PARKER v NEW ZEALAND POLICE [2020] NZHC 479

PARKER v NEW ZEALAND POLICE [2020] NZHC 479 [11 March 2020]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2020-443-2[2020] NZHC 479DONALD CHARLES PARKERvNEW ZEALAND POLICEHearing: 3 March 2020Appearances: N P Bourke for AppellantG N Milne for RespondentJudgment: 11 March 2020JUDGMENT OF CLARK JIntroduction[1] Mr Parker appeals his sentence of 20 months' imprisonment on the followingcharges:1(a) one charge of strangulation;2(b) three charges of assault on a person in a family relationship;3 and(c) three charges of intentional damage.41 Parker v New Zealand Police [2019] NZDC 25954 [Sentencing Notes].2 Crimes Act 1961, s 189A, maximum penalty seven years' imprisonment.3 Section 194A, maximum penalty two years' imprisonment.4 Summary Offences Act 1981, s 11(1)(a), maximum penalty three months' imprisonment or $2,000fine.[2] The primary question raised by the appeal is whether the starting point adoptedby the Judge was too high.Background to the offendingAssault and strangulation charges[3] Mr Parker and the victim, who I refer to as "A", had been in a relationship forthree months. A has four young children from a previous relationship. The childrenwere aged five and under and were present in the home at the time of the assault andstrangulation although they did not witness the offending.[4] At about 8 am on 1 July 2019 Mr Parker was arguing with A in her bedroom.He stood in the bedroom doorway and pushed her in the chest five times, preventingher from leaving the room. He stopped when his mother arrived at the address.[5] On 11 July 2019 Mr Parker and A were again arguing in her bedroom.Mr Parker, who had been sitting on the bed, lunged at A and punched her in the eyeand then her ribs. A sustained bruising to her eye.[6] On 7 August Mr Parker and A were at her home. There was tension betweenthem as A no longer wanted to be in the relationship. A asked Mr Parker to leave buthe refused. He told her to "fuck up" and that he was not leaving the house. Continuingto argue in the kitchen, Mr Parker punched A in the jaw. He immediately punched ahole in the lounge door. Mr Parker continued his abuse when A insisted she did notwant to be in the relationship. A was now sitting on the couch when he grabbed heraround the throat, squeezing with his right hand. While strangling her, Mr Parker toldher "it's not over until I say it is, do you hear me"? When Mr Parker let go A jumpedout the window and ran to a neighbour to call for help.Intentional damage charges[7] On Thursday 23 May Mr Parker was at a family member's address. On hearingthat an incident had occurred at the address a relative arrived. She parked in thedriveway. Mr Parker heard her arrive, grabbed an axe, and approached her car tellingher to "fuck off". With the axe, he dealt blows to the windscreen, bonnet, roof, driver'smirror and driver's window. The attack lasted about two minutes ending only whenthe victim reversed and drove away.[8] On 4 August Mr Parker was at A's home. She asked him to leave the propertyand locked him out of the house. Mr Parker then smashed a pane of glass in her frontdoor.Decision under appeal[9] On 6 November 2019 Judge Sygrove remanded Mr Parker in custody forsentencing on 11 December 2019. The Judge was concerned to give counsel adequatetime to prepare and file written submissions well in advance of the sentencing date.[10] In sentencing Judge Sygrove outlined the factual circumstances giving rise tothe charges. He noted Mr Parker's "14 pages of previous convictions" identifying twoin particular: a conviction in 2013 for assaulting a child and a conviction in 2014 forassault with intent to injure (family violence). The pre-sentence report recommendedimprisonment.[11] Having considered the High Court decisions in Ackland v Police5 andHoukamau v New Zealand Police6 as well as three District Court decisions,7 the Judgeidentified the following features as increasing Mr Parker's culpability:8(a) The strangulation was accompanied by a threat.(b) The strangulation took place in the context of a domestic relationship.(c) The setting was a family home in which children were present.(d) Other violence was involved.5 Ackland v New Zealand Police [2019] NZHC 312, [2019] NZAR 1112.6 Houkamau v New Zealand Police [2019] NZHC 2743.7 New Zealand Police v Retikaukau-Peke [2019] NZDC 9554; New Zealand Police v Gray [2019]NZDC 11276 and New Zealand Police v Foulkes [2019] NZDC 12324.8 Sentencing Notes, above n 1, at [3] and [4].[12] In light of these aggravating factors, and on the basis of the authorities whichhe had cited, Judge Sygrove was satisfied a sentence of imprisonment was requiredand that two years was the appropriate starting point.[13] Turning to personal aggravating or mitigating factors, "the offence" wasaggravated by the fact it was committed while Mr Parker was on bail. I take the Judgeto be referring to the strangulation offence as that was clearly the lead offence inrelation to which the Judge was setting a starting point.[14] Judge Sygrove considered the number, seriousness, date, relevance and natureof Mr Parker's previous convictions further aggravated the offending as did the "otherconvictions" for which he was being sentenced. For the assault charges and wilfuldamage with an axe, and previous offending, six months imprisonment was added tothe starting point.[15] A discount of four months was applied to reflect the difficulties in Mr Parker'spast, and his demonstrated remorse. A further six-month discount was applied toreflect Mr Parker's early guilty plea. The end sentence for the strangulation chargewas a sentence of 20 months' imprisonment with special release conditions forsix months. Twenty months' imprisonment was also imposed for the assault charges.For the wilful damage to the station wagon and the other two intentional damagecharges, concurrent sentences of two months and one month respectively wereimposed.The appealAppellant's submissions[16] For Mr Parker, Mr Bourke submitted the appropriate starting point was18 months' imprisonment. Mr Bourke characterised the Judge's approach asformulaic when the authorities require a nuanced analysis. For example, the Judgehad not taken into account that Mr Parker has been abused in State care; that therelationship with the victim was of short duration (three months) and that Mr Parkerlacks coping mechanisms and life skills. Mr Bourke argued that if the Judge hadundertaken the "nuanced analysis" required by Houkamau9 these matters would havebeen taken into account.[17] Further, Mr Bourke queried the relevance of the Judge's observation that thevictim had been sitting not standing. Additional error is said to be in the Judge'sdouble counting of the offending on 4 and 7 August by both factoring it in whenreaching a starting point and adding six months to the sentence for those very charges.Respondent's submissions[18] In contending the appeal should be dismissed, Ms Milne emphasised theintimate partner setting in which the strangling took place and the fact it wasaccompanied by other assaults and a threat. Ms Milne submitted the offending wasmore serious than in Houkamau where no threat was made by the appellant. Thestarting point was within range and no error was made in the uplifts or discountsapplied by the Judge.Principles relevant to the offence of strangulation[19] Following the recommendations of the Law Commission in its reportStrangulation: The Case for a New Offence10 an offence of strangulation wasintroduced under the Family Violence (Amendments) Act 2018. The new offence,enacted in s 189A of the Crimes Act, came into force on 3 December 2018.[20] The first sentence appeal in relation to strangulation came before Cooke J inAckland v New Zealand Police.11 In order to understand where the case before himsat within the range of cases that might arise under s 189A, Cooke J considered itappropriate to attempt to identify factors relevant to sentencing for strangulation.129 Houkamau v New Zealand Police, above n 6.10 Law Commission Strangulation: The Case for a New Offence (NZLC R138, 2016).11 Ackland v New Zealand Police, above n 5.12 At [23].[21] That guidance has been complemented in the subsequent decisions of theHigh Court in Houkamau v New Zealand Police and T v New Zealand Police.13 T wasdelivered on 18 December 2019, a week after Mr Parker's sentence.[22] The background to the introduction of the new offence of strangulation istraversed by their Honours in Ackland, Houkamau and T. I do not repeat thatbackground here. What does bear repeating is a point made in all three judgments byall three Judges.(a) In Ackland, Cooke J recognised some force in the submission ofcounsel for the New Zealand Police that "the use of bands as a meansof assessing culpability was inappropriate as it did not take into accountthe complex environments in which this sort of offending occurred".14(b) In Houkamau, Thomas J emphasised the need for "proper considerationof the subtleties of the offending" as family violence is an extremelycomplex area and care is needed to avoid "falling into the trap" of amathematical approach focussing unduly, or only, on "key factors".15(c) In T, Doogue J recognised the limited assistance to be derived from pastcases in which strangulation formed part of the offence because anunderstanding of the complexities of, and consequences for, the victimsof this kind of offending was imperfect.16 A rigid banding approach tosentencing potentially restricts an examination of the complexities ofthe offending particularly in a domestic violence setting. Her Honourdrew the distinction between a strangulation occurring in a spur of themoment street fight, and in a domestic setting. "While the charge is thesame, the contexts are extremely different."17 On this point Doogue Jstated:1813 Houkamau v New Zealand Police, above n 6; and T v New Zealand Police [2019] NZHC 3375.14 Ackland v New Zealand Police, above n 5, at [28].15 Houkamau v New Zealand Police, above n 6, at [33].16 T v New Zealand Police, above n 13, at [36].17 At [43].18 At [38].It may be that with an increased body of case law andauthority from the higher courts bands are ultimatelyaccepted. But at this stage, I consider a particularised focuson all the complexities in the singular case (armed with ourincreased scientific and psychological knowledge) is a moreappropriate initial point of reference for sentencing.[23] I take from Ackland, as enlarged by Houkamau and T, the following referencepoints as potentially relevant to my assessment of the gravity of the offending and thedegree of culpability of the offender in a case of strangulation.19 In doing so, I alignmyself with the observation of their Honours that the number of factors will be lessimportant than the overall nature and culpability of the offending.20(a) Strangulation in a domestic or intimate relationship context:Strangulation in a family violence context is a recognised risk factor fora future fatal attack. In this setting, strangulation is recognised as ameans of achieving coercion and control over the victim. It appearedto Thomas J in Houkamau that this aspect (a means to achieve coercionand control) was at the heart of the Law Commission's report and theprincipal rationale for the new offence.21 Thomas J quoted thefollowing passage from the Commission's report:22It is the terror that results from strangulation that is at the heartof this kind of criminal contact. That terror is likely toseriously affect all aspects of the victim's life. In our view,the terror that results from this "worst case class of case" isgreater than the harm of a minor injury and at least equivalentto a serious physical injury.(b) Threats, particularly threats to kill: Citing the Law Commission report,Cooke J noted the issuing of threats, particularly those involving anelement of coercion, is part of the adverse psychological impact of theoffence on the victim.(c) Loss of consciousness: Loss of consciousness indicates a longer,19 As required by s 8(a) of the Sentencing Act 2002.20 Ackland, above n 5, at [31]; Houkamau, above n 6, at [31] and T, above n 13, at [35].21 Houkamau v New Zealand Police, above n 6, at [31].22 At [31].purposeful period of strangulation suggesting a greater degree ofculpability.(d) Multiple events: Where there is a pattern showing more than one eventof strangulation, the intimidation and fear is accentuated and theadverse psychological impacts are exacerbated.(e) Other violence/injury: As with most offending involving violence, itwill aggravate the offending if strangulation is accompanied by otherviolence.(f) Impact on others: As with other offending, offending in the presence ofchildren is regarded as carrying the potential for psychological harmand may be regarded as aggravating the offending.(g) Breach of protection order: As with other domestic offending,strangulation in the face of a breach of a protection order is likely to beregarded as more culpable.Discussion[24] The first point concerns the District Court Judge's observation when assessingthe nature of Mr Parker's offending for the purpose of setting a starting point:23Although there was no loss of consciousness the victim had trouble breathingduring and after the strangulation.[25] Mr Bourke submitted that the fact the victim had trouble breathing cannot beregarded as an aggravating feature. To impede a person's breathing is an element ofthe offence of strangulation.[26] Mr Bourke is correct to submit that if breathing is not impeded there can be nooffence under s 189A. Section 189A provides:189A Strangulation or suffocationEveryone is liable to imprisonment for a term not exceeding 7 years whointentionally or recklessly impedes another person's normal breathing, blood23 Sentencing Notes, above n 1, at [3].circulation, or both, by doing (manually, or using any aid) all or any of thefollowing:(a) blocking that other person's nose, mouth, or both:(b) applying pressure on, or to, that other person's throat, neck, or both.[27] Plainly, the impediment of normal breathing is part of the actus reus of theoffence. To the extent the Judge suggested A's "trouble" breathing during thestrangulation was an aggravating feature, he was in error. But that is not all the Judgesaid. The Judge observed A had trouble breathing during "and after the strangulation".Reflecting the summary of facts to which Mr Parker has pleaded guilty, the Judge hadearlier noted that A " had a very sore throat and was gasping for air while she wastrying to get help".24[28] On this aspect of the appeal the Judge was not in error. A had escaped, througha window, and even at the point when she was trying to get help she was gasping forair. I agree with the Judge's assessment of this trouble breathing after the strangulationas an aggravating factor.[29] More broadly, I do not consider a starting point of two years' imprisonment asbeing in error.[30] The assault took place in the victim's home, where she ought to have been safe,and where young children were present.25 The strangulation itself was the culminationof a series of increasingly violent assaults on A within a short period of time. Thepushing on 1 July to prevent her leaving her bedroom escalated to punches to her ribsand face on 11 July. When he was locked out of the house on 4 August Mr Parkersmashed the glass in her front door. A few days later on 7 August, when he was toldthat A no longer wished to be in a relationship with him, he responded by punchingher in the face and strangling her.[31] It can be inferred that the increase in violence was in response to A attemptingto pull away from Mr Parker, who had become her abuser. The strangulation,24 At [2].25 As I have mentioned, although present in the home, the children did not witness the offending.accompanied by his threat — "it's not over until I say it is, do you hear me" — becamethe means by which Mr Parker sought to exert maximum control and coercion over A.The implication of his threat was that she was powerless to leave the relationship andthe psychological damage from such offending is now well understood. Indeed, in hervictim impact statement, A described feeling too scared to say "no" to Mr Parker andfrightened about what he will do. She described feeling unhappy and depressed,drained all the time, feeling trapped and controlled and worried that he would returnand things would get worse. A described being "scared for the life of me and mychildren".[32] The starting point of two years' imprisonment was also in line with theHigh Court sentence appeal decisions that I have discussed.[33] In Ackland the appellant had been in a relationship with the victim for 18 yearsand the pair had five children together.26 Following an argument the appellant struckthe victim's face several times and forcibly put both hands around her neck, causingher to gag. He yelled at her saying "if you want I can end it all now". She lostconsciousness. The starting point of two years' imprisonment was upheld on appeal.[34] In Houkamau the appellant had been in a relationship with the victim foraround three years.27 After an argument the appellant grabbed the victim by herclothing and pushed her out the front door of the house. He punched her in theforehead and began choking her by putting both hands around her neck and squeezing.She fought back and tried to pull his hands off and asking him to let go. He continuedto squeeze for a short period before shoving her back into the ground, causing her neckto hit wooden edging on the ground. On appeal Thomas J upheld the two year startingpoint adopted by the Judge but noted it could be considered stern.[35] In T v New Zealand Police the appellant and the victim had been in a nine yearrelationship and had two children together.28 After an argument the victim left thehouse and the appellant began smashing up the furniture. When she returned to the26 Ackland v New Zealand Police, above n 5.27 Houkamau v New Zealand Police, above n 6.28 T v New Zealand Police, above n 13.property the appellant ran at the victim and kicked her forcefully to the forehead,causing her to fall to the ground and lose consciousness. She awoke to the appellantdragging her across the ground. He forced her into a bedroom. When she tried toescape through a window the appellant grabbed her around the neck and hauled heronto the bed. She lost consciousness and lost control of her bladder. On appealDoogue J upheld the three-year starting point although describing it as "lenient".29[36] Mr Parker's offending is not as serious as the offending in T v New ZealandPolice or Ackland. In those case both victims lost consciousness. Although not similarin kind, the offending is broadly similar in seriousness to that in Houkamau. ThomasJ's description of a two-year starting point as "stern" is to be understood in the contextof that case. The offending took place in Mr Houkamau's home and it was not indispute that part of his frustration was that she would not leave his home.30[37] Mr Bourke contended there was a real risk Ackland would become "a tariffdecision by stealth" in which the important context of the offending would beoverlooked. I understand Mr Bourke's concern but Cooke J was at pains to emphasisethe nature of the offending in any particular case should not be subordinated to afactorial approach. That point was also underscored in the decisions of Thomas andDoogue JJ.[38] The concern underlying Mr Bourke's submission is that Mr Parker's ownabusive upbringing, and his drug and grief issues would have greater prominence insentencing, if the Judge had undertaken the "nuanced analysis" required by theSentencing Act. Referring to the regular arguments between Mr Parker and A abouther care of her children, counsel submitted Mr Parker's offending was less aboutcoercion and control than about his "lack of anger management skills and misguideddesire to 'fix' everyone else's problems".[39] First, if Mr Parker does expect his own misguided and mishandled attempt tofix a problem as justifying assault and strangulation, he misjudges the position. Thereis no justification. Secondly, the Judge did take into account Mr Parker's remorse and29 At [57].30 Houkamau v New Zealand Police, above n 6, at [34].personal circumstances when he reduced the sentence by four months. I agree withMr Bourke's submission that the four-month discount was within the available rangealbeit not particularly generous.[40] The remaining question is whether the Judge twice took into accountMr Parker's previous offending. In determining a starting point the seriousness of theoffence and culpability of the offender is assessed by reference to a number of featureswhich may include a history of similar offending. In assessing at the next stagewhether personal circumstances aggravate or mitigate the offender's overallcriminality, previous convictions may be taken into account. The important point isnot so much the stage at which the relevant history is taken into account but that thehistory or convictions are not counted twice against the offender.31[41] I have carefully considered the Judge's sentencing notes. I am satisfiedMr Parker's previous convictions were not brought into account more than once. Insetting the starting point, the factors the Judge regarded as aggravating the offendingdid not include Mr Parker's previous convictions for assault.[42] Having set the starting point, the Judge turned to personal mitigating oraggravating factors. Mr Parker's previous convictions were aggravating factors aswere "the other convictions for which [Mr Parker was] being sentenced".32 The Judgeuplifted the starting point by six months for the "other offending and previousoffending". It is not apparent from the Judge's approach what component of theadditional six months reflected historic offending and what component reflected asentence for the other offending for which Mr Parker was being sentenced. But it doesnot matter. The material point is that Mr Parker's historic offending did not prejudicehim twice. Further, the six-month uplift, even absent historic offending, appropriatelyreflected the seriousness of Mr Parker's other offending against A and his secondvictim.31 See for example Singh v R [2011] NZCA 139 at [15].32 At [5].Result[43] There being no error in the Judge's approach, the appeal is dismissed._____________________________Karen Clark JSolicitors:Crown Solicitor, New Plymouth for Respondent