Parry v The the Queen
[2022] NZHC 486
•16 March 2022
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2021-412-52
CRI-2021-412-53 [2022] NZHC 486
UNDER the Criminal Procedure Act 2011 IN THE MATTER
of an appeal against sentence
BETWEEN
NATHAN GRAHAM PARRY
Appellant
AND
THE QUEEN
Respondent
Hearing: 28 February 2022 Appearances:
M Scally for Appellant
C E R Power for Respondent
Judgment:
16 March 2022
JUDGMENT OF OSBORNE J
This judgment was delivered by me on * at * pm
Registrar/Deputy Registrar Date:
PARRY v R [2022] NZHC 486 [16 March 2022]
Introduction
[1] Upon pleading guilty, Nathan Parry was sentenced1 by Judge M B T Turner to two years and six months’ imprisonment on charges of strangulation,2 assault on a person in a family relationship3 and assault with intent to injure.4 The Judge also imposed a protection order.
[2] Mr Parry appeals against the sentence but not against the imposition of the protection order.
Facts
14 April 2021
[3] The victim is Mr Parry’s former partner. At approximately 7 pm, on 14 April 2021, Mr Parry was at her address in Dunedin. The victim arrived home with her two- year old son. She had been drinking with a friend for approximately two hours and was quite intoxicated.
[4] After arriving home, she received a message from one of her male classmates on social media. She attempted to hide her phone from Mr Parry, but he located her phone. Knowing her passcode, he messaged the male telling him to leave the victim alone. He then rang the male, telling him the same.
[5] An argument occurred. Mr Parry became enraged and put his hands around the victim’s neck. He pushed her backwards approximately four metres into her bedroom and onto her bed. Kneeling beside her, he continued to strangle her for approximately seven to 10 seconds. She was trying to defend herself, thinking she was going to be rendered unconscious as she could not breathe. After that period, Mr Parry took his hands off her allowing her to roll over on the bed and face away from him. He then hit her approximately three times in the back of the head with a closed fist. He then left her address.
1 R v Parry [2021] NZDC 24095 [the Decision].
2 Crimes Act 1961, s 189A(b); maximum penalty seven years’ imprisonment.
3 Crimes Act, s 194A; maximum penalty two years’ imprisonment.
4 Crimes Act, s 193; maximum penalty three years’ imprisonment.
[6] As a result, the victim suffered a large welt to the back of her head and bruising to the side of her neck. Hence the strangulation and first assault charge.
[7] On 22 April 2021, he was bailed on conditions including that he not offer violence to any person and not go to the victim’s address. He pleaded guilty to the April charges and was then (on bail) awaiting sentence.
9 July 2021
[8] On 9 July 2021, Mr Parry was again at the victim’s address while awaiting sentence on the strangulation and assault charges.
[9] The offending again began with an argument. The victim wanted to invite a friend to her house and Mr Parry objected. The victim told him to leave and he refused. She pushed him in the direction of the door. He turned and grabbed her by the neck with one hand, applying a moderate amount of pressure. In an effort to get him to release her, the victim grabbed a nearby ceramic plate and struck Mr Parry on the head with it, causing him to momentarily release her. He then grabbed her by the throat again and pushed her back into the door of the address. After holding her there for several seconds he left the address.
[10] The victim received swelling and soreness to her neck and struggled to swallow for a time. Hence the second assault charge (assault with intent to injure).
District Court decision
[11] The Judge considered the aggravating features of the April offending were, first, that the offending occurred in the context of an intimate relationship and in the house of the victim and her young son, where she was vulnerable. The Judge also noted the argument arose as a result of Mr Parry’s jealous or controlling behaviour. Second, the Judge considered the strangulation was aggravated by the other violence. Third, the victim’s injuries were considered. Finally, the Judge took into account the fact the offending occurred while the victim’s two year old son was in the house.
[12] The Judge approached the starting point, by reference to the approach established in Ackland v Police5 and T v Police6 for cases involving strangulation. He viewed the offending as falling within the middle band identified in Ackland.
[13] For this April offending, the Judge adopted a starting point of two years and five months’ imprisonment.
[14] In relation to the July offending, the Judge considered the aggravating factors present were that:
(a)the offending occurred in the victim’s home;
(b)it was again preceded by an argument where Mr Parry exhibited controlling behaviour;
(c)there were in effect two assaults; and
(d)the victim suffered injuries as a result.
[15] The Judge considered there were troubling similarities between the July and April assaults. He found, on a standalone basis, the July offending could result in a starting point of 15 months’ imprisonment. However, on a totality basis, the Judge was prepared to accept the common submission of counsel that a nine-month starting point was appropriate.
[16] The Judge therefore adopted a cumulative starting point of three years and two months’ imprisonment (38 months).
[17] The Judge imposed a 10 per cent uplift for the fact the July offending occurred while Mr Parry was on bail awaiting sentence. He granted a full 25 per cent guilty plea discount and also afforded Mr Parry an eight per cent credit for three further matters:
5 Ackland v Police [2019] NZHC 312, (2019) 29 CRNZ 179.
6 T v Police [2019] NZHC 3375, [2020] 2 NZLR 270.
(a)a reparation payment of $528 made to the victim;
(b)his willingness to attend restorative justice;
(c)Mr Parry’s three months spent on EM bail.
[18] That net credit of 33 per cent resulted in an end sentence of two years and six months’ imprisonment.
[19] The Judge also imposed a protection order, being satisfied the criteria were met.
Principles on appeal
[20] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.7 As the Court of Appeal observed in Tutakangahau v R, quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.8 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.9
Appellant’s submissions
[21] Ms Scally, for Mr Parry, submitted the sentence of imprisonment was manifestly excessive. She submitted an order under s 80I Sentencing Act, for leave to apply for home detention, should have been imposed. Ms Scally took issue with nearly every aspect of the Judge’s sentencing approach.
7 Criminal Procedure Act 2011, ss 250(2) and 250(3).
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
9 Ripia v R [2011] NZCA 101 at [15].
Starting point
[22] Ms Scally referred to a series of cases beginning with Ackland in support of her submission the starting point adopted by the Judge for the May offending was excessive.10
[23] In Ackland, a starting point of three years and three months was upheld for offending which consisted of the appellant striking the victim’s face, forcibly putting his hands around her neck (causing her to gag) and yelling at her “if you want I can end it for you all now”. The victim lost consciousness. Ms Scally recognised that each of the subsequent cases involved their own mix and differing degrees of seriousness with starting points ranging from two years11 up to three years12 with a number of cases in between those two starting points.13
[24] Ms Scally submitted that, for comparability, the sentence in Bowring v Police was of most assistance, with the April offending in her submission being less severe from that in Bowring.14 The appellant had been sentenced to two years and four months imprisonment for one count of threatening to kill, one representative count of assault with intent to injure, one charge of strangulation and one charge of intentional damage. In Bowring the High Court did not reject the appropriateness of a starting point of 20 months but confirmed that a starting point of up to 24 months was available on the strangulation offence alone.
[25] On the facts in Bowring, the strangulation had involved the appellant pushing the victim against a cupboard, placing his right hand around her throat, and squeezing sufficiently hard to cause her to struggle for breath and to produce bruising. A separate representative charge covered four assaults on separate days (first shoving the victim to the ground; secondly punching her in the head and legs with a closed fist a number
10 Ackland v Police, above n 5; Houkamau v Police [2019] NZHC 2743; Parker v Police [2020] NZHC 479; T v Police, above n 6 ; Mokaraka v Police [2020] NZHC 718; Walker-Oaariki v Police [2020] NZHC 1087; Lowery v R [2020] NZHC 667; Milne v Police [2020] NZHC 358; and Bowring v Police [2020] NZHC 3252.
11 Houkamau v Police, above n 10; Parker v Police, above n 10; Lowery v R, above n 10; and
Mokaraka v Police, above n 10.
12 T v Police, above n 6.
13 Milne v Police, above n 10 (two years for strangulation but with a six month uplift for assault with intent to injure; Walker-Oaariki v Police, above n 10 (two years two months).
14 Bowring v NZ Police, above n 10.
of times; thirdly burning the victim’s neck with a cigarette; and fourthly punching her with a closed fist in the head and pushing her in the jaw. The District Court Judge uplifted the starting point by 12 months for the representative charge and a further six months for the threat to kill, resulting in an adjusted starting point of 38 months’ imprisonment. On appeal, Gwyn J found that an uplift in the realm of nine months would have been more appropriate for the assault charge and that the six month uplift for the threat to kill appropriately reflected the seriousness of that charge. Having regard to the varying conclusions reached in relation to the starting points and uplifts, the High Court found there was not a material error in sentencing such that a different sentence should be imposed.
[26] Ms Scally submitted that, taking the offending as a “package”, and given that the offending in Bowring was more serious than in this case, the overall starting point can be seen as manifestly excessive.
[27] For the July offending, Ms Scally referred to the same series of cases, submitting that the appropriate uplift in this case would have been no more than six months.
Aggravating features
[28] Ms Scally submitted the fact the July offending occurred in breach of bail conditions was the most serious aggravating feature of that offending and must have been taken into account in the Judge’s assessed starting point of nine months’ imprisonment on the July offending. Accordingly, she submitted, the uplift of 10 per cent (applied across the board to the starting points for both the April and the July offending) by the Judge on account of bail breaches (approximately four months representing almost half the nine months’ starting point) was excessive. Ms Scally submitted that the appropriate uplift was one or two months.
Mitigating factors
[29] In Ms Scally’s submission, the eight per cent discount for the combined features of reparation, restorative justice and time spent on EM bail was inadequate, and there ought to have been a 15 per cent allowance.
Methodology
[30] Ms Scally submitted the Judge had erred in relation to sentencing methodology, in terms of Moses v R,15 on the basis the Judge erred in setting off the discount for mitigating features against the uplift for the fact that the July offending occurred in breach of bail conditions, rather than calculating the uplift and then subtracting the discounts.
[31] Ms Scally submitted that with appropriate starting points and appropriately applied uplifts and discounts, the available end sentence ought to have been no more than two years’ imprisonment.
Home detention
[32] Ms Scally submitted that, upon the assessment of the appropriate term of imprisonment, Mr Parry ought to have been granted leave under s 80I Sentencing Act to apply for cancellation of the sentence of imprisonment and substitution of a sentence of home detention. Ms Scally referred to the following matters:
(a)Mr Parry had been subject to community detention in 2018 with no breaches;
(b)since the July offending, Mr Parry spent approximately three months and one week in custody (before being released on EM bail), with the deterrent effect involved in that situation;
(c)Mr Parry is willing to engage on the rehabilitative course recommended by the Department of Corrections and will be doing so under the protection order; and
(d)a sentence of home detention provides deterrence and denunciation at the same time as enabling reintegration and rehabilitation.
15 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [30].
Respondent’s submissions
[33] Mr Power, for the Crown, similarly analysed the relevant cases and submitted the starting point was within range. He maintained the uplift for offending on bail was proportionate given the prior offending and breach of bail, and that proportionality should be assessed against the adjusted starting point. Similarly, it was submitted the credit afforded for mitigating factors was within range.
[34] On methodology, Mr Power referred to Moses v R. He noted the Court of Appeal there envisaged the adding and subtracting of aggravating and mitigating factors of the offender against each other before their application to the adjusted starting point.16
[35] Mr Power did not address the substance of Ms Scally’s case in favour of home detention, instead submitting the threshold for a short-term sentence (24 months’ imprisonment or less) will not be reached.
Analysis
Starting point for April offending
[36] The Judge adopted a starting point for the April offending (strangulation and assault in a family relationship) of two years and five months’ imprisonment.
[37] I first note no issue was taken with the Judge’s findings as to the aggravating factors of the offending nor his reference to the relevant authorities including the sentencing bands set out in Ackland v Police,17 the comments as to seriousness and aggravating factors in T v Police18 and the direction, in sentencing, to focus on an overall assessment of the nature and culpability of the offending.19
[38] A important feature of this case, unlike some more serious cases of strangulation is that there was neither a threat to kill nor a loss of consciousness or
16 Moses v R, above n 15, at [30].
17 Ackland v Police, above n 5
18 T v Police, above n 6.
19 Parker v Police, above n 10.
infliction of urinary incontinence. In fact, the strangulation was relatively brief, as noted by the Judge.
[39]Of the cases referred to by counsel the following are most relevant:
(a)Houkamau v Police:20 Mr Houkamau was at his home address and argued with the victim. He shoved her out the front door. He then punched her in the forehead and began choking her with both hands around her neck. She tried to pull his hands off and was finding it difficult to breathe. He continued for a short period before shoving her back into the ground, causing her neck to hit wooden edging around the garden. On charges of strangulation and assault on a person in a family relationship, the High Court upheld on appeal a starting point of two years’ imprisonment albeit with the observation that it was “stern”. Of note is the fact, in this case, the offending did not take place in the victim’s home and there were no children present.
(b)Parker v Police:21 There was tension between Mr Parker and the victim as she wanted to end their relationship. She asked him to leave but he refused. Continuing to argue in the kitchen, he punched her in the jaw then immediately punched a hole in the lounge door. He continued his abuse when she insisted she did not want to be in the relationship. He grabbed her throat, squeezing with his right hand. While strangling her, he told her “it’s not over until I say it is, do you hear me?”. For this strangulation and assault, along with two other assaults on different occasions, a starting point of two years was adopted and not disturbed on appeal. All of the aggravating factors present here were present in Mr Parker’s offending.
(c)Mokaraka v Police:22 Mr Mokaraka began arguing with the victim. He grabbed her by the hair and dragged her down the hallway into a
20 Houkamau v Police, above n 10.
21 Parker v Police, above n 10.
22 Mokaraka v Police, above n 10.
bedroom. He told her he was going to kill her. He put his hands around her throat and strangled her. She was unable to breathe and her face became tight. She briefly fought him off but he grabbed her against and squeezed. He finally released her but kept her in the bedroom for several hours, continuing to yell at her. On charges of threatening to kill, strangulation and assault on a person in a family relationship, a starting point of two years and six months was adopted on appeal.
(d)Lowery v Police:23 Over two days Mr Lowery offended against his partner. On the first day he became intoxicated, threw her onto the bed and punched her to the head a number of times. On the second day, he became intoxicated again. He punched her in the face, grabbed her hair and punched her again in the stomach. He then got on top of her, straddling her torso and strangled her for about 20 seconds. After removing his hands, he punched her in the face several times. The High Court , on appeal considered a starting point of two years imprisonment for the strangulation, uplifted by six months for other charges including breaching a protection order and two months for the fact Mr Lowery was subject to sentence, was appropriate.
[40] Parker involved more culpable offending than Houkamau, and indeed more serious offending than here. The fact the same starting point was adopted in each of those two cases and upheld on appeal reflects the fact there is usually a range of appropriate sentences. Mokaraka was also a more serious case than this due to the addition of a threat to kill, a serious aggravating factor and punishable separately by a maximum penalty of seven years’ imprisonment.24 I acknowledge Mr Power’s submission that Mr Parry administered punches to the victim’s head but that conduct is less serious than the more prolonged strangulation and a threat to kill involved in Mokaraka. The assaults and strangulation in Lowery were also more prolonged and serious and there was the additional factor of a protection order breach there.
23 Lowery v Police, above n 10.
24 Crimes Act, s 306.
[41] I conclude that the starting point adopted by the Judge (of two years and five months’ imprisonment) was not within range. A starting point of two years and two months’ imprisonment was appropriate for Mr Parry’s offending.
The July offending
[42] The Judge considered the July offending (one charge of assault with intent to injure) on a stand-alone basis justified a starting point of 15 months’ imprisonment, representing the top end of the range as submitted by the prosecutor, but concluded that nine months was appropriate.
[43] The case of Bowring referred to by Ms Scally (and discussed at [24]–[25] above) involved the Court’s having to assess an uplift for offending that occurred independently of the most serious incident of offending. So too did Parker v Police25 as referred to by Ms Scally. In Bowring, the High Court considered the range of appropriate uplift on the representative assault charge to be six to 12 months, and found nine months would have been more appropriate than the 12 months assessed by the District Court Judge. The assaults in Bowring, particularly because there were four, were much more serious than Mr Parry’s July offending.
[44] The Judge’s nine months starting point in this case was excessive. A more appropriate uplift was six months.
[45] The July offending differed from the April offending in that it occurred while the defendant was on bail in relation to the April offending (and in breach of conditions as to non-association and not offering violence to any person). That in turn led to the deferral of Mr Parry’s sentencing for the April offending. In relation to the July offending, on account of the bail breach, the Judge found an uplift of four months appropriate. (The Crown had sought a “stern uplift” of three to four months’ imprisonment to properly reflect this aggravating factor). But in doing so the Judge observed that represented, as a percentage, 10 per cent. From that part of the decision, it appears that the Judge was focussed on a 10 per cent adjustment for the bail breach as the four months adjustment he first came to represents approximately 10 per cent
25 Parker v Police, above n 10.
of the total starting point sentence of 38 months (being 29 months and nine months). Had the Judge intended to adjust only the starting point for the July offending by four months, that would have represented an adjustment of approximately 45 per cent.
[46] The strong inference is that the Judge inadvertently applied his adjustment not only to the starting point for the July offending but also to that for the April offending.
[47] For what was one event of offending while on bail (that is the July event), a further adjustment of one month was appropriate. Applied to the initial starting point of six months, the adjusted starting point for the July offending would then become seven months. It was appropriate to make the adjustment for that aggravating factor at that point (rather than in the context of personal mitigating and aggravating factors at the next stage of the Moses methodology) as it was an aggravating factor of the offending.
Adjusted starting points
[48] The appropriate adjusted starting points were accordingly 26 months (for the April offending) and seven months (for the July offending), a total of 33 months.
Personal mitigating factors
[49]The Judge’s discount of 25 per cent for guilty pleas was not in issue.
[50] That leaves other personal factors for which, on a bundled approach (bundling together willingness to attend restorative justice/payment of reparation/three months spent on EM bail) Ms Scally submitted there ought to have been a 15 per cent discount, rather than the eight per cent allowed by the Judge.
[51] The matters referred to by Ms Scally need to be put into context, as the Judge clearly did in arriving at the eight per cent discount. The indication of remorse (through the offer to take part in restorative justice) and the payment of reparation ($528 for the victim’s broken phone) were not such as to justify a large discount. Similarly, the three months spent by Mr Parry on EM bail were in significant part
caused by Mr Parry’s failure to comply with the not-very-onerous conditions of his bail following the April offending.
[52] The eight per cent discount allowed by the Judge would equate, on the total starting point of 33 months, to three months’ discount — with favourable rounding.
[53] That was within range as a discount on account of the three identified mitigating features, albeit at the lower end of the range.
Calculation of the end sentence
[54] Consistently with the Judge’s approach to totality in relation to the April and July offending, it was appropriate in this case that the Judge then took the strangulation charge as the lead charge and imposed a total appropriate sentence on that, before imposing concurrent sentences in relation to the remaining charges. Counsel did not disagree with that approach.
[55] As a result of my alteration of the starting point for the July offending on account of the bail breach aspect, there is an ensuing alteration to the end calculation.
[56] The total discount for personal mitigating factors (33 per cent) against the total starting point (33 months) indicates an end sentence of 22 months’ imprisonment on the charge of strangulation. The sentences on the remaining charges — 10 months’ imprisonment for assault in a family relationship and nine months’ imprisonment for assault with intent to injure, both to be served concurrently with the strangulation sentence — appropriately remain as they are.
[57] I am satisfied that the cumulative sentence of two years’ six months’ imprisonment was manifestly excessive and should have been a cumulative sentence of 22 months’ imprisonment.
Home detention
[58] In the circumstances I would have commuted the sentence to one of home detention had an appropriate address been available, so will reserve leave for Mr Parry to apply to the District Court under s 80I Sentencing Act.
Orders
[59]I order:
(a)the sentence of two years and six months’ imprisonment on the charge of strangulation is quashed. A sentence of one year and 10 months’ imprisonment is substituted on that charge;
(b)the concurrent sentences on the two remaining charges (assault on a person in a family relationship and assault with intent to injure) are not affected by this judgment; and
(c)Mr Parry is granted leave to apply for cancellation of the sentence of imprisonment and substitution of a sentence of home detention under s 80I Sentencing Act.
Osborne J
Solicitors:
Public Defence Service, Dunedin Crown Solicitor, Dunedin
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