Parish v Police HC Christchurch CRI 2010-409-220

[2010] NZHC 2285

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-409-000220

SANTANA JACQUI SHIRLEY PARISH

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         16 December 2010

Counsel:         M Starling for Appellant

C J Boshier for Respondent

Judgment:      16 December 2010

ORAL JUDGMENT OF PANCKHURST J

[1]      This is an appeal against an effective sentence of 16 months’ imprisonment imposed on Ms Parish for a raft of offending.  Such offending occurred over a ten month period and can, in broad terms, be divided into offences involving the breach of various obligations on the one hand and relatively low level behavioural offence or dishonesty on the other.

[2]      The  first  offence  was  committed  in  November  2009.    Police  found  an abandoned vehicle near Memorial Avenue and, through the use of a tracker dog, went to a property on the avenue where the appellant was located in an enclosed

yard.  She gave an improbable explanation for her presence there.

SANTANA JACQUI SHIRLEY PARISH V NEW ZEALAND POLICE HC CHCH CRI-2010-409-000220  16

December 2010

[3]      Later that month there was a breach of bail.   In February of this year the appellant failed to report and was thereby in breach of release conditions which had been imposed from her most recent sentence of imprisonment.  In March she was in breach of her community work obligations in that she failed to report.  In the result,

100 hours of community work had only been served to the extent of half an hour according to the summary of facts.   That same month, March, there was a further breach of bail.

[4]      Then, on 23 April, three offences were committed at about 11.00 pm at night. These were unlawfully getting into a motor vehicle, possession of  an  offensive weapon and wilful damage.   The summary discloses that the appellant was intoxicated; she got into a vehicle which had been taken by an associate.   When stopped by the police she was in possession of an axe which she had apparently acquired during the course of the evening.  She was then placed in a police vehicle where she caused damage by kicking at the console of the car.

[5]      The next month, May, there was a further breach of bail.

[6]      Finally, on 3 August, the appellant committed offences of unlawful taking and driving while disqualified.  She was in a vehicle with an associate and a person who was the driver of that car.  They went to the driver’s address.  The driver went inside leaving the keys in the ignition.   The appellant wished to go home.   She therefore took the vehicle, drove home and thereby, also, committed an offence of driving while disqualified.

[7]      Sentence was imposed by Judge Erber on 27 October.  He identified the three breaches of bail as warranting an end sentence of three months imprisonment.  With reference to the breach of release conditions he considered a further four months, cumulative, was required.  Finally, with reference to what he termed getting into a vehicle and driving dangerously, he added a further cumulative nine month term to arrive at the total sentence of 16 months’ imprisonment.  In fact it is common ground that the Judge’s reference to getting into and dangerous driving was plainly in error. Reading his sentencing remarks as a whole it is apparent this was a slip of the tongue

and that he intended to refer to the August offending which was, of course, unlawful taking and driving while disqualified.

[8]      In addition to the term of imprisonment the appellant was disqualified for

12 months and made subject to a special condition that she undertake assessment for alcohol and drug use and complete any programmes as recommended by the authorities.    The remaining charges  attracted  a  two  month  concurrent  term,  the community work sentence was cancelled and there was an order for reparation in respect of the wilful damage charge.

[9]      The appellant is 22 years of age.  Her pre-sentence report was generally not a positive one.   She has drifted in recent times.   The report writer put down her offending to the poor choice of associates and misuse of drugs and alcohol.  On the other hand there was an assessment that Ms Parish was perhaps motivated to make changes to her life and an evaluation that there were some signs that although she had made similar assertions in the past (of a desire to change), this time she could be serious.  The report writer, nonetheless, recommended a prison sentence subject to the special condition.

[10]     Mr Starling, in supporting the appeal, advanced in effect a single argument. He accepted that it was difficult to criticise the seven month term imposed for the various breaches of bail and release conditions.  This in part reflected the appellant’s record which is littered with previous similar offending.  He then focused upon the addition of a nine month term in relation to the August offending of unlawful taking and driving while disqualified.  While accepting that these were significant offences which warranted a cumulative term, Mr Starling argued that nine months was clearly excessive when one analysed the degree of criminality involved.  He rightly pointed out that this was an unlawful taking which lacked the aggravating features which ordinarily are associated with that offence.  He expressed the concern that perhaps the Judge had overstated the significance of the driving when he referred to it as dangerous driving.  Whereas, in fact, there is no suggestion of that.  It is a case of driving while disqualified simplicita.

[11]     Ms Boshier adopted what might be termed a totality approach.  Even if the manner in which the sentence was constructed could be criticised, Ms Boshier submitted that the end sentence, when measured against the totality of the offending, was within range.  This, in effect, involves looking at the offending (other than the breaches) and asking whether nine months for this offending was excessive.  That is, the offence of unlawfully in a yard, getting into a vehicle, possession of an offensive weapon and wilful damage in April 2010 and, finally, the two offences in August of this  year.    Viewed  in  this  way  it  was  submitted  that  the  end  sentence  was appropriate.

[12]     In my view Ms Boshier’s submission is sound.  This may be a stern sentence for what is relatively low level offending.   On the other hand the appellant has a very poor record.   She has, previously on three occasions, been sentenced to imprisonment, one of them for a term of two years three months in relation to an offence of robbery.   But, more importantly, over the ten month period covered by this offending, she has committed numerous offences, both in terms of non- compliance with requirements and other offending as I have outlined.  In my view the end sentence was available to the Judge and viewed on a totality basis was not clearly excessive.

[13]     For these reasons the appeal is dismissed.

Solicitors:

Michael Starling Barrister, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch for Respondent