MCCOY v NEW ZEALAND POLICE [2022] NZHC 252

MCCOY v NEW ZEALAND POLICE [2022] NZHC 252 [23 February 2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2021-409-161[2022] NZHC 252BETWEEN JAKE ELIJAH MCCOYAppellantAND NEW ZEALAND POLICERespondentHearing: 17 February 2022Appearances: A J Bailey for AppellantJ E Lancaster for RespondentJudgment: 23 February 2022JUDGMENT OF OSBORNE JThis judgment was delivered by me on 23 February 2022at 9.30 amRegistrar/Deputy RegistrarDate:Introduction[1] Mr McCoy was convicted and sentenced for dangerous driving,1 commonassault,2 speaking threateningly,3 resisting arrest4 and wilful trespass (x2).5[2] He pleaded guilty to all charges other than the dangerous driving charge, whichhe was found guilty of following a judge-alone trial in the District Court.6[3] Mr McCoy was sentenced on 26 November 2021.7[4] He now appeals against his conviction in relation to the dangerous drivingcharge and the sentence imposed by the District Court.Background[5] On 4 September 2020 Mr McCoy drove into a car park and stopped next to aparked taxi driver. He told the taxi driver that he had to move his taxi, or it would betowed away. Mr McCoy moved his vehicle behind the taxi and attempted to attach atow rope to it. When the victim attempted to move, Mr McCoy approached hiswindow and grabbed his phone from above the steering wheel. The victim exited hisvehicle and confronted Mr McCoy. Mr McCoy punched the victim in the face with aclosed fist, causing the victim's glasses to break. The victim suffered swelling underhis left eye and bruising to such an extent that he took one week off work. Thisincident gave rise to the common assault charge, to which Mr McCoy pleaded guilty.[6] On 10 October 2020 Mr McCoy verbally abused a man as he drove past him.He then did a U-turn and drove back towards the victim. Mr McCoy reversed hisvehicle towards the victim's car, stopping when the victim stepped between the twovehicles.1 Land Transport Act 1998, s 35(1)(b): maximum penalty three months' imprisonment.2 Summary Offences Act 1981, s 9: maximum penalty six months' imprisonment.3 Section 21(1)(a): maximum penalty three months' imprisonment.4 Section 23(a): maximum penalty three months' imprisonment.5 Trespass Act 1980, ss 4(4) and 11(2)(a): maximum penalty three months' imprisonment.6 Police v McCoy [2021] NZDC 15034 [Conviction Judgment].7 Police v McCoy [2021] NZDC 23487 [Sentencing Judgment].[7] The following day, police went to Mr McCoy's house to arrest him. Mr McCoytried to close the door on police and pulled away from them, refusing to put his handsbehind his back.[8] These incidents resulted in the charges of speaking threateningly, resistingarrest and dangerous driving. Mr McCoy pleaded guilty to the former charges andwas found guilty of dangerous driving following a judge-alone trial.[9] Lastly, Mr McCoy committed two acts of wilful trespass at a Pak'nSave on 29August 2021 and 24 September 2021.Principles on appeal[10] Section 232 Criminal Procedure Act 2011 provides that the High Court mustallow an appeal if satisfied that the trial judge "erred in his or her assessment of theevidence to such an extent that a miscarriage of justice has occurred", or that "amiscarriage of justice has occurred for any reason." Miscarriage of justice is definedin s 232(4) as follows:(4) In subsection (2), miscarriage of justice means any error, irregularity,or occurrence in or in relation to or affecting the trial that—(a) has created a real risk that the outcome of the trial wasaffected; or(b) has resulted in an unfair trial or a trial that was a nullity.[11] Appeals against sentence are allowed as of right by s 244 Criminal ProcedureAct and must be determined in accordance with s 250 of that Act. An appeal againstsentence may only be allowed by this Court if it is satisfied that there has been an errorin the imposition of the sentence and that a different sentence should be imposed.88 Criminal Procedure Act 2011, ss 250(2) and 250(3).District Court decisionConviction[12] Judge Brandts-Giesen, in the District Court, first set out the timeline of theproceeding and facts of the case.[13] The Judge then highlighted that Mr McCoy was aggressive towards the victimand verbally abused him, which included the use of racial slurs. He described howMr McCoy hurled abuse at the complainant and then turned at a roundabout to driveback towards him. Having parked or stopped in the middle of the road, Mr McCoythen manoeuvred to the wrong side of the road and accelerated or backed towards MrMcCoy's vehicle after threatening to damage it. The Judge explained that Mr McCoystopped reversing after the victim got between his vehicle and Mr McCoy's vehicle.The reverse, according to a neighbour who saw it, was not fast nor slow. The Judgeconcluded it would be hard to estimate the speed because of the short distance covered.[14] After traversing these facts, the Judge concluded as to whether there had beendangerous driving. He held that:[8] I find that the defendant may well have stopped short of hitting thecomplainant and when he started the backing movement the complainant wasnot immediately behind the vehicle. Nevertheless, the aggression that he hadshown before, during, and after this incident were such that in my view he wasdriving in a manner which could have been dangerous or might have beendangerous to the complainant and the two onlookers who were close by on thefootpath.[9] When a person acts in such a dangerous manner, anything can happen.The fact that the complainant got in between the two vehicles was, I suggest,possibly unwise and it could be said that he thereby created the danger,however, the danger that existed in my view is in a wider context of how thedefendant was driving and how he was behaving. While he may have saidthat he was going to damage the complainant's vehicle, his general demeanourwas such that anything could have happened, and this man was dangerous inmy view at the wheel of that vehicle at that time in the manner in which hewas driving it. Accordingly, I find the charge to be proved beyond reasonabledoubt.Sentence[15] After referring to the facts of Mr McCoy's offending, the Judge noted MrMcCoy's previous convictions, most of which are violence related. He thenacknowledged the victim impact statements.[16] The Judge noted the sentencing was adjourned because Mr McCoy did notco-operate with the pre-sentence report when it was ordered. In the pre-sentencereport Mr McCoy was described as a medium risk of reoffending and his conduct wasdescribed as compulsive and sometimes violent. The Judge recognised that MrMcCoy realised he had to work towards managing his anger and he expressed someregret and remorse. The Judge acknowledged that Mr McCoy's childhood was full ofviolence. The pre-sentence report recommended intensive supervision, counsellingand community detention.[17] As to Mr McCoy's age, the Judge noted Mr McCoy was 22 years of age butsuggested he was "hardly an innocent young man because [he has] managed to rackup almost four pages of previous convictions".9[18] The Judge recognised the need to help Mr McCoy rehabilitate. He recordedthat credit was given for Mr McCoy's remorse and his guilty plea on most of thecharges.[19] The Judge imposed 15 months' intensive supervision, six months' communitydetention (with a curfew of 10 hours per day), 120 hours' community work, reparationof $380 to one victim, and two emotional harm payments of $300 and $200. He alsodisqualified Mr McCoy from driving for six months (but deferred the operation of theperiod of disqualification until the outcome of this appeal is known).9 Sentencing judgment, above n 7, at [15].SubmissionsAppellant's submissionsConviction[20] Mr Bailey, for Mr McCoy, submitted the District Court Judge erred in hisfinding that the driving was dangerous on the basis that he did not consider the mannerof the actual driving, but instead focussed on Mr McCoy's internal aggression and hisbehaviour. Mr Bailey provided instances in which, according to his submission, theJudge had become "side-tracked" from this focus.[21] He summarised the Judge's findings in relation to Mr McCoy's driving as beingthat Mr McCoy started reversing his vehicle towards the victim's vehicle while therewas no-one standing in front of this vehicle, the victim then moved between the twovehicles, and Mr McCoy stopped reversing after the victim did this.[22] Mr Bailey referred to Bowman v Police to support his submissions.10 InBowman the offender had a dispute with a neighbour of the property she was visiting.When the victim went out to the roadside to call police, the offender got into hervehicle, which was parked on the opposite side of the road, revved the engine and thenaccelerated towards the victim at speed before coming to an abrupt stop, no more thanone metre from where the victim was standing. This Court upheld the conviction fordangerous driving on the basis the offender had driven the vehicle directly towards thevictim and had stopped only one metre from them. In making this determination, theHigh Court followed Greenwood v Police, a case in which the offender was convictedof dangerous driving after he drove between 25 to 30 km/h and swerved his cardeliberately at the victim, who was on the footpath.11 The car came within a metre orso of the victim.[23] Justice Dunningham, in Bowman, considered the manner of driving had similaraspects to Greenwood, in the sense that the "the smallest misjudgement could easilyhave had more serious consequences, and so made the driving dangerous".10 Bowman v Police [2016] NZHC 1300.11 Greenwood v Police HC Hamilton M250-84, 2 October 1984.[24] Mr Bailey distinguished these authorities from the present case on the basisthat Mr McCoy did not intentionally drive his vehicle towards the complainant, he wasreversing at a low speed and he stopped reversing when the complainant placedhimself between the two vehicles. He submitted that, viewed objectively, moving orparking vehicles in close proximity to other vehicles or people is an everydayoccurrence. He submitted Mr McCoy's threats or intentions had little relevance to thecharge of dangerous driving. In Bowman and Greenwood, Mr Bailey submitted thedriving would have still been dangerous even if the victim did not feel threatenedbecause the vehicle was still travelling at a relatively quick speed and braking at the"last second" is inherently dangerous, irrespective of a drivers' intention.Sentence[25] As to the appeal against sentence, Mr Bailey noted that many different startingpoints have been adopted for the charge of common assault, which he identified as themost serious of the charges.[26] Mr Bailey then submitted that Mr McCoy's youth had not been accordedadequate weight by the Judge as a mitigating factor and had instead been conflatedwith the notion of "innocence". Authorities discussing the discounts available foryouth and the reasoning behind this were provided.12[27] In addition, Mr Bailey submitted the Judge did not adequately take into accountMr McCoy's difficult upbringing. He submitted that factors of whānau dysfunction,youth justice issues, and alcohol and drugs were identified in the pre-sentence report.Mr Bailey said these factors have a clear nexus to the offending, as most of MrMcCoy's offending seems to occur as a result of an inability to control his emotions,which in turn was the consequence of Mr McCoy's difficult upbringing and lack ofmeaningful parental support.[28] Mr Bailey provided the following authorities to support his submission that agreater discount for Mr McCoy's background factors was available:12 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77]; Millar v R [2019] NZCA 570;and Waikato-Tuhega v R [2021] NZCA 503 at [64].(a) In Waikato-Tuhega v R the Court of Appeal held that the assessment ofwhether there is a nexus between the offender's background and theoffending does not need to be a mechanical exercise based on extensiveevidence, but rather an overall assessment assisted by the evidenceavailable and how personal circumstances might have contributed toculpability or offending.13 The Court noted whānau dysfunction, careand protection and youth justice issues, and alcohol and drugs asbackground factors. It was held that a discount of 15 per cent wasappropriate.(b) In R v Kuru a discount of 20 per cent was imposed on the basis therewas a clear link between the social and cultural deprivation suffered bythe offender and the offences they committed.14(c) In Solicitor-General v Heta, Whata J upheld a discount of 40 per centfor personal mitigating factors, noting that the presence of systemicMāori deprivation in the offender's life could be reasonably inferred.15[29] Mr Bailey cited the case of Skerten v Police by way of analogy, in which theappellant had pleaded guilty to charges of driving with excess breath alcohol, assaulton a person in a family relationship and intimidation.16 In the District Court he wassentenced to two months' community detention, 16 months' intensive supervision, 80hours' community work and seven months' disqualification from driving. On appeal,this Court quashed the sentence of community work.[30] An appropriate sentence for Mr McCoy was suggested to be one of intensivesupervision and community detention, along with payments of emotional harm andreparations. Mr Bailey submitted the period of community detention should bereduced to a term of one and a half months and the sentence of community work shouldbe quashed.13 Waikato-Tuhega v R, above n 12, at [51].14 R v Kuru [2021] NZHC 1932 at [33].15 Solicitor-General v Heta [2018] NZHC 2435, [2019] NZLR 241.16 Skerten v Police [2021] NZHC 3425.Respondent's submissionsConviction[31] Ms Lancaster, for the respondent, first submitted the District Court Judge'sconclusion that Mr McCoy's driving "might have been dangerous" was appropriategiven the wording of s 7 Land Transport Act 1998 (LTA) stipulates a person may notdrive a motor vehicle in a manner that "is or might be dangerous". Ms Lancastersubmitted that for the threshold to be met, there does not need to be proof of actualdanger to any person. Ms Lancaster submitted the test encompasses situations wherethe driving might be dangerous to a hypothetical person coming into the area ofdriving.17 There must be a reasonable likelihood of danger to persons who mightreasonably be expected to be on the road.18[32] Ms Lancaster submitted the District Court Judge was correct to find MrMcCoy's driving might have been dangerous to the victim or the onlookers. Thevictim gave evidence that he had been standing "very close" to Mr McCoy's car andthat he had to stand in front of his own car to stop Mr McCoy backing into it. MsLancaster observed that, given the acceptance of the Judge that Mr McCoy beganbacking three or four meters from the victim's vehicle, the victim must have been veryclose to both vehicles to get between them in time. She also highlighted evidencefrom multiple witnesses that when Mr McCoy stopped reversing, his vehicle was closeenough to the victim that the victim could touch it.[33] Ms Lancaster noted that, in terms of s 7 LTA, the Judge was entitled to takeinto account the surrounding circumstances in determining whether the manner ofdriving was or might have been dangerous. Those included Mr McCoy's verballyabusing the victim, stopping his vehicle near the victim and the victim's vehicle, andthreatening to damage the victim's vehicle. These circumstances are submitted to beimportant as they differentiate this case from the appellant's analogy of an everydayoccurrence of moving or parking a vehicle near other vehicles or people, such as in a17 Citing Ebert v Transport Department [1967] NZLR 459 (CA).18 Citing Transport Department v Giles [1965] NZLR 726 (SC).parking lot. From the circumstances, Mr McCoy was clearly not attempting to parkor otherwise manoeuvre his vehicle as part of his every day activities.[34] It was noted the victim was standing close by, and although Mr McCoy maynot have been driving fast enough to accidentally hit a person remaining on thefootpath, it was reasonable to anticipate the victim may have moved given theimpending threat of damage to his vehicle. The proximity between Mr McCoy andthe victim at the point the car stopped reversing shows there was a real risk of dangerto the victim's person.Sentence[35] Ms Lancaster agreed the most serious charge was that of common assault underthe Summary Offences Act 1981. After referring to the facts, she submitted theaggravating features present in this case were the attack to the head and the level ofpremeditation given the fact that Mr McCoy intentionally aggravated the victim byattempting to tow the vehicle and taking his phone.[36] Ms Lancaster also noted Mr McCoy was also sentenced on charges ofdangerous driving, speaking threateningly, resisting police and two charges of wilfultrespass. She submitted that given this, along with Mr McCoy's considerable criminalhistory at the age of 22, the sentencing purposes of denunciation, deterrence andaccountability were significant.[37] On Mr McCoy's age, Ms Lancaster submitted the courts have made it clearthat previous convictions are a relevant factor in determining the extent to which adefendant's youth may justify leniency in sentencing.19 An approach often taken is toview these factors as cancelling one another out. Ms Lancaster submitted both theseconsiderations had been appropriately taken into account by the District Court Judge,particularly in the decision to impose a community based sentence.19 Citing R v Putt [2009] NZCA 38; Cropp v R [2015] NZHC 2077; and Wiringi v Police [2017]NZHC 1734.[38] Ms Lancaster observed that youth and rehabilitation were the primary factorsconsidered by the Judge when imposing sentence.20 The sentence of intensivesupervision was imposed precisely so Mr McCoy could receive appropriateinterventions, while the sentence of community detention was to ensure Mr McCoywould be home to support his pregnant partner and to prevent further potentialoffending.[39] Insofar as a sentence of community work was also imposed, Ms Lancastersubmitted it represented a punitive aspect of the overall sentence.AnalysisConviction[40] Dangerous driving is governed by ss 7 and 35 LTA. Section 35 provides:35 Contravention of section 7, or section 22 where no injury or deathinvolved(1) A person commits an offence if the person—(a) operates a motor vehicle recklessly on a road; or(b) drives or causes a motor vehicle to be driven on a roadat a speed or in a manner which, having regard to all thecircumstances, is or might be dangerous to the public orto a person; or(c) without reasonable excuse, contravenes section 22 by failingto stop and ascertain whether any person has been injured,after an accident where no other person has been injured orkilled.(2) If a person is convicted of an offence against subsection (1),—(a) the maximum penalty is imprisonment for a term notexceeding 3 months or a fine not exceeding $4,500; and(b) the court must order the person to be disqualified fromholding or obtaining a driver licence for 6 months or more.(emphasis added)20 Citing Sentencing Judgment, above n 7, at [16]–[17].[41] Whether driving is dangerous is to be judged objectively and does not dependon the defendant's state of mind.21 It must be shown that the situation viewedobjectively was or might have been dangerous and that the driver failed to meet thestandard of care expected of a competent and experienced driver.22[42] The District Court Judge's conclusion that Mr McCoy's driving "could havebeen dangerous or might have been dangerous", clearly adopted the appropriatestatutory test. Both ss 7 and 32 LTA provide that dangerous driving is driving that "isor might be dangerous". As Ms Lancaster submitted, this wording contemplatesdanger at varying levels of imminence. The phrase covers situations in which thedriving may be dangerous to a hypothetical member of the public in the area of thedriving, as long as there is a reasonable likelihood of danger to persons who mightreasonably be expected to be in the area.23 The case of Whiteman v Ministry ofTransport discussed the difference between actual and potential danger.24 Here theJudge may clearly have had in mind the likelihood of a dangerous situation.[43] The issue is thus whether the Judge erred in finding the speed and manner inwhich Mr McCoy drove, having regard to all the circumstances, was or might havebeen dangerous to the public or to a person.[44] I accept Mr Bailey's submission that this case differs from Bowman andGreenwood, insofar as the speeds involved in those cases were significantly greater,with greater room for error or adverse outcome.25[45] Although I accept the Judge may have focussed unnecessarily on Mr McCoy'saggressive feelings, it was open to the Judge to have a general regard to the broadercircumstances. The Judge did not conclude the driving was dangerous simply becauseof Mr McCoy's aggression. Rather, he found that "the danger that existed in [his]view is in a wider context of how the defendant was driving and how he wasbehaving".2621 Ebert v Transport Department, above n 17.22 R v Gosney [1971] 2 QB 674 at 680.23 Ebert v Transport Dept [1967] NZLR 459 (CA); and Wagg v Shaw [1962] NZLR 498.24 Whiteman v Ministry of Transport [1980] 2 NZLR 507 (CA).25 Bowman, above n 12; and Greenwood, above n 11.26 Conviction Judgment, above n 6, at [9].[46] That saw the Judge conclude Mr McCoy's driving was dangerous in the widercontext of how he was driving. The Judge had earlier noted that "[Mr McCoy] stoppedin the middle of the road and then proceeded and stopped the vehicle on the wrongside of the road but just past the complainant's vehicle."27 This occurred before MrMcCoy reversed towards the complainant's vehicle, with pedestrians nearby.[47] The conviction has not been shown to be unsound — Mr McCoy's use of hisvehicle justified the Judge's finding that it was dangerous.Sentence[48] The Judge imposed a combination of sentences pursuant to s 20 SentencingAct 2002. Under this section, a court may impose a particular combination ofsentences only if satisfied that imposing one of the sentences alone or any lessrestrictive sentence combination would not accord with the purposes for which thesentence is imposed or the s 8 principles as applied to the case.[49] Mr Bailey submitted that an available overall sentencing would have involvedno more than two months' community detention and no community work at all.[50] As both counsel identified, the most serious charge was that of commonassault. There is no tariff case for common assault under the Summary Offences Act1981. Reference to previous authorities is of limited assistance due to the variation ofcircumstances and context involved with each assault.28 Care must be taken todistinguish between charges of assault under the Summary Offences Act and chargesunder the Crimes Act 1961, which carry differing maximum penalties.29[51] This Court has affirmed that a starting point of a community-based sentence isavailable for one conviction of common assault.30 However, starting points ofimprisonment have also been considered appropriate.3127 Conviction Judgment, above n 5, At [2].28 Swinton v Police [2014] NZHC 298 at [22].29 Summary Offences Act, s 9: maximum penalty six months' imprisonment; and Crimes Act 1961,s 196: maximum penalty of one years' imprisonment.30 Mareraki v Police [2015] NZHC 161.31 Kataina-Marii v Police [2012] NZHC 3497.[52] Cases with some similarity to the present include:(a) Gorman v Police where the appellant verbally harassed a taxi driverwhilst being driven by them.32 The taxi driver asked him to leave. Asthe appellant left, he punched the driver once to the side of the head.The appellant was sentenced to 28 days' imprisonment.(b) Skerten v Police, relied on by Mr Bailey, where the appellant hadpleaded guilty to charges of driving with excess breath alcohol, assaulton a person in a family relationship and intimidation.33 The charge ofassault on a person in a family relationship has a maximum penalty oftwo years' imprisonment.34 In the District Court they were sentencedto two months' community detention, 16 months' intensive supervision,80 hours' community work and seven months' disqualification fromdriving. On appeal, this Court quashed the sentence of communitywork.[53] Much of Mr Bailey's submissions on sentence focussed on the personalmitigating factors of Mr McCoy's youth and his personal background.[54] Mr McCoy's pre-sentence report found Mr McCoy to be a young man whogave voice to his anger but was also accepting of the charges before the Court. It wasnoted that Mr McCoy was willing to work upon himself to ensure he does not repeatsimilar "mistakes" in the future, recognising that he sometimes gets angry and saysthings he later regrets. The report writer assessed Mr McCoy as having a mediumlikelihood of reoffending, noting his criminal history is littered with impulsive andsometimes violent outbursts.[55] In terms of compliance with community-based sentences, the report-writerreported that Mr McCoy has engaged with probation and support agencies. His lastprobation officer for his intensive supervision sentence in 2019 noted Mr McCoy'sefforts to make a change and learn from mentors. The report-writer considered that32 Gorman v Police HC Christchurch AP128-00, 11 August 2000.33 Skerten v Police, above n 16.34 Crimes Act, s 194A.Mr McCoy would do well upon another sentence of intensive supervision and couldbe assessed for a department programme or individual counselling so that he couldrevisit coping strategies for his anger management.[56] The report also set out Mr McCoy's background, which involved a disruptedchildhood in which both his parents had substance abuse issues and were in and out ofprison. Mr McCoy experienced little consistency in caregivers until the age of 15,when he was fostered by his foster father. Mr McCoy still lives with his foster father.Mr McCoy is in a relationship, with his partner expecting their first child in April 2022.[57] I consider that, as submitted by Ms Lancaster, the Judge was mindful of thesecircumstances when imposing sentence. Although "youth" and "innocence" may wellhave been conflated in the sentencing exercise, the balancing of youth with previousconvictions was an approach open to a court.35[58] The Judge directly linked the sentence of intensive supervision to Mr McCoy'srehabilitative needs and the fact he was a young man looking to make positive change.In this respect, I consider he appropriately took into account Mr McCoy's needs as ayouth.[59] Although the Judge did not explicitly afford Mr McCoy a discount for hisbackground factors, he did recognise that Mr McCoy's background had "a lot ofviolence in it". Further explanation as to how this affected the sentence would havebeen preferable, but it is clear the Judge was alive to these factors when determiningthe sentence.[60] The circumstances of this case do not justify a view that six months as part ofthe overall sentence was excessive.[61] In relation to the sentence of community work, the sentencing notes do notexplain the basis on which that was imposed. Ms Lancaster may be correct — it mayhave been intended to address the need for punishment as contrasted with the focus onrehabilitation in the community detention sentence. As it is, the justification is not35 R v Putt, above n 19; Cropp v R, above n 19; and Wiringi v Police, above n 19.clear. As the overall sentence, without community work, adequately addressedsentencing principles, I am satisfied the additional sentence of community workrendered the overall sentence manifestly excessive. The sentence of community workwill be quashed.Orders[62] I order:(a) the appeal against conviction is dismissed; and(b) the appeal against sentence is allowed to the extent that the sentenceof community work is quashed.Osborne JSolicitors:A J Bailey, Barrister, Christchurch for AppellantCrown Solicitor, Christchurch for Respondent