Parker v The Queen

[2004] NZCA 294

IN THE COURT OF APPEAL OF NEW ZEALAND

CA260/04

THE QUEEN

v

PAUL DAVID PARKER

Hearing:6 December 2004

Court:Hammond, Wild and Doogue JJ

Counsel:Applicant in Person

B J Horsley for Crown

Judgment:6 December 2004 

JUDGMENT OF THE COURT

The application for special leave to appeal is declined.

REASONS

(Given by Wild J)

INTRODUCTION

[1]        This is an application pursuant to s 144(3) of the Summary Proceedings Act 1957 for special leave to appeal to this Court from a judgment of Miller J given in the High Court at Wellington on 4 May this year.  In that judgment Miller J dismissed an appeal against the sentence imposed by Judge Lovegrove in the District Court at Porirua on 30 January this year. 

[2]       Second appeals in summary proceedings are permitted if and only if there is a question of law which by reason of its general and public importance or for any other reason warrants consideration by the Court of Appeal. 

[3]       The question proposed for consideration of this Court on this appeal is, "The sentence involved and the amount of community work, 200 hours; the back dating of the disqualification imposed on 30 January 2004 to 30 November 2003”.  These points require some explanatory background. 

[4]       Between August 1975 and July 1987 the applicant was convicted nine times for drink driving, including on two of those occasions for refusing to supply a sample of blood.  The sentences imposed were in every case sentences other than imprisonment.  Although on his first conviction the applicant was sent to borstal, but on charges for which convictions were entered at the same time.  There was then a gap of some 17 years until he was convicted on 30 January this year for driving on 26 July last year with a level of 599 micrograms of alcohol per litre of breath.  That is against the legal limit of 400. 

[5]       After an initial denial based, as we understand it, on a belief that the reading was in fact 598, the applicant pleaded guilty on 13 November last year.  The pre-sentence report recommended community work because of the applicant's positive attitude to not offending in this way, and the 17 year - the Judge put it at 14 years - time gap since the applicant's last offence. 

[6]       Judge Lovegrove considered a mid-range sentence of community work was appropriate and sentenced the applicant to 200 hours' community work.  He imposed the mandatory disqualification of 12 months. 

[7]       In dismissing an application for leave to appeal, Miller J outlined the circumstances of the offence.  He noted a concession on the part of the applicant's counsel that there were no grounds for contending that there were any special reasons relating to the offence for imposing a disqualification less than the 12-month statutory minimum.  The appeal focussed on the 200 hours’ community work.  The argument on that score was based on the applicant's argument that he had intended to stay at a tangi but felt threatened by some of those present and so drove home. 

[8]       Justice Miller referred to the judgment of the High Court in Clotworthy v Police (2003) 20 CRNZ 439.  There the Court surveyed sentences for recidivist drink driving.  That survey indicates that the normal range for a tenth drink driving conviction is 12 to 15 months' imprisonment.  This Court commented in R v McQuillan (12 August 2004 CA129/04) that Clotworthy indicated that imprisonment is clearly now the usual, if not necessarily the inevitable, consequence of such recidivist offending.  So, the sentencing regime for recidivist drink driving is now well established. 

[9]       The sentence here, whilst lenient, was appropriate because it reflected the 17-year gap since the last offence and the applicant's generally - apart from this one lapse - positive attitude to not drinking and driving.  But this case raises no question of law of any general importance justifying consideration by this Court. 

[10]     Special leave is accordingly declined.

Solicitors:
Crown Law Office, Wellington