Parata v Police - [2016] NZHC 3026

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000372 [2016] NZHC 3026

BETWEEN
HENARE KAHI PARATA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 13 December 2016

Counsel:

H N Kim for Appellant
H D Benson-Pope for Respondent

Judgment:

13 December 2016

ORAL JUDGMENT OF DOWNS J

Solicitors/Counsel:
H N Kim, Manukau.
Kayes Fletcher Walker, Manukau.

PARATA v POLICE [2016] NZHC 3026 [13 December 2016]

The issue

[1] Section 94 of the Land Transport Act 1998 invests a Judge with a discretion to substitute a community-based sentence on a defendant who would otherwise be disqualified from driving. The appellant contends Judge McAuslan erred in not exercising that discretion in his favour.

Background

[2] The appellant was driving at approximately 1.40 am on 15 May 2016. Police stopped him for a licence check and random breath test. The appellant appeared to have been drinking. An evidential breath test confirmed as much: it revealed a breath alcohol level of 598 micrograms of alcohol per litre of breath. The appellant told the Police he had consumed 12 beers that evening. The appellant later resiled from that account to the Probation Officer. He said he had been feeling unwell, consumed a glass of whiskey followed by cough medicine, and was on his way to the nearby shops to purchase paracetamol when stopped.

[3] The appellant is 45 years old. He has an extensive criminal record of 123 convictions, including 25 for driving while disqualified, nine for driving with excess breath alcohol, two for refusing to accompany an enforcement officer, one for refusing to give a blood specimen, and 11 other Land Transport Act-related convictions.

[4] The appellant’s most recent conviction for driving with excess breath alcohol occurred in 2011. The appellant had the benefit of a community-based sanction pursuant to s 94 of the Act in relation to that offence.

[5] Judge McAuslan sentenced the appellant to a term of six months’ home detention.1 No appeal is brought against this component of the sentence. However, the Judge declined to impose a community-based sentence rather than disqualifying the appellant from driving for the minimum period of one year and a day. The
appeal lies against this aspect.

1 Police v Parata [2016] NZDC 21278.

[6] The Judge considered a variety of matters including the appellant’s family circumstances, his apparent attempts to gain employment, that the appellant had only a restricted licence when he was caught driving, his driving history and the public interest.

The appellant’s case

[7] The appellant contends the Judge gave undue weight to his driving history, and in particular, failed to give adequate weight to the lapse of time since his last conviction. The appellant also contends the Judge gave insufficient weight to the appellant’s familial obligations in relation to transport, and failed to give adequate weight to the fact the appellant would need to commence the licensing process afresh.

Analysis

[8] Section 94 of the Land Transport Act provides:

94 Substitution of community-based sentences

(1) This section applies if—

(a) The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Parata v Police

Details

AGLC: Parata v Police [2016] NZHC 3026
Case: [2016] NZHC 3026
Decision Date: 13 December 2016

CaseChat Overview and Summary

Parata v Police is a case from the High Court of New Zealand concerning the sentencing of Henare Kahi Parata. Parata was convicted of driving with excess breath alcohol and was sentenced to six months' home detention and disqualified from driving for one year and one day. Parata appealed against the driving disqualification, arguing the Judge erred in not substituting a community-based sentence in his favour under Section 94 of the Land Transport Act 1998. The court was required to decide if the Judge erred in not substituting a community-based sentence and if there was undue weight given to Parata's criminal history and insufficient consideration of his family obligations.

The court found that the Judge was aware of the gaps in Parata's criminal history and did not err in considering his history. The court also found that while the Judge did identify Parata's family obligations, it was not considered decisive and home detention would naturally lead to the appellant being unable to drive for six months. The court held that the decision was not plainly wrong, and the appeal was dismissed. The only real factor in favour of a community-based sentence concerned the appellant's family circumstances and their need for transport, however, these circumstances were not exceptional and were within the range of outcomes anticipated by the Legislature. The court found that the application for a community-based sentence was relatively weak.

Orders