Parsons v Police - [2014] NZHC 2561

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 Respondent

Judgment:

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 disqualification

20

11 February 2006

Excess     blood    alcohol level – 83 milligrams

Fine $1,000 / 12 months’
disqualification

33

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…

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: [2014] NZHC 2561
Decision Date: 21 October 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Austin Parsons, the appellant, appealed against the sentence imposed by Judge Fitzgerald in the District Court. Parsons pleaded guilty to a charge of refusing to supply a blood specimen and was sentenced to six months' imprisonment. Parsons argued that the sentence was manifestly excessive, particularly considering his previous convictions and the time elapsed since his last conviction.

The court considered the appellant's extensive history of drink-driving offences, which included five prior convictions for similar offences. The previous sentences ranged from fines to periods of disqualification and imprisonment. The current offence, Parsons' sixth for this type of conduct, led to a sentence of six months' imprisonment and a 15-month driving disqualification. Parsons' counsel argued that the starting point for the sentence should have been no more than four months, citing the case of Clotworthy v Police and other comparable cases. Counsel contended that the Judge erred by focusing on the number of previous convictions without adequately considering their seriousness and the time elapsed since the last conviction.

The court reviewed Parsons' previous convictions, noting that four of the five occurred when he was between 15 and 20 years old, with a 13-year gap before the next offence. The last relevant conviction was eight years prior to the current offence. The court acknowledged that while the number of previous convictions was significant, it was not the sole factor in determining the sentence. The court also considered other relevant factors such as the lack of a breath or blood alcohol level due to Parsons' refusal to provide a sample, the length of time since the last conviction, and Parsons' early guilty plea. The court found that the starting point of eight months' imprisonment was within the range of acceptable sentences for such offences, even though it may have been towards the higher end of that range.

Ultimately, the court dismissed the appeal, concluding that the sentence was not manifestly excessive and that the starting point adopted by the District Court Judge was within the available range of sentencing discretion. The court emphasised the need to protect the public from repeat drink-driving offences by imposing sentences that effectively denounce and deter such conduct.

Orders