PARKER v NEW ZEALAND POLICE [2022] NZHC 1981

PARKER v NEW ZEALAND POLICE [2022] NZHC 1981 [11 August 2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2022-409-000110[2022] NZHC 1981BETWEEN WAYNE PARKERAppellantAND NEW ZEALAND POLICERespondentHearing: 11 August 2022Appearances: L Drummond for AppellantL Fiennes for RespondentJudgment: 11 August 2022JUDGMENT OF DOOGUE JThis judgment was delivered by me on 11 August 2022 at 1.30 pmRegistrar/Deputy RegistrarDate:Introduction[1] The appellant, Mr Parker, was sentenced in the District Court to one year andfour months' imprisonment on one charge each of dangerous driving and driving withexcess blood alcohol.1[2] Mr Parker appeals that decision and says the Judge:(a) made an important factual error as to his blood alcohol level;(b) adopted an excessive starting point; and(c) should have commuted his sentence to one of home detention.Facts[3] On 13 March 2022, Mr Parker entered the Christchurch Northern Motorwayheading north in the south-bound lane using an off-ramp. Whilst driving on the wrongside of the road he drove directly at another vehicle coming in the opposite direction.He swerved at the last moment to avoid a collision.[4] Mr Parker continued north and, as he approached an overbridge, drove straightat a milk tanker, causing it to swerve to avoid collision.[5] He continued driving on the wrong side of the motorway for approximately2 kilometres.[6] A witness travelling in the same direction in the north-bound lane was able topull in front of Mr Parker to bring his vehicle to a stop.[7] Police located Mr Parker stumbling through a field. He was incapable ofcompleting a roadside breath screening. After accompanying police to the station, hewas required to undergo an evidential breath test but was incapable of breathing intothe device after four attempts.1 Police v Parker [2022] NZDC 11563.[8] Mr Parker provided a sample of blood for analysis which returned a result of240 milligrams of alcohol per 100 millilitres of blood.[9] Mr Parker has seven previous convictions for driving with excess alcohol withthe most recent offending occurring in 2017.District Court decision[10] The Judge referred to Mr Parker returning a result of 253 milligrams of alcoholper 100 millilitres of blood.[11] The Judge determined the offending was "near the most serious possibleoffending for an offence of this nature". He considered it was aggravated by the natureof Mr Parker's driving, involving sustained and repeated serious danger to him andother road users. The Judge adopted a starting point of 20 months for both charges.In setting the starting point he took into account that this was Mr Parker's eighthconviction for alcohol related driving offences.[12] The Judge uplifted the sentence by five per cent for Mr Parker's driving history,excluding the alcohol-related driving offences.[13] Credit of 25 per cent was given for his early guilty pleas, leading to an endsentence of 16 months' imprisonment.[14] The Judge then considered counsel's submissions and the recommendation ofthe presentence report writer that a sentence of home detention was appropriate. It isworth setting out the relevant section of the Judge's decision that dealt with this issue:2[8] am very conscious that, in terms of the principles set out in theSentencing Act, imprisonment should be a last resort but, in your case, I amnot willing to accept the recommendation in the pre sentence report. In myview, your offending was so egregious that no sentence short of imprisonmentwould achieve the level of denunciation and deterrence required to achievethe purposes of the Sentencing Act. When speaking of these factors, I am notjust considering deterrence of you but of the public generally. It needs to beput out there in the community that behaviour such as this is so totallyunacceptable that it will and must result in imprisonment.2 Police v Parker, above n 1.[9] I note also in your case that you were sentenced to home detention onthe last three convictions for alcohol driving offences. You were clearly notpersonally deterred by that from further and much worse offending.Principles on appeal[15] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011 and must be determined in accordance with s 250 of that Act. Anappeal against sentence may be allowed by this Court only if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.3 It is only appropriate for this Court to intervene and substitute its ownviews if the sentence being appealed is "manifestly excessive" and not justified by therelevant sentencing principles.4[16] Home detention is an alternative to a short-term sentence of imprisonment.5The Court must be satisfied that the purposes for which the sentence is being imposedcannot be achieved by any less restrictive sentence.6 An appeal court must focus onthe identification of error, having regard to the discretionary nature of the decision.7SubmissionsAppellant's submissions[17] Ms Drummond, for Mr Parker, submitted:(a) the Judge erred as to the result of the blood test;(b) the starting point adopted by the Judge was too high; and(c) he erred in declining to commute the sentence of imprisonment to oneof home detention.3 Criminal Procedure Act 2011, ss 250(2) and 250(3).4 Ripia v R [2011] NZCA 101 at [15].5 Sentencing Act 2002, s 15A(1)(b).6 Section 15A(1)(a).7 Doolan v R [2011] NZCA 542 at [39]; and Manikpersadh v R [2011] NZCA 452 at [12].[18] Analysing the offending under Clotworthy v Police,8 Ms Drummond submittedMr Parker's mitigating factors were insufficiently taken into account and as a resultthe starting point adopted by the Judge was excessive.[19] Ms Drummond submitted, in declining to sentence Mr Parker to homedetention, the Judge only reflected on principles of deterrence and denunciationwithout reference to other relevant purposes and principles of the Sentencing Act2002.[20] She submitted it is an error of law for a Judge to give complete priority to thepurpose of deterrence without regard to any countervailing purposes.9[21] She also submitted the Judge failed to:(a) take into account Mr Parker's personal circumstances;(b) give sufficient weight to the positive presentence report; and(c) take into account the fact that Mr Parker's employer was in a positionto support him.Respondent's submissions[22] The respondent submitted that no material error of substance occurred becausethe Judge referred to an incorrect blood alcohol level.[23] The respondent submitted, first, that the offending sits within band (c) of thebroad starting points endorsed by Whata J in Samson v Police, namely multipleoffences with seriously aggravating factors (18 – 20 months).10 Mr Parker's bloodalcohol level was extremely high (over three times the legal limit) and the manner ofdriving was also some of the most egregious of its type.8 Clotworthy v Police (2003) 20 CRNZ 439.9 Sands v Police [2018] NZHC 3048 at [24].10 Samson v Police [2015] NZHC 748 at [15].[24] Second, the respondent submitted that while Mr Parker's most recent previousconviction for excess blood alcohol was five years before this offending, he hasoffended consistently from 1999, with this being his eighth alcohol driving relatedconviction. (On average there are three years between each offence.)[25] Third, the respondent submitted Mr Parker had previously served sentences offines, periodic detention, supervision and, for his two most recent sentences for drivingwith excess blood alcohol, home detention and yet has continued to offend, albeit withvarying frequency.[26] Fourth, the respondent referred to Himiona v Police.11 In that case a startingpoint of 20 months' imprisonment was upheld on appeal for driving with excess breathalcohol. Mr Himiona was almost four times the legal limit and had six previousalcohol impaired driving convictions at high levels (between 1993 and 2008). He wasalso driving while disqualified. A separate 12-month cumulative sentence wasimposed for the driving while disqualified offending. Whata J, in Samson, noted thiswas "at the top end" of the available range.12 The offending by Mr Parker is moreserious than in Himiona.[27] Fifth, in Police v Gustell a starting point of 20 months' imprisonment wasadopted for charges of driving with excess breath alcohol, dangerous driving, refusingto accompany an enforcement officer and resisting a constable acting in the executionof their duty.13 The Judge noted the aggravating factors included the danger posed toother road users, the level of intoxication (being almost three times the limit) and his10 previous convictions for driving with excess blood alcohol. A separate uplift wasimposed for driving while disqualified.[28] The respondent submitted Mr Parker's offending is similar. Although notcharged with additional offences, Mr Parker attempted to evade police by decampingfrom his car and running across paddocks. His driving posed a significant threat to11 Himiona v Police [2012] NZHC 1756.12 Samson v Police, above n 10, at [26].13 Police v Gustell DC Invercargill CRI-2009-025-000378, 1 May 2009.other road users, he was over three times the legal limit and had a significant historyof previous offending.[29] The respondent submitted that, taking all of this into account, a global startingpoint of 20 months' imprisonment was not manifestly excessive.[30] On the issue of home detention, the respondent submitted first that the Judgeclearly articulated why a sentence of home detention would not meet the purposes ofthe Sentencing Act 2002.14 He did not give complete priority to the purposes ofdeterrence without regard to any countervailing purposes as the Judge clearlyconsidered the factors raised in the presentence report. He referred to other sentencingprinciples, including the need to impose the least restrictive sentence possible and thata sentence of imprisonment should be the last resort. This shows his focus was notsolely on denunciation and deterrence.[31] Second, the respondent submitted that it was open to the Judge to conclude thatthose principles were important in this case where driving with excess blood alcoholposes such a danger to others in the community. Notwithstanding Mr Parker's abilityto comply with community-based sentences, the help he could provide his wife or hisoffer of employment, it was open to the Judge to place importance on the need toprotect the community. This was especially so given no previous sentence, includingtwo sentences of home detention, had deterred Mr Parker from reoffending. Thisoffending marked Mr Parker's eighth conviction for driving with excess blood alcohol.The respondent submitted that, given the risks posed by this offending, the Judge didnot err in concluding a sentence of imprisonment was required in all the circumstances.AnalysisAggravating and mitigating features of the offending[32] It is vital to recognise, as the Court did in Samson, that sentencing for this typeof offending is not amenable to "tariff-like categorisation".15 Given the wide varietyof circumstances possible for such offending and the requirement that sentencing be14 Police v Parker, above n 1, at [8].15 Samson v Police, above n 10, at [15].an individual exercise, there will be a range of appropriate starting points and endsentences in any given case.[33] Mr Parker's was very serious driving with excess blood alcohol offending onany analysis. It was aggravated by Mr Parker's:(a) very high blood alcohol level of almost five times the legal limit (itfollows that I do not consider, in the context of the circumstances ofthis case, that the difference between 240 and 253 milligrams of alcoholper 100 millilitres of blood is material);(b) seven previous convictions for such offending;16 and(c) very dangerous manner of driving.[34] A very high level of intoxication was identified as a serious aggravating factorin Samson. Dangerous driving, the threshold for which Mr Parker well exceeded, wasregarded as a very serious aggravating factor. The combination of those aggravatingfactors justifies the Judge's finding that this was offending in the category of"offending of the worst kind" justifying a starting point of 20 – 24 months'imprisonment.17[35] I acknowledge a mitigating factor of the offending was the gap between thesecharges and Mr Parker's last offending, and that Mr Parker had less previousconvictions for driving with excess alcohol than other offenders in this category.Nevertheless, it is evident that Mr Parker has a persistent history of putting others inthe community at risk.[36] In my view, the nature of Mr Parker's driving involving, as the Judge found,"sustained and repeated serious danger" to other road users, justified a stern starting16 Previous convictions for prior alcohol offending are routinely considered when assessing a startingpoint for this type of offending.17 Samson v Police, above n 10, at [15].point of 20 months' imprisonment.18 This aggravating factor was not present in thecases referred to by Ms Drummond in support of a lower starting point.19Adjustments to the starting point[37] No issue was taken with the Judge's five per cent uplift for the balance ofMr Parker's criminal history including numerous significant driving offences, manyof which will have involved risks to the safety of other road users.[38] Ms Drummond submitted the following mitigating factors were relevant:(a) the five-year gap since Mr Parker's last excess alcohol offending;(b) his early guilty pleas;(c) his acknowledgment of his problem use of alcohol and the fact hewelcomed rehabilitation;(d) his supportive employer; and(e) the positive presentence report, including comments that his wife relieson him around the home.[39] Of these mitigating factors identified by Ms Drummond, only one was amitigating factor of the offending itself — the gap of five years between this offendingand Mr Parker's last excess alcohol conviction. The other asserted factors could onlybe relevant as mitigating factors personal to Mr Parker.[40] His early guilty pleas were appropriately recognised by the Judge with25 per cent credit.[41] The other factors referred to did not warrant additional credit in relation to thelength of the sentence, although they were relevant to the appropriate type of sentence.18 Police v Parker, above n 1, at [4].19 R v Stoves CA264/06, 7 November 2006; and R v McQuillan CA129/04, 12 August 2004.While Mr Parker should be commended for his acknowledgment of his alcohol issuesand his preparedness to engage in rehabilitation, these come after numerous previousconvictions for similar offending and very serious index offending. In my view, it wasopen to the Judge not to extend credit for those factors in the circumstances of thiscase.[42] It follows that I do not consider the Judge erred in his assessment of thenotional sentence of imprisonment.Home Detention[43] I turn to whether home detention was appropriate.[44] The Judge took deterrence and denunciation as the dominant sentencingprinciples. That was appropriate given the nature of Mr Parker's offending.[45] It can be inferred from his previous sentences of home detention, includingsuch a sentence for his most recent driving with excess alcohol offending, thatMr Parker has previously had the benefit of more rehabilitative approaches tosentencing.[46] I acknowledge home detention is also a deterrent sentence and, in some cases,will be sufficient to satisfy purposes of deterrence and denunciation.20 However, it isapparent Mr Parker has not been deterred by his previous sentences. In my view theJudge was conscious of the need to consider whether home detention was the leastrestrictive outcome capable of fulfilling these purposes.[47] I do acknowledge Ms Drummond's submission that the Judge did not expresslystate he had considered all of Mr Parker's mitigating factors nor expressly refer toother relevant sentencing principles. In certain circumstances this can be an error oflaw.21 However, I do not accept the Judge only reflected on principles of deterrenceand denunciation because he noted "[t]he pre-sentence report makes out a case forhome detention and recommends this. [Mr Parker's counsel] has urged me on the20 Fairbrother v R [2013] NZCA 340.21 Fairbrother v R, above n 20, at [29]-[30].same end point.".22 In stating this the Judge was referring to the circumstances andarguments that could be made in favour of home detention. That indicates heconsidered them.[48] It might have been desirable for the Judge to elaborate further on thesearguments, but this court should acknowledge Judges in the District Court mustsentence in a very different context to Judges in the High Court and often have toexpress themselves with considerable brevity in that environment.[49] I consider in all of the particular circumstances of this case that imprisonmentwas the least restrictive outcome available to the Judge.[50] Because there was no error in the Judge's analysis it is not necessary for thiscourt to undertake a fresh examination of home detention — a successful appealrequires the identification of error.23Conclusion[51] The appeal is dismissed.Doogue JSolicitors:Crown Solicitor, ChristchurchCC:L Drummond, Christchurch22 Police v Parker, above n 1, at [8].23 Doolan v R [2011] NZCA 542 at [39]; and Manikpersadh v R, above n 7, at [12].