R v Parish
[2012] NZHC 495
•21 March 2012
NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION PLEASE SEE THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2011-009-000153 [2012] NZHC 495
REGINA
v
JASON PARISH
Appearances: MAV Raj and T J Mackenzie for Crown
S Shamy for Prisoner
Judgment: 21 March 2012
SENTENCE OF HON JUSTICE FRENCH
[1] Jason Parish, following pleas of guilty, you appear for sentence this afternoon on five counts:
i) injuring with intent to injure;
ii) blackmail;
iii) threatening grievous bodily harm;
iv) two charges of breaching a protection order.
R V PARISH HC CHCH CRI-2011-009-000153 [21 March 2012]
[2] The injuring with intent to injure charge was recently transferred to this Court from the District Court, and the Judge in that jurisdiction asked that it be sent to the High Court so you could be sentenced on that charge today with the other four charges that were originally in this Court.
Facts of the offending
[3] The victim in all offences was your former partner. Your relationship began about two months before you went to prison on an unrelated matter. The victim visited you in prison on 12 August 2007. According to the police summary of facts, the purpose of her visit was to tell you she was ending the relationship. You say that in the course of doing that, she indicated she was seeing another person and had possibly given you a sexually transmitted disease. Whatever it was that was said, it is clear you reacted strongly. Despite the presence of the prison guards, you grabbed her by her thighs and began punching her in the face with a closed fist. You continued hitting her in the face, causing a gash on her nose and chipping several of her teeth. The attack continued until another prisoner in the visiting room intervened and physically pulled you off the victim.
[4] As a result of this assault, the victim had to be admitted to hospital, and received stitches to her face. She also had several chipped teeth and bruises around her face and neck.
[5] Despite this incident, the two of you briefly reconciled following your release, but it did not last. She moved to Auckland, she says in an attempt to get away from you because she no longer wanted any contact.
[6] On 22 July 2010 she obtained a domestic protection order against you from the Auckland Family Court.
[7] You wanted to get back together again, and between 29 September 2010 and
13 November 2010 you sent a series of approximately 70 text messages. Some of these earlier messages were affectionate, and the victim responded. However, things turned nasty and the texts became abusive and threatening. At one point you told the
victim you had a video of the two of you having sex. She did not know about any video, and indeed it is doubtful whether such a video actually exists. On 7 October
2010 you sent her a text message threatening to put a photo on the internet and distribute it to her friends unless she took your calls.
[8] On 11 October you sent a text threatening to disfigure her face so that no man would go near her. The text also stated that even if you got six or seven years’ imprisonment for that, you would serve four or five at the most, and when you got out she would still be walking around ugly.
[9] Another text threatened to smash her door.
[10] In her victim impact report about the 2010 offending, she says you had her so scared she was afraid for her life. She was indeed so fearful that you would carry out your threat that she was constantly looking over her shoulder wondering if you would be there.
Reports
[11] In addition to the victim impact reports I have read the pre-sentence reports and a letter Mr Shamy has given me from a doctor.
[12] The pre-sentence report tells me you are 38 years of age, with sadly a significant criminal history of dishonesty and some violence-related offending, spanning from 1987 onwards. There are 80 convictions in total. They include 14 for breaches of Court orders. The seriousness and consistency of your offending is said to be of concern.
[13] Health-wise, you have been diagnosed with adult ADHD, and depression and anxiety.
[14] To your credit, you have undergone some treatment following this latest offending, which you say you have found beneficial. You told the report writer you are determined to change and are ashamed of your offending, although at the same time you shifted much of the blame onto the victim.
[15] The report writer identifies factors underlying your offending as being a propensity for violence and relationship issues. Your risk of reoffending is said to be high.
[16] The report writer considered your suitability for home detention as questionable because you absconded while on electronically monitored bail. The service’s concerns about home detention were further amplified in a supplementary report that has only recently been received.
[17] The report, which did not of course deal with the District Court charge of injuring with intent to injure, concluded by recommending a short period of imprisonment with special release conditions.
[18] I have not had the benefit of a pre-sentence report in relation to the injuring with intent to injure offence. However, counsel were agreed that this would not in the circumstances be necessary.
Sentencing analysis
[19] I will now explain the sentencing decisions I have to make today and the approach that is taken.
[20] First I have to apply what are called the purposes and principles of sentencing as set out in the Sentencing Act 2002.
[21] As far as the purposes are concerned, they include holding you accountable for the harm you have done to your former partner; to denounce what you have done, by which I mean the sentence needs to express society’s condemnation and rejection of what you have done; another purpose is to deter – put you off – from ever doing this again, and to deter others who might be like-minded. Another purpose, important in this case, is to provide for the interests of the victim.
[22] Those are the purposes of sentencing.
[23] In terms of the principles of sentencing, the principles of particular relevance in this case are the seriousness of the offending; the need for me to be consistent with what other Judges have done in similar cases; and also to consider the effect of the offending on the victim. Further, and importantly, I have an obligation to impose the least restrictive outcome appropriate in the circumstances.
[24] Those, then, are what we call the principles and purposes of sentencing.
[25] In applying those principles and purposes, I am required to follow what can loosely be called a two-stage approach.
[26] In the first stage I have to fix what you heard the lawyers call the starting point. What that simply means is the sentence which reflects the culpability or blameworthiness associated with your offending. So that is the first stage, fixing the starting point.
[27] The second stage is that, having fixed that starting point, I must then consider whether there should be any adjustment – any increase upward or an adjustment downwards, a reduction, on account of factors that relate to you personally, as distinct from your offending.
[28] So turning then to the first stage, which as I have said is fixing the starting point.
[29] I take as my lead offence the injuring with intent to injure charge.
[30] In respect of this charge there is a guideline Court of Appeal decision called Harris.[1] In my view, the injuries you inflicted on your victim would clearly place you in band 2 of that decision. I identify the aggravating features being first that you
attacked the head and secondly the vulnerability of the victim.
[1] R v Harris [2008] NZCA 528.
[31] Having regard to Harris, the aggravating features and other cases,[2] I consider
a starting point of two years’ imprisonment would be justified.
[2] Police v Howie DC Dunedin CRI-2008-012-006464, 7 May 2009; R v Simon HC Whangarei CRI-2006-029-001237; R v Newton HC Auckland CRI-2010-092-002216; Ross v R [2010] NZCA 306.
[32] Turning then to the second set of offending, in 2010.
[33] I accept that the blackmail was not at the most serious end of the blackmail spectrum. However, the victim was your ex-partner, and in that sense vulnerable. The threat to disclose the photo or the video was made on more than one occasion, and it did have a significant effect on the victim.
[34] Having regard to those aggravating factors and again other cases,[3] I consider a provisional starting point of 10 months’ imprisonment would be appropriate for the blackmail charges.
[3] R v Reij HC Christchurch CRI-2009-009-007335, 29 October 2009; R v Milne HC Nelson CIR-2010-042-001429, 22 July 2010; R v Lal HC Auckland CRI-2009-004-005813, 20 April 2011; R v Thomas CA138/05, 6 July 2005; R v Shepherd HC Hamilton CRI-2010-019-007285, 30 May 2011.
[35] There must, of course, be an uplift for the fact of the other 2010 charges, namely the two breaches of the protection order and the threatening charge.
[36] On their own, they would warrant a starting point in the vicinity of between
12 and 18 months which would result in a sentence of around two years for the 2010 offending.
[37] From all of that, I have to stand back and view both sets of offending globally.
[38] Having regard to the overall criminality of both sets of offending, I consider an appropriate starting point would be three years’ imprisonment.
[39] That is the first stage, fixing that starting point.
[40] Turning then to the second stage, and that requires me to consider factors relating to you personally, as distinct from the offending.
[41] In my view, there are two significant aggravating factors.
[42] The first is the fact this offending occurred either while you were on bail, or in 2007 while you were in prison. The second aggravating factor is that you have an extensive criminal record, and although I note Mr Shamy’s point that there has not been violent offending in more recent times, nevertheless I consider some adjustment on account of that criminal record and the other aggravating factors I have mentioned is justified.
[43] On account of those factors, I consider that an upward adjustment of at least six months is warranted.
[44] On the plus side for you, there are two mitigating factors. First, that you were on electronically monitored bail for eight months, during which time you did not contact the victim. I do take that into account (by giving a three-month discount), notwithstanding the fact that there were, as the Crown has pointed out to me, some problems. The second mitigating factor is the fact of your guilty pleas. They were slightly different in time. The one in the District Court was entered as soon as the indictment was amended, and so that can be regarded as being made at the first reasonable opportunity. In the 2010 set of offending, the guilty plea was late and only indicated about a month prior to the trial date. That did spare the victim the ordeal of having to give evidence. But it was late, and of course the prosecution case was strong because of the text messages. The prosecution case was also strong in
2007, because there were so many eyewitnesses.
[45] Trying to take all of those factors into account, I consider that the fairest course of action is to allow a 15 per cent reduction on account of the guilty pleas.
[46] I am also prepared to allow a reduction of one month on account of the fact that when you were in prison you were punished by the prison authorities for the fact of the assault that occurred while in prison. I accept Mr Shamy’s submission that
unless some reduction is allowed on account of that, there could arguably be said to be some unfair double-counting.
[47] By my calculations, that leads me to an end sentence of two years and three
months’ imprisonment.
[48] That means you are not eligible to be considered for home detention, but I have to say that in any event, even if you were eligible, I would not have considered home detention an appropriate sentence. I say that because of the concerns identified by the probation service in their supplementary report.
Sentence
[49] On the charge of injuring with intent to injure you are convicted and sentenced to a term of imprisonment of two years and three months.
[50] On the count of blackmail, you are convicted and sentenced to a term of imprisonment of one year, concurrent.
[51] On the count of threatening grievous bodily harm you are convicted and sentenced to a concurrent term of imprisonment of six months.
[52] On each of the breaches of the protection order you are convicted and sentenced to concurrent terms of imprisonment of 10 months.
Suppression
[53] Finally, I make an order suppressing the identity of the victim. I do that on the grounds that she is the victim of domestic violence and real harm could be caused were there to be publication of her name.
Solicitors:
Crown Solicitor’s Office, Christchurch
S Shamy, Christchurch
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