PARKER v NEW ZEALAND POLICE [2019] NZHC 595

PARKER v NEW ZEALAND POLICE [2019] NZHC 595 [27 March 2019]IN THE HIGH COURT OF NEW ZEALANDNELSON REGISTRYI TE KŌTI MATUA O AOTEAROAWHAKATŪ ROHECRI-2018-442-16[2019] NZHC 595BETWEEN DAVID RICHARD PARKERAppellantAND NEW ZEALAND POLICERespondentHearing (via AVL): 26 March 2019Counsel: Appellant in personA R Goodison for RespondentJudgment: 27 March 2019JUDGMENT OF CHURCHMAN J[1] On 21 May 2018, Mr Parker was sentenced in the District Court at Nelson onsome 11 charges. He had initially been due to have a Judge-alone trial that day on anumber of charges which related to events which had occurred in September andOctober 2017. Further charges had been laid relating to events which had occurred on11 May 2018.[2] Mr Parker obtained a sentence indication in relation to all of the charges andaccepted the sentence indication of community work.[3] The Judge's notes in relation to the sentencing indication confirmed that theJudge ran through each of the 11 charges and made sure that Mr Parker knew exactlywhat it was he was pleading guilty to.[4] On five charges of disorderly behaviour, Mr Parker was convicted anddischarged; on two charges of resisting a constable and one each of disorderlybehaviour likely to cause violence, intentional damage and threatening behaviour, hewas sentenced to 130 hours of community work, and on a charge of escaping custodyhe 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 afterhe had been sentenced and four months out of time. It is therefore necessary for himto make application for leave to appeal. This hearing is about whether or not he shouldbe granted such leave.[6] The original notice of appeal filed by Mr Parker was inadequate in that it didnot set out any grounds why the sentence was manifestly excessive and appeared tobe 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 fileclarification of whether he was appealing conviction or sentence; if he was appealingconviction, the basis upon which he says he should have been allowed to withdraw hisguilty plea, and if sentence, what aspect of the sentence he challenged. He was alsorequired to file a clear explanation of why the appeal notice was only filed five monthsafter sentencing.[8] Although Mr Parker filed a letter dated 24 January 2019, received by the Courton 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 hissubmission that the sentence was manifestly excessive and neither did it specify anygrounds he would wish to advance in support of an application to withdraw his guiltyplea if that is what he wanted to do. There was no proper explanation as to why theappeal notice was filed so far out of time.[9] Mr Parker represented himself in this application. He submitted that he wassuffering from concussion and that he entered a plea of guilty to the charges underduress. He also referred to the fact that when he had initially gone to Court to file theappeal, security staff had confiscated a knife that he then had with him and that hisimmediate focus thereafter was on getting the knife back.[10] Mr Parker said that his health had now improved, and he believed he was in afit state to proceed with the leave application and submitted that it was in the interestsof justice and the public good for the Court to consider his application and to extendtime for the granting of leave to appeal.[11] Section 231 of the Criminal Procedure Act 2011 sets out the procedure forcommencing an appeal against conviction:231 How to commence first appeal(1) A convicted person commences a first appeal under this subpart byfiling 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 courtappealed to is the Supreme Court.(2) A notice of appeal or notice of application for leave to appeal must befiled within 20 working days after the date of sentence for theconviction appealed against.(3) The first appeal court may, at any time, extend the time allowed forfiling a notice of appeal or notice of application for leave to appeal.[12] The criteria to be applied in determining applications to extend time werestated in R v Knight in which the Court of Appeal established that the "touchstone" forgranting an application to extend time is the interests of justice in the particular case.1Assessing the interests of justice will require "balancing the wider interest of societyin the finality of decision against the interest of the individual applicant in having theconviction reviewed".2 Factors relevant to the overall balancing test include:3 the strength of the proposed appeal and the practical utility of the remedysought, the length of delay and the reasons for delay, the extent of the impacton others similarly affected and on the administration of justice, that isfloodgates 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 inrelation to the concussion he said he had suffered, and which he said had contributedto 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 hissentencing notes, said that Mr Parker had "the biggest collection of disorderlybehaviour charges that I think I have seen in my 20 years as a Judge with onedefendant, plus numerous resisting police charges". He is someone well used to Courtproceedings particularly proceedings relating to the same sort of offences that he wascharged with here.Strength of proposed appeal[15] Applying the criteria set out by the Court of Appeal in R v Knight, there is noobvious 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 communitywork and being sentenced to come up for sentence if called upon within the next12 months could be seen as being mercifully lenient.[16] Accordingly, there is no practical utility in granting leave to appeal out of timeas 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 guiltyunder duress. Mr Parker's submissions on this point were difficult to follow. Heseemed to suggest that because his parents had travelled from Auckland to Nelson tosupport 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 Courthad put on him to plead guilty. The September and October 2017 offences had beenscheduled to proceed as a Judge-alone trial on 21 May 2018 and would have done sohad Mr Parker not accepted the sentence indication that was offered to him. I amsatisfied that the Judge carefully read to Mr Parker details of all the charges that thesentencing indication related to.[19] From the submissions that Mr Parker made to me, he was aware that if youpleaded guilty to criminal charges you could obtain a discount (which he put at 20 percent) off a sentence that might otherwise be imposed. He appeared to understand theprocess of obtaining a sentence indication and the consequences of pleading guilty inresponse to such an indication. There is no indication that, at the time he wassentenced, 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 claimedconcussion, the Court is not able to accept that as a reason why he did not know whathe 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 appealbecause he focused on the consequences of security removing a knife from him whenhe 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 theappeal being successful if leave is granted, and there is no credible explanation for thelengthy 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 thewider 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 wouldoutweigh the wider interest of society.[25] In his oral submissions, Mr Parker claimed that he was standing up againstinjustice and not thinking just of himself. It is unfortunate that he did not take onboard the concluding comments of Judge Tuohy in sentencing him. Judge Tuohynoted that Mr Parker had annoyed and upset a number of people in Golden Bay andneeded to stop being so self-absorbed and focused on asserting his own rights and startconsidering other people.Outcome[26] For the above reasons, leave to appeal out of time is declined.Churchman JSolicitors:Crown Solicitor, Nelson for Respondentcc: D R Parker