PARKINSON v NEW ZEALAND POLICE [2019] NZHC 1710

PARKINSON v NEW ZEALAND POLICE [2019] NZHC 1710 [19 July 2019]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2019-443-15[2019] NZHC 1710SHAYE KIEL PARKINSONvNEW ZEALAND POLICEHearing: 16 July 2019Appearances: J N Woodcock for AppellantS J Simpkin for RespondentJudgment: 19 July 2019JUDGMENT OF CLARK JIntroduction[1] Mr Parkinson appeals a sentence of 10 months home detention. The basis ofhis appeal is that a 12-month uplift for previous convictions was too high andinsufficient credit was given for time spent in custody and on electronically monitored(EM) bail prior to sentencing. The respondent submits the uplift was probably at thehigh end but within the available range and although there was some irregularity inthe District Court Judge's calculations the end sentence was not manifestly excessive.Facts[2] Mr Parkinson pleaded guilty to one charge of burglary and one charge ofpossession of cannabis.1 The burglary was of a private residence. With his co-offenderMr Parkinson smashed a window, entered the address and took several electronicitems including an Xbox and two laptops. The two then decamped and were locatedby police a short time later still in possession of the stolen property. Inside a bagMr Parkinson dropped when he ran off to avoid police, was a single cannabis plant,the subject of the charge of possession.[3] Mr Parkinson has a significant criminal history. Between 2004 and 2018 heamassed 125 convictions primarily for theft and fraud-related offending. Overall hehas 19 convictions for burglary the most recent being in November 2016 for which hewas sentenced to one year, eight months imprisonment.[4] In taking a starting point of 16 months imprisonment, Judge Hikaka adoptedthe same starting point as Mr Parkinson's co-offender who was younger thanMr Parkinson. The starting point was uplifted by one month for the possession chargethen by 12 months for the previous convictions. The resulting 29 monthsimprisonment was reduced to 20 months to recognise an early guilty plea, remorse,the steps Mr Parkinson had taken towards rehabilitation, time spent on electronicallymonitored bail and on remand in custody.2 The end sentence of 20 monthsimprisonment was converted to 10 months home detention. Reparation in the sum of$167.50 was ordered to be paid within 28 days and post-detention conditions for10 months were imposed "to provide the maximum assistance in staying on theright track and moving forward positively ".3[5] Beyond describing as "loose"4 the deductions he gave, the Judge did notascribe specific discounts to specific mitigating factors. I proceed, however, on thefollowing basis which seems reasonably apparent from the decision itself.1 New Zealand Police v Parkinson [2019] NZDC 10086; and Crimes Act 1961, s 231(1)(a),maximum penalty 10 years imprisonment; and Misuse of Drugs Act 1975, s 7(1)(a) and (2),maximum penalty three months imprisonment or $500 fine.2 At [7] and [9].3 At [9] and [11].4 At [11].(a) The reduction from a starting point of 29 months to an end sentence of20 months represents a discount of 31 percent.(b) Of that 31 percent discount, the guilty plea can be assumed to haveattracted a 25 percent discount because the Judge intended to give"maximum discount" for the early guilty plea.5(c) Remorse, rehabilitation and the other factors I have mentioned aboveat [4], are responsible for the remaining discount of 6 percent.DiscussionDisproportionate uplift for previous convictions?[6] Ms Woodcock submitted the 12-month uplift represented 70 percent of thestarting point and was manifestly excessive. An uplift of 50 percent of the startingpoint (eight months imprisonment) represented a proportionate response that stillemphasised personal deterrence.[7] The general rule for uplifts for previous convictions is that they should beproportionate in the circumstances and bear a reasonable relationship to the startingpoint.6 Uplifts of 25 percent are common.7 But the approach for recidivist burglaryis different and high uplifts have frequently been upheld as appropriate. R v Columbusprovides useful guidance as to the treatment of previous convictions for recidivistburglars:8[14] Thus, in sentencing for burglary as for other offences thecircumstances of the offending predominate when fixing the starting point.However, as this Court noted in Lowe, previous dishonesty convictions, whileaggravating personal circumstances, are often treated as components of theburglary starting point. The rationale is that, while prior dishonesty offendingis not of itself an element of the offence, it is directly relevant to assessing thedegree of the offender's culpability within the gravity of the particularoffending (ss 8(a) and 9(1)(j) Sentencing Act 2002) and to the purposes ofdeterrence and community protection (s 7(f) and (g)). The justification for5 At [9].6 Adams at SA9.15(6).7 At SA9.15(6). Wilson v R [2015] NZCA 235; and Reedy v Police [2015] NZHC 1069.8 R v Columbus [2008] NZCA 192.this greater weighting for prior offending is explained in Senior v Police(2000) 18 CRNZ 340 at [27]-[30] (HC).[15] Sentencing Judges must, however, guard against the risk of undueemphasis on past dishonesty convictions that lies in fixing the starting pointby imposing a sentence which is primarily a punishment for previousoffending: R v Ward [1976] 1 NZLR 588 (CA) and Power. The terms"recidivist" or "habitual", while convenient descriptions, are not ofthemselves determinative. There are different types of recidivists, the mostegregious being the professional burglar who burgles or steals for a living:Senior at [30]. The principal inquiry must be undertaken into the relationshipbetween the nature of persistent offending and the crime itself.[8] Ms Woodcock gave examples of uplifts for recidivist burglars:(a) R v Columbus:9 The appellant had 89 previous convictions, 13 of whichwere for burglary. A starting point of one and a half years imprisonmentwas uplifted by 12 months to reflect previous convictions, as "hishistory shows a risk of re-offendingthat is the risk of prevention towhich past offending is relevant".10(b) King v New Zealand Police:11 A starting point of two years six monthswas uplifted by 12 months to reflect the appellant's criminal historywhich included 45 previous convictions for burglary.(c) Hayward v New Zealand Police:12 A starting point of two yearsimprisonment uplifted by 12 months for previous convictions. Theappellant had a "significant history of burglary convictions, eventhough those convictions are not themselves recent".13[9] Moeroa New Zealand v Police is also relevant.14 A starting point of 15 monthsimprisonment was uplifted by 12 months to reflect the appellant's 70 prior convictionsof which 31 were for burglary.9 R v Columbus, above n 8.10 At [19].11 King v New Zealand Police [2014] NZHC 2946.12 Hayward v New Zealand Police [2014] NZHC 2286.13 At [14].14 Moeroa New Zealand v Police [2015] NZHC 2226.[10] With a total 165 convictions15 (19 for burglary and 10 for theft) Mr Parkinsonis unquestionably a recidivist burglar.[11] Previous convictions are to be taken into account but a sentencing Judge mustbe careful not to increase the sentence in a way that results in the offender beingpunished further for crimes for which he or she has already been punished.16 With anuplift of 70 percent the Judge could be expected to indicate why an increase of thatmagnitude was thought to be required. Given the Judge's several indications thatMr Parkinson seemed to have turned a corner and was "on a new pro-social path",combined with his encouragement of a rehabilitative approach, it does not seem thatthe Judge had deterrence in mind or considered the likelihood of reoffending was animmediate risk. But the short point is that the reasons for an uplift of this magnitude70 percent should be apparent but they are not.[12] Incorrigible recidivism such as Mr Parkinson's can be addressed in one of twoways: when fixing a starting point or by uplift.[13] With an uplift of this magnitude it is hard to avoid the impression Mr Parkinsonis being punished twice for past offending. On the other hand, the starting point of16 months was arguably very light. While the 16-month starting point was the samestarting point adopted for the co-offender, their respective personal circumstanceswere discrepant. The co-offender was young and had an innocuous criminal historyby comparison to Mr Parkinson's.[14] In the end I have decided to stand back and ask whether a provisional sentenceof 29 months is too high. Subject to my views on the cannabis possession charge Iconclude it is justified by the nature of the offending and is not out of line with relevantauthorities. The offending was premeditated. Mr Parkinson and his co-offender hadvisited the address a number of times knocking on the door and giving made-upexplanations for being there. The offending had left its mark on the family.15 Excluding Youth Court matters.16 R v Casey [1931] NZLR 594 (CA), at [597].[15] Twenty nine months imprisonment properly marks Mr Parkinson's culpabilityin respect of the immediate offending and appropriately takes into account hisextensive, previous, similar offending.[16] I do however consider the uplift of one month for possession of the cannabisplant taken during the burglary, in combination with the 12 months uplift for previousconvictions, was excessive. The possession was connected in time and circumstanceto the burglary and, as Ms Woodcock submitted, on its own would have attracted alow-level fine or possibly a community sentence.Time in pre-detention custody and on EM bail[17] The conceptually different periods between time spent on EM bail and timespent on custodial remand was discussed by Simon France J in Longman v NewZealand Police.17 The inherent differences between time spent on each mean therelevance of each period is to be assessed at different points in the sentence process.18[18] Credit for time spent on EM bail must be considered when fixing theappropriate length of a sentence of imprisonment.19 As France J emphasised theauthorities make it clear that determining an appropriate reduction is not a matter ofarithmetical equivalence:20First, even the most restricted EM bail is not the same as serving time in jail;it is still considerably less restrictive. Second, there are many variablesincluding length of time on EM bail, conditions, and compliance. Within a24 hour curfew situation there can be considerable variance in the amount ofabsences permitted such as to mean that two apparently similar sets ofconditions have operated vastly differently.[19] Full equivalence should be the norm, however, when assessing what reductionthere should be to a home detention sentence, the length of which is fixed by referenceto a sentence of imprisonment.21 That is because, with a sentence of imprisonment,the prisoner will automatically obtain credit for time spent on custodial remand and17 Longman v New Zealand Police [2017] NZHC 2928.18 At [5].19 Sentencing Act 2002, s 9(2)(h) and s 9(3A).20 At [6].21 At [9].that time will be deducted from the sentence that is served.22 For this reason, indetermining the length of any sentence of imprisonment, the Court is not to take intoaccount any part of the period during which an offender was on presentencedetention.23 But where the sentence of imprisonment is to be supplanted with homedetention the Judge will have to take into account the time spent in custodial remandto ensure full credit is given for that time.[20] That being the case, the 11 weeks which Mr Parkinson spent remanded incustody had to be deducted when Judge Hikaka decided on a sentence of homedetention.24 That did not happen.[21] I do not agree, however, there should be a discount for time served on EM bail.There is no information before the Court as to the EM bail conditions. AsSimon France J observed, where an offender wishes credit for EM bail to be given,detail of its length, its conditions and any breaches should be given to the Court.25There is no suggestion EM bail was breached but I am influenced by Simon France J'sobservation that a two and a half month period of EM bail was sufficiently short itmeant credit for it was far from inevitable. Here, Mr Parkinson spent only a matter ofweeks on EM bail.Conclusion[22] For the reasons given in [16] above the 29-month provisional sentence isreduced by one month. The maximum discount which the Judge intended to give forthe early guilty plea reduces the sentence to 21 months. From the 21 months the Judgeintended to give a discount for remorse and rehabilitation. The time spent on remandwas included in that global discount but must be dealt with separately. A one-monthdiscount is appropriate for the mitigating factors the Judge identified, bringing thesentence to 20 months imprisonment.22 Parole Act 2002, s 90.23 Sentencing Act, s 82.24 Mr Parkinson was apparently remanded in custody on 14 February 2019 before being released oncompassionate grounds on 24 April 2019. He was on EM bail from that time until he returned tocustody on 29 April. He was apparently readmitted to EM Bail on 2 May.25 Longman v New Zealand Police, above n 17, at [12].[23] That sentence is to be reduced by the equivalent time Mr Parkinson spent inpre-sentence detention, which was 11 weeks. The end sentence is 17 monthsimprisonment, which reduces to eight and a half months home detention.Result[24] The appeal is allowed. The sentence of 10 months home detention is quashedand substituted with one of eight and a half months home detention. The conditionsare unchanged._____________________________Karen Clark JSolicitors:Marsland Chambers, New Plymouth for AppellantCrown Solicitor, New Plymouth for Respondent