Parker v Police - [2022] NZHC 1981

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-409-000110

[2022] NZHC 1981

BETWEEN
WAYNE PARKER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 11 August 2022

Appearances:

L Drummond for Appellant L Fiennes for Respondent

Judgment:

11 August 2022

JUDGMENT OF DOOGUE J

This judgment was delivered by me on 11 August 2022 at 1.30 pm

Registrar/Deputy Registrar Date:

PARKER v NEW ZEALAND POLICE [2022] NZHC 1981 [11 August 2022]

Introduction

[1] The appellant, Mr Parker, was sentenced in the District Court to one year and four months’ imprisonment on one charge each of dangerous driving and driving with excess blood alcohol.1

[2]Mr Parker appeals that decision and says the Judge:

(a)made an important factual error as to his blood alcohol level;

(b)adopted an excessive starting point; and

(c)should have commuted his sentence to one of home detention.

Facts

[3] On 13 March 2022, Mr Parker entered the Christchurch Northern Motorway heading north in the south-bound lane using an off-ramp. Whilst driving on the wrong side of the road he drove directly at another vehicle coming in the opposite direction. He swerved at the last moment to avoid a collision.

[4] Mr Parker continued north and, as he approached an overbridge, drove straight at a milk tanker, causing it to swerve to avoid collision.

[5] He continued driving on the wrong side of the motorway for approximately 2 kilometres.

[6] A witness travelling in the same direction in the north-bound lane was able to pull in front of Mr Parker to bring his vehicle to a stop.

[7] Police located Mr Parker stumbling through a field. He was incapable of completing a roadside breath screening. After accompanying police to the station, he was required to undergo an evidential breath test but was incapable of breathing into the device after four attempts.

1 Police v Parker [2022] NZDC 11563.

[8] Mr Parker provided a sample of blood for analysis which returned a result of 240 milligrams of alcohol per 100 millilitres of blood.

[9] Mr Parker has seven previous convictions for driving with excess alcohol with the most recent offending occurring in 2017.

District Court decision

[10] The Judge referred to Mr Parker returning a result of 253 milligrams of alcohol per 100 millilitres of blood.

[11] The Judge determined the offending was “near the most serious possible offending for an offence of this nature”. He considered it was aggravated by the nature of Mr Parker’s driving, involving sustained and repeated serious danger to him and other road users. The Judge adopted a starting point of 20 months for both charges. In setting the starting point he took into account that this was Mr Parker’s eighth conviction for alcohol related driving offences.

[12] The Judge uplifted the sentence by five per cent for Mr Parker’s driving history, excluding the alcohol-related driving offences.

[13] Credit of 25 per cent was given for his early guilty pleas, leading to an end sentence of 16 months’…

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.

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Details

Case: [2022] NZHC 1981
Decision Date: 11 August 2022

CaseChat Overview and Summary

Wayne Parker appeals his conviction and sentence for dangerous driving and driving with excess blood alcohol. The District Court Judge imposed a sentence of one year and four months’ imprisonment. The appellant argues that the District Court Judge made an error in assessing his blood alcohol level, adopted an excessive starting point and that the sentence should have been home detention rather than imprisonment. The court considered the aggravating and mitigating factors of the offending, and whether there was an error in the Judge's analysis. The court found that the District Court Judge did not make an error in his assessment of the notional sentence of imprisonment, nor in declining to commute the sentence of imprisonment to one of home detention. The appeal was dismissed. No orders were made.

Orders