PARISH v NEW ZEALAND POLICE [2023] NZHC 2272

PARISH v NEW ZEALAND POLICE [2023] NZHC 2272 [22 August 2023]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2023-412-054CRI-2023-412-055CRI-2023-412-056[2023] NZHC 2272BETWEEN JASON PARISHAppellantAND NEW ZEALAND POLICERespondentHearing: 17 August 2023Counsel: B P Kilkelly for AppellantM Brosnan for RespondentJudgment: 22 August 2023JUDGMENT OF CHURCHMAN JIntroduction[1] Mr Jason Parish, 49 years old and of Ngāpuhi descent, was convicted in theDistrict Court at Palmerston North on 7 March 2023 in respect of four charges ofbreaching home detention. He was ordered to come up for sentence if called uponwithin one year.[2] Not long after this conviction, Mr Parish engaged in further offending. On10 and 12 March 2023, he shoplifted property at two different stores in PalmerstonNorth. On 12 April 2023, Mr Parish pleaded guilty to the following charges:(a) theft (exceeding $500 but not exceeding $1,000);1 and1 Crimes Act 1961, ss 219 and 223(c). Maximum penalty of one year imprisonment.(b) theft (exceeding $1,000).2[3] On 26 June 2023, Corrections made an application for the breaches of homedetention to be brought before the Court for sentencing pursuant to s 111(2) of theSentencing Act 2002. This application was granted. Mr Parish was sentenced on4 July 2023 in the District Court at Dunedin by Judge Turner to 10 months and twoweeks' imprisonment. Mr Parish now appeals his sentence.BackgroundOffending[4] Mr Parish was sentenced to nine months' home detention on 26 April 2022.The underlying charges for this were: six charges of theft; one charge of theft from amotor vehicle; four charges of burglary; and one charge of behaving threateningly.Whilst on home detention, Mr Parish breached four times between 3 November 2022and 17 January 2023. The breaches involved Mr Parish leaving the home detentionaddress without an approved absence, failing to comply with a direction notice, failingto attend a programme as part of his special conditions, diverting from the route whichhas been approved when he was granted permission to leave the address, and failingto charge the battery on his monitoring device. These breaches gave rise to theconvictions Mr Parish received on 7 March 2023.[5] The first charge of theft arose from offending that occurred on 10 March 2023at around 1:44pm. Mr Parish entered Jaycar Electronics in Palmerston North and stolea 3000-Watt Inverter worth $819. The second charge of theft arose from offendingthat occurred on 12 March 2023 at around 1:15pm. Mr Parish entered Briscoes inPalmerston North and stole two sets of bedsheets that had a combined value of$1,179.98.Sentencing decision[6] After setting out the facts of the offending, the Judge noted that while on bailawaiting sentencing Mr Parish moved from Palmerston North to Dunedin and2 Sections 219 and 223(b). Maximum penalty of seven years' imprisonment.breached his bail curfew twice. Mr Parish was also remanded in custody on 23 June2023 in respect of later bail breaches. On the date of sentencing, it was admitted thathe had breached bail on another four occasions before being remanded in custody.[7] The Judge further noted Mr Parish's extensive criminal history. He has hadmultiple burglary, theft and dishonesty convictions as well as a significant history ofviolent convictions for grievous bodily harm, threatening to kill and aggravatedrobbery in particular. Mr Parish has also spent a significant amount of his life inprison.[8] From the outset, the Judge ruled out the possibility of an EM sentence or asentence of community work. This was because Mr Parish's home did not have powerat the time the probation report was prepared. Further, Mr Parish's recent history ofbreaching home detention and breaching community detention showed Mr Parish'sinability to "comply with sentences of the Court", making a community sentenceinappropriate. The Judge disagreed with the probation report's suggestion thatMr Parish was "moving in the right direction", considering his recent history.[9] Taking into account Mr Parish's personal circumstances, the Judge also ruledout an order for reparation. Mr Parish currently owes over $15,000 in fines andreparations and is only paying it off at about $10 per week. The Judge held thatMr Parish had no ability to pay any reparation.[10] The Judge said he would take into account the support Mr Parish was receivingfrom the local marae, the steps he is slowly taking to get his life on track, and the facthis partner was due to have a baby, into account. The Judge held, however, thatpersonal deterrence and accountability required a sentence of imprisonment. TheJudge adopted a starting point of seven months' imprisonment for the theft fromBriscoes, uplifted this by two months for the Jaycar theft and three months for thehome detention breaches on a totality basis. The starting point was, therefore,12 months' imprisonment.[11] The Judge uplifted the sentence by 10 per cent for relevant dishonestyconvictions and a further five per cent for the fact he was on sentence at the time ofthe offences. The Judge gave a 25 per cent discount for early guilty pleas, reducingthe end sentence to 10 months and two weeks' imprisonment. Mr Parish was alsosentenced to the following concurrently:(a) two months' imprisonment for theft from Jaycar; and(b) three months' imprisonment for the four breaches of home detention.[12] Finally, the Judge refused leave for Mr Parish to apply for a substitutedsentence.Appeal principles[13] As this is an appeal against sentence under s 250 of the Criminal ProcedureAct 2011 (CPA), the appeal will be allowed if the Court is satisfied that:(a) for any reason, there is an error in the sentence imposed on conviction;and(b) a different sentence should be imposed.[14] Despite the lack of express reference to the sentence being "manifestlyexcessive" under s 250(2) of the CPA, the sentence must be considered as to whetherit is manifestly excessive.3 The focus is to be on whether the end sentence imposedby the Judge was within range, not on whether the process adopted to reach that endsentence was correct.4SubmissionsAppellant submissions[15] Mr Kilkelly, for Mr Parish, submits that the Judge gave too little regard to thepositive steps Mr Parish has taken to get his life back on track and that in thesecircumstances, in line with s 8(g) of the Sentencing Act 2002, the least restrictive3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27], [33], and [35].4 Ripia v R [2011] NZCA 101 at [15].outcome in these circumstances would have been a sentence of home detention withsentences of community work and intensive supervision. He further submits that theCourt could have granted leave for Mr Parish to apply for a substituted sentence.[16] Mr Kilkelly states that at the time of the shoplifting, Mr Parish had beensuffering a lack of finances and housing – living in a car with his partner at the timeof the offending. Mr Parish was also depressed and not taking is ADHD medication,leading him to make bad decisions. Mr Kilkelly submits that Mr Parish'scircumstances have now changed. He is now living at the Puketeraki Marae north ofDunedin, in his grandmother's old house, allowing him to establish a support networkwith his wider whānau and being able learn more about his whakapapa.[17] Mr Kilkelly submits this house is now suitable for an EM sentence, as powerhas now been restored at the address, removing the barrier to electronic monitoring asdiscussed in the District Court decision. He further submits that the Judge placed toogreat of a weight on Mr Parish's failure to finish the programmes he needed tocomplete for his special conditions in his previous home detention sentence.Mr Kilkelly states that he could not attend one of the programmes because ofcontracting COVID-19 and, since he missed sessions that were too important, he wasasked to leave. Mr Parish left the other programme as he was finding the contentpersonally challenging, which Mr Kilkelly submits is not unusual in a therapeuticsetting. It was, therefore, wrong for the Judge to characterise this as mere failure tocomply with Court orders.Crown/Police submissions[18] Ms Brosnan, for the Crown/Police, submits Judge Turner did not err in hisdecision and that the sentence imposed on Mr Parish is not manifestly unjust.Ms Brosnan submits that even if Mr Parish now has power connected at his newaddress, there was not enough information available to Judge Turner to be able toimpose an EM sentence and there is still not enough information for this Court toimpose one. Neither the suitability of the address nor the suitability of the occupanthave been assessed by Corrections. Ms Brosnan notes there have been multiple familyharm incidents between Mr Parish and the other occupant.[19] Ms Brosnan also submits that an EM sentence could not be imposed legally, asthere is no information on the conditions to be imposed nor whether Mr Parishconsents and agrees to comply with them.5 Ms Brosnan argues an EM sentence wouldnot promote a sense of responsibility in Mr Parish nor deter him from furtheroffending. This is because it may be likely there are issues with Mr Parish'scompliance with this sentence, considering the nearest Corrections CommunityProbation office is 40km away from the proposed address. Further, Mr Parish has a"footprint" of breaching EM sentences and reoffending on curfew. The need fordeterrence and accountability was high, EM sentences have not had this effect onMr Parish previously, Corrections deemed Mr Parish an unsuitable candidate, and itwas open for the Judge to refuse to grant an EM sentence.[20] Ms Brosnan submits it is hard to accept that Mr Parish is on the right track interms of his rehabilitation. Regarding the rehabilitative courses he failed to complete,Mr Parish never advised Corrections he had COVID-19 and there was no evidence tosupport this explanation. Mr Parish has been offered the opportunity to take part inalternative courses which he has either failed to attend or has refused to take part in.Further, even while Mr Parish has been living in Dunedin away from "anti-socialpeers", he has breached bail on several conditions at his Dunedin address.[21] Finally, Ms Brosnan submits that intensive supervision is also not appropriateas Mr Parish has previously served a sentence of intensive supervision and reoffendedwithin one month.Should Mr Parish be sentenced to home detention, community work andintensive supervision?[22] I deal with each alleged error in turn. Although s 8(g) of the Sentencing Actstates that a Judge must impose the least restrictive outcome that is appropriate in thecircumstances, I do not agree with Mr Kilkelly that it was appropriate in thesecircumstances for the Judge to impose a combined sentence of home detention,community work, and intensive supervision. What is evident from Mr Parish'scriminal history is that there needs to be a clear focus on deterrence to prevent5 KM v Police [2012] NZHC 3066 [34]–[37].Mr Parish from continuing to offend and denunciation of his conduct.6 Communitywork and home detention sentences for previous property offences have not deterredMr Parish as he has committed further property offending. Further, Mr Parish wassentenced for four breaches of home detention and one breach of community work atthe same time as the latest property offences he has committed. I agree with theDistrict Court Judge this represents an inability for Mr Parish to comply with sentencesof the Court.[23] I have some sympathy for the circumstances Mr Parish found himself in andacknowledge that these circumstances have now changed. However, I am not satisfiedhis circumstances have changed to the extent that it would be appropriate in thesecircumstances to sentence Mr Parish to a non-custodial sentence. As the restrictionsMr Parish would experience on home detention would be greater than on bail, I fearMr Parish will not be able to comply with this sentence even in his new environment.[24] I agree with Ms Brosnan that home detention could also not be imposed inthese circumstances as there are no proposed conditions that have been agreed to.7There is also no information provided as to the suitability for EM monitoring nor thesuitability of the occupant. Mr Parish has also been deemed by Corrections to be anunsuitable candidate for home detention.[25] I do not agree that the Judge placed too great a weight on Mr Parish's inabilityto complete rehabilitative programmes. There was no evidence in front of the Judgethat Mr Parish indeed had COVID-19 nor that he informed Corrections that this wasthe reason for his non-attendance. Further, completing the programmes wereconditions of his home detention sentences, making it relevant within the Judge'sassessment of whether it would have been appropriate to sentence Mr Parish to homedetention.[26] Finally, intensive supervision is not an appropriate sentence for Mr Parish. TheCourt may impose this sentence if it would reduce the likelihood of further offending6 Sentencing Act 2000, ss 7(e) and 7(f).7 Section 80A.by the offender through the rehabilitation and reintegration of the offender.8 Intensivesupervision has not reduced Mr Parish's likelihood of reoffending in the past, as hereoffended within one month after a sentence of intensive supervision. Further,Mr Parish does not seem willing to participate in rehabilitative treatment and I amunconvinced as to his ability to do so considering the isolation of the address heproposes to reside at and the fact he is on a learner driver's licence which would makedriving to appointments problematic.[27] Overall, I consider that the Judge was correct in sentencing Mr Parish to asentence of imprisonment. A non-custodial sentence would not have been appropriatein these circumstances.Conclusion[28] Appeal dismissed.Churchman JSolicitors:Crown Solicitor, Dunedin for Respondent8 Section 54C.