PARKER v NEW ZEALAND POLICE [2022] NZHC 2124

PARKER v NEW ZEALAND POLICE [2022] NZHC 2124 [25 August 2022]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2022-412-000012[2022] NZHC 2124BETWEEN MARIKA SAMUEL DONUMAIWAIPARKERAppellantAND NEW ZEALAND POLICERespondentHearing: 22 August 2022Appearances: L S Collins for AppellantC Flatley for RespondentJudgment: 25 August 2022JUDGMENT OF DOOGUE JThis judgment was delivered by me on 25 August 2022 at 10.30 amRegistrar/Deputy RegistrarDate:Introduction[1] The appellant, Mr Marika Parker, was sentenced together with fiveco-offenders in the Dunedin District Court on a charge of wounding with intent toinjure.1 Mr Parker faced additional charges of injuring by an unlawful act,2 and twocounts of common assault arising from the same incident.3 After pleading guilty tothese charges, he was sentenced to two years and five months' imprisonment.4[2] Mr Parker now appeals that decision on the basis his sentence is manifestlyexcessive and that the appropriate sentence is one that would allow the Court toconsider home detention.Facts[3] On the evening of 25 September 2021, Mr Parker was at a party at an addressin Leith Street, Dunedin. His five co-offenders were making their way as a group tothe party. This involved using a shortcut through a gap in a fence between the addressof the victim ("T") and a flat on Castle Street. T had just used the shortcut. When hegot into the backyard of the Castle Street flat an altercation broke out between himselfand the offenders at the gap in the fence. The five offenders started assaulting T.[4] Mr Parker came out of the Leith Street address and looked over the back fenceto see the assault taking place. He jumped over the fence and walked up to the victim("G"). At the time, G was trying to assist T by pulling the offenders away from him.Mr Parker approached G and punched him once in the side of the head from behind.As a result, G was knocked unconscious and fell to the ground. G received a severeconcussion and pain and bruising to his right jaw area.[5] During the course of the attack on T, T was surrounded by the six offenders.He was knocked to the ground where each of the offenders, including Mr Parker,proceeded to punch, kick and stomp on him. T struggled to get to his feet a numberof times and on each occasion the offenders pulled him back onto the ground and1 Crimes Act 1961, s 188(2) – maximum penalty of seven years' imprisonment.2 Crimes Act, s 190 – maximum penalty of three years' imprisonment.3 Crimes Act, s 196 – maximum penalty of one year's imprisonment.4 R v Parker [2022] NZDC 4651.continued the beating. He was punched in excess of 70 times and received multiplekicks and stomps to all areas of his body while he was on the ground, including a largenumber of blows to the head.[6] Efforts by T's friends, ("D") and ("K"), to assist him resulted in them beingassaulted by Mr Parker. When D tried to intervene, Mr Parker punched himapproximately six times in the head before being pulled away by an associate. Nearthe end of the assault on T, Mr Parker turned around and again punched D once in theface. When K tried to come to T's aid, Mr Parker punched him twice in the head. Healso attempted to hit K a third time but the punch missed and he accidentally punchedone of his co-offenders. As a result of being assaulted by Mr Parker, D and K sustainedpain and bruising to their faces.[7] At one point during the assault one of Mr Parker's co-offenders, ("W"),searched the immediate area looking for a weapon. He picked up a beer bottle andreturned to where T was being assaulted. When he was within range, W forcefullystruck T on the top of his head with the bottle.[8] As a result of the offending, T sustained a concussion and received multiplecuts and grazes to his body, head and face, a large wound to the left lumbar region anda split left ear.[9] In explanation for the offending, Mr Parker initially stated that he looked overthe fence and saw his friends being beaten up by a group of guys so went over to helpthem. However, after viewing the CCTV footage of the incident, he acknowledged heassaulted the victims but he continued to minimise his involvement.District Court decision[10] In sentencing each of the six offenders, the Judge adopted a collective startingpoint before reviewing the particular circumstances as they related to each individual.The Judge described the offending as two minutes of alcohol-fuelled drunken violencecommitted with a pack mentality against a person who was largely defenceless. Theattack, which was captured on video, was in the Judge's view aggravated by the factthat it continued despite T's pleas to his assailants for them to stop. The Judge notedthe very significant harm to the community caused by alcohol-related offending andthe consequent need for the sentence to provide deterrence.[11] The Judge reviewed the significant and ongoing physical and psychologicaleffects of the assault on the victims, particularly T who was unable to continuestudying at university and has been diagnosed with PTSD. He was assessed as beingunlikely to be able to "return to full function until about nine months post-injury" suchhad been the profound trauma he suffered. He continues to suffer headaches, visionloss, fatigue, reduced concentration, changes in memory, delayed informationprocessing and mood changes. The Judge observed the ongoing effects on this youngman had been severe.[12] The Judge detailed that G had continued to suffer from headaches, tiredness,diminished memory and an inability to focus that had significantly affected his abilityto study. His tendency to lose focus and inability to retain information caused himsignificant stress, anxiety and loss of confidence. He still struggles to understand whyhe was hit from behind without provocation, is more anxious around strangers andconscious of potential threats. K was noted as experiencing increased anxiety andfearfulness about going out, even in a community where he had previously felt safe.D was also recorded as being more wary of others.[13] The aggravating features identified by the Crown were not disputed. Theyincluded extreme violence, serious injury, attacks to the head (which it was noted couldbe treated as similar to attacks where a weapon has been used), the vulnerability of thevictim (who was on the ground for the majority of the attack) and the multiple attackers(six on one). After referring to a number of relevant authorities, a starting point ofthree years and six months' imprisonment was adopted for each offender on thewounding with intent charge.5[14] A full 25 per cent discount was afforded to each offender for their guilty pleas.The Judge acknowledged credit would be available for the offenders' age, each of5 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39; Webber v R [2012] NZCA 594; Wynd v Police[2013] NZHC 1270; Poi v R [2015] NZCA 300; Hammond v R [2021] NZHC 1064; Scanlan vPolice [2021] NZHC 2071; and Wiki v R [2022] NZHC 340.whom was 19 years at the time of the offending and likely influenced by peer pressurein joining in the assault.[15] Turning specifically to Mr Parker, the Judge, having viewed the video, notedMr Parker first felled G with a "king hit" or "coward's punch" as he was being heldby another offender. Thereafter, he found Mr Parker delivered sustained brutalviolence against three different victims. The Judge rejected the argument Mr Parkerwas less culpable than the other offenders because he inserted himself into the assaultlater. While he accepted Mr Parker was not the instigator, he considered the lessertime of his involvement was made up for by the frequency and number of blows hedelivered against multiple victims.[16] The Judge acknowledged Mr Parker had prior contact with the Court by wayof a discharge without conviction and expressed concern Mr Parker was beginning todemonstrate a pattern of violent behaviour. He considered Mr Parker had clearlyabused the leniency previously afforded by the Court and that this gave rise to fourconclusions:(a) he was not entitled to any reduction for good character;(b) the Stopping Violence programme and counselling he undertook wouldhave made the link between alcohol and violence well known to him;(c) by drinking he put himself and the community at risk; and(d) his tendency towards alcohol-fuelled serious violence was relevant tohis risk of reoffending and the need for public protection.[17] The Judge observed a 12-month starting point was appropriate for the "kinghit" offending,6 but determined the appropriate uplift on a totality basis was ninemonths' imprisonment. He imposed a further uplift of three months for the two assaultcharges.6 Referring to Prasad v Police [2017] NZHC 509; and Tutaki v Police [2015] NZHC 1177.[18] In terms of personal mitigating considerations, the Judge found Mr Parker wasentitled to allowance for his youth, offer of emotional harm reparation, remorse andrehabilitative prospects. However, the Judge expressed doubt Mr Parker haddemonstrated specific evidence of such contrition and had tended to minimise hisinvolvement. Taking into account all these matters, the Judge provided a discount of20 per cent, in addition to the 25 per cent for his guilty pleas. An additional one-monthdiscount was applied to reflect the time Mr Parker had spent on restrictive bailconditions.[19] This resulted in a sentence of 29 months' imprisonment. Accordingly,Mr Parker was not eligible for home detention. He was directed to make an emotionalharm payment of $3,000 to be allocated between the victims.[20] In sentencing Mr Parker's co-offenders, the Judge remarked that, save for W,they were "right on the dividing line" between receiving sentences of home detentionand imprisonment. W's additional calculated use of a weapon took him over that lineonto the side of imprisonment. The Judge emphasised that such offending requiredparticular deterrence and denunciation for which a sentence of home detention wouldbe insufficient.[21] W received a sentence of 22 months' imprisonment and was directed to pay$2,000 for emotional harm and a further $3,000 in reparation. The four otherco-offenders received sentences of between eight to nine months' home detention,together with between 200 to 250 hours community work and were ordered to payreparation of between $3,000 and $5,000.Principles on appeal[22] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011 and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.7 A Court will not intervene where the sentence is within the range that7 Criminal Procedure Act 2011, ss 250(2) and 250(3).can properly be justified by accepted sentencing principles.8 It is only appropriate forthis Court to intervene and substitute its own views if the sentence being appealed is"manifestly excessive" and not justified by the relevant sentencing principles.9SubmissionsAppellant's submissions[23] Counsel for Mr Parker, Mr Collins, submitted first that the Judge adopted astarting point that was excessive when considered with comparative cases. Hesubmitted the starting point for the wounding offending was stern and the rest of thesentence construction should be viewed in light of this.[24] Second, Mr Collins submitted the uplifts imposed were excessive. Hesubmitted there was a lack of parity between the nine-month uplift imposed for theinjuring by unlawful act offending and the nine-month uplift W received for the moreserious charge of assault with a weapon. He argued W actively searched for a weaponand waited for an opportune moment to strike his victim on the head, whichdemonstrated a degree of premeditation and determination to inflict the maximumpossible damage. By contrast, he submitted Mr Parker entered the fray wildlythrowing punches with no element of planning and should therefore be considered lessculpable.[25] Mr Collins submitted the three-month uplift for the common assault offendingwas excessive as it would not have resulted in a sentence of imprisonment on its own.He submitted that, after applying these uplifts, the Judge also failed to consider totalitywhen calculating the overall starting point.[26] Third, Mr Collins submitted the Judge erred in taking into account Mr Parker'sprevious discharge without conviction. He submitted this previous appearance wasthe only possible explanation for the fact Mr Parker received additional credit of only20 per cent for his personal mitigating circumstances, as opposed to the 30 to8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].9 Ripia v R [2011] NZCA 101 at [15].35 per cent received by the other defendants. He submitted he ought to have receivedcredit in the region of 30 per cent for personal mitigating factors.[27] Fourth, in assessing Mr Parker's remorse, Mr Collins submitted it must betaken into account that his interview was conducted over the phone for COVID-relatedreasons, which meant he was unable to properly articulate his remorse to the probationofficer. He emphasised the presentence report directly contradicts the multiplereferences speaking to his remorse and should be given reduced weight. In addition,Mr Collins submitted the Judge's comment that Mr Parker's remorse letters weresimilar to the one written in support of his discharge application was inappropriate,and that it was reasonable for an unsophisticated man such as Mr Parker to "build on"his previous letter.[28] Fifth, on this basis Mr Collins submitted the appropriate sentence is one thatwould allow the Court to consider home detention. It was submitted such a sentencewould best meet the interests of justice by allowing Mr Parker to engage in meaningfulemployment while being sufficiently severe to reflect the gravity of the offending.[29] Mr Collins submitted the Judge overlooked the other relevant purposes andprinciples of sentencing in emphasising the need for denunciation and deterrence andthat Mr Parker could be kept in the community without any material risk to its safety.Respondent's submissions[30] For the Crown, Ms Flatley submitted the Judge had regard to all relevantmatters and that the end sentence was appropriate.[31] Ms Flatley submitted the starting point for the wounding charge was lenient asMr Parker's attack on T involved prolonged violence in a six-on-one scenario ratherthan the comparatively brief incidents of violence involved in similar cases.[32] Ms Flatley also submitted the uplifts applied were within range and reflectedthe harm suffered by four different victims. She argued the fact the Judge adopted thesame uplift for the injuring by unlawful act as that for W's assault with a weaponcharge is not reflective of their similarities to each other, but rather their relativegravity when compared with offending within the different charges. In any event, shesubmitted Mr Parker's decision to jump the fence and involve himself in the altercationalso demonstrated a degree of premeditation and that it is notable he was involveduntil the very end of the group assault.[33] In relation to the three-month uplift for Mr Parker's two common assaultcharges, Ms Flatley submitted this was also generous as the offending was at leastequally as serious as cases where a significantly higher starting point has beenimposed. Both common assaults involved punches to the victims' heads.[34] Ms Flatley submitted the fact higher starting points on all three charges wouldhave been sustainable demonstrates that the Judge took totality into accountthroughout. In these circumstances, Ms Flatley argued the overall starting point waswithin the available range.[35] Turning to personal mitigating factors, Ms Flatley submitted the distinction of10 to 15 per cent between the overall discounts provided to Mr Parker versus thoseafforded to his co-offenders was appropriate having regard to his previous dischargewithout conviction and doubts as to the extent of his remorse. She submitted the Judgewas entitled not to adopt a discount for previous good character on account of theproceedings that led to the earlier discharge without conviction, and would arguablyhave been justified in imposing an uplift.[36] Finally, Ms Flatley submitted that, even if the end sentence fell below thethreshold of 24 months, a sentence of home detention would not adequately addressthe need for deterrence and denunciation and the ongoing risk of safety to thecommunity that Mr Parker presents.AnalysisWas the starting point for the wounding with intent to injure charge excessive?[37] The guideline judgment for wounding with intent to injure is Nuku v R.10 Inthat case the Court of Appeal set out three bands to categorise the culpability of this10 Nuku v R, above n 5.type of offending, assessed by reference to the aggravating factors set out inR v Taueki.11 Offending falls within band three and attracts a starting point betweentwo years' imprisonment and the statutory maximum if three or more of thoseaggravating factors are present and the combination of those features is particularlyserious.12[38] The aggravating features engaged in the attack on T were the extreme violenceinflicted, including targeted attacks to the head, the serious injury caused, thevulnerability of the victim (albeit only as a consequence of the attack), and thepresence of multiple attackers. T was subject to a sustained and gratuitous assaultfrom all angles by a group of six men and was repeatedly knocked to the ground withno ability to effectively defend himself. As a group, the men punched T over 70 times.He received multiple kicks and stomps to all areas of his body, including a largenumber of blows to the head which caused him to sustain a concussion with ongoingphysical and psychological consequences in his daily life.[39] This was serious and prolonged violence that the Judge was entitled to placewithin band three of Nuku. A starting point of three and a half years was within thepermissible range. I am fortified in this conclusion by reference to the cases referredto by the Judge in which starting points of between three and three and a half yearswere adopted. While the offending was not as prolonged as in Poi v R, it was moresustained than in the comparatively brief incidents of violence in Hammond v R orWynd v Police, and was aggravated in particular by the significant disparity involvedin a six-on-one beating which was not so marked in these cases.13Was the uplift of nine months for the injuring by unlawful act charge excessive?[40] Mr Collins submitted the uplift of nine months for the charge of injuring by anunlawful act (reduced from 12 months on a totality basis) was excessive having regardto the corresponding nine-month uplift W received for what Mr Collins submitted wasmore serious offending of assault with a weapon.11 At [38]-[43], citing R v Taueki [2005] 3 NZLR 372 (CA).12 At [38(c)].13 Hammond v R, above n 5; Wynd v Police, above n 5; Poi v R, above n 5.[41] This offending involved Mr Parker felling G from behind with a "king hit"punch to the side of the head as he was trying to separate attackers from T. Mr Parker'sstrike knocked G to the ground and rendered him unconscious. He received a severeconcussion and pain and bruising to his jaw area.[42] The assault with a weapon offending for which W received an uplift of ninemonths involved him breaking away from the ongoing assault on T to search theimmediate area for a weapon. He picked up a beer bottle, which he carried back tothe attack and used to forcefully strike T on the top of the head, after appearing to waitfor the right moment to inflict the blow. Mr Collins submitted this offendingdemonstrated a greater degree of premeditation and intention to cause harm thanMr Parker's conduct in "wildly throwing punches". That submission minimisesMr Parker's choice to join the melee, his choice to initiate violence immediately, hischoice to use a "king hit" and finally his choice to remain in the fray for its duration.[43] I accept the maximum penalty for the charge of injuring by an unlawful act ofthree years' imprisonment14 is less than the maximum penalty for the charge of assaultwith a weapon of five years' imprisonment.15 While assault with a weapon offendingmay have the potential to be more serious because of the higher maximum penalty itcarries, the gravity of the offending must be considered in light of the particularcircumstances and by comparison with analogous cases.[44] Here, the Judge considered the uplifts for Mr Parker and W separately whencalculating the appropriate overall starting point for each offender. This suggests thatthe fact the Judge happened to adopt the same uplift for each charge is not a reflectionof the similarity between Mr Parker and W's offending but rather the gravity of theoffending in each case when compared with offending under the same charge in othercases, and within the available spectrum of seriousness each charge carries.[45] In any event, not every difference between sentences or starting points forco-defendants will support an appeal on the grounds of disparity — any such disparity14 Crimes Act, s 190.15 Crimes Act, s 202C.must be unjustifiable or gross, which clearly is not the case here.16 It is also notablethat in W's appeal against his sentence Mander J considered a standalone starting pointin the vicinity of 14 to 16 months' imprisonment would have been appropriate for theassault with a weapon offending.17 This indicates that, if anything, it was the lenientuplift provided to W that gave rise to any apparent inconsistency.[46] I now turn to consider comparative cases.[47] In Ngatae v R, the appellant was charged with injuring by an unlawful act.18He was at a street party and approached the victim. He told the victim he wanted topunch him. He left only to return a short time later. He stood in front of the victimand punched him on the jaw, causing the victim to fall to the ground and to suffer aconcussion. The Court noted the punch was severe enough to knock the victim to theground and was totally unprovoked, and upheld a starting point of 12 months'imprisonment on that charge.[48] In Prasad v Police, the appellant pleaded guilty to a raft of charges, includinginjuring by unlawful act.19 He was at a restaurant in the early hours of the morning.The victim was also there. The two knew each other. The appellant demanded thevictim meet him outside. The appellant began "dancing around in a fighting mode"and, without provocation, punched the victim in the jaw, instantly knocking himunconscious. The victim spent a night in hospital with stretched tendons and sorenessto the jaw for a number of weeks. A starting point of 12 months' imprisonment wasconsidered to be at the higher end of the range.[49] In Tutaki v Police, the appellant pleaded guilty to a charge of injuring by anunlawful act and two charges of assault.20 He was involved in a verbal altercationbetween two groups in a bar which led to a physical confrontation. He punched thevictim in the head, knocking him to the ground. The appellant was then punched inthe face and knocked to the ground but got up and used his elbow to strike another16 Anderson v R [2019] NZCA 294 at [38]-[39].17 Whittle v R [2022] NZHC 946 at [22].18 Ngatae v R [2016] NZHC 3068.19 Prasad v Police, above n 6.20 Tutaki v Police, above n 6.victim in the face, which knocked them unconscious. The victim fell backwards andhit his head on concrete tiles and, as a result, suffered a brain bleed. The appellantalso punched someone else in the mouth. The Court considered the appellant wasfortunate a starting point of only 12 months was adopted on the injuring offending.[50] I agree with the Crown that a "king-hit" or "coward's punch" is highlydangerous in its own right, which is illustrated here by the fact Mr Parker's punchimmediately knocked G unconscious. I note Mr Parker's decision to scale the fenceand involve himself in the altercation also demonstrates some degree of premeditation.On this basis, and in light of the above cases, I am satisfied the uplift of nine monthswas proportionate and appropriate.Was the uplift of three months for the common assault charges excessive?[51] The Judge found Mr Parker delivered sustained brutal violence by punching Dsix to seven times to the head and punching K one to two times to the head. Thisrepeated violence to the heads of the victims occurred while the victims sought tointervene to assist their friend who continued to be subject to a vicious beating by sixmen. I do not accept Mr Collins' submission that these assaults would not haveattracted a sentence of imprisonment on their own. In my view, a three-month upliftfor this offending was generous and cannot be regarded as excessive.Totality[52] While the Judge reduced the uplift for the injuring by unlawful act charge onaccount of totality, I acknowledge he did not expressly consider totality in relation tothe common assault charges or on a more general basis in setting the overall startingpoint.[53] However, the failure of the Judge to mention the totality principle is of nomoment if the sentence imposed was not out of proportion to the gravity of theoffending.21 Here, the rather lenient uplift for the assault offending suggests the Judgedid take totality into account. In circumstances where Mr Parker jumped over a fence21 Kite v R [2018] NZCA 485 at [21].to insert himself into a group assault, delivered numerous blows to four differentvictims that targeted the head and appeared to be involved until the very end of themelee, I do not consider the overall starting point of four years and six months'imprisonment was disproportionate or excessive. His overall involvement in theoffending demonstrated a will to engage in serious street violence. No error arose onthis ground.Personal circumstances[54] In addition to a 25 per cent discount for guilty pleas, the Judge applieddiscounts for Mr Parker's personal mitigating circumstances totalling 20 per cent.This reflected the combination of his youth, remorse, offer of emotional harmreparation in the sum of $3,000, and his prospects of rehabilitation. Mr Collins tookissue with the fact Mr Parker's co-offenders received additional credit of 30 to 35 percent. He submitted the Judge erred in taking into account Mr Parker's previousdischarge without conviction and his ostensible lack of remorse to temper thediscounts provided.Discharge without conviction[55] The Judge took into consideration that Mr Parker received a discharge withoutconviction in the District Court in June 2021 on a charge of "with intent to injurecaused grievous bodily harm".22[56] The facts of that charge involved a late-night confrontation in central Dunedinin October 2020. Mr Parker approached the victim in a bar and accused him ofspending time with his ex-partner. He shoved the victim around his upper body beforethe victim broke away. After leaving the bar, Mr Parker approached the victim andmade it clear he wanted a fight. The victim decided to fight Mr Parker and they shapedup to each other with their fists raised. The pair traded missed punches. Mr Parkerthen punched the victim in the face, causing the victim to fall to the ground. Whileattempting to get back to his feet he grabbed hold of Mr Parker's leg before Mr Parkerpunched him in the head two more times. The victim fell to the ground where22 Police v Parker [2021] NZDC 259594.Mr Parker put him in a headlock and continued to punch the victim multiple times tothe head while he was prone. Onlookers intervened to stop the altercation. As a result,the victim's ankle and jaw were broken. He was hospitalised for some six days as heunderwent surgery.[57] In discharging Mr Parker without conviction, the Judge relied on his lack ofprevious convictions, his youth, his remorse in penning a letter of apology to thevictim, payment of emotional harm reparation, completion of Stopping Violence andabstinence programmes and 102 hours of voluntary community work, and compliancewith restrictive bail conditions for eight months. The Judge also placed emphasis onthe impact of a conviction on his employment as an apprentice builder, his sportingaspirations and his ability to return to Fiji to connect with family. However, the Judgecautioned Mr Parker that "you cannot afford to come back before this Court onanything like this again".[58] I was not referred by counsel to any case where a Court has explicitly relied ona previous discharge without conviction to extinguish any reduction for goodcharacter. As identified by the Judge, a discharge is deemed to be an acquittal socannot ordinarily be held against a defendant.23 However, in the context of dischargewithout conviction applications, it is well-established that a previous dischargewithout conviction for offending of the same type will count against a discharge on alater occasion.24 I also have regard to the fact the Court of Appeal has affirmed that adefendant's previous appearances in the Youth Court, which are not consideredconvictions, can preclude any credit for previous good character, but should not resultin an uplift.25[59] On this basis, I consider the Judge was entitled to consider Mr Parker'sprevious discharge without conviction was relevant to the sentencing exercise and wasjustified to refrain from applying a discount for Mr Parker's good character on accountof it. I note also that the incident occurred only three months before the current23 Sentencing Act 2002, s 106(2).24 Miller v Police [2015] NZHC 2747 at [16]-[19], citing Swami v Police [2012] NZHC 2725, [2012]NZFLR 962 at [25]; Morgan v Police HC Auckland CRI-2009-404-212, 8 October 2009 at [15];and Police v McCabe [1985] 1 NZLR 361 (HC).25 Waikato-Tuhega v R [2021] NZCA 503 at [33].offending and involved very similar alcohol-fuelled violent offending committed atnight on the streets of Dunedin.[60] The Judge's other comments in relation to the discharge were also well made.Given the proximity between that and the current offending, Mr Parker's decision tocontinue to consume large quantities of alcohol represented an abuse of the Court'sleniency. His conduct undermined the rehabilitative steps he had taken following theoriginal offending and showed a disregard of the warning he received from the Courton that occasion.[61] As the Judge identified, Mr Parker heightened his risk of re-offending bydrinking and a pattern of violent behaviour was beginning to take shape. In thesecircumstances, while I acknowledge the correspondence testifying to Mr Parker beinga well-regarded young man capable of making a productive contribution to society, Iconsider the Judge was justified in emphasising the need for deterrence, denunciationand community protection in this case. These factors militate against providing fulldiscounts for his previous good character and rehabilitative prospects.Remorse[62] In the absence of any evidence that Mr Parker laboured under any diagnosedcommunication difficulties, I consider the fact his presentence report interview tookplace over the phone did not deprive him of an opportunity to express genuine remorsefor his actions.[63] In that interview, the probation officer observed Mr Parker did not offer anythoughts as to the impact of his offending on his victims and that it was difficult to saywhether he had any insight into how dangerous his actions were. Furthermore, thereport writer noted Mr Parker did not appear to consider his drinking behaviour wasexcessive or problematic and that his employer had expressed disappointment in whathe believed to be a lack of insight and remorse. He was assessed as being of a mediumrisk of harm to others and a medium likelihood of re-offending.[64] I accept these observations contradict the multiple character referencesadduced in Mr Parker's support and letters he has written to the victims. It is alsocommendable that Mr Parker has re-engaged in a Stopping Violence programme andoffered reparation by way of an emotional harm payment.[65] However, concerns remain which in my view justify the Judge's doubts thatMr Parker had demonstrated specific evidence of remorse. Mr Parker appeared toparticipate in celebrations after the event and minimised his involvement in his initialdiscussions with police despite overwhelming evidence.[66] The similar phrasing used across the remorse letters submitted to each of thevictims also does not indicate sincerity, especially as they also bear a marked similarityto the letter written to the victim of his previous offending. While Mr Parker may notfind articulating his emotions an easy task, I would expect him to have at leastrecognised to each victim the individual harm he has caused each them.[67] In summary, I find the Judge properly took into account all relevant mattersand the discounts provided were not inadequate. No discernible error arose in thedecision.Result[68] The appeal is dismissed.Doogue JSolicitors:Crown Solicitor, DunedinCC:L Collins, Dunedin