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…

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 Parry v The the Queen

Details

AGLC: Parry v The the Queen [2022] NZHC 486
Case: [2022] NZHC 486
Decision Date: 16 March 2022

CaseChat Overview and Summary

Nathan Parry was sentenced to two years and six months’ imprisonment by Judge Turner for charges of strangulation, assault on a person in a family relationship, and assault with intent to injure. Parry appeals against the sentence, arguing that it was manifestly excessive and that he should have been granted leave to apply for home detention. The court must determine whether there was an error in the imposition of the sentence and whether a different sentence should be imposed.

The court considered the starting point for the April offending and found that the starting point adopted by the Judge (two years and five months’ imprisonment) was not within range. The court concluded that a starting point of two years and two months’ imprisonment was appropriate for Parry’s offending. For the July offending, the court found that the Judge’s nine months starting point was excessive, and a more appropriate uplift was six months. The court also found that the eight per cent discount allowed by the Judge for personal mitigating factors was within range.

The court calculated the end sentence, taking into account the altered starting point for the July offending on account of the bail breach aspect. 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 appropriately remain as they are.

The court concluded that the cumulative sentence of two years’ six months’ imprisonment was manifestly excessive and should have been a cumulative sentence of 22 months’ imprisonment. The court commuted the sentence to one of home detention had an appropriate address been available and granted Parry leave to apply for cancellation of the sentence of imprisonment and substitution of a sentence of home detention under s 80I Sentencing Act.

Orders