PARKINSON v R [2019] NZCA 544

PARKINSON v R [2019] NZCA 544 [11 November 2019]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF ANY COMPLAINANTS/PERSONSUNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [ORNAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OFTHE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA428/2018[2019] NZCA 544BETWEEN RICHARD JAMES PARKINSONAppellantAND THE QUEENRespondentHearing: 7 October 2019Court: Brown, Simon France and Hinton JJCounsel: N P Bourke for AppellantJ E L Carruthers for RespondentJudgment: 11 November 2019 at 10.30 amJUDGMENT OF THE COURTA The appeal against sentence is allowed.B The appellant's sentence of 6 years' imprisonment is quashed andsubstituted with a sentence of 5 years' imprisonment.C The minimum period of imprisonment of 3 years is quashed and isreplaced with a minimum period of imprisonment of 2 years and6 months.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] The appellant stood trial before Cull J sitting alone on numerous charges ofsexual offending against four young complainants. At the conclusion of the Crowncase he pleaded guilty to seven charges, namely:(a) one charge of attempted sexual connection with a child;(b) two representative charges of indecent act on a child;(c) two representative charges of indecent act on a young person;(d) one charge of unlawful sexual connection with a young person;(e) one representative charge of possessing objectionable material.[2] He was sentenced to 6 years' imprisonment and a minimum non-parole period(MPI) of 3 years was imposed.1[3] He appeals his sentence on the grounds that it was manifestly excessive andwrong in principle. He contends that the starting point was too high, the discount formitigating features insufficient and the MPI unnecessary.Background[4] The offending, which all took place at the appellant's home address, involvedtwo groups of complainants during different periods of time. The appellant offendedagainst two sisters, J and P, between July 2008 and August 2010 when they werebetween 7 and 11 years of age. The appellant who babysat them was between 34 and1 R v Parkinson [2018] NZHC 1287.36 years of age. During this time the appellant lived at the address with his wife andhis own biological daughter.[5] The appellant offended against two boys, C and S, in 2015 when they were 14to 15 years of age. The victims knew the appellant through a mutual friend whom theyaccompanied to the appellant's house on various occasions.[6] When at the conclusion of the Crown case the appellant elected to plead guiltyto the seven charges, an agreed summary of facts was prepared. Because of the wayin which the appeal was presented at the hearing it is convenient to refer to thecircumstances of the offending by reference to that summary of facts.[7] In relation to the offending against J and P the summary of facts relevantlystated:2INDECENT ASSAULT — REPRESENTATIVEThe Defendant offered the girls alcohol.During the period 1 July 2008 and 14 August 2010 during the babysitting visitsthe Defendant indecently assault both victims on at least five occasions buytouching their buttocks and genitalia in the swimming pool or the lounge ofthe house.On one occasion the Victim [P] was placed on her back and her clothes wereremoved except her underpants. The Defendant pulled her underpants toexpose her vagina and put his penis on her leg.On occasions the victims saw pornography playing on the Defendantscomputer.ATTEMPTED SEXUAL CONNECTION S132(2)The defendant had a temporary swimming pool set-up in the back yard of hisaddress which he then took the victim's swimming in.The victims were dressed in their togs and the defendant joined them in theswimming pool.The victims began making a whirlpool by running around the outside edge ofthe pool. The Defendant held [J] on his lap and pulled her togs to the side andhis penis contacted her genital area as he sat on the bottom of the pool.2 The text is verbatim. Hence the various errors remain uncorrected.[8] In relation to the offending against C and S the summary of facts stated:The offending against victims took place over weekend's that he had stayedwith the defendant. The two victims did not stay at the same time. A mutualfriend accompanied them for at least part of their stays.The victims, when visiting the defendant, would normally stay at thedefendant's address from the Friday afternoon through until the Mondaymorning.Throughout these weekends the victims were allowed access to pre-mixedalcohol drinks and spirits. The defendant also showed the victim adultpornography videos while they were staying with him and let them play videogames on his computers and his playstations.[VICTIM C]At one point during a weekend that the victim [C] was there, the defendanttold the victim that his clothing needed to be washed and watch him as heremoved his clothes.The victim removed all of his clothing down to his underwear with thedefendant watching him. The victim asked the defendant to leave the roombefore he removed his underwear but the Defendant remained.The victim wrapped a towel around himself and removed his underwearunderneath the towel.A short time later the defendant pulled the towel off the victim, leaving himstanding in the room naked. The victim had to turn away from the defendantand face the wall to protect his own privacy.The victim then snatched the towel from the defendant to cover himself again.INDECENT ASSAULTOn the Monday morning following the victim woke up.The defendant was masturbating the victim for at least 10 minutes.After a short time the defendant got up off the bed and allowed the victim toget ready for school. A short time later he was picked up from the address andtaken to school.[VICTIM S]The offending against the 14 year old victim [S] also took place over theweekend's that he had stayed with the defendant.In a similar fashion to the first victim, once this victim had removed hisclothing and was dressed only in a towel the defendant ripped the towel offhim so he could see the victim's genitals. This happened while the victim wassitting on the couch in the lounge.The victim had to cover his genitals using his hands.INDECENT ASSAULT (REPRESENTATIVE)The Defendant and [S] were sitting on the couch watching a movie.The Defendant began to touch the victims leg and then stroked his penis.This happened on at least two occasionsUNLAWFUL SEXUAL CONNECTIONOn one occasion the masturbation was followed by the defendant then suckingthe victim's penis. The Defendant gave the victim at $100 to permit theDefendant to suck his penis.The sentencing in the High Court[9] The sentencing commenced with a detailed review of the circumstances of theoffending, the victim impact statements of all four victims and some of their familymembers, the appellant's personal circumstances and pre-sentence and psychologicalreports.[10] The Judge set separate starting points for the first and second groups ofoffending, applied a cumulative approach and then adjusted down the starting point inapplying the principle of totality. She considered that the first group of offendingwarranted a starting point of 4 years' imprisonment.3 The second group of offendingwarranted a starting point of 4 and a half years' imprisonment, being slightly higherbecause of the greater degree of intrusiveness of the acts and the significant degree ofpremeditation and predatory behaviour involved.4 The Judge then adjusted thecumulative starting point of 8 and a half years downwards by 18 months to reflect thescale of the offending as a whole and to ensure that the sentence was comparable toother similar cases.5 The Judge decided not to impose an additional uplift for therepresentative charge of possessing objectionable material.6[11] Turning to personal mitigating factors the Judge acknowledged the appellant'sprevious attempts to seek treatment and recognised his mental health issues asevidenced in two psychological reports. She also accepted that an adjustment shouldbe made to recognise the plea of guilty at the end of the third week of the trial.However she did not particularise the various discounts, instead allowing a discount3 R v Parkinson, above n 1, at [32].4 At [34].5 At [36].6 At [37].of 12 months' imprisonment "in a cumulative way" in recognition of all the factors towhich she had referred.7 Hence the final sentence was one of six years' imprisonment.[12] The Judge considered that for each of the four purposes in s 86(2) of theSentencing Act 2002 it was necessary to impose an MPI.8 She concluded that an MPIof three years was the least restrictive sentence that she could impose.9Starting pointAppellant's submissions[13] Mr Bourke's written submissions commenced with a review of the startingpoints adopted in a number of judgments of this Court and the High Court in respectof what was said to be comparable offending.10 He submitted that the appellant'soffending shared many similarities with that in Walker v R which involved five victimsaged between 8 and 13 years old and similar elements of breach of trust and provisionof alcohol to the victims.11 The starting point in that case was 5 years' imprisonmentbut the distinctions between Walker and the present case did not justify a starting pointwhich was 2 years greater.[14] Similarly, by reference to R v Evans where the starting point was 9 years,Mr Bourke submitted that the offending there was demonstrably more serious thanthat of the appellant.12 The difference of only 2 years in the starting pointsdemonstrated that the starting point adopted for the appellant was manifestlyexcessive.[15] For those reasons Mr Bourke submitted that an appropriate starting point forthe totality of the appellant's offending was between 5 and a half and 6 years'imprisonment.7 At [42].8 At [44].9 At [45].10 R v H (CA94/08) [2008] NZCA 237; Walker v R [2010] NZCA 288; Anson v R [2014] NZCA 135;R v Thorpe [2012] NZHC 229; and R v Evans [2018] NZHC 69.11 Walker v R, above n 10.12 R v Evans, above n 10.[16] At the hearing Mr Bourke advanced a new point, namely that in relation to thesecond group of offending against C and S the Judge had departed from the agreedsummary of facts, in particular at [33(d)] which stated:Repeated instances of offending against the victims: the two charges ofindecent assault against these victims are representative charges, as youassaulted each of them on multiple occasions over an eight month period.The charge of sexual connection only relates to one particular incident,however.[17] Mr Bourke's criticism of the Judge's approach at [33(d)] proceeded on thefooting that the agreed summary of facts in respect of victim C referred to a singleweekend and a solitary incident of masturbation. He contended that the summary wassimilarly confined in relation to victim S, in that it referred either to a single weekendor at most to two weekends. The Judge's reference to an eight month period importeda greater degree of offending than was warranted. Mr Bourke emphasised that thefrequency of offending within that period was not great.Crown submissions[18] Supporting the starting point, Mr Carruthers submitted that the offendinginvolved predatory sexual conduct against four young people, two of whom wereprimary school-aged children. The conduct was premeditated, often repetitive and onnumerous occasions involved contact with the appellant's or the complainants'genitalia.[19] On the issue of comparability he submitted that this Court in Anson v R13endorsed the starting point of 7 years' imprisonment adopted in R v Thorpe for adefendant who had indecently assaulted four children between 7 and 12 years of age.The offending in Anson, namely masturbating while in the shower with one younggrandchild and touching another grandchild while in the shower over a period of years,attracted a starting point of 4 years' imprisonment which this Court described aslenient.14 Mr Carruthers submitted that the overall assessment by Cull J could not besaid to be out of line with such cases.13 Anson v R, above n 10.14 At [52].Discussion[20] We do not consider that there was any error in the Judge's description of theoffending at [33(d)]. She acknowledged that the charge of sexual connection inrelation to victim S related to only one incident. However she also recognised thecharges of indecent assault in respect of both victims in that group were representativecharges. Given the nature of the charges to which the appellant pleaded guilty, it isnot open to him to contend that the sentencing must be conducted simply by referenceto the instances specified in the summary.[21] Even if there was merit in Mr Bourke's contention, we do not consider that inrespect of the second group of offending the starting point could be less than 4 years.In those circumstances we consider that 7 years' imprisonment, which was the resultof a reduction to reflect the totality principle, would remain the appropriate startingpoint. We accept that Mr Carruthers' analysis of the authorities supports theconclusion that the Judge's overall assessment is not out of line with comparable cases.Credit for mitigating features and guilty pleasAppellant's submissions[22] Mr Bourke submitted that the total discount of 12 months, representingapproximately 14 per cent of the starting point, was manifestly inadequate havingregard to the appellant's previous attempts to seek assistance, his rehabilitativeprospects, childhood trauma and cultural factors, and remorse and guilty pleas.[23] Noting that the Judge had acknowledged that the appellant had soughttreatment previously and had accepted that he had a desire to rehabilitate himself,Mr Bourke submitted this warranted a discrete discount in the order of 10 per cent.He then submitted that the psychological reports detailed a sad and troubledupbringing, a lack of positive parenting and both physical and sexual abuse. A discretediscount for that factor of 15 per cent was justified. Further, a discrete discount of5 per cent ought to have been available given the evidence of the appellant's genuineremorse which was explicitly recognised by the Judge.[24] Mr Parkinson initially faced over 30 charges involving allegations of numerousrapes and sexual violations. While a number of charges he pleaded to wererepresentative, Mr Bourke contended that the extent of the offending which wasaccepted was considerably different from that initially faced. Hence, in light of thesignificant change in the nature of the charges and his immediate guilty pleas onceresolution was available, it was argued that a discount of 20 per cent ought to havebeen available.Crown submissions[25] Mr Carruthers submitted that reducing a sentence for mitigating features isa highly discretionary exercise.15 There is often a need in cases of serious offendingto ensure discounts do not result in a sentence insufficient to mark the gravity of whatoccurred.16 He submitted that, while the appellant's mitigating features deservedacknowledgment, they were secondary to the need to denounce his conduct and holdhim accountable for the harm he had caused the complainants and their families.[26] Furthermore this was not a case where an offender had always acceptedresponsibility for offending of the sort to which he ultimately pleaded guilty.17 On thecontrary, the appellant denied ever having engaged in any sexual conduct with thecomplainants, denials which he maintained throughout the trial. The removal of themost serious charges for the purposes of resolution, in circumstances where the Crowncould well have continued with the trial, represented a significant windfall in itself.18[27] Consequently it was submitted that the guilty pleas warranted only a nominaldiscount19 and that the discounts allowed for the appellant's mitigating features struckan appropriate balance.15 Kumar v R [2015] NZCA 460 at [81].16 R v Mako [2000] 2 NZLR 170 (CA) at [66]; Arona v R [2018] NZCA 427 at [61]; and Jarden v R[2008] NZSC 69, [2008] 3 NZLR 612 at [12].17 As in E (CA689/10) v R [2011] NZCA 13, (2011) 25 CRNZ 411.18 Referring to Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [62].19 Aupouri v R [2019] NZCA 216 at [16].Discussion[28] The Judge acknowledged that in determining the appropriate sentence theappellant's personal circumstances, including the traumas of his past, his mental healthand rehabilitation aspirations needed to be taken into account.20[29] The Judge recorded that the psychologist's initial report of 22 May 2018 stated:[24] She detailed your personal circumstances and history. Your earlychildhood was characterised by disharmony in your parent's marriage as wellas physical and verbal violence from both your father and step-father.There was verbal violence but also there was physical abuse. Ms Lomascomments that you do not appear to have received many experiences ofpositive parenting during your childhood. You were bullied at school andstruggled to make friends and socialise with others. For a long time now youhave abused alcohol and used it to help manage your emotions. Your drinkingincreased alongside your own marriage and parenting difficulties. You haveaccessed mental health services previously as your counsel has referred to thismorning, and have had issues with inappropriate sexual thoughts aboutchildren, self-harm and alcoholism.[30] An updated report received on the morning of sentencing was also noted bythe Judge:[27] Following your discussions yesterday, Ms Lomas has subsequentlycompleted an updated report. In that, she detailed two occasions, when youyourself were sexually assaulted and she confirms that your own sexual abuseis a factor in this offending. Importantly, she reconfirms that you have insightinto your behaviour and you are fully open to seeking treatment. She alsorecommends that you be given counselling and treatment in respect of theextremely traumatic experience you had when you were 16 years old, thedetails of which you have only just been able to disclose, although as yourcounsel has said you have attempted to raise it before, but the full details arecontained in that report and Ms Lomas notes that this is the first time you havebeen able to properly address those.[31] In her subsequent discussion of personal mitigating factors the Judge stated:[40] I also recognise that you have mental health issues, as evidenced byMs Lomas' report and of course, the report this morning. You were a victimof sexual offending yourself as a child and a teenager, and suffered physicalabuse by your father and step father. It is likely that these have impacted onyour ability to have healthy relationships and this in effect was the submissionthis morning that your trauma was a factor in forming relationships whichultimately proved to be dysfunctional. Ms Lomas' psychological assessmentsalso confirm importantly that these experiences materially contributed to youroffending.20 R v Parkinson, above n 1, at [39]–[40].(Footnote omitted).[32] The cumulative discount of 14 per cent which the Judge allowed reflected notonly those considerations but also the appellant's genuine remorse and his desire torehabilitate himself and an allowance for his guilty plea.[33] We agree with Mr Bourke that the cumulative discount did not sufficientlyreflect the significance of the combination of the appellant's early trauma, efforts toseek help and genuine remorse. On the basis of the reports which were presented weconsider that a cumulative discount up to 25 per cent was justified in respect of thosefactors.[34] However we do not accept the submission that a discount of 15–20 per centshould have been available for the guilty pleas. The pleas were not entered until theend of the third week of the trial at the conclusion of the Crown case. The victims hadall given evidence. They were cross-examined on the footing that the appellant deniedhaving engaged in any sexual conduct with them. We consider that there is merit inMr Carruthers' point that the plea arrangement conferred benefits on the appellant.21[35] In those particular circumstances we consider that a discount for the guiltypleas of no more than 5 per cent was appropriate. Consequently we conclude that theappropriate sentence after a discount of 25 per cent for personal circumstances(21 months) and 5 per cent for the guilty pleas (approximately 3 months) was 5 years'imprisonment.Minimum period of imprisonmentAppellant's submissions[36] While acknowledging that at sentencing the appellant accepted that an MPI ofaround 40 to 50 per cent may have been available, on appeal the imposition of an MPIis challenged. Mr Bourke submitted that the imposition of an MPI had the unforeseenand somewhat perverse result of pushing the appellant to the back of the queue forreceiving treatment programmes whereas the Judge had noted that he had21 Hesssell v R, above n 18, at [62].demonstrated he was an appropriate candidate for intensive treatment which wouldlikely reduce his prospects of offending if his willingness was translated into action.22[37] While recognising that the appellant has been assessed as posing a high risk tothe community if left untreated, Mr Bourke submitted that instead of an MPI it cansuitably be left to the Parole Board to ensure that the appellant has had the opportunityto attend treatment courses and to have accessed the rehabilitation which he needs.Crown submissions[38] Mr Carruthers submitted that the appellant's rehabilitation is only oneconsideration relevant to the sentencing exercise. In this case other factors, such asthe need to denounce his conduct and hold him accountable for the harm he has caused,loom much larger in the circumstances. If proper recognition of those factors meansthat the appellant's ability to access treatment is delayed, then so be it.Discussion[39] We recognise that the consideration of any need to protect the community fromthe offender can involve assessment of the personal circumstances of the offender.23Factors such as remorse,24 promotion of the offender's need for rehabilitation25 anda low risk of reoffending may all be factors which mitigate against the imposition ofan MPI.[40] Notwithstanding the point made here (and in other cases) that the consequenceof the policies of the Department of Corrections is that an MPI will likely have theeffect of delaying treatment, we do not accept that the Judge erred in imposing an MPIin the circumstances of the appellant's offending and recognising his then high risk ofreoffending. However the consequence of the reduction of his sentence means thatthe MPI will be reduced to 2 years and 6 months.22 R v Parkinson, above n 1, at [46].23 Shaw v R [2016] NZCA 110 at [26].24 Fleming v R [2011] NZCA 646 at [22].25 P (CA479/15) v R [2016] NZCA 128 at [52]–[54].Result[41] The appeal against sentence is allowed.[42] The appellant's sentence of 6 years' imprisonment is quashed and substitutedwith a sentence of 5 years' imprisonment.[43] The minimum period of imprisonment of 3 years is quashed and is replacedwith a minimum period of imprisonment of 2 years and 6 months.Solicitors:Crown Law Office, Wellington for Respondent