R v Parker

[2003] NZCA 375

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA179/03

THE QUEEN

v

CLAUDE DAVID PARKER

Hearing:         20 August 2003 Coram: Gault P

Rodney Hansen J Salmon J

Appearances: D D Rishworth for Appellant

B R Northwood for Crown Judgment:  21 August 2003

JUDGMENT OF THE COURT DELIVERED BY GAULT P

[1]    The appellant was convicted of sexual violation by rape following a jury trial in the High Court at Gisborne. He was sentenced on 2 May 2003 to  imprisonment for 12 years with a minimum sentence to be served of eight  years. The appeal is against sentence and in particular against the minimum period to be served under s86 of the Sentencing Act 2002.

[2]    The facts were that on 4 October 1996 the appellant entered the house of the victim, a young woman who was in the house alone and asleep. She was woken by

R V CLAUDE DAVID PARKER CA CA179/03 [21 August 2003]

the sound of smashing glass and a light clicking on downstairs. Initially she hid in the wardrobe of her bedroom but came out when the appellant entered the room. She was extremely scared, but with impressive presence of mind attempted to talk to the intruder and persuade him to leave while avoiding any provocation. The appellant refused to leave and took her downstairs where she made further attempts to persuade him to leave, but they proved unsuccessful. He took her back upstairs and told her to remove her clothes as he intended to have sex with her. He punched her on the right side of the head. In an effort to defend herself the victim kicked him and tried to run out. He caught her and dragged her back downstairs where he obtained a knife from the kitchen and used it to threaten her. He took her to the washhouse, forced her to remove her clothes and raped her on the floor. He then directed her to dress again and said he wanted to take her back to her bedroom but at that stage she was able to escape through the front door of the house and obtain help.

[3]    The appellant was not apprehended until 2002 when a DNA match with samples obtained from the victim finally led the police to him.

[4]    Upon sentencing the Judge identified a number of aggravating features in the offending. These included the fact that the appellant had entered the victim’s home  at night and used actual and threatened violence against her. The Judge considered the offence of rape was premeditated and noted the particular vulnerability of the victim who was unwell, though that was not known to the appellant. As a result of this the appellant has been severely and permanently scarred by the impact of the offending. The Judge found no mitigating factors and fixed the sentence as imprisonment for 12 years.

[5]    The Judge then considered the issue of a minimum sentence to be served in accordance with s86 before the appellant would be eligible for parole.

[6]    By reference to the decision of this Court in R v Brown [2002] 3 NZLR 670 the Judge rightly recorded the necessity to approach the matter in two stages. He first determined as required by s86(2) that he was satisfied that the circumstances of the offence were sufficiently serious to justify a minimum period of imprisonment that is longer than the period otherwise applicable. He expressed himself so satisfied

because of the element of home invasion in the case and the increased culpability reflected in the unusual callousness, extreme violence, the vulnerability of the victim and the serious actual consequences.

[7]    Counsel do not challenge the determination of the Judge that this was a case in which a minimum period of imprisonment could be imposed.

[8]    The Judge then moved to the second stage of the inquiry. In this respect he said:

The second stage of my inquiry is whether I should impose a minimum term of up to two thirds of your sentence? The question  also is whether the ordinary minimum term of one third before eligibility for parole would be enough to punish, deter and denounce your offending? Again I have no doubt that one third would be inadequate. Mr Rishworth submits that two thirds is too high. He has made a submission that you would be subject to an effective penalty  of 21 years imprisonment if I imposed a two thirds minimum term. I do not accept that submission. As I have said, this is a separate exercise from sentencing. I must consider whether or not a one third term would be sufficient to punish, deter and denounce what you have done. I am satisfied in all the circumstances that I could only achieve that objective by sentencing you to a minimum term of two thirds or eight years imprisonment.

[9]    Mr Rishworth for the appellant submitted that in arriving at the minimum sentence of eight years which is the maximum that could have been imposed (two- thirds of the sentence) the Judge had simply gone to that point without reviewing the circumstances of the offence and the offender by reference to the requirements of ss7, 8 and 9 of the Sentencing Act.

[10]   Counsel referred to the fact that the offence occurred in 1996 and no account was taken of the progress the appellant has made since that time in up-skilling himself and trying to provide a better life for his wife and three children. It was argued that the length of the minimum sentence will severely undermine the appellant’s attempts to rehabilitate himself. Although he has a substantial list of previous convictions none are for sexual offending and most are driving related. It was said that in arriving at the length of minimum sentence the Judge placed undue emphasis on the culpability in the offending and insufficient weight on the

circumstances of the offender. Counsel submitted that a minimum term of five or six years would be more appropriate and sufficient to ensure appropriate punishment, deterrence and denouncement of the offending, while still taking account of the appellant’s circumstances.

[11]   For the Crown Mr Northwood supported the sentence and referred particularly to the comments at the end of the Judge’s sentencing remarks concerning the appellant’s family situation and his efforts at up-skilling and rehabilitating himself in recent times.

[12]   The central issues in the case are whether the Judge adequately considered what length of minimum period to be served would be appropriate in all the circumstances, and whether the period fixed is excessive.

[13]   In his sentencing remarks he did not articulate any process of reasoning in arriving at the eight year period he fixed. Rather he simply expressed himself satisfied that that period was needed to sufficiently punish, deter and denounce what the appellant did.

[14]   From his sentencing remarks it appears the Judge may have confused the two stages of the consideration of a minimum sentence. In approaching what he referred to as the second stage he re-stated the inquiry to be undertaken at the first stage (under s86(2)); whether the ordinary minimum term of one-third before eligibility  for parole would be enough to punish, deter and denounce the offending. That question must be answered in the negative before the second stage is undertaken. That then requires the exercise of the discretion whether (although the jurisdictional threshold is crossed at the first stage) in fact to impose a minimum period and, if so, its length. When considering the period to be served, within the limits fixed in s86(4), the opening words of ss7, 8 and 9 bring in those sections. Fixing a minimum period constitutes “sentencing or otherwise dealing with an offender”.

[15]In R v Brown this Court said (para 34):

If it is found that the sufficiently serious threshold is crossed, the sentencer must then, again as a matter of sentencing discretion,

determine whether to impose a minimum sentence and, if so, the period between one-third of the nominal sentence and the maximum prescribed by s86(4). It is at this stage that all the sentencing principles in ss7, 8 and 9 require consideration. It will be wrong simply to go to the point of two-thirds of the sentence without carefully reviewing the circumstances of the offence and of the offender.

[16]   Accordingly, there is strength in Mr Rishworth’s argument concerning the process followed by the Judge. It is therefore necessary for us to determine whether the minimum period he fixed is appropriate.

[17]   This was a serious offence of rape as is reflected in the twelve year sentence imposed and not appealed. It was committed after breaking into a private home at night with the intention of raping the sole woman occupant. This home invasion element was well recognised as a serious aggravating factor at the time of the offence even though the specific legislation expressly providing for that was not then in force. The victim was undoubtedly treated with callousness and violence, she was punched and threatened with a knife. But those aspects are not at the high end of the scale of “unusual callousness and extreme violence” referred to in Brown (para 32). The particular vulnerability of the victim was not known to the offender so as to constitute an aggravating factor within s9(1)(g), although the impact on the victim is still a matter to be taken into account.

[18]   The circumstances of the offender are of a family man married with three children. He was at the time of his arrest enrolled in a cable-logging course at Tairawhiti Polytechnic.

[19]   But it is to considerably overstate the position to contend that since the date of the offence the appellant has embarked upon a course that justifies optimism that a lesser sentence will provide an incentive for his rehabilitation and re-integration into the community. Since the  date  of  the  offence  he  has  been  convicted  of  some  26 offences. While none has been for sexual offending 11 have attracted terms of imprisonment. That record shows little respect for the law or for the interests of the appellant’s family.

[20]   That said, the long criminal record is of offending that generally has been less serious and does not include any sexual offence. The circumstances of the offender, therefore, are such that he has little he can claim by way of credit and cannot be expected to be impressed by other than a fully punitive sentence.

[21]   In R v Helps CA45/03, judgment 27 May 2003, this Court said that the statutory test for the imposition of minimum sentences is intended to limit the cases in which the normal eligibility for parole is to be extended to those cases notable for aggravating features. Similarly the length of the period fixed as a minimum between the limits of one-third and two-thirds of the nominal sentence should be set in proportion to the increased need in the circumstances for punishment, denunciation and deterrence.

[22]   Viewing overall the circumstances of this offence and this offender, and bearing in mind that the sentence of 12 years imposed was a harsh one, we consider that this is not a case in which the maximum available non-parole period should have been fixed. The features of aggravation, serious though they are, do not place the circumstances at that level.

[23]   We therefore allow the appeal, quash the order fixing the minimum period to be served of eight years and substitute a period of six years.

Solicitors:

Rishworth Wall & Mathieson, Gisborne, for Appellant Crown Solicitor, Auckland