Parker v Police

[2019] NZHC 595

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CRI-2018-442-16

[2019] NZHC 595

BETWEEN

DAVID RICHARD PARKER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing (via AVL):

26 March 2019

Counsel:

Appellant in person

A R Goodison for Respondent

Judgment:

27 March 2019

JUDGMENT OF CHURCHMAN J

[1]    On 21 May 2018, Mr Parker was sentenced in the District Court at Nelson on some 11 charges. He had initially been due to have a Judge-alone trial that day on a number of charges which related to events which had occurred in September and October 2017. Further charges had been laid relating to events which had occurred on 11 May 2018.

[2]    Mr Parker obtained a sentence indication in relation to all of the charges and accepted the sentence indication of community work.

[3]    The Judge’s notes in relation to the sentencing indication confirmed that the Judge ran through each of the 11 charges and made sure that Mr Parker knew exactly what it was he was pleading guilty to.

[4]    On five charges of disorderly behaviour, Mr Parker was convicted and discharged; on two charges of resisting a constable and one each of disorderly

PARKER v NEW ZEALAND POLICE [2019] NZHC 595 [27 March 2019]

behaviour likely to cause violence, intentional damage and threatening behaviour, he was sentenced to 130 hours of community work, and on a charge of escaping custody he was sentenced to come up for sentence if called upon within 12 months.

[5]    Mr Parker filed a notice of appeal on 18 October 2018, some five months after he had been sentenced and four months out of time. It is therefore necessary for him to make application for leave to appeal. This hearing is about whether or not he should be granted such leave.

[6]    The original notice of appeal filed by Mr Parker was inadequate in that it did not set out any grounds why the sentence was manifestly excessive and appeared to be directed more to whether a guilty plea should have been entered.

[7]    By minute of 19 November 2018, Simon France J directed that Mr Parker file clarification of whether he was appealing conviction or sentence; if he was appealing conviction, the basis upon which he says he should have been allowed to withdraw his guilty plea, and if sentence, what aspect of the sentence he challenged. He was also required to file a clear explanation of why the appeal notice was only filed five months after sentencing.

[8]    Although Mr Parker filed a letter dated 24 January 2019, received by the Court on 30 January 2019, this letter did not clarify matters as Simon France J had directed. It did not specify the grounds that Mr Parker would wish to advance in support of his submission that the sentence was manifestly excessive and neither did it specify any grounds he would wish to advance in support of an application to withdraw his guilty plea if that is what he wanted to do. There was no proper explanation as to why the appeal notice was filed so far out of time.

[9]    Mr Parker represented himself in this application. He submitted that he was suffering from concussion and that he entered a plea of guilty to the charges under duress. He also referred to the fact that when he had initially gone to Court to file the appeal, security staff had confiscated a knife that he then had with him and that his immediate focus thereafter was on getting the knife back.

[10]   Mr Parker said that his health had now improved, and he believed he was in a fit state to proceed with the leave application and submitted that it was in the interests of justice and the public good for the Court to consider his application and to extend time for the granting of leave to appeal.

[11]   Section 231 of the Criminal Procedure Act 2011 sets out the procedure for commencing an appeal against conviction:

231     How to commence first appeal

(1)A convicted person commences a first appeal under this subpart by filing in the first appeal court—

(a)a notice of appeal, if the court appealed to is the District Court,

High Court, or Court of Appeal; or

(b)a notice of application for leave to appeal, if the court appealed to is the Supreme Court.

(2)A notice of appeal or notice of application for leave to appeal must be filed within 20 working days after the date of sentence for the conviction appealed against.

(3)The first appeal court may, at any time, extend the time allowed for filing a notice of appeal or notice of application for leave to appeal.

[12]   The criteria to be applied in determining applications to extend time were stated in R v Knight in which the Court of Appeal established that the “touchstone” for granting an application to extend time is the interests of justice in the particular case.1 Assessing the interests of justice will require “balancing the wider interest of society in the finality of decision against the interest of the individual applicant in having the conviction reviewed”.2 Factors relevant to the overall balancing test include:3

… the strength of the proposed appeal and the practical utility of the remedy sought, the length of delay and the reasons for delay, the extent of the impact on others similarly affected and on the administration of justice, that is floodgates considerations, and the absence of prejudice to the Crown.

1      R v Knight [1998] 1 NZLR 583 (CA) at 587.

2      At 587.

3      At 589.

[13]   Ms Goodison noted that Mr Parker had not provided any information in relation to the concussion he said he had suffered, and which he said had contributed to him not properly understanding what was going on in Court on 21 May 2018.

[14]   Mr Parker has a very lengthy list of prior convictions. Judge Tuohy, in his sentencing notes, said that Mr Parker had “the biggest collection of disorderly behaviour charges that I think I have seen in my 20 years as a Judge with one defendant, plus numerous resisting police charges”. He is someone well used to Court proceedings particularly proceedings relating to the same sort of offences that he was charged with here.

Strength of proposed appeal

[15]   Applying the criteria set out by the Court of Appeal in R v Knight, there is no obvious ground upon which it could be said that the sentence was excessive. Indeed, given Mr Parker’s history and the number of offences involved, 130 hours community work and being sentenced to come up for sentence if called upon within the next    12 months could be seen as being mercifully lenient.

[16]   Accordingly, there is no practical utility in granting leave to appeal out of time as it is inevitable that the appeal would be dismissed.

Duress

[17]   There is no substance to Mr Parker’s claim that he entered the plea of guilty under duress. Mr Parker’s submissions on this point were difficult to follow. He seemed to suggest that because his parents had travelled from Auckland to Nelson to support him in Court, he felt that he was under some obligation to plead guilty.

[18]   Mr Parker was unable to point to any duress that either the police or the Court had put on him to plead guilty. The September and October 2017 offences had been scheduled to proceed as a Judge-alone trial on 21 May 2018 and would have done so had Mr Parker not accepted the sentence indication that was offered to him. I am satisfied that the Judge carefully read to Mr Parker details of all the charges that the sentencing indication related to.

[19]   From the submissions that Mr Parker made to me, he was aware that if you pleaded guilty to criminal charges you could obtain a discount (which he put at 20 per cent) off a sentence that might otherwise be imposed. He appeared to understand the process of obtaining a sentence indication and the consequences of pleading guilty in response to such an indication. There is no indication that, at the time he was sentenced, Mr Parker did not fully understand what was happening.

Reasons for delay

[20]   In the absence of any evidence confirming the effect of Mr Parker’s claimed concussion, the Court is not able to accept that as a reason why he did not know what he was doing at the time of his sentence and immediately following.

[21]   The fact that Mr Parker may have been side-tracked from pursuing an appeal because he focused on the consequences of security removing a knife from him when he entered the court house, does not justify his four-month delay.

Conclusion

[22]   Allowing an appeal in circumstances where there is no real prospect of the appeal being successful if leave is granted, and there is no credible explanation for the lengthy delay in filing an appeal is contrary to the interests of justice.

[23]   I accept that I am required to balance Mr Parker’s interests against those of the wider society and that society has an interest in the finality of the decision challenged.

[24]   Mr Parker has not been able to point to any individual interest of his that would outweigh the wider interest of society.

[25]   In his oral submissions, Mr Parker claimed that he was standing up against injustice and not thinking just of himself. It is unfortunate that he did not take on board the concluding comments of Judge Tuohy in sentencing him. Judge Tuohy noted that Mr Parker had annoyed and upset a number of people in Golden Bay and needed to stop being so self-absorbed and focused on asserting his own rights and start considering other people.

Outcome

[26]For the above reasons, leave to appeal out of time is declined.

Churchman J

Solicitors:

Crown Solicitor, Nelson for Respondent cc:     D R Parker