The Queen v Parrish

[2003] NZCA 290

IN THE COURT OF APPEAL OF NEW ZEALAND

CA295/03

THE QUEEN

v

THOMAS CLYDE PARRISH

Hearing:26 November 2003

Coram:Gault P
Goddard J
Rodney Hansen J

Appearances:  P Kaye for Appellant

H D M Lawry for the Crown

Judgment:12 December 2003 

JUDGMENT OF THE COURT DELIVERED BY GODDARD J

[1]        The appellant was found guilty by a jury of murdering his wife on 12 July 2002.  The couple had married in 1985 and separated in 1991, although they had continued to see one another on an intermittent basis.  Following their separation the victim had moved into a flat in a large complex in Beachaven, Auckland.  The appellant had remained in Kerikeri.  By the time of her death the victim had formed an association with another man in the same complex.  Early in 2002 the appellant, who had been diagnosed with prostate cancer, came to Auckland for necessary medical treatment.  The victim agreed to provide him with accommodation whilst he was in Auckland for treatment.  However, the arrangement broke down due to the appellant’s obsessiveness about his former wife and her new relationship.  This obsession with the victim and her relationship apparently reached the point where he was, in effect, stalking her and making her life a misery.  On sentencing, the trial Judge said he had no doubt that matters had reached a point where the victim had become terrified of the appellant; not least, because of his interest in and use of firearms.  The Judge also reached a number of other conclusions about the appellant and his actions and intentions towards the victim in the weeks prior to her death.  These findings and others in similar vein were traversed by the Judge in his sentencing remarks. 

[2]        On 11 July 2003, the Judge sentenced the appellant to life imprisonment with a minimum non-parole period of 13 years.  It is against that minimum term of 13 years imprisonment that the appellant now appeals.

The ground of appeal

[3]        The appeal was advanced on the ground that the sentencing Judge had erred in giving too much weight to particular aggravating factors, thereby attaching too much culpability to the appellant’s intentions and actions.  It was submitted that a correct calculation of the appellant’s culpability, together with the mitigating features, rendered the imposition of a minimum sentence of 13 years imprisonment manifestly unjust. 

The facts

[4]        The Crown’s case at trial was that the appellant’s actions had amounted to a cold-blooded and premeditated murder.  The defence theory at trial was that the victim was shot accidentally whilst she and the appellant were struggling to get possession of his rifle following an argument.  The appellant gave evidence at trial, but his version of events was clearly not accepted by the jury.

[5]        The facts, as summarised by the Judge in his sentencing remarks, were as follows:

In the weeks not long before the murder you made a number of threats against your wife to other people.  Your obsession with her, coupled it seems with a perception on your part that she had ruined your life both emotionally and financially, finally reached a point where you decided to kill her.

On 12 July last year you took another weapon owned by you, a 30/30 Winchester which you apparently kept on your boat.  You were seen to be cleaning this and operating the loading mechanism in your sons’ yard in Kerikeri about lunchtime that day.  You then drove in your truck to your wife’s unit in Auckland, arriving about 6.25pm.  You went to her unit and entered it with the rifle.  She was, at the time, speaking on the telephone to her daughter in Australia.

The Crown case was that after initially threatening her, you shot her at short range and then left the unit.  From there you drove to your brother’s home in Whenupai where you told him and his wife you had shot your wife.

The Police were informed and you subsequently made the same admission to a Police officer.

You gave evidence at your trial stating that you had gone to see your wife in order to discuss matters with her, and in accordance with a prior arrangement with her that you would spend the night in her unit.  You said that you took the rifle, which you did not know was loaded, with you, rather than leave it in your truck which was parked outside on the road.  You said that after you arrived, within a short time, an argument developed, your wife grabbed the rifle, you wrestled it away from her, the argument continued, she grabbed it again and she was shot, quite accidentally, when the two of you were struggling to get possession of the rifle.

You then went outside to compose yourself, went back inside, lit a cigarette, took your bags and the rifle and went looking for a policeman on your way to your brother’s home.

You did nothing whatsoever to help your wife who remained alive for about 50 minutes afterwards.

Your wife’s daughter had become terrified by what she heard over the phone, after you arrived and before the phone was disconnected.  She made a number of calls to get help.  Finally she rang a friend of her mother, Mrs Mason, who almost immediately left her home about 20 minutes away, drove straight to the unit, found the victim apparently still alive, tried to do what she could for her and summoned help.

…

Quite apart from the evidence of your wife’s daughter as to what she heard over the phone, it is quite clear from an examination of the time and distance required for you to travel between the unit and Whenuapai afterwards, you could not have been in the unit long enough for the events to have taken place as you described.

Furthermore, in addition to doing nothing to help your wife, you said nothing to either your brother, his wife or the Police immediately afterwards to suggest in any way that what had happened had been accidental.

Perhaps most telling of all is the fact that the evidence revealed you must have loaded the rifle some time at or after leaving Kerikeri.

That fact alone was the clearest possible proof that you went to the unit with the intention of killing your wife.

The sentencing judgment

[6]        The sentencing exercise was conducted by the Judge with great care, as the case was apparently the first of its type under the new Sentencing Act 2002 (“the Act”).  For that reason the Judge spent considerable time analysing and discussing the effect and application of the relevant principles of the new Act.

[7]        The Judge began by referring to the sentencing purposes and sentencing principles defined in ss7 and 8 of the Act.  He found the sentencing purposes of accountability, denunciation, deterrence and protection of the community to be particularly relevant.  In terms of sentencing principles, he found all to be relevant, but singled out s8(h) as of particular application to the appellant’s case.  Section 8(h) provides:

Must take into account any particular circumstances of the offender that mean that a sentence or other means of dealing with the offender that would otherwise be appropriate would, in the particular instance, be disproportionately severe;

[8]        The Judge then listed the aggravating features of the appellant’s conduct as identified by the Crown, and the mitigating features as identified by Mr Kaye.  The aggravating features identified, in terms of s9(1) of the Act, were: the use of a weapon; unlawful presence and entry into the victim’s home; the fatal outcome; the nature of the intrusion and the particularly cruel and callous nature of the offence; the vulnerability of the victim by reason of her age; the fact that she lived alone and that this was known to the appellant; the “very significant level of premeditation” involved; the lack of any expression of remorse and continued protestation of innocence; and the appellant’s failure to render or obtain any assistance for the victim who “did not die until nearly an hour later”.  The mitigating factors identified were: the appellant’s age of 67 years; his previous good character; his ill-health of some years standing and particularly the prostate cancer from which he is now suffering; the fact that he did not flee or attempt to hide his involvement in the killing; and the suggestion that the murder was in the nature of a crime of passion.

[9]        Taking all of these factors into account, the Judge had no doubt that the presumption of life imprisonment in s102 of the Act must apply in the appellant’s case.  Section 102 provides:

102 Presumption in favour of life imprisonment for murder

(1)An offender who is convicted of murder must be sentenced to imprisonment for life unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust.

(2)If a court does not impose a sentence of imprisonment for life on an offender convicted of murder, it must give written reasons for not doing so.

[10]     Expressly the Judge found:

There are, in short, no features in this case which indicate to me that it would be manifestly unjust to remove the presumption in this case.  I am therefore next required to consider s103.

[11]     Turing to s103, the Judge set out the relevant parts, which are:

103 Imposition of minimum period of imprisonment if life imprisonment imposed for murder

(1)If the Court does not impose a minimum period of imprisonment under this section, an offender sentenced to imprisonment for life for murder will serve a minimum period of imprisonment of 10 years as provided in section 84(3) of the Parole Act 2002.

(2)...

(3)The court may impose a minimum period of imprisonment of more than 10 years if it is satisfied that the circumstances of the offence are sufficiently serious to justify doing so.

(4)The duration of the minimum period of imprisonment imposed under this section must be the minimum period of imprisonment that the court considers to be justified having regard to the circumstances of the case, including those of the offender.

(5) For the purposes of this section, the circumstances of an offence may be regarded as sufficiently serious if the court is satisfied that the circumstances take the offence out of the ordinary range of offending of the particular kind.

(6)If the court makes an order under this section, it must give written reasons for doing so.

(7)This section is subject to section 104

[12]     Choosing to leave aside for the moment the effect of s103(7), the Judge noted the effect of s103 as being to empower the Court to impose a minimum period in excess of 10 years in cases where the Court was satisfied the circumstances of the offence were sufficiently serious to justify doing so, but subject to ss103(4), (5) and (7).

[13]     Turning to s104, the Judge then noted that the Court must make an order under s103 imposing a minimum period of imprisonment of at least 17 years in certain specified circumstances, unless the Court was satisfied that it would be “manifestly unjust” to do so.  Section 104 provides:

104 Imposition of minimum period of imprisonment of 17 years or more

The court must make an order under section 103 imposing a minimum period of imprisonment of at least 17 years in the following circumstances, unless it is satisfied that it would be manifestly unjust to do so:

(a)if the murder was committed in an attempt to avoid the detection, prosecution, or conviction of any person for any offence or in any other way to attempt to subvert the course of justice; or

(b)if the murder involved calculated or lengthy planning, including making an arrangement under which money or anything of value passes (or is intended to pass) from one person to another; or

(c)if the murder involved the unlawful entry into, or unlawful presence in, a dwelling place; or

(d)if the murder was committed in the course of another serious offence; or

(e)if the murder was committed with a high level of brutality, cruelty, depravity, or callousness; or

(f)if the deceased was a member of the police or a prison officer acting in the course of his or her duty; or

(g)if the deceased was particularly vulnerable because of his or her age, health, or because of any other factor; or

(h)if the offender has been convicted of 2 or more counts of murder, whether or not arising from the same circumstances; or

(i)in any other exceptional circumstances.

[14]     The Judge was satisfied that s104 applied in the appellant’s case because of the following circumstances: the use of a weapon; the calculated planning involved; the unlawful intrusion into the victim’s unit; the high level of cruelty and callousness implicit in her slow death; and her vulnerability.  Accordingly, he found he was not required to consider the matters referred to in s103(3) and (5), stating:

… by statutorily defining particular circumstances requiring the involvement of s.104, the legislature has effectively determined that where all or any of those circumstances apply, the particular offence is sufficiently serious to justify a minimum sentence in excess of 10 years (sub-sec.3) and that those circumstances take the offence out of the ordinary range of offending of the particular kind (sub-sec.5). 

Rather, by reason of s.103(7) the sentence is to be determined in accordance with s.104.  In other words a minimum sentence of at least 17 years is to be imposed unless the Court is satisfied it would be manifestly unjust to do so.

[15]     The Judge then went on to reason as follows:

The wording of s.104 anticipates that minimum sentences in excess of 17 years’ imprisonment may be imposed.  The Court is, therefore, required to consider three matters when a murder falls within s.104, namely should the sentence – [emphasis added]

[a]       Exceed 17 years;

[b]       Remain at 17 years, this being the prescribed minimum;  or

[c]Impose a sentence less than 17 years if it is satisfied it would be manifestly unjust not to do so.

…

I therefore approach the alternatives I have referred to as follows:

[a]The new legislation has clearly indicated that sentences for murder are to be increased where the Court is satisfied that the circumstances of the offence are sufficiently serious to justify doing so.

[b]The legislature has provided a benchmark of a minimum of 17 years where certain specified elements of culpability are present.

[c]Those specified elements also include (s.104(1)) “any other exceptional circumstances”;  an example could be a multiple homicide.  There will, of course, be others.

[d]The specified elements are not defined in terms of the degree of culpability involved.  In other words each may involve a greater or lesser degree of culpability within the broad description.

The net result is that the Court, when having to assess which of the three alternatives is appropriate, must assess the degree of culpability involved in each or, if you like, to determine just how unacceptable an unacceptable element is, in a particular case.

Accepting this as a guideline I have concluded that each of the unacceptable elements in this case, in s.104, which I have already referred to in paragraph [34] above, cannot, when considered individually, or as a whole, be regarded as the worst with which the Courts have been presented.

For this reason I have concluded that the minimum period of 17 years specified in s.104 should be regarded as a maximum in this case.

The question then remains whether that minimum should be accepted as an appropriate sentence or whether it would be manifestly unjust to do so.

The determination of this depends, in my view, on a further evaluation of the culpability evident from the offending;  in other words the aggravating and mitigating factors involved.  The result must be consistent with the purposes and principles set out in ss.7 and 8 and s.103(4) …

[16]     Taking into account the mitigating factors that had been identified, and in particular the appellant’s age, his health problems and his previous good record, the Judge determined that a significantly reduced sentence was justified, having regard also to s8(h) and s103(4) of the Act.  He concluded as follows:

Having confronted the issue on this basis I have concluded that justice, however that may be defined, demands that there be some recognition of the implications of your age, infirmity and previous good record.  In short I have concluded that even in the context of your numbingly awful offending it would be manifestly unjust not to do so.  Justice would be the loser if this was not the case.

The final issue is to determine what is an appropriate reduction from the otherwise mandatory sentence of at least 17 years’ imprisonment.  On the one hand a token reduction would diminish the purpose behind it.  On the other hand there must be a proper recognition of the intention of Parliament when enacting s.104.

It is impossible to define, by reference to any empirical evidence, just what the reduction should be.  I am satisfied, however, on the available evidence, that to impose a minimum sentence of 17 years in this case would more probably than not mean that you would never be released.  My task, as I said is, therefore, to reduce the sentence by a period which may provide a sensible chance, or prospect to you, that you can envisage a release within your lifetime, given that you will, in any event, be serving a significant sentence.

I have concluded that a proper recognition of all the factors which I have mentioned can be met, and with due regard to s.103(4)), by the imposition of a sentence of life imprisonment with a minimum period of imprisonment of 13 years.

[17]     The directory nature of s104 was perhaps not sufficiently recognised in the Judge's approach in which he identified the three alternatives open in respect of the length of minimum sentence to be imposed where that section applies.  They are not equally available for selection according to assessed culpability.  Further, it does not follow that only where the qualifying elements for the application of the section are the worst with which the courts have been presented that a minimum period above 17 years can be imposed.  The strong presumption, where the section applies, is that the minimum period to be served is to be not less than 17 years unless that would result in manifest injustice.

Discussion

[18]     In the course of his reasoning (referred to in para [14] above and quoted in para [15] above) the Judge referred variously to s104 as having both mandatory and permissive application.  Section 104 is, however, couched only in mandatory terms, with the result that if, on proven or accepted facts, one of the circumstances prescribed therein is present, the imposition of a minimum period of 17 years imprisonment or more is mandatory.  The Court is then expressly directed to impose such a minimum period, pursuant to s103, unless satisfied it would be manifestly unjust to do so.

[19]     A determination of manifest injustice requires an assessment of an offender’s personal circumstances alongside the circumstances of the offending and in light of the sentencing purposes and principles.  The sentencer must be able to reach a clear view of demonstrable injustice, because this is what the description “manifestly” requires.  Therefore, once one or more of the prescribed circumstances in s104 has been identified, it is only in exceptional circumstances that the starting point of 17 years can be departed from.  This was made clear in R v Rapira & ors [2003] 3 NZLR 794. In that case the Court addressed the use of the same phrase “unless … the sentence … would be manifestly unjust”, as it appears in s102. Plainly it carries the same meaning in both sections. Specifically, at para 121, this Court said:

The assessment of manifest injustice falls to be undertaken against the register of sentencing purposes and principles identified in the Sentencing Act 2002 and in particular in the light of ss7, 8 and 9.  It is a conclusion likely to be reached in exceptional cases only, as the legislative history of s102 suggests was the expectation.  Thus, on introduction of the Sentencing and Parole Reform Bill, the Minister of Justice (at 594 NZPD 10910) referred to its retention of “a strong presumption in favour of life imprisonment for murder”:

However, in a small number of cases, such as those involving mercy killing, or where there is evidence of prolonged and severe abuse, a mandatory life sentence is not appropriate.  Under this legislation, the court will be able to consider a lesser sentence.

While youth is a factor properly to be taken into account in sentencing, it is part only of a wider public interest (R v Fatu [1989] 3 NZLR 419, 431; R v Mahoni (1998) 15 CRNZ 428, 436).  Where the offending is grave, the scope to take account of youth may be greatly circumscribed. …

[20]     In the appellant’s case, although there was some duplication in the aggravating factors identified by the Crown, at least four of the prescribed circumstances in s104 were present: calculated planning; unlawful entry into the victim’s unit; a high level of brutality and callousness; and the vulnerability of the victim.  The Judge considered however only the appellant’s personal circumstances when he made his assessment as to where the interests of justice lay.  There were in fact no circumstances of the offending that could have justified a departure from the mandatory minimum term in s104.  The mitigating factors identified of old age, poor health and previous good record had no real or direct bearing on the appellant’s offending: rather, his premeditated act was vindictive and motivated by jealousy.

[21]     Even in cases with more powerful mitigating circumstances, the requirement to impose the mandatory term of imprisonment of 17 years might not be displaced if they have no direct bearing on the offence itself.  In the absence of special features (such as those described on the introduction of the Sentencing and Parole Reform Bill) indicating manifest injustice, the Court is unlikely to depart from the mandatory minimum term.  Examples of recent sentencing decisions in which s104 circumstances have been present, but mandatory minimum terms of imprisonment of 17 years nevertheless still imposed, despite mitigating features personal to the offender, are Luff; R v Mackness (T023921, HC Hamilton, 14 April 2003); and
R v Bishell (CRI-2002-078-278798, 21 November 2003).

[22]     In Rapira and cases such as R v O’Brien (CA107/03, 16 October 2003 and
R v Luff (S4/02, HC Palmerston North, 18 September 2002), the personal circumstance of extreme youthfulness did not meet the threshold for departing from the presumption in favour of life imprisonment.  Nor did the young age of the offender in Luff displace the imposition of the mandatory minimum term of imprisonment of 17 years required by s104.  The same application of principle dictates that old age, whilst a factor properly to be taken into account, will not of itself displace the mandatory minimum term in s104, where the offending is grave.

[23]     As is clear from the above reasoning that we are unable to accept Mr Kaye’s argument that the imposition of a 13 year minimum non parole period in the appellant’s case was manifestly excessive.  Indeed we can only describe the minimum period of 13 years as a merciful sentence, fixed having regard to the age and state of health of the appellant.  A minimum period of 17 years would not have been disturbed.

Result

[24]     The appeal is dismissed.

Solicitors:

Crown Solicitors, Auckland