Parker v Police
[2022] NZHC 1981
•11 August 2022
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’ imprisonment.
[14] The Judge then considered counsel’s submissions and the recommendation of the presentence report writer that a sentence of home detention was appropriate. It is worth setting out the relevant section of the Judge’s decision that dealt with this issue:2
[8] … am very conscious that, in terms of the principles set out in the Sentencing Act, imprisonment should be a last resort but, in your case, I am not willing to accept the recommendation in the pre sentence report. In my view, your offending was so egregious that no sentence short of imprisonment would achieve the level of denunciation and deterrence required to achieve the purposes of the Sentencing Act. When speaking of these factors, I am not just considering deterrence of you but of the public generally. It needs to be put out there in the community that behaviour such as this is so totally unacceptable that it will and must result in imprisonment.
2 Police v Parker, above n 1.
[9] I note also in your case that you were sentenced to home detention on the last three convictions for alcohol driving offences. You were clearly not personally deterred by that from further and much worse offending.
Principles on appeal
[15] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.3 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.4
[16] Home detention is an alternative to a short-term sentence of imprisonment.5 The Court must be satisfied that the purposes for which the sentence is being imposed cannot be achieved by any less restrictive sentence.6 An appeal court must focus on the identification of error, having regard to the discretionary nature of the decision.7
Submissions
Appellant’s submissions
[17]Ms Drummond, for Mr Parker, submitted:
(a)the Judge erred as to the result of the blood test;
(b)the starting point adopted by the Judge was too high; and
(c)he erred in declining to commute the sentence of imprisonment to one of home detention.
3 Criminal Procedure Act 2011, ss 250(2) and 250(3).
4 Ripia v R [2011] NZCA 101 at [15].
5 Sentencing Act 2002, s 15A(1)(b).
6 Section 15A(1)(a).
7 Doolan v R [2011] NZCA 542 at [39]; and Manikpersadh v R [2011] NZCA 452 at [12].
[18] Analysing the offending under Clotworthy v Police,8 Ms Drummond submitted Mr Parker’s mitigating factors were insufficiently taken into account and as a result the starting point adopted by the Judge was excessive.
[19] Ms Drummond submitted, in declining to sentence Mr Parker to home detention, the Judge only reflected on principles of deterrence and denunciation without reference to other relevant purposes and principles of the Sentencing Act 2002.
[20] She submitted it is an error of law for a Judge to give complete priority to the purpose of deterrence without regard to any countervailing purposes.9
[21]She also submitted the Judge failed to:
(a)take into account Mr Parker’s personal circumstances;
(b)give sufficient weight to the positive presentence report; and
(c)take into account the fact that Mr Parker’s employer was in a position to support him.
Respondent’s submissions
[22] The respondent submitted that no material error of substance occurred because the Judge referred to an incorrect blood alcohol level.
[23] The respondent submitted, first, that the offending sits within band (c) of the broad starting points endorsed by Whata J in Samson v Police, namely multiple offences with seriously aggravating factors (18 – 20 months).10 Mr Parker’s blood alcohol level was extremely high (over three times the legal limit) and the manner of driving was also some of the most egregious of its type.
8 Clotworthy v Police (2003) 20 CRNZ 439.
9 Sands v Police [2018] NZHC 3048 at [24].
10 Samson v Police [2015] NZHC 748 at [15].
[24] Second, the respondent submitted that while Mr Parker’s most recent previous conviction for excess blood alcohol was five years before this offending, he has offended consistently from 1999, with this being his eighth alcohol driving related conviction. (On average there are three years between each offence.)
[25] Third, the respondent submitted Mr Parker had previously served sentences of fines, periodic detention, supervision and, for his two most recent sentences for driving with excess blood alcohol, home detention and yet has continued to offend, albeit with varying frequency.
[26] Fourth, the respondent referred to Himiona v Police.11 In that case a starting point of 20 months’ imprisonment was upheld on appeal for driving with excess breath alcohol. Mr Himiona was almost four times the legal limit and had six previous alcohol impaired driving convictions at high levels (between 1993 and 2008). He was also driving while disqualified. A separate 12-month cumulative sentence was imposed for the driving while disqualified offending. Whata J, in Samson, noted this was “at the top end” of the available range.12 The offending by Mr Parker is more serious than in Himiona.
[27] Fifth, in Police v Gustell a starting point of 20 months’ imprisonment was adopted for charges of driving with excess breath alcohol, dangerous driving, refusing to accompany an enforcement officer and resisting a constable acting in the execution of their duty.13 The Judge noted the aggravating factors included the danger posed to other road users, the level of intoxication (being almost three times the limit) and his 10 previous convictions for driving with excess blood alcohol. A separate uplift was imposed for driving while disqualified.
[28] The respondent submitted Mr Parker’s offending is similar. Although not charged with additional offences, Mr Parker attempted to evade police by decamping from his car and running across paddocks. His driving posed a significant threat to
11 Himiona v Police [2012] NZHC 1756.
12 Samson v Police, above n 10, at [26].
13 Police v Gustell DC Invercargill CRI-2009-025-000378, 1 May 2009.
other road users, he was over three times the legal limit and had a significant history of previous offending.
[29] The respondent submitted that, taking all of this into account, a global starting point of 20 months’ imprisonment was not manifestly excessive.
[30] On the issue of home detention, the respondent submitted first that the Judge clearly articulated why a sentence of home detention would not meet the purposes of the Sentencing Act 2002.14 He did not give complete priority to the purposes of deterrence without regard to any countervailing purposes as the Judge clearly considered the factors raised in the presentence report. He referred to other sentencing principles, including the need to impose the least restrictive sentence possible and that a sentence of imprisonment should be the last resort. This shows his focus was not solely on denunciation and deterrence.
[31] Second, the respondent submitted that it was open to the Judge to conclude that those principles were important in this case where driving with excess blood alcohol poses such a danger to others in the community. Notwithstanding Mr Parker’s ability to comply with community-based sentences, the help he could provide his wife or his offer of employment, it was open to the Judge to place importance on the need to protect the community. This was especially so given no previous sentence, including two sentences of home detention, had deterred Mr Parker from reoffending. This offending marked Mr Parker’s eighth conviction for driving with excess blood alcohol. The respondent submitted that, given the risks posed by this offending, the Judge did not err in concluding a sentence of imprisonment was required in all the circumstances.
Analysis
Aggravating and mitigating features of the offending
[32] It is vital to recognise, as the Court did in Samson, that sentencing for this type of offending is not amenable to “tariff-like categorisation”.15 Given the wide variety of circumstances possible for such offending and the requirement that sentencing be
14 Police v Parker, above n 1, at [8].
15 Samson v Police, above n 10, at [15].
an individual exercise, there will be a range of appropriate starting points and end sentences in any given case.
[33] Mr Parker’s was very serious driving with excess blood alcohol offending on any analysis. It was aggravated by Mr Parker’s:
(a)very high blood alcohol level of almost five times the legal limit (it follows that I do not consider, in the context of the circumstances of this case, that the difference between 240 and 253 milligrams of alcohol per 100 millilitres of blood is material);
(b)seven previous convictions for such offending;16 and
(c)very dangerous manner of driving.
[34] A very high level of intoxication was identified as a serious aggravating factor in Samson. Dangerous driving, the threshold for which Mr Parker well exceeded, was regarded as a very serious aggravating factor. The combination of those aggravating factors justifies the Judge’s finding that this was offending in the category of “offending of the worst kind” justifying a starting point of 20 – 24 months’ imprisonment.17
[35] I acknowledge a mitigating factor of the offending was the gap between these charges and Mr Parker’s last offending, and that Mr Parker had less previous convictions for driving with excess alcohol than other offenders in this category. Nevertheless, it is evident that Mr Parker has a persistent history of putting others in the community at risk.
[36] In my view, the nature of Mr Parker’s driving involving, as the Judge found, “sustained and repeated serious danger” to other road users, justified a stern starting
16 Previous convictions for prior alcohol offending are routinely considered when assessing a starting point for this type of offending.
17 Samson v Police, above n 10, at [15].
point of 20 months’ imprisonment.18 This aggravating factor was not present in the cases referred to by Ms Drummond in support of a lower starting point.19
Adjustments to the starting point
[37] No issue was taken with the Judge’s five per cent uplift for the balance of Mr Parker’s criminal history including numerous significant driving offences, many of which will have involved risks to the safety of other road users.
Ms Drummond submitted the following mitigating factors were relevant:
(a)the five-year gap since Mr Parker’s last excess alcohol offending;
(b)his early guilty pleas;
(c)his acknowledgment of his problem use of alcohol and the fact he welcomed rehabilitation;
(d)his supportive employer; and
(e)the positive presentence report, including comments that his wife relies on him around the home.
[39] Of these mitigating factors identified by Ms Drummond, only one was a mitigating factor of the offending itself — the gap of five years between this offending and Mr Parker’s last excess alcohol conviction. The other asserted factors could only be relevant as mitigating factors personal to Mr Parker.
[40] His early guilty pleas were appropriately recognised by the Judge with 25 per cent credit.
[41] The other factors referred to did not warrant additional credit in relation to the length of the sentence, although they were relevant to the appropriate type of sentence.
18 Police v Parker, above n 1, at [4].
19 R v Stoves CA264/06, 7 November 2006; and R v McQuillan CA129/04, 12 August 2004.
While Mr Parker should be commended for his acknowledgment of his alcohol issues and his preparedness to engage in rehabilitation, these come after numerous previous convictions for similar offending and very serious index offending. In my view, it was open to the Judge not to extend credit for those factors in the circumstances of this case.
[42] It follows that I do not consider the Judge erred in his assessment of the notional sentence of imprisonment.
Home Detention
[43]I turn to whether home detention was appropriate.
[44] The Judge took deterrence and denunciation as the dominant sentencing principles. That was appropriate given the nature of Mr Parker’s offending.
[45] It can be inferred from his previous sentences of home detention, including such a sentence for his most recent driving with excess alcohol offending, that Mr Parker has previously had the benefit of more rehabilitative approaches to sentencing.
[46] I acknowledge home detention is also a deterrent sentence and, in some cases, will be sufficient to satisfy purposes of deterrence and denunciation.20 However, it is apparent Mr Parker has not been deterred by his previous sentences. In my view the Judge was conscious of the need to consider whether home detention was the least restrictive outcome capable of fulfilling these purposes.
[47] I do acknowledge Ms Drummond’s submission that the Judge did not expressly state he had considered all of Mr Parker’s mitigating factors nor expressly refer to other relevant sentencing principles. In certain circumstances this can be an error of law.21 However, I do not accept the Judge only reflected on principles of deterrence and denunciation because he noted “[t]he pre-sentence report makes out a case for home detention and recommends this. [Mr Parker’s counsel] has urged me on the
20 Fairbrother v R [2013] NZCA 340.
21 Fairbrother v R, above n 20, at [29]-[30].
same end point.”.22 In stating this the Judge was referring to the circumstances and arguments that could be made in favour of home detention. That indicates he considered them.
[48] It might have been desirable for the Judge to elaborate further on these arguments, but this court should acknowledge Judges in the District Court must sentence in a very different context to Judges in the High Court and often have to express themselves with considerable brevity in that environment.
[49] I consider in all of the particular circumstances of this case that imprisonment was the least restrictive outcome available to the Judge.
[50] Because there was no error in the Judge’s analysis it is not necessary for this court to undertake a fresh examination of home detention — a successful appeal requires the identification of error.23
Conclusion
[51]The appeal is dismissed.
Doogue J
Solicitors:
Crown Solicitor, Christchurch CC:
L Drummond, Christchurch
22 Police v Parker, above n 1, at [8].
23 Doolan v R [2011] NZCA 542 at [39]; and Manikpersadh v R, above n 7, at [12].
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