The Queen v Parker

[2009] NZCA 337

IN THE COURT OF APPEAL OF NEW ZEALAND

CA265/2009
[2009] NZCA 337

THE QUEEN

v

WILLIAM MORRISON PARKER

Hearing:27 July 2009

Court:Baragwanath, Venning and Winkelmann JJ

Counsel:B S Cooper and R H Anderson for Appellant

A M Powell for Crown

Judgment:3 August 2009 at 2.30pm

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

[1]       Mr William Parker was convicted following trial of injuring with intent to injure.  On 23 April 2009 Judge Weir sentenced him to two years imprisonment with special conditions to run for six months after release.

[2]       Mr Parker appeals against his sentence on the ground that it was disproportionate to the sentences imposed on his co-offenders.  He argues that the Judge over-estimated the seriousness of his role in the offending, giving insufficient weight to the limited role that he played compared to his co-offenders.

Factual background

[3]       In the early hours of 22 July 2007 Mr Parker and his two co-offenders, Mr Mear and Mr Cresswell, were at a party at Mr Parker’s house.  Two victims, Mr Kevin Hodge (aged 52) and his son Mr Jordan Hodge (aged 19) were walking home from town, on a route that took them past Mr Parker’s house.  An exchange of words occurred.  Mr Mear approached the two men, and a further verbal exchange took place.  Mr Mear then proceeded to kick and punch Mr Jordan Hodge.  Mr Cresswell joined the attack and helped to punch and kick Mr Jordan Hodge to the ground.  Mr Kevin Hodge went to his son’s aid, lying over him on the ground to protect him from the attack.  It was at this point that Mr Parker approached the group, kicking Mr Kevin Hodge once in the head.  Mr Kevin Hodge’s eye was left swollen to the extent that it was effectively closed as a result of that kick.  Although that was the full extent of Mr Parker’s involvement in the incident he caused the most significant injury suffered by either of the two victims.

[4]       Mr Mear and Mr Cresswell continued their attack on the two victims after Mr Parker kicked Mr Hodge.  In addition to the injury inflicted by Mr Parker, Mr Kevin Hodge suffered a laceration to the bridge of his nose, a cut to his temple and grazes to his hands, elbows and legs.  His son received a cut to his head, a blood nose, sore ribs and back and a chipped tooth.

[5]       Mr Parker, Mr Mear and Mr Cresswell were all convicted by a jury of injuring with intent to injure.  Mr Parker was convicted on one count in respect of Mr Kevin Hodge, Mr Mear on one count in respect of Mr Jordan Hodge, and Mr Cresswell on one count in respect of Mr Kevin Hodge and one count in respect of Mr Jordan Hodge. 

Sentencing decision

[6]       Judge Weir had victim impact statements from the two victims and pre-sentence reports for each offender.  The latter disclosed that Mr Mear and Mr Cresswell were both 17 at the time of the offending, whilst Mr Parker was 21.  All three have had troubled childhoods; Mr Cresswell and Mr Parker in particular have endured disruption and trauma during their childhood years.  Both Mr Cresswell and Mr Parker have previously offended.  Mr Parker has a reasonably lengthy list of previous convictions for dishonesty and property-related offending, and two previous convictions for assault.  The Judge described Mr Cresswell’s previous convictions as property-related, apart from one conviction in 2004 for an assault when he was a youth.

[7]       The Judge also had a letter from Mr Parker in which Mr Parker expressed remorse for the role that he had played in the offending, and a commitment to ensure that the rest of his journey through life is crime free.

[8]       The Judge proceeded to sentence each offender separately.  In relation to Mr Mear, the Judge noted that he instigated the confrontation, but described the injuries he inflicted on the victim Jordan Hodge as minor.  The Judge said that this offending fell within band 1 of R v Harris [2008] NZCA 528 because there was little injury and few aggravating features. In such cases, a lesser sentence than imprisonment may be appropriate. He sentenced Mr Mear on the one count of injuring with intent to injure to four months community detention on terms and conditions. In addition the Judge directed that Mr Mear serve a sentence of 300 hours community work, and fined him $2000 (of which $1,500 was to be paid to his victim).

[9]       The Judge took into account that Mr Cresswell was involved in the attacks on both victims.  In light of the role that he played, which the Judge characterised as similar to but less serious than that played by Mr Parker, the Judge sentenced Mr Cresswell to 18 months imprisonment. 

[10]     In relation to Mr Parker the Judge noted Mr Parker’s disadvantaged background and accepted that he was remorseful.  The Judge said that Mr Parker came to the incident last but nevertheless he caused the most significant injury.  The Judge characterised Mr Parker’s offending as more serious than that of the other two and imposed a sentence of two years imprisonment with terms and conditions to apply on release.  He remitted outstanding fines of $21,000 so that when Mr Parker is released from prison he will have a clean slate. 

Appellant’s argument

[11]     For Mr Parker it is accepted that the Judge correctly described his actions, and the nature of the injury that he inflicted on Mr Kevin Hodge.  It is also accepted that the sentence imposed upon him was within the range of sentence available for such offending, so that it cannot be said to be manifestly excessive.  The basis for the appeal is that the disparity between the sentence imposed upon Mr Parker and his co-offenders is such that it is in the interests of justice that the sentence be quashed.  In support of this contention it is emphasised that although Mr Parker kicked the victim Mr Kevin Hodge in the head, that was the full extent of his involvement in the incident.  Unlike his co-offenders he was not involved in a prolonged attack on the victim, nor did he initiate the attack.

[12]     Counsel for Mr Parker relies on the recognition by this Court in R v Rameka [1973] 2 NZLR 592 (at 594) that disparity may provide a ground of appeal against sentence, “but only when the disparity appears unjustifiable and is gross”. As to the test to be applied we were referred to R v Lawson [1982] 2 NZLR 219 in which this Court said:

The test of intervention by an appellate Court is not merely whether an offender feels a sense of grievance over the sentence imposed on him compared with that imposed on his fellow offender but whether the disparity is such as not to be consonant with the appearance of justice. A number of expressions have been used to capture this concept, namely "the disparity is so gross that a justifiable sense of injustice would persist", that right-thinking members of the public are likely to say "there is something wrong here" - R v Potter [1977] Crim LR 112. But the test is objective; not subjective. It is not merely whether the offender thinks that he has been unfairly treated but whether there is a real justification for that grievance; whether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice.

Discussion and decision

[13]     Judge Weir made clear in this case the basis upon which he distinguished Mr Parker from his co-offenders.  This was that Mr Parker’s offending was more serious, both in terms of the nature of the attack, and the injuries caused by that attack.  The Judge assessed the nature of Mr Mear’s offending as being at the lower end of the scale.  Mr Cresswell and Mr Parker were treated by him as being in a different category.  Consistently with his analysis, both Mr Parker and Mr Cresswell had sentences of imprisonment imposed upon them.  The greater sentence of imprisonment imposed upon Mr Parker was justified on the basis of the more serious role played by him. 

[14]     This analysis cannot be faulted.  Mr Parker was the only person who kicked the victim in the head.  Attacking the head of the victim is one of the factors identified in R v Taueki [2005] 3 NZLR 372 (CA) as contributing to the seriousness of the offending. A kick to the head carries with it a very real risk of serious head injury or death. It was not mere chance that in this case it was the kick that inflicted the most serious injury.

[15]     We also observe that there were other good reasons to distinguish Mr Parker from his co-offenders.  Mr Parker is four years older than Mr Mear and Mr Cresswell. That is a significant age gap in terms of culpability particularly when his co-offenders were only 17 at the time of the offending, just outside the Youth Court jurisdiction.  Mr Parker also has the more significant criminal record. 

[16]     For these reasons we are satisfied that the disparity between sentences is well justified, and accordingly, that the appeal must fail.

[17]     There are two further topics we wish to remark upon.  As we have noted the sentencing Judge accepted that Mr Parker was remorseful.  We have read the letter that Mr Parker wrote to the sentencing Judge and are impressed both by his understanding of the nature and consequences of his actions, and by his resolve to live a crime-free life on his release from prison.  Although Mr Parker has had a very difficult life up until this point, he has the potential to reform and we encourage his efforts in that regard.

[18]     Finally, we note that when the Judge remitted Mr Parker’s fines he failed to follow the procedure set out in s 88(3)(h) of the Summary Proceedings Act 1957.  This Court has previously remarked upon the need to follow these procedures (R v Brown [2009] NZCA 288), and we simply repeat that observation. However since there is no cross-appeal in relation to this issue, we make no orders in that regard.

Solicitors:
Crown Law Office, Wellington