Parkinson v Police - [2015] NZHC 3272

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-351 [2015] NZHC 3272

KIRI PARKINSON

v

NEW ZEALAND POLICE

Hearing: 14 December 2015

Appearances:

M Ryan for the Appellant
R Thompson for the Respondent

Judgment:

17 December 2015

JUDGMENT OF THOMAS J

This judgment was delivered by me on 17 December 2015 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:

Meredith Connell, Auckland

PARKINSON v NEW ZEALAND POLICE [2015] NZHC 3272 [17 December 2015]

Background

[1] This is an appeal by the appellant, Kiri Parkinson, against the refusal to discharge her without conviction.

[2] The appellant was required, subject to a Family Court order, to give the complainant contact with their son. The appellant breached that Court order by not allowing contact to take place over the Christmas period of 2013/2014.

[3] On 31 August 2015, the appellant was convicted after a Judge-alone trial of one charge of breaching a parenting order without reasonable excuse.

[4] The Judge was satisfied that the appellant had understood the terms and conditions of the parenting order and had no intention of complying with the order. The Judge subsequently declined to discharge the appellant without conviction.

District Court decision

[5] The appellant has work experience in the hospitality industry and the childcare industry, and it was her evidence that the conviction would mean that she would not be able to get work in either of these industries or other industries since she is not trained in any other sort of work. In the Judge’s assessment, that was a general consequence of a conviction. The Judge noted the appellant already has a conviction for driving with excess breath alcohol from 2012 and rejected the submission on her behalf that traffic offences are distinct, holding that “[i]t is a
criminal conviction for all intents and purposes.”1

[6] The Judge was not convinced on the evidence before her that the current conviction would necessarily pose a barrier to the appellant in obtaining employment in the hospitality industry although she accepted that there was a question mark over
the childcare industry, noting that she had only worked very briefly in that industry.

1 Police v Parkinson [2015] NZDC 22191 at [19].

[7] Overall, the Judge did not consider the consequences of conviction were out of all proportion to the gravity of the offending. The Judge said this was a case where, as per her finding at the defended hearing, there was a direct and deliberate breach of a court order; the matter having been referred to the criminal prosecutor because of the direction of the Family Court Judge on what seemed to be a history or pattern of breaches of Family Court orders and directions.

Submissions

[8] Mr Ryan, for the appellant, submits the Judge was wrong in failing to exercise her discretion to grant the appellant a discharge without conviction. In Mr Ryan’s submission, the Judge placed too much weight on the fact that the offending resulted from a…

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: [2015] NZHC 3272
Decision Date: 17 December 2015

CaseChat Overview and Summary

The appeal in Parkinson v Police concerns the refusal to discharge Kiri Parkinson without conviction for breaching a parenting order. The High Court of New Zealand reviewed the decision of the District Court, which had declined to discharge Parkinson without conviction after finding her guilty of breaching a parenting order without reasonable excuse. The primary legal issue before the court was whether the consequences of a conviction for Parkinson would be out of all proportion to the gravity of her offending, thereby justifying a discharge without conviction under section 106 of the Sentencing Act 2002. The court considered the nature of the offending, the direct and indirect consequences of conviction, and whether these consequences would be out of proportion to the seriousness of the breach.

The High Court found that the gravity of the offending was low, despite acknowledging the seriousness of breaching a Family Court order. The court highlighted that Parkinson's actions were deliberate and occurred during a significant family period. However, the court also noted that the appellant did not have an opportunity to challenge the material that led to the prosecution, which should have reduced the weight given to this factor. The court then examined the direct and indirect consequences of conviction, accepting that a conviction would likely hinder Parkinson's employment prospects in the hospitality and childcare industries. However, the court determined that speculative consequences, such as difficulties in travelling overseas, did not sufficiently justify a discharge. Ultimately, the court concluded that the consequences of conviction, while not ideal, were not out of all proportion to the gravity of the offending.

In light of its findings, the court decided to exercise its residual discretion by ordering Parkinson to undertake 40 hours of voluntary community work. If she completes this requirement and provides evidence, she will be discharged without conviction. The appeal was allowed, and the matter was remitted to the District Court with directions for the appellant to complete the community work.

Orders