Parsons v Police

[2018] NZHC 2214

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2018-412-19

[2018] NZHC 2214

BETWEEN

NIKORA RUA PARSONS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	24 August 2018
Appearances:	B Kilkelly for Appellant R Smith for Crown
Judgment:	24 August 2018

JUDGMENT OF MANDER J

[1]    The appellant, Nikora Parsons, was sentenced to an effective term of imprisonment of two years and three months by Judge Crosbie on three charges of male assaults female and for other less serious offending. Mr Parsons appeals that sentence on the basis it was manifestly excessive.

Background

The first assault

[2]    On the evening of 11 July last year, Mr Parsons’ partner was asleep in her bed. Mr Parsons woke her up. She  wanted  to sleep  and told him  to leave  her  alone.  Mr Parsons became angry and began verbally abusing her. At that point, the victim got up and told Mr Parsons that their relationship was over. Mr Parsons shoved her in the chest using both hands, causing her to fall backwards.  When she got back up,  Mr Parsons punched her on the jaw, causing her to fall back against a wall. Upon regaining her balance, she picked up her car keys and went to leave.

PARSONS v NEW ZEALAND POLICE [2018] NZHC 2214 [24 August 2018]

[3]    At that point, Mr Parsons grabbed hold of the victim’s arm, causing her to drop the keys. She ran from the room to the lounge where a friend was sleeping.  After  Mr Parsons had left the bedroom, the victim went back to get the car keys. As she walked back out of that room, Mr Parsons again punched her in the face, connecting with her nose and mouth. This knocked her to the floor. He picked her up by the waist, saying he was sorry.

[4]    The victim suffered bruising to her left eye, jaw and both her arms, and grazing to her eyebrow and neck. Her jaw and nose were extremely sore.

Second assault

[5]    On 18 August, Mr Parsons and the victim were together on a public street. An argument developed about money which became heated. The victim fell to the ground as they struggled over an EFTPOS card.  When  the victim got up off the ground,  Mr Parsons punched her once in the head with a closed fist, causing her to fall back to the ground. After she got up, she continued walking along the street with Mr Parsons. She was not injured.

Third assault

[6]    Four days later, the victim accompanied Mr Parsons on a trip to Wanaka. On the way back to Dunedin, they stayed the night in Lawrence. The next day, they went to the Information Centre to use the Wi-Fi. There was a verbal altercation that escalated into violence. Mr Parsons was initially struck by the victim. He retaliated by pinning her against a wall and repeatedly striking her with a closed fist. After she managed to break free, she sought refuge in a neighbouring business. The victim sustained minor bruising from the incident and did not seek medical treatment.

District Court sentence

[7]    Judge Crosbie identified that Mr Parsons was for sentence in respect of three charges of male assaults female which had occurred on three separate occasions. After noting that the second assault involved a single punch, the Judge adopted a starting point of nine months’ imprisonment for the first and third assaults, and six months’

imprisonment for the second assault. The cumulative starting point of 26 months was then adjusted for totality to arrive at a starting point of 20 months’ imprisonment.

[8]    Mr Parsons was also for sentence on two charges of minor dishonesty, wilful damage, and driving whilst disqualified. Judge Crosbie accepted counsel’s submission that that offending only required an uplift of three months. The offending had occurred while Mr Parsons had been subject to a sentence of community work and on bail. That aggravating feature was recognised by an uplift of four months.

[9]    Mr Parsons, at the age of 23, has a not insignificant list of previous convictions, including for assault and threatening behaviour in 2014, and a previous conviction for assaulting a female in 2016. To reflect those previous convictions for violence, a further three month uplift was imposed. That brought the total starting point to 30 months’ imprisonment.

[10]   Mr Parsons had engaged in a positive restorative justice conference. He had apologised to the victim, and both she and Mr Parsons had agreed that it was important that he be involved in the parenting of their baby. The Judge said Mr Parsons was entitled to a five per cent discount to acknowledge he successfully engaged in restorative justice. It was also accepted that Mr Parsons was entitled to a discount for his guilty pleas.

[11]   Mr Parsons originally pleaded not guilty to each of the male assaults female charges which had been set down for a defended hearing on 8 January 2018. Because his pleas were not changed until the day of his trial, Judge Crosbie considered that only limited credit could be extended. An overall discount of 10 per cent was applied to reflect this and the restorative justice conference. This resulted in an end sentence of two years and three months’ imprisonment.

[12]   That total sentence was reflected in three cumulative terms of nine months on each of the assault charges, with each of the other charges attracting concurrent sentences of one month’s imprisonment. Disqualification was imposed for the disqualified driving charge, and small amounts of reparation ordered. Additionally, a domestic protection order was made without opposition.

The appeal

[13]   Mr Parsons’ challenge to the sentence as being manifestly excessive is based on four grounds:

(a)The starting point for the lead charges of male assaults female was too high and ought to have been in the vicinity of 15 months’ imprisonment;

(b)The sentencing Judge, in making uplifts to the starting point, did not have due regard to the principle of totality;

(c)An inadequate discount was applied to reflect Mr Parsons’ guilty pleas; and

(d)Further credit should have been extended in recognition of the positive aspects of the restorative justice report, the views expressed by the victim in her victim impact statement, his expressions of remorse, and his commitment to participate in rehabilitation programmes.

[14]   It is contended on behalf of Mr Parsons that an end sentence in the range of 19-22 months should have been imposed, and that a sentence within that range would have been sufficient to bring home to Mr Parsons the seriousness of his conduct.

[15]   The Crown’s response is that the starting point adopted by Judge Crosbie for the male assaults female charges was well within range, as were the uplifts and discounts. The Crown submits that, having regard to the nature and number of offences for which Mr Parsons was for sentence, the overall effective sentence of 27 months’ imprisonment was within the available range and cannot be described as manifestly excessive.

The starting point

[16]   Mr Parsons challenge to the starting point is largely dependent upon a comparison between his offending and three cases that were cited to me of some nine to 14 years vintage which his counsel, Mr Kilkelly, submitted demonstrated that a

lower starting point should have been applied. With respect, the utility of such an approach is limited. Invariably the circumstances of each case will vary, and while consistency is sought to be achieved, inevitably, there will be a range of sentence available to the Court depending upon its view of the seriousness of the individual offence  and the particular circumstances of the  case.  However,  in deference to   Mr Kilkelly’s submissions, I briefly review each of the cases upon which he relies.

Sandri v Police1

[17]   In Sandri, the appellant challenged a sentence of six months’ home detention imposed on three charges of male assaults female and two charges of common assault, all of which involved his partner. The offending included the use of a vacuum cleaner pipe on the victim’s foot and the punching of her back and arms. There was a second incident involving the throwing of a coffee table, and a third incident in which the appellant punched the victim in the ribs. Some weeks later there was a further altercation which involved the appellant grabbing the victim by the shoulder and forcibly pushing her, causing her to fall and hit her head on a wooden railing. Some hours later, the appellant again assaulted the victim by punching her in the ribs and biting her forearm.

[18]   While Mr Kilkelly sought to place some reliance on the level of sentence imposed for these significant assaults on the same victim, the precedent value of the case is limited. The sentence was upheld and there is nothing to indicate that a different or longer sentence would not also have been justified had that been appealed. In any event, as noted by Mr Smith on behalf of the Crown no starting point was articulated in that case other than one of imprisonment. The appellant had a relatively limited criminal history, and while there were a series of assaults, there does not appear to have been any direct attack to the head, other than a blow to the chin. It is apparent that a combination of the victim’s conduct and the appellant’s personal circumstances resulted in a lenient sentence.

1      Sandri v Police CRI-2009-476-11 HC Timaru, 28 July 2009.

Stewart v Police2

[19]   In Stewart, the appellant who had a bad record of offending successfully appealed a sentence of 18 months’ imprisonment imposed on two charges of male assaults female against the same victim. On appeal, Gendall J considered the starting point on the two charges ought to have been 15 months’ imprisonment, comprising cumulative terms of nine and six months’ imprisonment, respectively. The offending involved the appellant assaulting his ex-partner on two separate occasions. The second incident involved him dragging her down the stairs and throwing her to the floor. However, neither assault involved attacks to the head. Importantly, when a comparison is made between Judge Crosbie’s starting points and the six to nine month starting points approved in Stewart, the respective approaches are consistent.

M v Police3

[20]   In M v Police, the appellant was sentenced to 18 months’ imprisonment on three charges of assaulting his partner and two daughters. The appellant punched his 16-year-old twin daughters with a closed fist several times and also kicked one of them. The assault on his partner involved grabbing her by the hair and dragging her through the house. Insofar as the case is relevant to the issue of an appropriate starting point, it does not assist Mr Parsons. The point taken on appeal related to the failure to provide credit for the guilty pleas, the wishes of the victims, and the appellant’s desire to rehabilitate himself.

[21]   Heath J held the sentencing Court was in error in not allowing a reduction for those considerations. He reduced the sentence to one of 12 months’ imprisonment. However, the overall starting point of 18 months was not disputed. While there were three charges before the Court, there had only been two incidents of violence. Arguably, therefore, the overall starting point of 18 months was not inconsistent with the 20 months taken for the three separate episodes of violence in the present case.

[22]   In response to the appellant’s submission that the starting point adopted by Judge Crosbie did not accord with the level of sentence imposed for like offending,

2      Stewart v Police HC Wellington CRI-2008-485-24, 6 May 2008.

3      M v Police HC Auckland CRI-2004-404-440, 10 December 2004.

Mr Smith drew my attention to two more recent decisions of the Court of Appeal involving episodes of violence which he submitted were comparable to the violence inflicted by Mr Parsons.

Goodman v R4

[23]   In Goodman, the Court of Appeal considered an appeal against an overall sentence of two years and four months’ imprisonment imposed in respect of charges of assault with intent to injure and male assaults female. The charges involved the same victim and occurred over the course of one extended incident. The sentencing Judge had adopted an effective starting point of two years and four months’ imprisonment, in respect of which the Court of Appeal observed:

[12] In our view, a starting point of 28 months was within the available range. We agree with the Judge this was a serious assault involving, as it did, attacks to the head and neck, and, while the victim did not lose consciousness, there was a strong evidential foundation from which the Judge could draw the inference that this would have been a very frightening and alarming incident for her. As submitted by the Crown, generally sentences of between two to three years' imprisonment for domestic violence offending are not uncommon and a single charge of male assaults female tends to carry a term of imprisonment of between two and 12 months. An effective uplift of four months for the male assaults female charge was not excessive.

[24]   That case involved the more serious charge of assault with intent to injure which carries a maximum sentence of three years’ imprisonment as opposed to the two year maximum for a charge of male assaults female. However, at least two of the three episodes of violence in the present case involved serious assaults. The starting points of six and nine months which were reduced for totality were, on the guidance provided by the Court of Appeal, well within range.

Samuel v R5

[25]   In Samuel, the offender challenged an effective sentence of two years and five months’ imprisonment on charges of assault with intent to injure, intentional damage, and male assaults female which occurred during the course of a single incident. A starting point of 20 months’ imprisonment on the most serious act of violence was

4      Goodman v R [2016] NZCA 64.

5      Samuel v R [2012] NZCA 376.

uplifted by six months to reflect the additional charge of male assaults female and wilful damage. A further nine months was added to reflect previous convictions and offending while subject to a sentence. The Court of Appeal held that the adjusted starting point of two years and 11 months’ imprisonment was appropriate in all the circumstances.

[26]   Again, notwithstanding the different lead charges, the violence in that case was not substantially worse. By any comparison, the approach taken by Judge Crosbie in setting an overall 20 month starting point for three charges of male assaults female, each of which occurred on separate occasions, is consistent with the sentence approved by the Court of Appeal in that case. I do not therefore consider the 20 month starting point was excessive.

Failure to have due regard to the principle of totality when uplifting the starting point

[27]   No issue was taken with the uplifts imposed to reflect the minor dishonesty, wilful damage, and driving whilst disqualified offending. Nor, with the discrete increases imposed for Mr Parsons’ previous convictions, and to recognise that his present offending occurred while on bail and when he was already subject to a community-based sentence.

[28]   Mr Kilkelly sought to argue that the sentencing Judge failed to adjust those uplifts to reflect the principle of totality. I do not consider that contention is sustainable. Insofar as the challenge amounts to an alleged failure to adjust what would otherwise be appropriate uplifts, it is plain from Judge Crosbie’s sentencing remarks that those parts of the sentence were explicitly reduced in order to take into account the overall totality of the final starting point, which would otherwise have been 11 months greater. Mr Kilkelly, who did not have the benefit of a formal typed record of the Judge’s sentencing remarks at the time of drafting his written submissions, responsibly did not press this ground of appeal in oral argument.

Inadequate discount for guilty pleas

[29]   Mr Kilkelly submitted that the sentencing Judge erred in providing only a minimal discount for Mr Parsons’guilty pleas which were only entered on the day of the trial. He submitted the prosecution had been informed some three weeks before the scheduled trial date that guilty pleas were to be entered. Mr Kilkelly maintained that had allowed some four civilian witnesses to be stood down and disposed of their need to attend Court on the day of the scheduled hearing. The Crown accepts that was the position, although it remains unclear whether the Court received any formal notification that the charges were no longer to be defended.

[30]   Mr Kilkelly, in his written submissions, referred to the approach taken by Heath J in M v Police, where a 25 per cent reduction was afforded to the appellant for the entry of his guilty pleas notwithstanding their lateness, and that a similar approach should have been adopted by Judge Crosbie.6 The difficulty with reliance on that case is that it predates the Supreme Court’s decision of Hessell v R which places greater emphasis on the timing of the plea in terms of the credit to be afforded to the offender.7

[31]   Judge Crosbie addressed the issue in his sentencing remarks in the following way:

[18] Let us be very clear Mr Parsons, you pleaded guilty as far as the Court is concerned on the day of fixture. I understand what Mr Kilkelly is trying to say with the discount, but the Supreme Court has provided guidance for Courts on discounts. A 25 per cent discount is the largest the Court gives for a plea that is given at the earliest opportunity and then it reduces right down to zero. Zero usually reflects verdicts being delivered by a jury or Judge. Some credit is given for late pleas on the day of trial, but it is very small. Mr Kilkelly suggested that you had indicated the pleas. However, as far as the Court is concerned, it is not until the day in question that the complainants and the witnesses understand that they would not be required to give evidence. ...

[32]   Based upon the position that the sentencing Judge understood prevailed on the morning of the Judge alone trial, there is no basis upon which to challenge the five per cent discount for the guilty pleas entered on the morning of the fixture. However, I accept, with the benefit of more detailed information, that there may have been greater scope for a more generous discount. This is particularly so given the date of the

6      M v Police, above n 3, at [56].

7      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

communicated advice prior to the Christmas break, on 16 December 2017, thereby releasing witnesses from attendance early in the new year, during the extended holiday period. However, for reasons relating to the overall effect of the sentence, I do not consider that aspect ultimately influences the issue I must decide as to whether the sentence was manifestly excessive.

Failure to give due regard to personal mitigating factors

[33]   Mr Kilkelly submitted that Mr Parsons’ participation in the restorative justice process and his resolve to address his issues by attending a Stopping Violence Programme, an Anger Management Programme and a parenting course, together with his stated remorse, should have resulted in a greater discount. Together with a greater credit for the guilty pleas, Mr Kilkelly submitted a  reduction  in  the  region  of 15-20 per cent should have been allowed.

[34]   Judge Crosbie canvassed the outcome of the restorative justice conference in some detail in his  sentencing  notes.  He  acknowledged  the  victim’s  views  and Mr Parsons’ remorse for his violence. The Judge also, with some care, discussed the possible issues sitting behind Mr Parsons offending and the need for him to address those difficulties. The Judge also acknowledged Mr Parsons’ commitment to undertaking courses and interacting in a positive fashion with the victim for the sake of their child. A five per cent credit was extended for these personal mitigating factors.

[35]   Arguably, a greater deduction could have been applied. However, Mr Parsons’ apparent recognition of his need to address his propensity to resort to violence in response to matters arising from his personal relationship can only be described as belated. That does not detract from the potential significance of his acknowledgement but it does not follow that he is entitled to a substantial reduction in his sentence. While Mr Parsons’ former partner and victim expressed her wish for leniency, the Court has to be cognisant of the public interest in denouncing and deterring such repeated domestic violence and holding offenders to account.8

8      R v Taueki [2005] 3 NZLR 372 (CA) at [33].

[36]   While I accept greater credit could have been afforded, I do not consider the five per cent credit settled upon by the Judge to reflect Mr Parsons’ positive participation in the restorative justice conference and his stated intentions to address the causes of his offending constitutes an error.

Conclusion

[37]   While Mr Kilkelly has identified aspects of the approach taken to some components of the sentence which are open to challenge, the appeal Court is required to step back and consider whether the sentence as a whole falls within the range that can properly be justified upon the application of accepted sentencing principles. It is trite to observe that whether a sentence is manifestly excessive is required to be judged in terms of the ultimate sentence imposed rather than the process by which it was reached or its component parts.9

[38]   After making substantive adjustments for totality, the starting points taken by the sentencing Judge for the lead charges could be considered generous. Be that as it may, having undertaken the assessment of the final sentence imposed, I do not consider the overall term of two years and three months’ imprisonment falls outside the range of sentence available to the Court in the exercise of its discretion.

[39]The appeal is dismissed.

Solicitors:

Brian Kilkelly Barrister, Dunedin RPB Law, Dunedin

9      Larkin v Ministry of Social Development [2015] NZHC 680 at [26]; Tutukangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].