R v Parker

[2021] NZHC 439

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2019-009-010034

[2021] NZHC 439

THE QUEEN

v

MICHAEL JOHN PARKER

Hearing:

9 March 2021

Appearances:

K A White for Crown

L L Heah for Defendant

Judgment:

9 March 2021

SENTENCING REMARKS OF DUNNINGHAM J

Introduction

[1]    Mr Parker, you pleaded guilty in the District Court to charges of injuring with intent to injure, sexual violation, kidnapping, impeding breathing, and wounding with intent to injure. You have been given a second strike warning for the sexual violence charge, and you are now in this Court on those charges as the key issue in sentencing is whether you should be given a sentence of preventive detention.

[2]    Before discussing the appropriate sentence, I need to set out the facts of the offending.

R v PARKER [2021] NZHC 439 [9 March 2021]

Facts

[3]    You and the victim had been in a relationship which ended in August 2020. On the evening of 1 November 2020 you visited the victim at her home where she let you stay overnight. At around 7 am the next morning you became angry at her refusal to do your washing and at the lack of food in the house.

[4]    You dragged the victim by her hair from her bed and made her lie with her nose pressed to the ground. You stomped on her head, hands and arms multiple times and caused her nose to bleed. You then picked up cat excrement and rubbed it into the victim’s face and hair.

[5]    You then dragged the victim by her hair into the lounge, pulling her clothing down to expose the lower half of her body and you bound her hands together with tape. You retrieved a bottle of mayonnaise and dipped it into a can of spaghetti before forcing it into the victim’s anus. When the bottle became dislodged you attempted to secure it with tape. You then hog-tied the victim by taping up her arms and legs.

[6]    You placed a ball into her mouth as a gag and wrapped tape around her head, face and neck leaving a hole for her to breath through her nose. You then poured water over her so she felt like she was drowning. She struggled to breath and she feared for her life. You then tied an extension cord around the victim’s neck and pulled it taught so she could not breathe. You wrapped the other end of the cord around the door handle to prevent her from leaving the house.

[7]    You then forcibly pushed a pen into the victim’s ear possibly perforating her eardrum. You also repeatedly threw a needle attached to a syringe at her back. Using a butane torch you then burned the victim’s buttocks, leg and arm and told her you were trying to burn your name and the word “Swazi” into her. You also told her Hannibal Lecter was a “good idea” and you claimed you were going to eat her skin. You then told the victim you were leaving to buy drugs. You left the house at around 11 am leaving the victim bound, gagged and tied to the bedroom door. She managed to break free from her bindings and ran to a neighbour’s house with her hands still bound and her mouth gagged.

[8]    The victim’s injuries were extensive, and she spent a night in hospital. She suffered swelling around her neck and had trouble breathing due to the tape. She had blood in her ear canal. Her injuries included a fractured rib, dislodged teeth and a swollen and tender nose. She struggled to see because her eyes were swollen shut. Some of the numerous cuts and abrasions on her body required stitches. Some of the burn marks on her body were considered likely to cause permanent disfigurement.

Victim impact statement

[9]    I cannot overstate the consequences that this offending has had on the victim. I read the victim impact statement she wrote last year. It is clear your offending changed everything for her. Before she said she lived life to the full, she was loved by many, and had hopes, dreams and plans. After these events, she said she could no longer make plans, and she felt she had no hopes or dreams. She felt she had nothing and could do nothing. She could not interact with her children without crying and she could not be the mother she wanted to be for them. Poignantly, she said she wished she was dead and she hated being a victim.

[10]   It is with great sadness that I note she took her own life shortly before Christmas.

[11]   It is obvious the consequences of your offending on the victim were devastating, and this cannot be remedied by any sentence that this Court can impose.

Sentencing purpose and principles

[12]   In sentencing you today, I have to have regard to the purposes and principles of the Sentencing Act 2002. Particularly relevant to your case are the purposes of:

(a)holding you accountable and responsible for the harm done to the victim and to the community;

(b)denouncing the conduct in which you were involved;

(c)deterring you and others from committing the same or similar offences;

(d)providing for the interests of the victim;

(e)protecting the community from you; and

(f)assisting in your rehabilitation.

Starting point

[13]   The Crown submits the lead offence is the sexual violation and the Court can impose concurrent sentences for the other offences. Both Ms White, for the Crown, and your lawyer, Ms Heah agree the guideline judgment for sexual violation by unlawful sexual connection is R v AM.1

Crown submissions

[14]   The Crown submits that your offending had the following aggravating features present to a high degree:

(a)Breach of trust: you and the victim had been in a relationship and the victim invited you to stay at her house. The Crown points out culpability is not reduced by any sense of entitlement due to a prior relationship.2

(b)Violence/detention: every sexual violation involves violence but here the violence was extreme. The actions which accompanied the sexual violation were a form of torture.

(c)Harm: the victim suffered significant physical harm; and some of the injuries were permanently disfiguring. More importantly, is the emotional harm that the victim suffered.

(d)Scale of the offending: it began at around 7 am, and was sustained across four hours, and only finished when you left.

1      R v AM [2010] NZCA 114, [2010] 2 NZLR 750

2 At [61].

[15]   The Crown submits the aggravating feature of premeditation was also present to a moderate degree. As the offending occurred over several hours there was a degree of planning required in the various actions you took in the course of the offending.

[16]   R v AM sets out four sentencing bands where the charge of unlawful sexual connection involves rape or violation of the victim using an object. Having regard to the aggravating features of this case, the Crown submits a starting point of nine to  10 years is appropriate with reference to R v AM and other case law.3

Defence submissions

[17]   Ms Heah agrees if the sexual violation is the lead offence and all other acts of violence increase the culpability in terms of R v AM, the offending falls within the mid to upper end of Band 2 (which is seven to 13 years). She accepts that the additional violence you used increases culpability, and this would lead to a starting point of around 10 years if the acts which lead to the other charges are treated as aggravating features of the offending.

[18]   Alternatively, she submits the sexual violation could be viewed in isolation to the other offending and a starting point of seven years would be appropriate. There would then be an uplift of three years’ imprisonment for the other violence, And, again, we reach an end sentence of 10 years’ imprisonment.

Analysis

[19]   I approach this sentencing exercise by taking the sexual violation as the lead offence and treating the other offending as aggravating features of that offending. I consider this offending was motivated by a desire to inflict violence, and to dominate and humiliate the victim, and the sexual violation was part of the violence and control you intended to inflict on her.4 In my view, the most aggravating features of this offending are the harm to the victim, and the degree of violence to the victim. In particular, I consider the attempts to impede her breathing and to burn the victim were particularly serious aspects of the violence.  The breach of trust is a less aggravating

3      R v Doughty [2012] NZHC 3543; R v Keremete [2018] NZHC 730; Minogue v R [2020] NZCA 51.

4      R v Doughty, above n 5.

feature, as is the scale of the offending when compared with other cases. Nevertheless, they are somewhat aggravating features of the offending.

[20]   The Crown referred me to several cases to assist this Court.5 R v Doughty is the most helpful.6 In Doughty the victim and the offender were in a relationship and drinking in a local tavern. After an argument she left the tavern alone and the offender drove after her to offer her a ride. He then verbally abused her, smashed her head into the gearstick and glovebox, spat in her face, backhanded her, and told her he would kill her. He forced her to perform oral sex. That offending fell into upper Band 1 or lower Band 2 of  R v AM  and the judge  imposed  a starting point  of nine  years  nine months with a three-month uplift for previous convictions.

[21]   I also consider the case of R v Baird, which is discussed in R v AM, is relevant. This case was considered to be at the higher end of rape Band 2. In it, the offender who had been in an on and off relationship with the victim, set upon his victim in a rage, leaving her bruised with cigarette burns and a finger needing splinting. He threatened to kill her, he tied her to the bed, and after other degrading incidents, he inserted a candle into her vagina and lit it, made her masturbate with the candle, and then had anal sex with her. In the Court of Appeal, it was said that had the violation of the vagina by an object been a stand-alone offence, a starting point of eight years’ imprisonment could have been taken.7 The overall circumstances of the offending justified a starting point of 10 years, if not more.8

[22]   Here, the aggravating features of breach of trust, the violence, the level of violation, the resulting harm and the scale of the offending support a starting point in the mid to upper range of Band 2 of R v AM.

[23]   In my view this offending is significantly more serious than the offending in R v Doughty. Your conduct was more violent and more prolonged than in Doughty and was intended to degrade and humiliate the victim. The acts of rubbing cat excrement on her face, simulating drowning, attempting to burn words into her skin, throwing

5      R v Keremete and Minogue v R, above n 3.

6      R v Doughty, above n 5.

7 At [11].

8 At [12].

syringes at her back, inserting a pen in her ear and a bottle into her anus and preventing her from breathing with an extension cord, in my view, do amount to torture. They were intended to cause her immense distress, as was your threat to “eat her skin”. Indeed, they clearly did cause such distress. In my view, a starting point of 10 years’ imprisonment is readily warranted to reflect the totality of the offending.

Personal factors

[24]   The Crown submits an uplift for your 48 previous convictions is appropriate. The relevant convictions include assault on a person in a family relationship (2019), threatening to kill/do grievous bodily harm (2016), injuring with intent to cause grievous bodily harm (2016), assaulting a prison officer (2012), two convictions for sexual connection with a young person (2011), male assaults female (2011), common assault (2010), and an earlier male assaults female (2003). Your lawyer accepts that your history justifies an uplift but says that any uplift should not exceed a year.

[25]   You have a range of relevant convictions for both violence and sexual offences and, as the pre-sentence report says these are predominantly towards people you have been in relationships with. I am satisfied a 10 per cent uplift is appropriate to account for your history of relevant offending.

[26]   The only mitigating factor is your guilty plea. The Crown submits a discount between  15 and  20 per cent is appropriate to recognise this.   Ms Heah submits a   20 per cent discount is appropriate and I accept that. Your guilty pleas were entered before trial dates were allocated.

[27]   The end sentence, if I was to impose a finite sentence, is therefore nine years’ imprisonment.

Minimum period of imprisonment (MPI)

[28]   Because this is your second strike offence, you must serve the entire term of any sentence imposed without any possibility of parole.9 Despite this, I am required to indicate the length of any MPI that would have been imposed but for this

9      Sentencing Act 2002, s 86C.

requirement.10 The Crown submits an MPI is required to protect the community, and your lawyer does not challenge this. I am satisfied that having regard to the health assessor’s reports, you pose a high risk to the community. Your offending also needs to be denounced and you need to be held accountable for the harm done to your victim and the community. Had you not been the subject of a second strike warning, I would have imposed a MPI of 60 per cent of the end sentence.11

Preventive detention

[29]   I now turn to the key issue of whether preventive detention should be imposed. This is opposed by your lawyer.

[30]   Preventive detention is intended to protect the community from people who pose a significant and ongoing risk to others’ safety.12 If an offender is sentenced to preventive detention, they will be imprisoned indefinitely; no maximum period of imprisonment will be specified. However, the Court must impose a minimum period of imprisonment (MPI) of at least five years in every such case.13

[31]   The Court can impose preventive detention if the offender is over 18, commits a qualifying sexual or violent offence14 and if this Court is satisfied the person is likely to commit another qualifying offence if the person is released at the sentence expiry date. In considering whether to impose preventive detention I have to take into account:15

(i)any pattern of serious offending disclosed by the offender’s history; and

(ii)the seriousness of the harm to the community caused by the offender; and

(iii)information indicating a tendency to commit serious offences in the future; and

10     Section 86C(6).

11     Or five years and five months.

12     Section 87.

13     Section 89(1).

14     Sexual violation by unlawful sexual connection, kidnapping and wounding with intent to injure are qualifying offences.

15     Section 87(4).

(iv)the absence of, or failure or, efforts by the offender to address the cause or causes of the offending; and

(v)the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.

I will now consider each of these factors, with reference to the health assessor’s reports prepared by Mr Hughes and Dr Foulds.

Pattern of serious offending disclosed by Mr Parker’s history

[32]   Mr Hughes, a senior psychologist, notes that you have 59 convictions and your history shows a propensity for violence directed towards females.16 In 2019 you assaulted the victim and were imprisoned; within four days of your release, you committed this offending. Mr Hughes expresses concern over the pattern of persistent criminal offending, without any significant periods of desistence, that has escalated in severity and harm. He also notes that all sanctions have been ineffective.

[33]   Dr Foulds, a psychiatrist, agrees that you have repeatedly violated the rights of others and you have limited ability to rein in your impulses, consider the negative consequences of your behaviour, or respond to legal sanctions.

[34]   You were 41 when you committed this offending, you have been offending since 1997 and you have served 11 sentences of imprisonment beginning in 1998. You have two convictions for sexual offending with a young person. The Crown submits that while you have only one previous occasion of sexual offending, you have a significant criminal history and the convictions for violence have become more frequent and severe in the last 10 years.

[35]   Ms Heah submits that while the pattern of offending is serious, it is limited as your only previous sexual offending conviction was 12  years  ago,  and  of  your four convictions for violence against partners, only one involved violence at the high end and your serious violence has only emerged in the last 10 to 12 years. This suggests rehabilitation to undo this ingrained thinking is likely to be successful.

16     Seven of his eight previous convictions for violence were against females

Seriousness of the harm to the community.

[36]   Both the Crown and your lawyer accept the offending causes serious harm to the community and I need not say more about this.

Risk of serious future offending

[37]   Mr Hughes used various risk assessment tools to assess your risk of reoffending and he concluded that you have a high risk of further sexual offending and a very high risk of violent offending. In particular, you have a high risk of engaging in serious violence towards women you have been in a relationship with, if you perceive rejection, deception or criticism. He says given your highly unrealistic self-perception and expectation of others, in particular, your female partners, combined with your impulsivity, your lack of empathy and degree of callousness, you are likely to violently reoffend against a partner or a former partner. He also says managing you in the community would prove extremely difficult.

[38]   Dr Foulds acknowledges predictions into the future are unreliable as the risk is contingent on many factors, for example, whether you engage in rehabilitation. The future risk factors that are most readily able to be modified are your access to potential victims and your substance abuse. He notes the scientific evidence that indicates your offending risk will gradually decrease over time, and at age 60, your risk would be lower than it is now. While he notes you say you are willing to engage in rehabilitation, he says given your history, you are likely to find treatment challenging.

[39]   However, as the Crown points out, Dr Foulds notes that there has been an escalation in the severity of your violence over time, and your lack of empathy for your victims increases the chance that you may not stop a severe or prolonged assault, even if the victim were to become hurt or visibly distressed.

[40]   I accept that, without successful treatment, there is a high risk of you reoffending. Using the RoC*RoI17 risk measure developed by the Department of Corrections, you are in the highest of five risk categories in terms of your risk of being

17     A risk assessment tool used by the Department of Corrections to assess the risk of reconviction multiplied by the risk of imprisonment.

imprisoned within five years of being released. Under the Violence Risk Scale (VRS), you are also assessed as being in the high risk category for violence recidivism. Similarly, your score on the Psychopathy Checklist: Screening Version identified you at high risk of serious reoffending within five years of release. I am satisfied, that without successful treatment, you are at very high risk of committing a further violent offence while in the community.

Efforts to address the offending

[41]   The Crown says that your refusal to engage with rehabilitative treatment, as outlined in Mr Hughes’ report indicates your lack of willingness to address the causes of your offending. Mr Hughes notes you have shown a clear pattern of avoiding rehabilitative opportunities whilst your offending has continued to escalate. In 2013 you were referred to the Kia Marama Special Treatment Unit to address your sexual offending. You were evicted due to inappropriate sexualised comments, ongoing gang-like attitudes, threatening behaviour, unwillingness to accept feedback and ambivalence about treatment. You had very limited insight into your offending and you were assessed as being at high risk of further offending.

[42]   In 2014 you were referred for six individual treatment sessions. Your insight into your offending was reported as superficial and hampered by your unwillingness to accept responsibility. You had three further sessions post-release but were unable to complete the final session due to breaching release conditions. You did not apply the skills gained in treatment, continued to enter high risk situations and became hostile if challenged about your behaviour. Subsequently you have refused further treatment.18

[43]   Ms Heah, however, submits your rehabilitative opportunities provided by post release conditions would have been short term, and you have never received a sentence focused solely on rehabilitation like supervision or intensive supervision. She says

18 These included the option in 2017 to participate in the Drug Treatment Programme and the High-Risk Personality Programme Revised which is a flexible and intensive rehabilitate treatment option for maximum and high security prisoners who have remained at those classifications for extended periods

your prison sentences have been too short to engage with intensive focused treatment.19

[44]   She says you have engaged with some treatment, and while you did not engage with the Kia Marama programme, this was because you were afraid of being targeted by rival gang affiliates and you said you had already lost your front teeth from a prison assault. Ms Heah stresses your ability to complete intensive treatment has not yet really been tested and that Dr Foulds would not have recommended this if he had not believed you were willing to participate.

[45]   It is of real concern that you have not engaged with the treatment options that have been given to you. I think this is indicative of your refusal to accept responsibility for your offending. However, I am also conscious that you now say that you accept you need good help and that you will “do all that is asked of [you]”.

Lengthy determinate sentence preferable

[46]   Finally, your lawyer reminds me of the principle that a lengthy determinate sentence is preferable if this provides adequate protection to society. She points out that the length of sentence you will inevitably receive, means there will be opportunity for intensive offence-focused treatment. It also means you will be in your 50s when you complete a determinate sentence and potentially in your 60s, if you are then made subject to one or more extended supervision orders (ESO), before you are able to be unsupervised in the community. In her submission, this combination of factors is sufficient to protect society.

[47]   However, the Crown submits that your drug addiction and ingrained character and personality traits prevent you managing your behaviour. You have a lengthy criminal history, you have offended shortly after release from prison and your use of violence has escalated. All these factors mean the Court can have no confidence a determinate sentence will protect the public.

19     His sentences of imprisonment have been no longer than three and a half years.

Conclusion on preventive detention

[48]   In my view this is a finely balanced case. You have a pattern of escalating violent offending, particularly against your female partners, and you have continually failed to show remorse or empathy for the victims of your offending. Mr Hughes notes that you minimise the harm you caused, denied aspects of the offending and externalised responsibility. For example, you said that you did not think the victim was unduly negatively impacted by the offending because she “was used to such things”, and you believed you “handled the situation relatively well”, because you had not caused more harm to the victim, and her injuries were “repairable”.

[49]   However, as in Cooper v R, I believe there is a prospect that you may benefit from intensive rehabilitative treatment that has not previously been available to you, given the length of your previous prison sentences. While you have had more opportunity to participate in courses than the defendant did in Cooper, as you have had an opportunity to complete the Kia Marama course, you now say you are willing to undergo long term intensive rehabilitative treatment, and you are not labouring under any factors such as a major psychiatric illness which would prevent you from changing your pattern of behaviour. However, you do meet the criteria for antisocial personality disorder and addressing your risk factors will be challenging, given your refusal to address those issues to date.

[50]   If you do not engage with these programmes then, at the end of a finite sentence your risk of offending remains, an ESO would likely be available to protect the community.20 I say this because your violent offending is not random, but arises in the context of particular relationships and these are circumstances which can be monitored or controlled under the terms of ESO. Thus, the possibility of an ESO provides a potential safety valve and supports the principle that a lengthy but determinate sentence is preferable to one of preventive detention.21 In my opinion, the availability of an ESO tips the balance in this case towards allowing a finite sentence of imprisonment, particularly noting that your second strike warning means you will serve the entire sentence imposed.

20     Mr Parker would be an eligible offender for an ESO under s 107C(!)(a) of the Parole Act 2003.

21 R v Mist [2005] NZLR 791 (CA) at [101].

[51]   In the circumstances I am satisfied a determinate sentence of nine years’ imprisonment, which you must serve in its entirety, will adequately protect the community.

Sentence

[52]   Mr Parker, would you please stand. On the charge of sexual violation by unlawful sexual connection you are sentenced to nine years’ imprisonment. On the remaining charges, you are sentenced to the following sentences, all to be served concurrently. On the charge of injuring with intent to injure, a sentence of two years’ imprisonment; on the charge of kidnapping, a sentence of four years’ imprisonment; on the charges of impedes breathing and wounding with intent to injure, a sentence of two years’ imprisonment on each of those charges.

Solicitors:
Raymond Donnelly & Co., Christchurch

Copy To:
L L Heah, Barrister, Christchurch