Parker v Police [2014] NZHC 1010 (16 May 2014)

Last Updated: 26 May 2014

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2014-441-000011 [2014] NZHC 1010

BETWEEN	CELIA MARGARET PARKER Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	16 May 2014
Counsel:	M J Phelps for Appellant C R Walker for Respondent
Judgment:	16 May 2014

_{JUDGMENT OF COLLINS J}

Introduction

[1] This judgment explains why I am allowing Ms Parker’s appeal from a cumulative sentence of eight months’ imprisonment imposed upon her by Judge Adeane in the Napier District Court on 26 March 2014.

[2] I am reducing the sentence imposed by Judge Adeane to a total cumulative sentence of six months’ imprisonment because Judge Adeane made errors when imposing the cumulative sentence of eight months’ imprisonment on Ms Parker, and because he should have imposed a different sentence.

[3] To assist in understanding the reasons why I have reduced the cumulative sentence imposed upon Ms Parker, I shall explain:

(1) Ms Parker’s offending.

_{(2) Judge Adeane’s reasons.}

PARKER v NEW ZEALAND POLICE [2014] NZHC 1010 [16 May 2014]

(3) Ms Parker’s previous offending and her personal circumstances.

(4) The principles governing this appeal.

(5) The reasons why I must allow this appeal. (6) My conclusions.

The offending

[4] Judge Adeane sentenced Ms Parker to:

(1) Three months’ imprisonment for assaulting a child.¹

(2) Three months’ imprisonment for receiving property valued at over

$1,000.²

(3) One month’s imprisonment for escaping custody;³ and

(4) One month’s imprisonment for obtaining by deception.⁴

Assault on a child

[5] On 23 September 2013 Ms Parker assaulted a 13 year old girl, who Ms Parker believed had been responsible for filming an assault on Ms Parker’s daughter. Ms Parker grabbed the complainant by her hair and punched her in the neck with a closed fist and attempted to punch the complainant in her head.

Receiving stolen property

[6] On 16 August 2013 a mountain bike belonging to the complainant in this case worth $1,299 was stolen from his garage. Later that day Ms Parker took the bike to

¹ _{Crimes Act 1961, s 194(a). Maximum sentence, two years’ imprisonment.}

² _{Sections 246 and 247. Maximum sentence, seven years’ imprisonment.}

³ _{Section 120(1)(c). Maximum sentence, five years’ imprisonment.}

⁴ Sections 240(1)(a) and 241(c). Maximum sentence, three months’ imprisonment.

a pawn shop where she obtained $80 for the bike. On 16 November 2013 the police recovered the mountain bike and returned it to the complainant.

Escaping custody

[7] On 8 January 2014 Ms Parker was bailed on a condition that she live at her home and not leave that address. On 12 January 2014 the police checked Ms Parker’s home. She was not there. Later that day the police returned to Ms Parker’s home where they arrested her for breaching a condition of her bail. Ms Parker ran from the police and escaped over a fence.

Obtaining by deception

[8] On 11 October 2013 Ms Parker posed as a collector for the Breast Cancer Society’s “Pink Ribbon Appeal”. She obtained donations from members of the public by wearing a voluntary collector’s pink sash and holding a collection bucket inside a shopping mall in Napier. After collecting donations Ms Parker hid the money she had received in a toilet cistern. It is not known how much Ms Parker obtained by deception.

Ms Parker’s previous offending and her personal circumstances

[9] Ms Parker is 38 years old and has 79 previous convictions. Ms Parker’s last conviction was in 2008 when she was convicted for breaching a community work sentence which had been imposed when she was convicted of theft of property worth less than $500.

[10] In 2001 Ms Parker was sentenced to periodic detention for obtaining a document for pecuniary advantage.

[11] A large portion of Ms Parker’s record of offending comprises 30 instances of her being convicted in 1994 for obtaining cheques by false pretences. She was sentenced in respect of all of those matters at the same time and initially received an

18 months’ suspended prison sentence. That sentence, however, was later altered to a sentence of nine months’ imprisonment when further information came to light.

[12] There are other instances of dishonesty offending from 1992 to 1994, however, since 1994 Ms Parker has not engaged in any significant dishonesty offending.

[13] Ms Parker’s sister died a short time prior to her latest spate of offending. This tragedy caused Ms Parker’s counsel to submit that her “life has clearly spiralled out of control in recent time as a consequence of her grief and depressive issues following her sister’s death”.

Judge Adeane’s decision

[14] Judge Adeane treated the charge of assault on a child as being the lead offence. He described that offending as involving “some sort of revenge” for what Ms Parker believed to have been an assault on her daughter.

[15] Judge Adeane said the other offences were “simply reflective of Ms Parker’s dishonest propensities in one way or another”.⁵

[16] Judge Adeane’s assessment of the mitigating and aggravating factors were

encapsulated in the following sentence:⁶

... There has been a guilty plea but not before the matter has run on in a number of respects, and any guilty plea credit would be offset by an uplift for Ms Parker’s previous dishonesty.

Legal principles governing the appeal

[17] Prior to the commencement of the Criminal Procedure Act 2011, appeals against sentence were governed by s 121 of the Summary Proceedings Act 1957. Section 121(3)(b) of the Summary Proceedings Act 1957 allowed the High Court to quash a sentence imposed by the District Court where it was found that the sentence was:

... one which [was] clearly excessive or inadequate or inappropriate, or if the High Court [was] satisfied that substantial facts relating to the offence or the offender’s character or personal history were not before the court imposing sentence ...

⁵ _{New Zealand Police v Parker DC Napier CRI-2014-041-165, 26 March 2014 at [4].}

⁶ At [4].

Appeals under s 121(3)(b) of the Summary Proceedings Act 1957 were normally allowed if the High Court was satisfied that the sentence imposed by the District Court was “manifestly excessive”.

[18] Section 250 of the Criminal Procedure Act 2011 now governs sentence appeals from the District Court to the High Court. Section 250(2) of the Criminal Procedure Act 2011 provides:

(2) The first appeal court must allow the appeal if satisfied that—

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

[19] Not every error in a sentence will provide the foundations for a successful appeal. The types of error that are contemplated by s 250(2)(a) of the Criminal Procedure Act 2011 include, but are not limited to:

(1) errors of law;

(2) failing to take account of or not giving sufficient weight to relevant factors;

(3) taking account of irrelevant factors; and

(4) committing an error of principle, such as adopting a starting point that is disproportionately high.

[20] A different sentence should be imposed when the appellate Judge believes a different type of sentence should be imposed or the length of the sentence should be altered, but not in a way that amounts to a minor adjustment.

Reasons for allowing the appeal

[21] Judge Adeane offset the credit Ms Parker was entitled to receive for pleading guilty by effectively imposing an uplift in her sentence to reflect her previous dishonesty convictions. Judge Adeane provided no information about the amount of the discount Ms Parker was entitled to for her guilty plea or the amount of the uplift he was effectively imposing to reflect her history of dishonesty offences. All

Judge Adeane said was that the discount for Ms Parker’s guilty pleas equated to the

uplift he was effectively imposing to reflect her history of dishonesty offending.

[22] Ms Parker pleaded guilty within a relatively short time of being charged, albeit after a number of brief appearances in the Napier District Court. Her first appearance was on 30 December 2013. She pleaded guilty on 29 January 2014. In these circumstances Ms Parker was entitled to a discount of 25 per cent to reflect her guilty pleas.

[23] An increase to the starting point of a sentence is justified where a defendant has previous convictions and where they offend while on bail.⁷ However, care needs to be taken to avoid unfairly punishing a defendant twice for earlier offending.

[24] In this case, there was no need for an uplift to reflect Ms Parker’s earlier offending or the fact that she escaped custody while she was on bail. An uplift in these circumstances is a disproportionate response and reflects the following two errors in sentencing:

(1) Ms Parker’s criminal history reveals no convictions since 2008 and only six low-level offences between 2001 and 2008. Her dishonesty convictions are historic and did not need to be used against her by Judge Adeane.

(2) Imposing an uplift in relation to the escaping custody charge involves punishing Ms Parker twice, because offending on bail was an inherent component of the charge.

[25] In my assessment, the starting point adopted by Judge Adeane in relation to each charge was appropriate. Furthermore, Judge Adeane was correct when he imposed cumulative sentences because Ms Parker’s offending involved discrete crimes that were unrelated. However, had Judge Adeane approached the sentencing

_{of Ms Parker in the correct way he would have given her a discount of 25 per cent to}

⁷ Sentencing Act 2002, s 9(1)(j) and 9(1)(c).

reflect her guilty pleas and not imposed any uplift to reflect Ms Parker’s record of

criminal offending and the fact that she escaped from custody whilst on bail.

[26] Thus, I am driven to conclude that Judge Adeane’s sentence of eight months’ imprisonment must be reduced to six months’ imprisonment. A sentence of six months’ imprisonment properly reflects the totality of Ms Parker’s offending and is a proportionate response to the crimes she has committed.

[27] A total of six months’ imprisonment would:

(1) hold Ms Parker accountable for the harm she has done;⁸

(2) promote a sense of responsibility in Ms Parker;⁹

(3) denounce Ms Parker’s conduct;¹⁰

(4) deter Ms Parker and others from similar offending;¹¹

(5) protect society from Ms Parker;¹²

(6) assist Ms Parker in her rehabilitation;¹³ and

(7) be the least restrictive outcome that can be imposed in the circumstances.¹⁴

Home detention

[28] If Ms Parker is sentenced to six months’ imprisonment then she will be

eligible for parole after serving three months’ imprisonment.¹⁵ Ms Parker has already served slightly less than two of the three months that she must serve in

⁸ _{Sentencing Act 2002, s 7(1)(a).}

⁹ _{Section 7(1)(b).}

¹⁰ _{Section 7(1)(e).}

¹¹ _{Section 7(1)(f).}

¹² _{Section 7(1)(g).}

¹³ _{Section 7(1)(h).}

¹⁴ _{Section 8(g).}

¹⁵ Parole Act 2002, s 86(1).

prison. The effect of my judgment is that she is likely to serve only a further five weeks in prison.

[29] Because Ms Parker is likely to serve a further five weeks in prison, I do not think it is necessary or appropriate to amend her sentence to one of home detention. This is because the length of the home detention sentence translates to two and a half weeks, which would not achieve the rehabilitative objectives of a sentence of home detention.

[30] In reaching this conclusion I record that were it not for the fact that Ms Parker will now serve a relatively brief period in prison, I would have been sympathetic to imposing a sentence of home detention. It is not necessary for me to expand on my reasons for this indication other than to note that a sentence of home detention from the outset would have been an appropriate response in the circumstances of this case because of Ms Parker’s personal circumstances and because of the need to assist her in her rehabilitation and reintegration into society.

Conclusion

[31] The sentences imposed by Judge Adeane in the Napier District Court are quashed and replaced with:

(1) Two months’ imprisonment for assaulting a child.

(2) Two months’ imprisonment for receiving property valued at over

$1,000.

(3) One month’s imprisonment for escaping custody.

(4) One month’s imprisonment for obtaining by deception.

These sentences are cumulative.

[32] Ms Parker is sentenced to a cumulative sentence of six months’ imprisonment

on these four charges.

_{[33] All other orders made by Judge Adeane remain in force.}

_{D B Collins J}

Solicitors:

Crown Solicitor, Napier for Respondent