R v Parker

[2012] NZHC 2458

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2011-054-1717 [2012] NZHC 2458

THE QUEEN

v

RACHEL MARIE PARKER

Hearing:         21 September 2012

Counsel:         B Vanderkolk for Crown

S Hewson for Prisoner

Sentencing:     21 September 2012

SENTENCING NOTES OF MILLER J

[1]    On 4 September 2009 Jamie Faulkner was murdered by your partner, Jamie Mills, at your flat at Heretaunga Street.  In August this year you stood trial as a party to his murder.  At the end of the Crown case you were arraigned and pleaded guilty to manslaughter, for which you now appear for sentence.

[2]    The facts are reasonably straightforward.  You and Mr Mills are drug addicts, and at the time you were using very heavily.   Your main drugs of choice were methadone and Ritalin, but you also used others.  Mr Faulkner took it upon himself to supply you with methamphetamine.   On 1 September you paid him $140 for a quantity of that drug.  He failed to deliver it.  In the succeeding days you threatened

him by text and phone.

R v PARKER HC PMN CRI-2011-054-1717 [21 September 2012]

[3]    On 4 September you arranged for Mr Faulkner to go to your flat, promising him an extra $40 to complete the transaction.  You told him that you would be alone. In fact you and Mr Mills had planned to lure Mr Faulkner to the flat and present him with a loaded firearm to threaten him, intending to enforce the original drug deal.  As you well knew, Mr Mills kept a loaded firearm in the laundry.

[4]    A series of texts were exchanged, the result of which was that Mr Faulkner entered the flat believing that you would be alone.   He was unarmed.   You were seated on a couch drinking a beer.  Mr Mills was not in the lounge, but he entered after some brief discussion.  He shot Mr Faulkner, unexpectedly so far as you were concerned.   Counsel’s instructions are that you had in fact consummated or were about to consummate the drug deal so there was no need for the weapon.  It appears that Mr Mills may have been surprised and intimidated by Mr Faulkner’s size, and it is said that Mr Faulkner reminded him of being addicted to methamphetamine.   You knew that Mr Mills was an addict, of course, and you must have known that in that condition he was an erratic and unreliable person who could not be relied upon to stick to your plan.

[5]    The Crown accepts that you did not foresee a killing with murderous intent, although you did recognise that an unlawful killing might result from the plan which you and Mr Mills had concocted.  The significance of that is that you were properly convicted of manslaughter but not murder.

[6]    The wound to Mr Faulkner proved fatal, but not immediately.  He was able to wrestle the gun from Mr Mills and flee the scene, collapsing some distance away. You did not seek help for him, although he had bled heavily in your house and you must have known that he was badly wounded.

[7]    You left the flat by the back door immediately after the shooting, followed shortly after by Mr Mills.   The two of you separated but met a little while later. After that he went to the police station to give his account of what had happened that day, but you took steps to disguise your own involvement and lay a false trail for the police.  You hid the magazine from the firearm and you placed two bullets from the magazine amongst the possessions of a Mr Wilson, with whom you went drinking at

the Terrace Tavern that evening.  When interviewed by the police you denied being at the address or knowing Mr Faulkner, and you claimed that you had not seen Mr Mills all day.  Your position at trial, where you were skilfully and professionally represented by Mr Hewson and Ms Ord, was that the killing was unplanned and unexpected.

[8]    Mr Mills pleaded guilty to murder and was sentenced to life imprisonment with a minimum period of 11 years.

[9]    I now turn to Mr Faulker.  He was an only son, and a father himself.  I have recounted his reasons for dealing with you but it is apparent from the victim impact statements that were read this morning that he had good qualities;  he was an only son and a father himself and he is greatly missed.   The statements were from his mother and two sisters.  As is sadly so often the case for victims of violent crime, they have been badly affected by the senselessness and brutality of what has happened, and they struggle to come to terms with it.  The length of time since he died has been an ordeal in itself I accept.  Some of them, perhaps all, I am not sure, have had to move from Palmerston North.  They said in their statements that they are determined not to dwell on you and Mr Mills but to focus on supporting one another and I commend them for that.

[10]  There is also a presentence report.  You are 38, with five living children.  It is a measure of your personal troubles that none of the still-dependent children has been permitted to remain in your care.  You are an intelligent person who has had a very unfortunate upbringing, involving serious abuse by your father from a young age and mental health problems on your mother’s part.  You effectively left home at 13.  The probation officer suggests that you will need planned therapy, including alcohol and drug treatment, if you are to return to society in a meaningful way.

[11]  You have a few convictions.  I accept Mr Hewson’s submission that they are surprisingly few given your longstanding addiction.   Before this offence you had been convicted of assaulting the police in 2008 and wilful damage in 2006.  Since this offence you have acquired a conviction for assault with a weapon.   It was committed while you were on bail for this offence.  Clearly there were substantial

mitigating   factors   because   you   were   sentenced   to   supervision   with   special conditions.    In  the  circumstances  I  accept  that  the  present  offence  was  out  of character for you.  It is ultimately explained by your drug addiction.

[12]  I turn now to calculate the sentence.  I must select a starting point then allow for any personal aggravating and mitigating factors.

[13]  I begin with the starting point.  The maximum penalty is life imprisonment but lesser sentences are invariably imposed.   The Court chooses a starting point by reference  to  comparable  cases  and,  in  appropriate  cases,  sentencing  levels  for offences of serious violence.

[14]  In this case there are a number of serious aggravating features.   The Court takes a dim view of violence used to enforce drug deals.  It is an aggravating factor as are the premeditated plan to confront Mr Faulkner to extract money or drugs, the use of a loaded firearm, which of course placed Mr Faulker in a very vulnerable position, your attempt to shift blame to an innocent party, Mr Faulkner’s death of course, and your failure to get help for him.  You did not play a peripheral role in this scheme.  On the contrary, it was you who made the original drug deal, you who had displayed serious animosity toward Mr Faulkner, you who lured him to the flat, and you who took steps to disguise what had happened.  At the point when the trial ended, before the defence case began, there was a narrative on which the jury might have found you guilty of procuring murder.   I mention that not to question the Crown’s decision to accept your plea to manslaughter but to emphasise that this is a bad case of party liability for manslaughter.

[15]  For a principal who commits manslaughter in such circumstances a starting point of 9-14 years imprisonment might be adopted.[1]

[1] By analogy with R v Taueki [2005] 3 NZLR 372 (CA).

[16]  You are a party, and it was not part of your plan that Mr Faulkner would be shot at all, let alone with murderous intent.  Things got out of hand.  That means a lower starting point is needed in your case, as the Crown recognises.  There are a

number of comparable cases involving a party to manslaughter committed in the

course of some criminal activity.   I will list them in my sentencing notes.[2]    They suggest a starting point in the range of six and a half to eight years.  And eight years, the upper end of that range, is the starting point that I will adopt having regard to your central role in this offence.

[2] R v AJN HC Hamilton CRI-2009-019-9786, 30 September 2010; R v  Selby & Fraser HC Auckland CRI-2007-092-20293, 4 February 2010; R v Maxwell CA359/02, 31 March 2003.

[17]  I will not treat your previous convictions as personal aggravating factors.

[18]  Mr  Hewson  sought  to  use  your  addiction,  which  he  characterised  fairly enough,  as  a  disease,  and  a  mitigating  factor.    Of  course  the  Sentencing  Act expressly says that the Court may not take into account as a mitigating factor the fact that the offender was at the time “affected by the voluntary consumption” of alcohol

or  drugs,  even  where  those  substances  were  taken  from  a  compulsive  need.[3]

Mr Hewson’s point was that you did not act under the immediate influence of drugs,

so the Court is free to treat your addiction as a mitigating factor.

[3] Sentencing Act 2002, s 9(3); R v Wihongi [2011] NZCA 592.

[19]  The difficulty with this submission is that to use addiction as a mitigating factor that explains your behaviour at the time of the offence is to rely on the effect of drugs voluntarily taken, albeit in the past.  The policy of the legislation must apply equally to preclude that as a mitigating factor.

[20]  That said, I accept that some people are susceptible to addiction for reasons for which they cannot be blamed.  An independent mental impairment that leads to the consumption of drugs or alcohol can be treated as a mitigating factor.[4]   There is something of that in your case, albeit that there is no diagnosis of an intellectual or personality disorder.  You clearly have had serous difficulty coping for a long time. I am prepared to make some allowance for that and a modest allowance for remorse. I will allow approximately 10 per cent for those matters.

[4] R v Wihongi [2011] NZCA 592 at [55].

[21]  I will also give you a small discount of 10 per cent for your guilty plea.  That is the maximum which I think proper.   This is not one of those cases in which the

prisoner offered at an early stage to plead to the charge of which she was eventually

convicted.  I think there is force in the Crown submission that not until the 11th hour did you offer a narrative on which the lesser charge of manslaughter might properly be justified.   Until then your primary position had been that you were not at the scene at all.

[22]  Ms  Parker,  that  results  in  a  sentence  of  six   years  and  four  months imprisonment.    I commend to the Parole Board the probation officer’s recommendation for therapy to address your personal difficulties.

[23] The Crown seeks a minimum period of imprisonment, in the interests of denunciation and deterrence.  I accept that a minimum period is normally appropriate in cases that exhibit the aggravating features that I have identified here.

[24]  Against that, I readily accept that your reoffending risk is low, with appropriate treatment.  I have acknowledged your difficult upbringing.  I also accept that since becoming drug-free during your remand you have begun to make progress towards your rehabilitation.  It is reasonable to believe that you will do much to rehabilitate yourself during your sentence.

[25]  Nonetheless, this as a case in which I see a compelling need for a minimum period to denounce your offending.   Your culpability for Mr Faulkner’s death is extremely high.

[26]  I fix the minimum period at 50 per cent of the sentence I have imposed. [27]  You may stand down.

Miller J

Solicitors:

Crown Solicitor’s Office, Palmerston North for Crown