Parsons v Police
[2014] NZHC 2561
•21 October 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2014-404-000289 [2014] NZHC 2561
BETWEEN AUSTIN PARSONS
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 20 October 2014 Appearances:
R Keam for Appellant
M R Walker for RespondentJudgment:
21 October 2014
JUDGMENT OF GILBERT J
This judgment is delivered by me on 21 October 2014 at 11 am pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
PARSONS v NEW ZEALAND POLICE [2014] NZHC 2561 [21 October 2014]
Introduction
[1] Mr Parsons pleaded guilty to a charge of refusing to supply a blood specimen on 11 April 2014. He was sentenced by Judge A J Fitzgerald in the District Court at Auckland on 30 July 2014 to a term of six months’ imprisonment.1 Mr Parsons appeals against this sentence on the basis that it was manifestly excessive.
Brief facts
[2] At about 2.50am on 11 April 2014, Mr Parsons was stopped at a compulsory check point. A breath screening test produced a positive result. Mr Parsons refused to undergo an evidential breath test and he also refused to allow a blood sample to be taken.
[3] Mr Parsons, now 41 years of age, has five previous convictions for driving with excess breath or blood alcohol or refusing to provide a blood specimen. The previous sentences and the current sentence are set out in the table below, together
with Mr Parsons’ age at the date of each offence.
Offence date
Offence
Sentence
Age
13 May 1988
Excess blood alcohol level - 151 milligrams
Fine $150 / 8 months’
disqualification
15
24 September 1989
Excess breath alcohol level - 381 micrograms
Fine $450 / 8 months’
disqualification
16
9 September 1990
Refused blood specimen
4 months’ periodic detention /
6 months’ disqualification
17
12 February 1993
Excess breath alcohol level – 575 micrograms
4 months’ periodic detention /
12 months disqualification20
11 February 2006
Excess blood alcohol level – 83 milligrams
Fine $1,000 / 12 months’
disqualification33
11 April 2014
Refused blood specimen
6 months’ imprisonment /
15 months’ disqualification
41
[4] Mr Parsons has other relevant convictions. He has two convictions for being an unlicensed driver. These coincided with his first two convictions for driving with excess blood alcohol. He has five convictions for driving while disqualified. These
related to offences committed in January 1990, March 1990, September 1990, May
1 Police v Parsons DC CRI-2014-004-003542 [30 July 2014].
1991 and in March 2007. The September 1990 offending also resulted in a conviction for dangerous driving. In August 1993, Mr Parsons was convicted of careless driving causing death. This was in connection with his fourth offence of driving with excess breath alcohol. Mr Parsons has numerous other convictions for violent offending, although these are not relevant for present purposes.
Sentencing decision
[5] The Judge stated that because Mr Parsons was being sentenced for his sixth conviction for this type of offending, imprisonment was inevitable. He adopted eight months as the appropriate starting point. He then allowed a discount of
25 per cent for the early guilty plea. This produced an end sentence of six months’
imprisonment. The Judge also disqualified Mr Parsons from driving for a period of
15 months. There is no challenge to the period of disqualification imposed.
Appellant’s submissions
[6] Mr Keam accepts that a short period of imprisonment was appropriate in this case. However, he submits that the starting point should have been no more than four months having regard to the factors identified by Wild J in Clotworthy v Police2 and other comparable cases.
[7] Mr Keam submits that the Judge erred by placing excessive weight on the number of previous convictions without having regard to the seriousness of that offending and the fact that a number of the convictions relate to offending committed many years ago. Mr Keam contends that by focusing primarily on the number of previous convictions without having due regard to these factors, the Judge adopted an inappropriately high starting point.
[8] Mr Keam referred to the Court of Appeal’s decision in R v Ward which emphasises that the Court must take care to ensure that a sentence is not increased
merely because of previous convictions.3
2 Clotworthy v Police (2003) 20 CRNZ 439 (HC).
3 R v Ward [1976] 1 NZLR at 588 (CA).
Discussion
[9] Four of Mr Parsons’ five previous convictions for this type of offending were for offences committed when he was aged between 15 and 20. There was then a gap of 13 years until Mr Parsons’ next conviction for this type of offending. This related to an incident in February 2006, when Mr Parsons was found driving with an excess blood alcohol level of 83 milligrams of alcohol per 100 millilitres of blood, just over the legal limit. It appears that the sentencing Judge took into account the historical nature of Mr Parsons’ previous relevant convictions in imposing a fine of $1,000 and ordering 12 months’ disqualification. The current offending occurred eight years after the last relevant offence was committed.
[10] There is no tariff case for this type of offending. However, Wild J’s decision in Clotworthy is frequently referred to for guidance because it contains an extensive review of sentences imposed in both the District Court and the High Court in such cases. Wild J identified a number of relevant factors that should be considered:
(a) The breath or blood alcohol level: The alcohol level was not established in this case because Mr Parsons refused to give a blood sample. This is an aggravating factor.
(b)Length of time since last drink-driving conviction: Mr Parsons’ last relevant conviction related to offending committed eight years earlier. Prior to that, there was a gap of a further 13 years.
(c) Conviction for two or more drink-driving offences in close succession: Mr Parsons has not committed two or more drink driving offences in close succession for 21 years.
(d)Manner of driving: Mr Parsons was stopped at a check point. There was no indication that his driving was erratic.
(e) Whether the offender was a disqualified driver: Mr Parsons had a full drivers licence at the time of the offence.
(f) Early guilty plea: Mr Parsons pleaded guilty at the earliest opportunity and was given a full 25 per cent discount for this.
(g)Previous sentences imposed, including any term of imprisonment: Mr Parsons has not previously been sentenced to a period of imprisonment.
(h)Other convictions: Mr Parsons has other convictions including five for driving while disqualified, one of dangerous driving and one of careless use causing death.
(i) Genuine remorse. Mr Parsons claims that he is genuinely remorseful.
(j)Any mitigating personal family circumstances contributing to the offending. Mr Parsons says that on the evening of the offending he had attended a function for his daughter’s wedding but I do not consider that this can be taken into account as a mitigating factor.
[11] Wild J produced a graph showing the sentences imposed with reference to the number of previous convictions. In cases such as the present, where there were five previous convictions, the end sentences ranged from six months’ imprisonment to
13 months’ imprisonment. The end sentence of six months adopted in this case is at
the bottom end of the indicated range.
[12] I accept that all relevant factors have to be considered in determining the appropriate starting point and that it is not simply a matter of counting the number of previous convictions. This is clear from Clotworthy itself; the graph shows that in cases involving seven previous convictions, the sentencing range was from four to
12 months’ imprisonment whereas the range was from six to 13 months’
imprisonment where there were five previous convictions.
[13] It is clear that the Judge took into account that the previous convictions related to offending that had occurred many years earlier:4
The offending spans the years from 1988 through to 2014 which is one of the issues for concern. Mr Keam has said I should acknowledge the fact that your previous conviction for offending of this type was back in 2006 which I do but the other way of looking at the gaps between the offending is that the total of it spans many years.
[14] The fact that Mr Parsons’ last conviction for this type of offending was eight years earlier does not distinguish his case from a number of others. For example, in Clotworthy the last relevant conviction was seven to eight years earlier. Wild J upheld a sentence of 12 months’ imprisonment for a seventh offence. In Rikiriki v Police,5 Rodney Hansen J imposed a sentence of six months’ imprisonment followed by six months’ supervision for a sixth offence where the last conviction was seven years earlier.
[15] Although the starting point adopted in this case may have been towards the higher end of the acceptable range having regard to all of the circumstances, I am not persuaded that it was manifestly excessive. A starting point of eight months’ imprisonment is not inconsistent with the decisions reviewed in Clotworthy or the
other decisions to which I have been referred.6 I consider that the starting point was
within the available range of the Judge’s sentencing discretion.
[16] Mr Keam sensibly did not pursue the second ground of appeal which was that a sentence of community work should have been imposed in this case. Unfortunately, repeat drink/drive offending remains prevalent. There is a need to protect the public from this type of offending with sentences sufficient to denounce this conduct and deter others from engaging in it. Short terms of imprisonment can be expected by those who have multiple convictions for this type of offending.
[17] For the reasons given, the appeal against sentence must be dismissed.
4 At [6].
5 Rikiriki v Police HC ROT AP28/01, 6 July 2000.
6 Tinei v Police [2012] NZHC 2003; Bidois v Police HC HAM CRI-2006-419-123, 1 November
2006; Matkovich v Police [2013] NZHC 872.
Result
[18] The appeal is dismissed.
M A Gilbert J
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