of a stable address at which he was bailed, and the desirability of enabling him to care for his autistic son.
[32] However, I am not brought to the point where I consider the Judge failed to take these factors into account. Having reached an end sentence of two years, which made home detention an available option, the Judge averted to the fact that
Mr Parkinson had been assisting in the care of his son, but still concluded that the two year prison term was an appropriate end sentence. She also considered the positive factors, which included the various references provided in support of the appellant, the fact he took early responsibility for the offending, and the fact he was taking responsibility for caring for his son, but nevertheless weighed that up against the culpability of his offending. She also turned her mind to his rehabilitation, referring to his ability to return to employment on release and the hope that drug testing at work
would assist with his rehabilitation.17
16 Section 80I(1)(b).
17 At [23]-[25].
[33] The fact that all those matters were being considered in light of the possibility of granting leave for home detention is evident from the first sentence in [26] where she concludes “In any event, the purposes and principles of sentencing, in my view, would not be met by a home detention sentence”. In my view, it is clear the Judge did consider the factors pointing both for and against home detention, and the decision to impose a prison sentence was an appropriate exercise of her discretion. It follows that I do not think the Judge erred by failing to take into account relevant considerations or that she was plainly wrong when she declined leave to apply for home detention.
[34] Accordingly, this ground of appeal fails.
Conclusion
[35] The appellant has demonstrated that his end sentence was manifestly excessive by reason of the starting point being too high. That conclusion is reached having regard to the sentence received by his co-offender on appeal, and the principles of parity. I am not satisfied, however, that the Judge erred by failing to grant leave to apply for substitution for home detention.
[36] Accordingly, the appeal is allowed in part. The end sentence of two years’
imprisonment is quashed and replaced with a sentence of 22 months’ imprisonment.
Solicitors:
H T Young, Barrister, Invercargill
Preston Russell Law, Invercargill
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