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Court of Appeal of New Zealand |
Last Updated: 18 October 2018
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NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR
IDENTIFYING PARTICULARS OF THE COMPLAINANT PROHIBITED BY S 203 OF THE
CRIMINAL
PROCEDURE ACT 2011.
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BETWEEN |
WILLIAM ARTHUR PARKIN Appellant |
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AND |
THE QUEEN Respondent |
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Hearing: |
4 September 2018 |
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Court: |
Brown, Duffy and Peters JJ |
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Counsel: |
A M Harvey for Appellant M H Cooke for Respondent |
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Judgment: |
5 October 2018 at 12.30 pm |
JUDGMENT OF THE COURT
A The appeal against sentence is allowed.
B The sentences of 20 months’ imprisonment are quashed.
D The
appellant is also ordered to undertake 400 hours of community work.
REASONS OF THE COURT
(Given by Peters J)
[1] Following a jury trial before Judge Ronayne in the District Court at Auckland, the appellant was convicted of two charges of indecent assault on a girl aged between 12 and 16 years.[1]
[2] In May 2018, the Judge sentenced the appellant to one year and eight months’ imprisonment on each charge, to be served concurrently.[2] The Judge declined to impose a sentence of home detention.
[3] Originally the appellant appealed both conviction and sentence. The appeal is now against sentence only, on the grounds that it is manifestly excessive, both in terms of the end sentence and the Judge’s refusal of home detention.
[4] Counsel for the appellant, Mr Harvey, does not dispute the Judge’s starting point of 22 months’ imprisonment. He submitted, however, that the appellant was entitled to a greater discount for good character and the lapse in time, being 37 years, since the offending. The Judge gave a two-month discount for these matters.[3] Mr Harvey submitted the discount should be at least six months. Mr Harvey also submitted to us that an additional “month or two” should be given for the consequences of the appellant’s public “fall from grace”.
[5] Mr Harvey also submitted that the Judge erred in declining to impose a sentence of home detention.
Background
[6] The appellant committed the offences between 14 May 1980 and 28 August 1981. He was aged 28 or 29 at the time of the offending, and the complainant 11 or 12.
[7] The complainant, a young relative of the appellant’s then wife, had stayed overnight at the appellant’s house. The first charge arose from the appellant lying behind the complainant on a couch, putting his hand inside her pyjama top and fondling her chest around her nipples. He then caressed her inner thighs and vagina.
[8] In relation to the second charge, the appellant was sitting at the dining table in his house as the complainant passed by to get a glass of water. He exposed his erect penis to her and made her sit on his thigh. He took her hands and made her stroke his penis several times. The complainant gave evidence that the appellant then said, “I’m sorry”.
[9] The complainant made no immediate complaint. In about 1992 she disclosed the incident to her mother, who contacted the police, but the complainant did not wish the appellant to be prosecuted because she was very fond of his wife, and thought it might bring an end to the marriage. At a later date, possibly in the mid 1990s, the complainant confronted the appellant directly about the incident. The appellant apologised to the complainant and later that day informed his wife of the matter.
[10] The appellant’s daughter learned of the allegations following her parents’ separation in 2007, and she reported the matter to the police in 2016, after having children of her own.
[11] At the time of the trial, the appellant was aged 66 and the complainant 49. The appellant gave evidence in his defence. In relation to the first charge, the appellant said he had been watching TV with the complainant on the couch when he put his hand on the complainant’s stomach while he thanked her for babysitting.
[12] As to the second charge, the appellant acknowledged lesser offending than that alleged. His evidence was that the complainant saw he had an erection while he was sitting at the dining table, which he “for some stupid reason which I’m ashamed of”, asked her to hold. He gave evidence that she did not do so, pulled away, and that he apologised to her immediately. An alternative charge was included in the Crown charge notice to reflect this. Plainly, however, the jury did not accept the appellant’s evidence on either incident.
Discount for good character and lapse in time
[13] The Judge accepted that the appellant’s good character was a mitigating factor that he was required to take into account in sentencing.[4] The issue before us is whether the Judge erred in not granting a greater discount for this factor.
[14] In support of his submission for a discount of at least six months, so approximately 25 per cent, Mr Harvey referred us to four authorities; two of the High Court and two of this Court, in which discounts of up to one third of the starting point were given.[5]
[15] The gist of the Crown’s submission in response was that the two months given was sufficient and indeed “generous given Mr Parkin’s continued denial of the offending”. The latter is a reference to the appellant’s unwillingness to accept the complainant’s account of events, a matter of which the writer of the provision of advice to courts (PAC) report and the Judge were highly critical.
Discussion
[16] This Court’s recent decision in Manawaiti v R contains a very useful discussion of the matters to be considered in determining the extent of a discount for previous good character.[6] In considering the point, this Court referred first to a statement by William Young P that credit for good character is “very much a matter of impression” and,[7] secondly, to three factual matters that might assist in assessing the appropriate discount if one is due. These are the length of the period for which the defendant has exhibited good character, whether the evidence of good character consists of the absence of convictions or also includes positive contributions to society, and the need for any discount to be proportionate to the overall sentence.[8]
[17] In this case the appellant has been of good character for 37 years, and the evidence of this comprises both an absence of prior convictions (bar one for careless use of a motor vehicle in 1996) and evidence of numerous positive contributions to society. At sentencing, the appellant submitted letters from 70 referees, all of whom indicated that he had told them of the offending. Many of these referees either played hockey with the appellant or have been coached by him. All refer to the generous manner in which the appellant has given his time and skill in coaching at all levels of the game. Members of his family — siblings, cousins, his partner of many years, and his son — refer to him as a loyal, caring, good natured and loving family man. Others referred to kindnesses that the appellant has shown them or members of their family when they needed it. We have footnoted excerpts from just a few of the latter category to illustrate the point.[9]
[18] Accordingly, there is compelling evidence of good character, exhibited over a long time.
[19] We turn now to the cases to which counsel have referred us in support of their respective submissions. As the Crown suggested, we shall concentrate on those heard before this Court.
[20] Both Mr Harvey and Crown counsel referred to R v Carruthers.[10] This case, decided in 1995 by a panel of five permanent Judges of this Court, needs to be read bearing in mind that it precedes the Sentencing Act 2002 (the Act) and the formulation of current sentencing methodology.
[21] The appellant in Carruthers had been sentenced to two years’ imprisonment for offences of indecency against children committed 13 years prior. The two-year sentence reflected the appellant’s guilty plea, treatment he had sought of his own volition, remorse and other matters. On appeal, the appellant argued that he ought also to have been given credit for the positive changes he had made in the intervening 13year period.
[22] In response, this Court said that a lapse of time will not always be significant, as it may be a product of steps taken by the offender to suppress disclosure or pressure from within the very family environment that enabled the commission of the offence in the first place. However the Court then stated:[11]
But where in the years that have intervened the offender has demonstrated that he has overcome his earlier proclivities, and has settled into a normal and law-abiding life, that fact must be recognised. For events have shown that one of the objectives of sentencing, deterrence of the specific offender, is unnecessary. The man to be sentenced today is not the same man who committed the offences. Moreover, the interests of a new family unit, of other children, may need to be considered.
[23] This Court gave a discount of 25 per cent in recognition of those aspects of the case.[12]
[24] Mr Harvey also referred us to R v Webb, decided shortly after the Act was passed.[13] Following a trial in 2003, Mr Webb was found guilty of four charges of sexual offending against a young child, committed in 1991. He appealed against both conviction and his sentence of four years’ imprisonment, the latter on the ground that the sentencing Judge had declined to give any discount for the good character he had demonstrated in the intervening years and the interests of his (new) family. This Court said that the Judge had erred in failing to make an allowance for the appellant’s good character and the fact he had lived a “worthwhile life” in the intervening period, and reduced the sentence by 25 per cent, to three years.[14]
[25] Crown counsel submitted that it was “notable” that the discount given in Carruthers was in the “context of a guilty plea and voluntary undertaking of treatment”, of which there are neither in the present case. However, nothing in the decision suggests those matters influenced the size of the discount. On the contrary, the sentencing Judge took those matters into account in arriving at the two-year sentence. Moreover, as we have said, the same discount was given in Webb, where the Court was required to determine an appeal against conviction.
[26] Crown counsel also referred us to the distinction drawn in Carruthers, between cases in which the lapse of time between offending and sentence reflects pressure brought to bear by the offender or the familial environment, and those in which it does not. Crown counsel submitted this case was in the former category, and in any event that the lack of offending might reflect vigilance on the part of the appellant’s wife at the time, after she learned of what had occurred. We do not accept either submission. The complainant in this case delayed making her complaint for the reasons to which we have referred.[15] These did not emanate from the appellant or his family. The other submission is not only speculative but improbable given the sporting and other activities in which the appellant has been involved over the years.
[27] Crown counsel also referred us to Britow v R, Botha v R and King v R in support of her submission that continued protestation of innocence (as in Britow) or lying in the course of evidence (Botha and King) may extinguish any credit for good character.[16]
[28] These three cases are quite different from the present and, in our view, not particularly relevant. The sentencing Judge in Britow had offset the credit otherwise due for a lack of prior convictions and good character against an aggravating factor. This Court confirmed that was an acceptable approach.[17] The Court also indicated Mr Britow’s continued protestations of innocence were material as to whether any discount could be justified per se.[18] This case is different because there is no dispute that there is substantial evidence of good character. The issue is what was fair by way of a discount.
[29] Botha and King likewise are not on point because this Court did not accept that the appellants in those cases were of good character, and as a result s 9(2)(g) simply did not apply.
[30] There is a more general point as to whether it is correct to reduce or temper what would otherwise be a fair discount for evidence of good character by an apparent absence of remorse or a failure to accept without reservation the complainant’s account of the offending. Remorse is a mitigating factor in its own right (s 9(2)(f) of the Act), but its absence is not an aggravating factor.
[31] Regardless, given the extent of the evidence of good character adduced by the appellant and the length of time that has elapsed since the offending, we have concluded that a two-month discount was well short of what was required. We consider four months is both required and is proportionate to the starting point.
[32] We do not propose to consider Mr Harvey’s submission that the appellant’s public fall from grace should attract a further discount. The Judge’s sentencing notes do not refer to a submission for such a discount, so it may be that it was not raised with him. In addition, as we have just said, a discount must be proportionate and we consider four months is the most that can be allowed.
Home detention
[33] In considering whether to impose a sentence of home detention instead of imprisonment, the Judge had regard to the following matters.
[34] First, the Judge referred to Willcocks v Police, a decision of the High Court in which Venning J said “prison terms are normally imposed in the case of sexual offending against children”.[19]
[35] Secondly, the Judge referred to the need to denounce and deter sexual offending against children, and to hold the appellant accountable and responsible for his actions, absent which the Judge considered the “prospects of rehabilitation for you are academic”.[20]
[36] Thirdly, the Judge referred to the PAC report and its recommendation of imprisonment.[21]
[37] Fourthly, the Judge referred to ss 15A and 16 of the Act, and the desirability of keeping offenders in the community if possible.[22]
[38] Ultimately, the Judge said he had decided against home detention because the offending was serious; because of its aggravating features – premeditation, the vulnerability of and harm to the complainant, the fact that the offending had occurred twice, the abuse of trust and the degree of violation; and because of the matters referred to in [35] above.[23]
[39] Section 15A, to which the Judge referred, permits the imposition of a sentence of home detention only if the purpose for which sentence is imposed cannot be achieved by any less restrictive sentence(s).[24] Section 16 requires the Court to have regard to the desirability of keeping offenders in the community and precludes the imposition of a sentence of imprisonment unless the relevant purposes and principles of sentencing cannot otherwise be achieved.[25] Accordingly, in each case it is necessary to identify which purposes and/or principles can only be met by a sentence of imprisonment.
Submissions
[40] Mr Harvey submitted to us that the Judge had erred by placing too much weight on the need for denunciation and deterrence, and the appellant’s continued denial of the complainant’s account, and insufficient weight on the isolated and historic nature of the offending. He submitted the Judge was wrong to consider the appellant in need of rehabilitation, given the 37 year hiatus.
[41] For its part, the Crown submitted that it was open to the Judge to decline home detention and that he made no error warranting this Court’s intervention. In this regard, Crown counsel referred us to the standard of review in James v R.[26] We shall not repeat the standard laid down in James because this Court has recently said it is no longer to be followed.[27] The standard of appellate review adopted in Tutakangahau — material error — applies in its place.[28]
Discussion
[42] A sentencing judge must evaluate all relevant purposes and principles of sentencing in deciding whether to impose a sentence of imprisonment or home detention.[29] A sentence of home detention is capable of meeting any purpose or principle of sentencing specified in ss 7 or 8 of the Act and there is no presumption that one or other type of sentence is more or less appropriate for a class of offending.[30] Sentences of home detention have been imposed in the High Court or substituted by this Court for sexual offending against children.[31] Indeed, the Judge referred to one such High Court decision in fixing his starting point.[32]
[43] Of the reasons the Judge gave for preferring imprisonment to home detention, which we have listed in [38] above, none appear to us to call for a sentence of imprisonment. Moreover, and as Mr Harvey submitted, in making this critical decision, the Judge has not taken into account the lapse in time since the offending and what that signifies. We consider this omission to be a material error. Given that, we shall undertake the required evaluation ourselves.
[44] Having regard to s 7 of the Act, there is no apparent need to deter the appellant himself from further offending or to protect the community from him. And as we have said, a sentence of home detention is equally capable of meeting all of the s 7 purposes in any event.
[45] As to s 8, any sexual offending against a child is serious, but this was relatively fleeting and isolated. There is nothing in the nature of this offending, as opposed to other sexual offending against a child, that would seem to require a sentence of imprisonment.
[46] We also bear in mind the need to impose the least restrictive outcome appropriate in the circumstances (s 8(g)). The appellant appears to be a good candidate for home detention.[33] Although the PAC report recommended imprisonment, there is no practical impediment to a sentence of home detention. The writer of the PAC report assessed the appellant as being at low risk of reoffending, but assessed his risk of harm to the community as “medium to high”. That latter risk is a reflection of the nature of the offence of which the appellant was convicted. Any reoffending of the same ilk is expected to cause medium to high harm. What matters is the low risk that there will be any such reoffending.
[47] Taking all of these matters into account, we consider a sentence of home detention will be sufficient to meet the purposes and principles of sentencing relevant in this case and we shall quash the sentences of imprisonment accordingly.
Result
[48] The increased discount for good character that we have allowed reduces the appellant’s end sentence to 18 months’ imprisonment. The appellant has served some 19 weeks’ imprisonment and, barring a sentence of home detention, he could expect to serve another four months and two weeks.
[49] We quash the sentences imposed by the Judge and, in their place, impose sentences of four months’ home detention, to be served according to the terms annexed to the PAC report and otherwise on the standard conditions of home detention.[34]
[50] Our order quashing the Judge’s sentences and imposing the sentences of home detention is to take effect as soon as practicable and, in any event, by 4 pm, 5 October 2018.
[51] As Mr Harvey anticipated, we also require the appellant to undertake 400 hours community work which will be served concurrently with the sentences of home detention.[35]
Solicitors:
Thomson Wilson, Whangarei for Appellant
Crown Law Office, Wellington for
Respondent
[1] Crimes Act 1961, s 134(2)(a), since replaced by s 7 of the Crimes Amendment Act 2005.
[2] R v Parkin [2018] NZDC 10598 [Sentencing Notes].
[3] At [21].
[4] As required by the Sentencing Act 2002, s 9(2)(g).
[5] R v Moloney HC Christchurch CRI-2003-009-13598, 1 August 2008; R v Carruthers CA401/94, 10 April 1995; R v Webb CA13/04, 17 June 2004; and R v R [2015] NZHC 2999.
[6] Manawaiti v R [2013] NZCA 88.
[7] At [18], citing William Young P in R v Hockley [2009] NZCA 74 at [32].
[8] At [19].
[9] Arthur ... is a caring and considerate team member. When one of our team colleagues recently fell on hard times financially, Arthur was in the forefront of a campaign to assist him to get back on his feet and contributed very generously himself.
Arthur has been a good and loyal friend to me, particularly when my wife died suddenly in 1994, and while I was sick with bowel cancer some fifteen years ago.
Arthur ... has many times been a tremendous help to me when things got rough in my own life ...
After all of my contact with Arthur, I appreciate him more than just a brother-in law, but as a good friend. He ... has assisted us with financial advice for the successful operation of [a charitable trust] set up to financially assist girls from [a high school] who wish to undertake tertiary education.
My 94 year old mother (Arthur’s aunty) is senile and suffers from dementia ... Arthur makes regular weekly visits to her, sitting by her side making idle chit-chat with little to no feedback.
A ... side of Arthur that will always stay with me was after my wife died of cancer over 8 years ago. His calls and texts kept coming long after others stopped, and he regularly arranged golf to make sure I didn’t sit around feeling sorry for myself.
[10] R v Carruthers, above n 5.
[11] At 4–5.
[12] At 6.
[14] At [71]–[73].
[15] See above at [9].
[16] Britow v R [2017] NZCA 229, Botha v R [2015] NZCA 196; and King v R [2015] NZCA 475.
[17] Britow v R, above n 16, at [9]–[11].
[18] At [12].
[19] Sentencing Notes, above n 2, at [22], citing Willcocks v Police HC Auckland CRI-2007-404-96, 13 June 2007 at [11].
[20] At [23].
[21] At [24].
[22] At [25].
[23] At [27]–[28].
[24] Sentencing Act, s 15A(1)(a).
[25] Section 16(1) and (2).
[26] James v R [2010] NZCA 206, (2010) NZTC 24,271.
[27] Palmer v R [2016] NZCA 541 at [18].
[28] Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [26]–[27] and [30].
[29] Sentencing Act, ss 7 and 8; R v Vhavha [2009] NZCA 588 at [29]; aff’d Osman v R [2010] NZCA 199 at [20]; Doolan v R [2011] NZCA 542 at [37] and [38]; and Manikpersadh v R [2011] NZCA 452 at [14].
[30] R v Vhavha, above n 29, at [29]; Osman v R, above n 29 at [20]–[21] and [24]; and Pue v R [2014] NZCA 273 at [84].
[31] H (CA36/2012) v R [2012] NZCA 33; R v LTI [2014] NZHC 1125; Goose v Police [2017] NZHC 2453 and Metua v R [2018] NZHC 246.
[32] Sentencing Notes, above n 2, at [16(a)], citing R v Richards HC Auckland CRI-2010-004-6987, 15 December 2011.
[33] R v Vhavha, above n 29, at [34]–[35] and [45]; and Osman v R, above n 29, at [24].
[34] Sentencing Act, s 80C(2).
[35] Sentencing Act, s 57(3).
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