THE QUEEN v NICHOLAS TOM PARKINSON [2001] NZCA 255 (17 September 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca212/01

THE QUEEN

V

NICHOLAS TOM PARKINSON

Hearing:	17 September 2001
Coram:	Elias CJ Anderson J Robertson J
Appearances:	LM Bidois for the Appellant JC Pike for the Crown
Judgment:	17 September 2001

judgment of the court DELIVERED BY ROBERTSON J

[1] Nicholas Tom Parkinson appeals against a sentence of 5 years imprisonment imposed upon him in the High Court at Rotorua on the 19^th of June 2001.

[2] On the 1^st February 2001 Mr Parkinson and a co-offender Darryl Alexander Hitchens were arrested and charged with a variety of offences arising out of a Police search of the address at which they were both residing in Opotiki.

[3] On 24 May 2001 this appellant pleaded guilty pursuant to Section 153A of the Summary Proceedings Act 1957 to one charge of cultivating cannabis and one of possession of cannabis for supply.The co-accused Mr Hitchens pleaded guilty to the same two charges and additional charges of selling cannabis and unlawful possession of a firearm.

[4] A District Court Judge declined jurisdiction and these two 24 year-old single men were committed to the High Court for sentence.Mr Parkinson was sentenced to 5 years imprisonment and Mr Hitchens to 3 years imprisonment.

[5] Mr Parkinson appeals against the length of the term of imprisonment on the grounds that it was manifestly excessive in that:

(a) there was no proper basis to impose a longer sentence on him than on Mr Hitchens;

(b) Mr Hitchens' culpability was in fact greater than Mr Parkinson's as he had played a more dominant role in the offending and had additional charges;

(c) insufficient weight was given to mitigating factors advanced on Mr Parkinson's behalf.

[6] There is no dispute that these two men had both been involved in a sophisticated continuing drug operation with commercial connotations.The Judge was correct when he treated the matter as being either at the top of the second category or in the third category as enunciated by this Court in R v Dutch [1981] 1 NZLR 304 CA to which he referred.We are advised that submissions had been made to the Judge on the basis of the more recent decision of this Court in R v Terewi [1999] 3 NZLR 62 but the effect is not material.

[7] The Judge noted there was little difference between the two and said:

The simple fact of the matter is as I have endeavoured to stress throughout this was a major cultivation set-up for profit into which both of you went with your eyes wide open and it is my task to sentence you on that basis.Having said that let me make it quite plain to you in my view it is the duty of this Court to pass sentences upon persons of your ilk which will not only punish you but will cause others to think twice before they embark on the type of operations you two have got yourselves into.

[8] The Judge in imposing the 5 year sentence on Mr Parkinson recognised that there had been literally an immediate acknowledgement of guilt and a plea of guilty although he noted that Mr Parkinson had no choice as he was literally caught red-handed.(We note that the same applied with similar force to Mr Hitchens).The Judge recorded that in respect of a case awaiting resolution, the appellant was willing to co-operate and give evidence.He noted that it was the sixth occasion on which Mr Parkinson had appeared on a drug related offence (the last being in 1998) and that he had previously been imprisoned and subject to many terms of periodic detention.He did recognise that there was a giant leap in Mr Parkinson's criminality and involvement in the drug scene in the instant offending and accepted that the appellant had personal problems with drug use.He concluded that a minimum sentence of 5 years was required.

[9] In the case of Mr Hitchens the Judge said that he was "as deeply involved in this affair or this operation as your co-prisoner" but treated this as his first venture into the drug scene and that his previous convictions were largely of nuisance type offending.Without further elucidation he imposed a term of 3 years imprisonment.

[10] Essentially the appeal is about disparity.There is no argument but that the test is as enunciated by this Court in R v Lawson [1982] 2 NZLR 219.

[11] The fundamental reason articulated for the substantial difference in the penalty was their respective previous convictions.

[12] This appellant's previous convictions were:

27/9/1994	Unlawfully taking motor cycle	To come up for sentence if called upon within 9 months
6/12/1994	Possession of a pipe; unlawfully takes a motor vehicle; failing to stop when followed by red/blue flashing lights; breath alcohol level over 400 mgs/litre of air; possession of a knife in a public place	7 months PD; disqualification and forfeiture of the knife
14/02/95	Drove a motor vehicle in a dangerous manner	Disqualified from driving for 6 months

20/04/94	Possession of knife in a public place; burgles	4 months PD
4/7/95	Wilful damage	6 months PD; $500 fine; 9 months supervision
18/07/95	Possession of cannabis	$150 fine
01/08/95	Shoplifting	$100 fine
25/07/96	Possesses utensils; burglary	4 months PD
25/02/97	Possession of plant; common assault	3 months imprisonment (concurrent)
02/04/98	Possession of cannabis; wilful damage	6 months PD; $500 fine

[13] While not suggesting that this list is to Mr Parkinson's credit, Mr Bidois submitted that the Judge overstated his previous offending relating to drugs and that he appears to have overlooked, in respect of Mr Hitchens, a previous conviction for possession of utensils for which he was sentenced to 7 months periodic detention in 1995.

[14] Mr Hitchens' previous list was:

22/09/1993	Male assaults female; common assault	Total fine $300
10/11/93	Receiving property	$200 fine
16/12/93	2 charges of unlawful interference with motor vehicle	Fine; 4 months PD
20/01/94	Litter public place; shoplifting	4 months PD
21/04/94	Burglary; 2 charges of attempted arson	6 months supervision
18/05/94	Minor drinking in public place	Fined $100
21/09/94	Receiving stolen property	2 months PD
09/11/94	Theft	6 months PD
02/02/95	Resisting police; male assaults female	3 months corrective training
12/07/95	Burglary	Fined $600;5 months PD
09/08/95	Using insulting language	Fined $150
23/08/95	Possessing utensils	7 months PD

24/01/96	Obstructing Police; assaulting Police	4 months PD
14/05/96	Shoplifting (x 2)	2 months PD
19/08/97	Theft of a car	4 months PD
14/12/98	Breath alcohol level over 400 mgs/litre of breath	Fined $300; disqualified from driving for 6 months

[15] As against this background Mr Bidois contended that the sentencing Judge appeared to have misunderstood the effect of the previous convictions and treated that of Mr Parkinson as being substantially more serious than that of Mr Hitchens which in reality was not the case.Both had offended on a number of occasions, neither particularly seriously.It was submitted that there was really nothing of sufficient consequence to justify any disparate treatment of them in respect of this offending because of differences in their conviction history.

[16] We are persuaded that there is strength in that submission, the more so when it is noted that Mr Parkinson clearly has a long-term drug abuse problem whereas Mr Hitchens appeared to be involved in this enterprise purely for profit.Drug addition is not a licence to act illegally but it does provide some explanation for suchinvolvement which is not the case in respect of the co-offender.Previous serious drug offending can justify a more stern approach in sentencing but that was hardly the position here.

[17] The Judge treated the two men as being equally culpable.Mr Pike has endeavoured to suggest that Mr Parkinson could have been considered as the senior partner while Mr Bidois submitted that in fact Mr Hitchens had been involved with the responsibility of the day to day running of the illegal operation while this appellant was in employment, so his hands on involvement was greater.The Judge did not differentiate and there is no reason why he should have.

[18] It is the case however that as well as the joint involvement in this enterprise, Mr Hitchens had a distinctly separate charge of selling cannabis. Further a sawn-off double-barrelled shotgun was found in Mr Hitchens' bedroom at the property which he admitted being in possession of.Counsel for the appellant makes the valid submission that normally Courts view the existence of a firearm by a major drug cultivator as a seriously aggravating factor.In the present case the Judge merely convicted and discharged Mr Hitchens on that matter.He does not appear to have reflected that circumstances in the substantive sentence.

[19] Finally it was submitted that the Judge failed to give adequate weight to a number of mitigating factors which would have warranted a lesser sentence being imposed on Mr Parkinson than Mr Hitchens which included:

(a) that he was in a de facto relationship with a 9 week-old child whereas Mr Hitchens was single and without dependents;

(b) Mr Parkinson was in full-time employment whereas Mr Hitchens was on a benefit;

(c) that Mr Parkinson had a long-term drug problem which he was motivated to address whereas Mr Hitchens' criminal involvement appeared to have been purely one for profit;

(d) that having been witness to a serious criminal offence involving gang members Mr Parkinson had co-operated with the authorities and was willing to give evidence.

[20] The sentence of 5 years imprisonment after allowing for the plea of guilty in the relevant personal circumstances is stern, but the appeal is advanced on the basis of disparity not severity.The issue is whether the marked differences in sentences imposed on these two co-offenders, and for which no justification can be shown, is such as to bring the administration of justice into disrepute.

[21] Upon analysis we can find no satisfactory basis for the substantial differential which exists.The Judge acknowledged their criminality as being of equal culpability.They were the same age.Upon analysis their criminal backgrounds are not markedly different and any personal factors (to the limited extent to which they could be relevant) would have tipped slightly in favour of Mr Parkinson.Mr Hitchens was to be sentenced for more offending than Mr Parkinson.

[22] The real issue is whether the sentence imposed upon Mr Hitchens was so inadequate as to create further injustice if a similar sentence were to be imposed on Mr Parkinson with a reference to R v Ryder CA116/98 23 June 1998.

[23] Although the Judge does not specifically avert to an allowance for a plea of guilty (even recognising the fact that there was a strong prosecution case) the starting point for Mr Hitchens must have been in the vicinity of 4 years with a substantial reduction for co-operation and a plea of guilty.The Crown did not appeal against that sentence.Although we are of the view that considering the serious nature of the joint enterprise the sentence was moderate, we do not consider it so inadequate that it would bring the administration of justice into disrepute to remove the unjustified disparity between the two offenders with a reference to R v Thompson and R v Pullen-Burry CA245/98; CA 267/98 22 December 1998.

[24] Accordingly the appeal is allowed.The sentence of 5 years imprisonment is quashed.On each of the charges Mr Parkinson is sentenced to three years imprisonment.We have not overlooked the fact that there were additional charges against Mr Hitchens.To reduce the effective sentence any further in Mr Parkinson's case would send quite the wrong message as far as offending of this degree of seriousness.

Solicitors

Chadwick Bidois, Rotorua for the Appellant

Crown Law Office, Wellington