STEPHEN PARKINSON AND THE KING

[2024] NZHC 2853

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2024-416-000014 [2024] NZHC 2853

BETWEEN

STEPHEN PARKINSON

Appellant

AND

THE KING

Respondent

Hearing:	17 September 2024
Appearances:	M J Lynch for Appellant D Dhir for Crown
Judgment:	1 October 2024

JUDGMENT OF BOLDT J

[1]    On 3 July 2024 Judge W P Cathcart sentenced the appellant, Mr Stephen Parkinson, to two years and two months’ imprisonment.1 Mr Parkinson had pleaded guilty to charges of wounding with intent to injure,2 and intentional damage.3

[2]    Mr Parkinson appeals against his sentence. He argues the Judge applied an excessive uplift for his previous convictions, extended inadequate credit for his plea of guilty and was wrong to decline a further discount for his belated expressions of remorse.

1      R v Parkinson [2024] NZDC 15381 [Decision under appeal].

2      Crimes Act 1961, s 188(2). Maximum penalty seven years’ imprisonment.

3      Section 269(2)(a). Maximum penalty seven years’ imprisonment.

PARKINSON v R [2024] NZHC 2853 [1 October 2024]

Background

[3]There is no dispute about the facts; Judge Cathcart set them out as follows:4

[3]    Sometime after 7 pm on 21 September 2023, you arrived at a property on Hansford Court, Gisborne. One of the occupants was home at the time watching television. He is the first victim here. He was the owner of a Hyundai Sonata.

[4]    After getting out of your own vehicle … you were seen smashing the Hyundai Sonata parked on the roadside at the time. You used a tomahawk to smash the windows. You saw the first victim looking through a window. You yelled out: “Fuck you, Ricky”, before getting back in your car and leaving.

[5]    A short time later, you returned to that property with approximately five associates. The second victim had just arrived at the address and was standing outside the house. You got out of the vehicle and approached the second victim whilst holding a tomahawk in your right hand. With full force, you struck the second victim with the tomahawk, connecting with his left arm.

[6]    There was some discussion today about whether that incident occurred on the property or not. That is relevant to an assessment as to whether there was an “invasion” of the property. It is accepted by both parties now that the incident occurred on the driveway, therefore, on the property itself.

[7]    … Having struck the second victim, unsurprisingly he ran from the property in an attempt to get away from you and your associates. … There is no suggestion the others got involved in the violence. They are described as associates, whatever that actually means. But it is a relevant background factor here that you returned to the address when this incident had occurred, not alone, but with five associates who later chased the second victim. To the second victim, that would have been perceived as strength in presence of numbers.

[8]    Eventually returning to their respective cars, the group yelled various Mongrel Mob slogans such as “Sieg heil Aotearoa” as they left. That suggests the associates are likely to have had a gang connection and all that that implies.

[9]    The damage to the vehicle included a smashed windscreen, both front and rear driver’s side window, and a large hole in the roof. The damage was irreparable. The vehicle has since been scrapped.

[10]   The second victim sustained an open compound fracture to his upper left arm that required surgery to remove bone fragments from his elbow.

[11]   When asked to comment, you declined. However, in your interactions with the police, you claimed the second victim had been “stalking” your ex-partner.

4      Decision under appeal, above n 1.

[4]    Mr Parkinson was initially charged with wounding with intent to cause grievous bodily harm,5 and entered a not guilty plea. After he had been on bail for around seven months, and ten days before the scheduled trial, the Crown reduced the charge to one of wounding with intent to injure. Mr Parkinson immediately pleaded guilty.

[5]    Mr Parkinson has nearly 40 previous convictions. Most seriously, he received a sentence of two years and two months’ imprisonment in 2011 for injuring with intent to injure (or with reckless disregard). That offence involved use of a weapon. Since 2017 he has been convicted of wilful damage, possession of a knife and assault in the context of family violence, though in all cases he received a non-custodial sentence.

[6]    The pre-sentence  report  identified  a  propensity  for  violence  and  noted Mr Parkinson has been a patched member of the Mongrel Mob for the past 14 years. He has no intention to sever his ties. The report observed that Mr Parkinson’s continued association with the gang would “remain a concern moving forward”.

District Court decision

[7]    Unsurprisingly, the Judge selected the wounding with intent to injure charge as the lead offence. He fixed the starting point with reference to the Court of Appeal’s decision in Nuku v R.6 The Crown sought a starting point of three years, while the defence submitted that two years and nine months would be appropriate.

[8]    The Judge placed the offending at the high end of band two (up to three years’ imprisonment) or the lower end of band three (two to seven years’ imprisonment), settling on a starting point of two years and 11 months.7 The Judge noted the offending was aggravated by Mr Parkinson’s use of a weapon, a “moderate degree” of premeditation, home invasion to a low degree and the fact Mr Parkinson was accompanied by five associates, though once again the Judge described their presence as a “low-level” aggravating factor.8

5      Crimes Act, s 188(1). Maximum penalty of 14 years’ imprisonment.

6      Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [38].

7      Decision under appeal, above n 1, at [19].

8      At [13]–[15].

[9]The Judge made the following adjustments:

(a)an uplift of three months for the intentional damage charge;

(b)an uplift of three months in light of Mr Parkinson’s previous convictions;

(c)credit of seven months (or 18.4 per cent) for Mr Parkinson’s guilty plea;

(d)credit of three months for time spent on EM bail; and

(e)credit of five months for Mr Parkinson’s personal circumstances, most notably his good recent work record, his family support, the progress he has made in curbing his abuse of alcohol and drugs and, most importantly, the effect the sentence will have on Mr Parkinson’s seven children.

[10]   The Judge declined to extend separate credit for Mr Parkinson’s expression of remorse, observing he was not satisfied it was genuine, but rather was “designed for forensic advantage at sentence”.9 After applying the uplifts and credits, the Judge reached a sentence of 26 months’ imprisonment, or two years and two months.10 Accordingly, no question of home detention arose.

The appeal

[11]   Mr Lynch, on behalf of Mr Parkinson, took no issue with the starting point the Judge adopted. Rather, he submitted the  Judge was wrong to extend credit of only  18 per cent to reflect Mr Parkinson’s guilty plea, and was wrong to uplift the starting point by three months in light of Mr Parkinson’s other convictions. Finally, he submitted the Judge was wrong not to give a discrete discount for remorse.

[12]   Ms Dhir,  for  the  Crown,  submitted  that  an  18  per  cent  reduction  for  Mr Parkinson’s guilty plea was generous in the circumstances. The plea was entered only 10 days prior to the scheduled trial. Mr Parkinson had already received a

9 At [30].

10 At [40].

substantial benefit from the reduction in the charge. He had not expressed an immediate willingness to plead guilty to a charge of wounding with intent to injure, and maintained his denial until the plea agreement was concluded.

[13]   Similarly, Ms Dhir characterised the uplift for Mr Parkinson’s previous convictions as modest and proportionate; she noted that the previous convictions indicate extra individual deterrence is required.

[14]    In oral submissions Mr Lynch acknowledged the force of Ms Dhir’s submissions on the guilty plea and the uplift. As a result he placed particular emphasis on his submission that the Judge was wrong to decline a further discount to recognise Mr Parkinson’s expressions of remorse. Mr Lynch submitted it would have been difficult for Mr Parkinson to express remorse earlier than he did, as he denied the charges until the plea agreement was reached.

[15]The pre-sentence report recorded:

Mr Parkinson went on to say he regrets the incident and the impact it has had on his life and that of others involved, he said he had been doing a lot of thinking about it and said “I should have just moved back to Palmerston North but I had so much going on up in Gisborne with work and rugby league, I felt a bit depressed at the time and the kids hadn’t been around me”.

[16]   Mr Lynch also read a letter of apology Mr Parkinson had written to the second victim and his family, indicating he hoped the two of them could be friends in the future. It appears the letter was written very shortly before sentence.

[17]   Ms Dhir submitted it was open to the Judge to characterise Mr Parkinson’s expressions of remorse as insincere, and to infer they were designed for forensic advantage. She noted remorse is always a question of fact and judgment. She submitted, given the sequence of events leading to Mr Parkinson’s apology and expression of regret, that it was open to the Judge to reach the conclusion he did. It is also apparent from the passage in the pre-sentence report reproduced above that much of Mr Parkinson’s regret is focused on the effect the offending has had on his own life. She submitted the Judge’s approach, at each stage, was open to him, and that there was no error in the end sentence.

Discussion

[18]    The approach to appeals against sentence is well settled. Under s 250 of the Criminal Procedure Act 2011, I must dismiss the appeal unless I am satisfied, for any reason, that there was an error in the sentence and that a different sentence should be imposed. In accordance with orthodox principle, an appeal can be allowed only if the sentence was manifestly excessive, represented a material error of principle, or if there are exceptional circumstances.11

[19]   My focus is on the sentence the Judge imposed; it does not particularly matter how he constructed it as long as the final sentence was reasonably available. In this case the appellant seeks to “bank” a modest starting point, and confines his challenge to some of the adjustments for aggravating and mitigating factors. That approach will usually fail. If the same outcome could have been reached by a different route, the sentence will not be manifestly excessive.

[20]   In this case I consider the starting point could, and probably should, have been higher.

[21]   The offending was a revenge attack. Mr Parkinson accepts, in his pre-sentence report, that he wanted retribution because of something that had occurred between the second victim and Mr Parkinson’s partner. He said he “went to sort him out”. The quick resort to violent retaliation, which is all too common in gang-related offending, immediately aggravates the offending. This is consistent with the Court of Appeal’s approach in Nuku and R v Taueki, where the Court listed factors which aggravate serious violent offending. It observed:12

Vigilante action: Where the serious violence results from the actions of one or more persons taking the law into their own hands, acting out of revenge or using stand-over tactics for the enforcement of other obligations, that will also be an aggravating feature.

11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33]–[39].

12 R v Taueki [2005] 3 NZLR 372 (CA), at [31(m)]. The factors listed in R v Taueki were adopted as relevant aggravating factors when assessing culpability for wounding with intent to injure: Nuku v R, above n 6, at [41].

[22]   Next, Mr Parkinson destroyed a motor vehicle on the property in a separate attack. It belonged to the second victim’s father, and had to be written off. That offending was very serious in its own right.

[23]   More seriously, having left the address after destroying the motor vehicle,  Mr Parkinson took the time and trouble to gather five friends to accompany him when he returned. As Mr Lynch properly concedes, the recruitment of five Mongrel Mob members was, at best, designed to intimidate and terrify; plainly the others were also there to ensure the victim did not fight back when attacked.

[24]   Mr Parkinson’s departure and return, with reinforcements in tow, indicates a high level of premeditation for  the  attack  that  followed,  especially  in  light  of  Mr Parkinson’s admission that he went to the address to sort the victim out. I do not agree with the Judge that the case involved premeditation “to only a moderate degree”. The attack was well planned, and Mr Parkinson had ample opportunity to reflect on what he was doing and think better of it.

[25]   The fact the attack occurred at the victim’s property is another aggravating factor. While the attack occurred outside the victim’s house, he was entitled to feel safe at home.

[26]   The use of a tomahawk, and the seriousness of the injury Mr Parkinson inflicted, aggravate the offending further. A tomahawk can be deadly, and the injury

— though mercifully it did not cause lasting damage — was serious.

[27]   In Nuku, the Court of Appeal described three sentencing bands which apply in cases involving an intention to injure. It observed:13

[38]The following bands apply:

(a)Band one: where there are few aggravating features, the level of violence is relatively low and the sentencing judge considers the offender’s culpability to be at a level that might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate.

13     Nuku v R, above n 6.

(b)Band two: a starting point of up to three years’ imprisonment will be appropriate where three or fewer of the aggravating factors listed at [31] of Taueki are present.

(c)Band three: a starting point of two years up to the statutory maximum (either five or seven years, depending on the offence) will apply where three or more of the aggravating features set out in Taueki are present and the combination of those features is particularly serious. The presence of a high level of or prolonged violence is an aggravating factor of such gravity that it will generally require a starting point within band three, even if there are few other aggravating features.

[28]   Given the constellation of aggravating factors in the present case, not all of which were emphasised by the Judge, and some of which I consider he underplayed, I would have had no hesitation in placing this offending squarely in band three of Nuku. I am satisfied the wounding, on its own, could comfortably have sustained a starting point of three years six months, and an uplift of six months to reflect the separate, but still very serious, attack on the first victim’s car would have been unobjectionable.

[29]   In light of that conclusion, the rest of the appeal falls away. That said, I record that I agree  with  Ms  Dhir’s  assessment  of  the  credit  the  Judge  extended  for  Mr Parkinson’s plea. As the Supreme Court observed in Hessell v R:14

[62] Guilty pleas are often the result of understandings reached by accused and prosecutors on the charges faced and facts admitted. To give the same percentage credit invariably for an early guilty plea in sentencing without regard to the circumstances can amount to giving a double benefit. For example, if the Crown agrees to accept a plea to manslaughter and drops a charge of murder in relation to offending, the acceptance of the plea can be a concession in itself. If the full credit for an early plea is then also given, the sentence may not properly reflect the offending. The only way in which the many variable circumstances of individual cases which are relevant to a guilty plea can properly be identified is by requiring their evaluation by the sentencing judge, and allowing that judge scope in light of the conclusion he or she reaches to give the most appropriate recognition of the guilty plea in fixing the sentence.

[30]    Mr Parkinson derived considerable benefit from the reduction in the charge. He gave no indication, when charged with wounding with intent to cause grievous bodily harm, that he acknowledged the offending but for the severity of the injury he

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

intended. The Judge’s selection of an 18 per cent discount cannot be criticised in light of Hessell.

[31]   Likewise, it was open to the Judge to uplift the starting point in recognition of Mr Parkinson’s previous offending. He had an extensive history, though Mr Lynch was right to note that much of it was either historic or relatively minor. Nonetheless, the steady nature of the  offending,  the  fact  much  of  it  involved  violence,  and Mr Parkinson’s two previous convictions for wilful damage all indicate a modest uplift was open to the Judge. Ms Dhir was right to note that Mr Parkinson’s previous sentences have not acted as an effective deterrent.

[32]    Finally, I agree it was open to the Judge to decline a discrete credit for remorse. It is easy to claim to be remorseful. The Judge was right to note the need for offenders to satisfy the Court their expressions of contrition are genuine. While assessing the sincerity of an expression of remorse may be difficult at times, it is right for sentencing Judges to display at least a measure of scepticism when expressions of remorse are belated and come, for the first time, in the leadup to sentencing.

[33]   Section s 9(2)(f) of the Sentencing Act 2002 requires a defendant to have “shown” remorse. Actions will usually speak louder than words. Defendants who decline to speak with Police, refuse to acknowledge their involvement and claim to be remorseful only when they may derive an advantage from doing so may find it harder to persuade the Court they are sincere.

[34]   Given Mr Parkinson expressed concern for the victim for the first time shortly before sentence, it was open to the Judge to regard his expressions of remorse as self-serving. Mr Parkinson could have written to the victim much earlier if the only dispute between the Crown and him was whether the charge had been pitched at the right level. It is also fair to note that much of the regret Mr Parkinson expressed to the writer of the pre-sentence report arose from the effect the offending had had on his own position. He displayed only limited insight into its seriousness.

[35]   In any event, given my conclusion that the starting point could (and possibly should) have been higher, even a discrete discount for Mr Parkinson’s remorse, a

reduced uplift and a greater discount for Mr Parkinson’s plea would not have resulted in a materially lower sentence.

Conclusion

[36]   The threshold in s 250(2) of the Criminal Procedure Act will not be met if the swings and roundabouts of the sentencing process balance one another out. In this case the Judge — albeit with the Crown’s encouragement — selected a starting point that was, at best, at the lowest end of the available range. Given the seriousness of the offending and the numerous aggravating features, the final sentence could easily have been higher. Accordingly, the appeal must fail.

Result

[37]The appeal is dismissed.

Boldt J

Solicitors:

Woodward Chrisp Solicitors, Gisborne for Appellant

Te Tari Ture o Te Karauna | Crown Law Office, Wellington for Respondent