Parkinson v The Queen - [2017] NZHC 2623

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 Crown

Judgment:

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…

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 Parkinson v The Queen

Details

AGLC: Parkinson v The Queen [2017] NZHC 2623
Case: [2017] NZHC 2623
Decision Date: 26 October 2017

CaseChat Overview and Summary

The appellant, RION ROTOHIKO PARKINSON, was convicted on six charges relating to drug and firearms offending and sentenced to two years’ imprisonment. Parkinson appeals against his sentence, arguing that the starting point of three years four months was too high and that the Judge erred by failing to grant him leave to apply for home detention. The Crown submits that the sentence was properly imposed and that there was no error in law.

The court had to determine whether the starting point for the sentence was too high and whether the Judge erred in not granting leave for home detention. In assessing the starting point, the court considered the seriousness of the cannabis and firearms offending, taking into account the need for parity between co-offenders. The court also had to consider the Judge’s decision to not grant leave for home detention, examining whether the Judge took into account relevant factors and exercised her discretion appropriately.

The court found that the starting point for the cannabis offending was too high, as it did not sufficiently reflect the need for parity between co-offenders. The court adjusted the starting point to two years three months for the cannabis offending and upheld the starting point for the firearms offending. The court also found that the Judge did not err in not granting leave for home detention, as she had considered relevant factors and exercised her discretion appropriately.

The appeal is allowed in part. The end sentence of two years’ imprisonment is quashed and replaced with a sentence of 22 months’ imprisonment.

Orders