MCGILL v NEW ZEALAND POLICE [2021] NZHC 2020

MCGILL v NEW ZEALAND POLICE [2021] NZHC 2020 [5 August 2021]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2021-409-82[2021] NZHC 2020BETWEEN SLADE GRAEME MCGILLAppellantAND NEW ZEALAND POLICERespondentHearing: 5 August 2021Appearances: M M Cole for the AppellantA M Harvey for the RespondentJudgment: 5 August 2021ORAL JUDGMENT OF OSBORNE JThis judgment was delivered by me on 6 August 2021 at 3.30 pmRegistrar/Deputy RegistrarDate:Introduction[1] The appellant, Slade McGill, was on his guilty plea convicted of driving whiledisqualified (third or subsequent).1 He applied under s 94 Land Transport Act 1998for a community-based sentence in lieu of disqualification. On 15 May 2021, JudgeCouch exercised his discretion to sentence Mr McGill to community detention for fivemonths without a disqualification.2 Mr McGill appeals against that sentence on theground it was manifestly excessive.Leave to appeal[2] Mr McGill filed his notice of appeal some 7 days outside the statutorytimeframe of 20 working days from the date of judgment appealed against.3 The delayin filing is modest and no prejudice arises to the respondent.[3] Leave to appeal will be granted.Sanctions available[4] The offence committed by Mr McGill carries, under s 32(4) Land TransportAct, a maximum penalty of two years' imprisonment or a $6,000 fine, and a minimumof one years' disqualification from driving.[5] The alternative to disqualification (successfully pursued by Mr McGill) is,under s 94 of the Act, a community-based sentence (under Part 2 of the SentencingAct 2002), which may be imposed in addition to a fine.4Background[6] The facts of the offending can be shortly stated. On 10 March 2020, Mr McGillwas disqualified from driving for a period of six months. In breach of that order, on28 April 2020, Mr McGill was stopped by police whilst driving a vehicle. Heexplained he was going to the supermarket.1 Land Transport Act 1998, s 32(4).2 Police v McGill [2021] NZDC 9482.3 Criminal Procedure Act 2011, s 248(2).4 Land Transport Act 1998, s 94(3)(b).District Court decision[7] The District Court Judge considered the gravity of Mr McGill's offending tobe relatively serious. His Honour noted Mr McGill had deliberately offended with fullknowledge that his actions were in breach of a court order. The Judge recounted MrMcGill's "very poor history of driving-related offending" which included 55 trafficinfringements in 11 years, including six infringements for exceeding the speed limit.Mr McGill had two convictions for driving whilst suspended (dated 10 March 2020and 27 April 2008).[8] The Judge considered Mr McGill's failure on two occasions to co-operate withCommunity Probation in the preparation of a pre-sentence report, resulting in delaysin sentencing, to be an aggravating factor.[9] In considering Mr McGill's s 94 application, his Honour did not accept MrMcGill was trapped in a cycle of disqualification. He noted Mr McGill had beendisqualified on five occasions, but only once for driving whilst disqualified. The Judgeaccepted not being able to drive would impact on Mr McGill's ability to progress hispreferred career option of working in the building industry.[10] The Judge was impressed that after more than "10 years of inaction andignoring the law", Mr McGill had accepted responsibility and obtained a full driver'slicence.5 He was prepared to exercise his discretion to commute a period ofdisqualification for a community-based sentence. But his Honour observed this wouldhave to be "quite substantial given that you would otherwise be disqualified for at leasta year".6 The Judge assessed the gravity of the offending as high and considered themost restrictive community-based sentence available was appropriate. Mr McGill wasthen sentenced to community detention for five months.Principles on appeal[11] 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. An5 At [8].6 At [0].appeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.7 As the Court of Appeal mentioned in Tutakangahau v R quoting the lowercourt's decision, a "court will not intervene where the sentence is within the range thatcan properly be justified by accepted sentencing principles".8 It is appropriate for thisCourt to intervene and substitute its own views only if the sentence being appealed is"manifestly excessive" and not justified by the relevant sentencing principles.9SubmissionsAppellant's submissions[12] Ms Cole, representing Mr McGill, makes two preliminary points. First, shesubmits the Judge erred in his assessment of the gravity of the offending as "relativelyserious" and "high". In her submission, the deliberate offending with full knowledgeof it being unlawful and in breach of a court order are features that are common to alldriving while disqualified offences. Ms Cole observes that the offending took placeduring the national lockdown when public transport was unavailable at normal levels.Ms Cole submits Mr McGill's obtaining a full licence and completing a defensivedriving course serve to mitigate the gravity of the offending.[13] Secondly, Ms Cole submits the delay in obtaining a pre-sentence report did notprejudice the position of the police and thus Mr McGill's failure to report to and makecontact with Community Probation should not be counted as an aggravating factor.[14] I will shortly deal with a chronology of the delay in relation to which Ms Coledeveloped in oral submissions; the further explanation of the chain of events asindicating that the period taken to ultimate sentence would have elapsed through theneed for Mr McGill to pursue his defensive driving course and to obtain his licence.[15] Ms Cole submits the end sentence was beyond the available range. In hersubmission, the Judge did not turn his mind to a sentence other than the most restrictive7 Criminal Procedure Act, ss 250(2) and 250(3).8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].9 Ripia v R [2011] NZCA 101 at [15].community-based sentence. She submitted an appropriate sentence would have been150 hours community work. In her oral submissions she put the matter essentially inthe alternative on the basis that an appropriate sentence would have beenapproximately three months which Mr McGill has now served on communitydetention.[16] Ms Cole referred to appeal decisions of this court where periods of communitywork were substituted for disqualification. I will discuss those authorities.Respondent's submissions[17] For the respondent, Mr Harvey submits that the end sentence was within range,the Judge being entitled to treat the delay caused by Mr McGill as an aggravatingfeature. He submits that the appeal should be dismissed. Mr Harvey referred to anumber of relevant authorities which I take into account in the following discussion.AnalysisRelevance of delay[18] Fourteen months elapsed from the date the charges were laid to the date MrMcGill was sentenced. Mr Harvey helpfully provided a chronology of events:(a) On 8 October 2020, Mr McGill pleaded guilty and a pre-sentence reportwas ordered.(b) On 24 November 2020, Mr McGill breached his bail conditions not todrive unless licensed to do so. This breach was certified. Hissentencing date was vacated and a new pre-sentence report wasordered.(c) On 16 February 2021, the Department of Corrections filed amemorandum advising the court that Mr McGill had failed to attend ameeting with probation on 26 November 2020. The Department alsoadvised Mr McGill did not respond to six attempts to contact him.(d) On 23 February 2021, notwithstanding Mr McGill's desire to proceedon his s 94 application, his sentencing was adjourned to enable a pre-sentence report to be prepared and for Police to file a response todefence submissions. It was also anticipated by Judge Crosbie that MrMcGill would thereby have the opportunity to complete his defensivedriving course and obtain a licence, the test then scheduled for April.(e) On 7 May 2021, a pre-sentence report was prepared.[19] Ms Cole notes that in the events around the hearing in February 2021, MrMcGill would have been prepared to have his s 94 application dealt with then but thePolice opposed the granting of the application. There is more detail around this whichMr Harvey provided to me as to the readiness of the matter for hearing in terms of thelate provision of evidence unsworn but the matter on my assessment has to be resolvedin the following way.[20] Section 9(1)(k) Sentencing Act 2002 provides that "any failure by the offenderpersonally to comply with a procedural requirement that, in the court's opinion,has caused a delay in the disposition of the proceeding" may be considered anaggravating factor.[21] Given that the legislature has put the aggravating factor in those terms, it isappropriate that it be respected in what it says. I am not satisfied here that thedisposition of the proceeding has been delayed. The prosecution's preference in thecontext of what was going on in February was to have a later hearing. Up until thatpoint, it is clear that the defensive driving course had started, the driver's licence yetto be obtained with the need for Mr McGill to line up with others for that. It may bethat Mr McGill is fortunate that in the chain of events that occurred, I do not findmyself able to find that his unavailability and failure to respond did not lead to thedelay. I am satisfied that the appropriate way to view this is in the context of the s 94application the delay that ensued was largely if not fully the consequence of the factthat Mr McGill's application could scarcely have succeeded without substantialprogress on the courses and tests he was pursuing.Gravity of offending[22] The Judge elected to assess the gravity of Mr McGill's offending without adistinct separation of matters relating to the offending itself and those relating to theoffender. That is understandable having regard to the nature of the penalty which isunder consideration.[23] In my review of the Judge's sentencing approach, I consider the followingcircumstances — aggravating or mitigating — fell for consideration:(a) Mr McGill's conviction history — an aggravating feature of theoffending was, as noted by Judge Couch, Mr McGill's history ofdriving offences. It is also relevant, although not expressly identifiedby the Judge, that Mr McGill's conviction history includes repeatedinstances of breaching court orders such as in relation to communitywork, intensive supervision and bail conditions, all indicating adisregard if not disdain for court orders. The explanation offered by MrMcGill through Ms Cole that the present offence took place at a timewhen the national lockdown was in place and public transport notavailable to the extent it normally is, is further indication of somemisplaced sense of entitlement given the location of Mr McGill'sresidence at the time (Main North Road) and the location at which hewas stopped driving (Queenspark Drive, Parklands, Christchurch).(b) Mr McGill's achievements — Mr McGill's obtaining of a full licenceand completing a defensive driving course before he was sentencedwere, as recognised in the provision of advice to the Court, both mattersto be appropriately taken into account in mitigation but they also haveto be seen as the basic steps that Mr McGill needed to achieve his wishto have his s 94 application granted and no disqualification imposed.[24] Those, in my assessment, were the identifiable aggravating and mitigatingfeatures. They then needed to be brought into account at the point the Judge wasconsidering the sentence on the driving charge and whether or not to substitute acommunity-based sentence for the minimum one year's disqualification (or longer).Section 94 application[25] The sentencing court is entitled to adopt a stern approach to recidivist drivingoffenders, particularly where their offending involve breaches of court imposedorders.10[26] The sentence reached must meet the purposes and principles of sentencingcontained in ss 7 and 8 Sentencing Act 2002. Relevantly, the sentence must denounceMr McGill's conduct, must deter him and others from committing similar offences,and assist in his rehabilitation.[27] Section 94(1) provides:94 Substitution of community-based sentences(1) This section applies if—(a) the offender has previously been ordered on conviction for anoffence to be disqualified from holding or obtaining a driverlicence; and(b) the court, having regard to—(i) the circumstances of the case and of the offender; and(ii) the effectiveness or otherwise of a previous order ofdisqualification made in respect of the offender; and(iii) the likely effect on the offender of a further order ofdisqualification; and(iv) the interests of the public,—considers that it would be inappropriate to order that theoffender be disqualified from holding or obtaining a driverlicence; and(c) the court considers that it would be appropriate to sentencethe offender to a community-based sentence in accordancewith Part 2 of the Sentencing Act 2002.[28] The section is often referred to as being a mechanism that may assist offendersto avoid the "wheel of offending".11 I agree with the District Court Judge that Mr10 Lord v Police [2015] NZHC 1756 at [11].11 Grimwood v Ministry of Transport HC Christchurch AP184/91, 16 August 1991.McGill does not seem to be trapped in a cycle of being disqualified for driving whilstdisqualified. However, the s 94 application has a wide application and is not limitedto drivers who are in an endless cycle of like offending.12[29] The District Court Judge explained his decision to grant the s 94 application asfollows:[9] I am prepared to apply s 94 in your case but you must realise thisrequires me to impose a more substantial community-based sentence tobalance the fact that you are not being disqualified. That has to be quitesubstantial give that you would otherwise be disqualified for at least a year.[10] Given that the gravity of offending was high, this can only be achievedthrough the most restrictive community-based sentence available. That iscommunity detention. So, you will be sentenced to community detention forfive months. The curfew will start today. The curfew address is 51 KidsonTerrace. The curfew at this stage will be 7.30 in the evening until six in themorning each day.[30] Previous cases may be referred to, as counsel did, to indicate that a range ofcommunity work that is often seen as appropriate on the outcome of a s 94 application.I recognise that that approach may be seen as the generally imposed outcome when acommunity-based sentence is imposed in lieu of disqualification.[31] Limited assistance may be drawn from those previous cases as each turns onthe circumstances of the case and of the offender. However, they do indicate that arange of sentences has been imposed for this offending, including periods ofcommunity work.[32] In Lord v Police the appellant was sentenced to a six months' imprisonment ontwo charges of driving whilst disqualified.13 The first disqualification occurred 11years before the second disqualification. The third and fourth disqualificationsoccurred in quick succession. Mander J noted the most recent charges were to beviewed against the appellant's limited background of recidivism.14 The sentence ofimprisonment was quashed and a sentence of 230 hours' community work imposed.There was no application under s 94 in the case. Mr Harvey submits Lord may be12 Beeston v Police [2012] NZHC 106.13 Lord v Police [2015] NZHC 1756.14 At [24].distinguished as Mr McGill has three recent disqualifications, a significant demeritpoint and licence suspension history and the offending occurred against a backgroundof poor driving and recent breaches.[33] In Maeva v Police Keane J reduced a sentence of 200 hours community workand nine months disqualification to a sentence of 140 hours community work (80 hoursfor the offence itself and, under s 94, 60 hours in place of the order fordisqualification).15 The offence was the appellant's third conviction for driving whilstdisqualified. Keane J noted the appellant's offending was "a simple instance ofdisobedience" without any aggravating features such as being charged with additionaloffences.16[34] Ms Cole refers to Borrell v Police where Moore J considered 150 hourscommunity work was appropriate in the circumstances of that case for a thirdconviction of driving whilst disqualified.17 However, there, no s 94 application wasmade and the disqualification from driving for six months was not disturbed on appeal.[35] In Burgess v Police Dunningham J, on appeal, allowed a s 94 application andimposed 50 hours community work in lieu of disqualification, taking intoconsideration the period of disqualification already served and the fact the appellantwould be completing that work alongside full-time employment.18 There, the Judgeconsidered the appellant was on the "wheel of offending", and the circumstances ofthe case were exactly those that the substitution application was designed for.19The pre-sentence reports[36] After the Court directed the preparation of a pre-sentence report, the Courtreceived two memoranda from the report writer. Both in November 2020 andFebruary 2021 all attempts to have Mr McGill interviewed were unsuccessful.15 Maeva v Police HC Auckland CRI-2010-404-402, 11 March 2011.16 At [36].17 Borell v Police [2014] NZHC 2422 at [47].18 Burgess v Police [2021] NZHC 362.19 At [24].[37] The Department of Corrections was finally able to make a report available inMay 2021 after Mr McGill attended an interview. That report recognised the positivesteps Mr McGill was taking. That said, the report which the District Court Judge hadto take into account, recommended community detention to be served at Mr McGill'saddress with a curfew from 8.00 pm to 6.00 am daily. (If that were not to be imposed,the alternative first recommendation was for 400 hours community work).[38] The recommendation of community detention was explained by reference tothe need to deter Mr McGill from further offending and reservations as to any sentenceof community work given that Mr McGill had reported in the past that he is easilyinfluenced by anti-social peers.[39] In her submissions Ms Cole has interpreted the Judge's reference to the needto deter Mr McGill from further offending to be a reference to further driving whilenot having a licence but I do not interpret the Judge's comments in that way. This is aman who has shown disdain for lawful requirements. The natural reading of theJudge's comments is deterrence from going out and doing what he is not allowed todo.Conclusion[40] The approach to sentencing urged on Mr McGill's behalf comes close tosuggesting that there should be a direct substitution of a community-based sentencefor the disqualification, with little if anything added by way of penalty for the offenceof driving while disqualified (third or subsequent).[41] Here, there is some force in Ms Cole's submission that the Judge's referenceto the offending having been "deliberate in full knowledge of it being unlawful and inbreach of a court order" simply reflects the elements of the offence. But at that pointthe Judge was coming to an overall conclusion in relation to the gravity of theoffending, including by reference to what he described as "Mr McGill's very poordriving history".[42] The Judge's overall assessment of the gravity of Mr McGill's offending, whenall the circumstances I have referred to are taken into account, was fully justified —as his Honour stated, the offending was "relatively serious for this offence".[43] The Judge was also entitled to attach weight (although he did not expressly doso) to the recommendations of the Probation Officer. There was a sound foundationfor those recommendations in that Mr McGill did not present as a reliable candidatefor a lengthy period of community service. All the evidence in his history of disregardof lawful requirements suggests that he would have been doomed to failure by asentence of community work. Mr Harvey has also identified within the judgment therecognition given to the greater flexibility that Mr McGill in fact received throughhaving a sentence of community detention in circumstances where he wasemphasising a wish to get back into the community, obtain work in his chosen area.The Judge left open the door through the way he dealt with the community detentionto Mr McGill coming back and obtaining greater flexibility in relation to his curfewhours in a way that was recognised would not be available if he were in the process ofserving hours of community work. Had a sentence of community work been imposedin this case it would justifiably have been significantly longer than the 150 hoursproposed by Ms Cole, rendering the satisfactory completion of a sentence ofcommunity work even less attainable for Mr McGill.[44] I conclude that the sentence imposed, bearing in mind that it was the sentencefor the offending and it was carrying the weight of the need for a substituted outcomeonce disqualification was removed reflected both the charge of driving whiledisqualified and the substitution of that disqualification.Orders[45] I order:(a) Leave to appeal is granted; and(b) The appeal is dismissed.Osborne JSolicitors:Raymond Donnelly & Co, ChristchurchBarrister:M M Cole Barrister, Christchurch