MCGEOGH v NEW ZEALAND POLICE [2023] NZHC 178

MCGEOGH v NEW ZEALAND POLICE [2023] NZHC 178 [13 February 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2022-409-189[2023] NZHC 178BETWEEN TURLOUGH MCGEOGHAppellantAND NEW ZEALAND POLICERespondentHearing: 8 February 2023Appearances: A J McKenzie for AppellantP J Brand for RespondentJudgment: 13 February 2023JUDGMENT OF MANDER JThis judgment was delivered by me on 13 February 2023 at 3 pmpursuant to Rule 11.5 of the High Court Rules 2016Registrar/Deputy RegistrarDate: .[1] The appellant, Turlough McGeogh, was sentenced in the District Court atChristchurch to 28 months' imprisonment on three charges of assault,1 a charge ofassault on police,2 one of unlawfully taking a motor vehicle,3 a charge of recklessdriving,4 possession of cannabis,5 driving with excess breath alcohol (third orsubsequent),6 resisting police,7 and failing to provide identifying particulars.8 Heappeals that sentence on the basis the starting point for the imposition of the sentencewas excessive, and a disproportionate uplift was imposed for personal aggravatingfactors.Factual background[2] The charges arise out of two separate incidents.The June 2022 offending[3] Mr McGeogh had spent the night of 4 June 2022 drinking. He later told policehe had consumed some eight jugs of beer over the course of the evening. Shortly aftermidnight, he was picked up by a taxi in Riccarton. During the course of being drivenhome, he began exhibiting signs he was going to be sick. Mr McGeogh stuck his headout the vehicle's window, causing the driver to pull over. Both men exited the vehicle.Vomit was observed on the rear door, and the driver advised Mr McGeogh he wouldbe charged a cleaning fee.[4] This appears to have been the catalyst for an argument, during whichMr McGeogh threatened the driver before punching him in the face. The driver1 Crimes Act 1961, s 196 — maximum penalty 1 year imprisonment.2 Summary Offences Act 1981, s 10 — maximum penalty 6 months' imprisonment or a fine notexceeding $4,000.3 Crimes Act, s 226(1) — maximum penalty 7 years' imprisonment.4 Land Transport Act 1998, s 35(1)(a) — maximum penalty 3 months' imprisonment or a fine notexceeding $4,500. The Court must also order the person to be disqualified from holding orobtaining a driver licence for 6 months or more.5 Misuse of Drugs Act 1975, s 7(1)(a) and (2)(b) — maximum penalty 3 months' imprisonmentand/or a $500 fine.6 Land Transport Act, s 56(1) and (4) — maximum penalty 2 years' imprisonment or a fine notexceeding $6,000. The Court must also order the person be disqualified from holding or obtaininga driver licence for 6 months or more.7 Summary Offences Act, s 23 — maximum penalty 3 months' imprisonment or a fine not exceeding$2,000.8 Policing Act 2008, s 32(4) — maximum penalty 6 months' imprisonment and/or a fine notexceeding $5,000.retreated with his hands raised to placate Mr McGeogh, who aggressively swore at hisvictim and reiterated he was going to beat him up and would take his car. Despite thedriver's pleas he would still take him home, Mr McGeogh got into the taxi and spedaway.[5] Mr McGeogh drove the vehicle at speeds approximated at as much as 185 kpharound city streets. He was observed to weave amongst traffic, nearly colliding withoncoming vehicles. He finally crashed the taxi outside a bar in Victoria Street and wasrestrained by members of the public when he attempted to flee. After police arrivedthey found a very small amount of cannabis on Mr McGeogh's person. A subsequentbreath alcohol test revealed a level of 879 micrograms.[6] The taxi driver suffered minor swelling to his upper lip and damage to anAirPod that was in his ear at the time. The taxi's roof light had been lost during thecourse of Mr McGeogh's reckless driving. In explanation for his actions,Mr McGeogh simply offered that he had lost control. He was initially charged withrobbery, but this was later substituted with a charge of unlawfully taking a motorvehicle. He also faced charges of assault, reckless driving, excess breath alcohol, andpossessing cannabis. Mr McGeogh was remanded on bail with conditions that heobserve a curfew and not consume alcohol.The August 2022 offending[7] Some two months later, on 6 August, Mr McGeogh found himself intoxicatedin the central city on Oxford Terrace. He attempted to enter a bar but was refused bydoor staff due to his intoxicated and aggressive state. Mr McGeogh took exceptionand became angry. He punched a doorman in the jaw and grabbed and squeezed asecond doorman's face, scratching him.[8] Other security staff restrained Mr McGeogh until police arrived. However, hecontinued with his aggressive behaviour. Mr McGeogh refused to place his handsbehind his back as directed by police and resisted arrest. He spat at the officers,punched one of them in the leg, and twice kicked another, also in the leg. He continuedto wrestle police while being forced into a patrol car. At the police station,Mr McGeogh refused to allow police to take his fingerprints or be photographed.Approach to appeal[9] The focus of an appeal against sentence is not on the process by which it wasreached but the correctness of the end result.9 An appellate court may only allow anappeal if it is satisfied there has been an error in the imposition of the sentence andthat a different sentence should be imposed.10 It will not intervene where the sentenceis within the range that can properly be justified when applying accepted sentencingprinciples. Only if the sentence is "manifestly excessive" will it be appropriate forthis Court to intervene and substitute its own views.11District Court decision[10] In approaching the sentencing exercise for the June offending, Judge Hixtreated the unlawful taking offence as the lead charge. The maximum sentence ofseven years' imprisonment was correctly identified, although the Judge commentedthat Mr McGeogh had originally been charged with robbery. Reference was made toan example provided in the guideline judgment for robbery, R v Mako,12 which wasconsidered comparable to the present offending, where a starting point of between fourand five years' imprisonment had been taken. Having made that observation, theJudge also noted the limited applicability of that decision given the charge with whichMr McGeogh was for sentence carried a lower maximum sentence.[11] Key factors taken into account by the sentencing Judge included the associatedassault on the taxi driver, the subsequent reckless driving and Mr McGeogh's highlevel of intoxication. Taking all these matters together, the Judge adopted a startingpoint of 27 month's imprisonment for the June offending. In relation to the Augustoffending, the Judge applied a two-month uplift. No adjustment for totality wasconsidered necessary.[12] That total starting point was then uplifted by seven months to reflect thatMr McGeogh was already subject to a sentence at the time of this offending; the factthe second incident occurred while he was subject to bail on charges arising out of the9 Ripia v R [2011] NZCA 101 at [15].10 Criminal Procedure Act 2011, ss 250(2) and 250(3).11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33]; and Ripia v R, above n 9.12 R v Mako [2000] 2 NZLR 170 (CA).first episode of offending; and to recognise Mr McGeogh's recent previousconvictions.[13] A discount of eight months (22 per cent) was applied in recognition ofMr McGeogh's guilty pleas and to give limited recognition to personal factors. Theguilty plea was entered shortly after the original robbery charge had been amendedbut, in light of the strong prosecution case, the Judge did not consider a full discountwas warranted.The appeal[14] On behalf of Mr McGeogh, Mr McKenzie submitted the starting point for theJune offending was excessive. He was critical of the Judge making comparisons withsentencing levels for robbery, and argued that Mr McGeogh should have beensentenced as an opportunistic car thief who became violent, instead of his actionsbeing compared with robbery precedents. Mr McKenzie submitted a starting point ofno more than 24 months should have been adopted. He made no complaint about theuplift for the August offending.[15] In relation to the uplift of 25 per cent for what was described by the sentencingJudge as the "three personal aggravating factors", Mr McKenzie argued there was noreal nexus between Mr McGeogh being subject to release conditions and the leadoffence of unlawfully taking the taxi, because Mr McGeogh had no history for thattype of offending. In relation to the aggravating feature of offending whilst on bail,Mr McKenzie noted that factor only applied to the latter August offending which onlyattracted an uplift of two months' imprisonment. He argued the Judge's approach hada disproportionate effect because, he claimed, the Judge had applied it to the globalstarting point for all the offending. As regards to Mr McGeogh's previous convictions,it was acknowledged the present offending had some "resonance" with what wasdescribed as Mr McGeogh history of lower-level violence and driving offending, butagain argued that past history did not have any connection with the lead charge ofunlawful taking. It was submitted that an uplift of no more than three months shouldhave been applied.[16] Applying a 25 per cent discount for the guilty pleas, which Mr McKenzieargued Mr McGeogh was entitled to, he submitted an end sentence of between 20 and24 months would have been appropriate. He further noted that possible discountscould also have possibly been applied to recognise some months spent on bail whilebeing subject to a curfew and Mr McGeogh's willingness to attend restorative justice.The respondent's position[17] Mr Brand, on behalf of the Crown, argued the Judge was legitimately entitledto draw on guidance from R v Mako, as the present offending contained many of theelements of robbery, and the Judge had been cognisant of the lesser maximum sentencethat applies to a charge of unlawful taking. Mr Brand referred to a sentencing decisionof this Court, Curle v Police, in which Wylie J reviewed a number of sentencingdecisions concerning the unlawful taking of a motor vehicle. It was suggested in thatcase that for a single conversion of a motor vehicle, a starting point of between 12 and18 months would generally be appropriate.13 Having regard to the level of violenceused in the present case, it was argued a starting point at the upper end of that rangewas justified before taking into account the reckless driving by Mr McGeogh, his stateof severe intoxication and the significant risk to the public.[18] While perhaps stern, it was submitted the 27-month starting point for the Juneoffending was not outside the range available to the sentencing Judge and that theuplift of only two months for the August offending, which involved Mr McGeoghacting in a persistently violent manner, was generous. The overall 29-month startingpoint, it was submitted, accurately reflected the totality of the two separate episodesof offending.[19] In relation to the uplift for other aggravating factors, Mr Brand emphasised thenature of Mr McGeogh's previous convictions, for which he had only relativelyrecently been released from prison, and the direct link between the circumstances ofthe August offending and the breach of the conditions of bail which required him notto consume alcohol and not to be out at night in a public place. In relation to credit13 Curle v Police [2017] NZHC 1194 at [27], citing Muir v Police [2015] NZHC 1425; Affleck v R[2015] NZHC 1741; Duxfield v R [2015] NZHC 3018; Gideon v Police [2014] NZHC 1065;Kushell v Police [2012] NZHC 2380; and Riini v Police [2016] NZHC 2218.for the guilty plea, Mr Brand referred to the observations of the Supreme Court inHessel v R relating to the entry of guilty pleas where charges have been amended, andthe recognition that such discounts may need to be adjusted to avoid providing adouble benefit.14AnalysisStarting point[20] No issue was taken with the unlawful taking charge being adopted as the leadoffence, nor with the way Judge Hix structured his sentencing decision. I do note theadditional aggravating factors tended to merge features relating to the offending(whilst on bail and subject to a sentence) with personal aggravating factors (previousconvictions) and the sentencing may not have strictly followed the two-step approachoutlined by the Court of Appeal in Moses v R that modified the calculation of creditfor a guilty plea.15 However, in the circumstances of this case, that is not particularlymaterial. If anything, Mr McGeogh would have benefitted from the calculation of thepercentage discount for his guilty pleas after the uplift for aggravating factors hadalready been added.[21] This Court in Wood v Police held that, "a single unlawful taking charge cangive rise to a starting point of at least 18 months' imprisonment, if the offence has asignificant aggravating feature or features".16 The present offending included anumber of significant aggravating features. The primary feature of the unlawful takingis that it was inextricably linked to the violence and threats inflicted on the taxi driver.The subsequent driving was highly dangerous and endangered the public. It was onlya matter of good fortune that Mr McGeogh's driving came to an end when it did, aftercrashing into a planter box outside a bar in the central city, without anyone being killedor seriously injured.14 Hessel v R [2010] NZSC 135, [2011] 1 NZLR 607.15 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.16 Wood v Police [2018] NZHC 1629 at [24].[22] Inevitably, the factual circumstances of different cases will vary and care isrequired when making comparisons, but the following two cases suggest the startingpoint of 27 months was within range:(a) In O'Sullivan v Police,17 the appellant pleaded guilty to six charges:unlawfully taking a car, driving while disqualified, failing to stop,driving with excess breath alcohol, resisting arrest, and possession ofcannabis. Police observed the defendant driving the car on a statehighway. He did not stop and was pursued for 17 kilometres. Duringthat time, he reached speeds of up to 150 kph and drove through roadspikes without stopping. He eventually was brought to a halt butdecamped and resisted arrest. He was intoxicated. A global startingpoint of 20 months' imprisonment was adopted.(b) In Geros v Police,18 Mr Geros approached the vehicle of the victim,who was sleeping in it at the time after having been drinking. Heopened the door, threatened the victim with a knife, punched him in theface once, and continued to threaten the victim in order to get him outof the car. The appellant then took the vehicle. A starting point of 30months' imprisonment was not disturbed on appeal. Notably, this Courttook no issue with the sentencing Judge referring to R v Mako becauseof the similarities the appellant's taking of the vehicle had with robbery.[23] The presence of the knife in Geros tends to make the offending in the presentcase less serious, but regard must be had to the way the public was imperilled by theway Mr McGeogh drove the vehicle in a built-up urban area, which was comparableto the driving in O'Sullivan, although that occurred in a rural area. When assessedagainst these cases, I consider Mr McGeogh's offending falls towards the serious endof this spectrum.[24] On balance, I consider Mr Brand's description of the 27-month starting pointas being stern but within range is accurate. Mr McKenzie is probably correct that a17 O'Sullivan v Police [2015] NZHC 2032.18 Geros v Police [2017] NZHC 1544.lesser starting point, perhaps two or three months less, for the June offending wouldhave been more appropriate. However, any concerns regarding the 27-month startingpoint for that offending rapidly dissipate when regard is had to what must beconsidered a generous minimal uplift of only two months for the August offending,despite Mr McGeogh's high level of aggressive behaviour, which involved a numberof persons, including police officers, being assaulted and ongoing violence whileintoxicated in a public place. I therefore do not consider the total 29-month startingpoint as being outside the range available to the sentencing Judge.Uplift for aggravating factors[25] Mr McGeogh had previously been sentenced in October 2021 for offendingthat occurred in May and June of that year which, at least on its face, has strongparallels with his current offending. He was sentenced to an overall sentence of15 months' imprisonment on charges of assault with intent to injure, aggravatedassault, resisting police, and three charges each of threatening and disorderlybehaviour. It was the post-release conditions from this sentence that he was subject toat the time of both incidents giving rise to the present charges.[26] There is a clear nexus between this past offending and the charges for whichMr McGeogh was for sentence. It is also to be noted that Mr McGeogh has twoprevious convictions for breath alcohol driving offences. Within a short period oftime, and while Mr McGeogh remained subject to the previous sentence, the presentoffending was committed. It is notable that offending appears to represent acontinuation of Mr McGeogh's previous criminal conduct, marked as it is by the useof violence and abuse of alcohol.[27] This previous offending needed to be recognised by an uplift that demonstratedthe need for personal deterrence and the protection of the community, and whichappropriately recognised the frequency and seriousness of those convictions, as wellas their linkage with the current charges. Mr McGeogh's criminal record is relativelyshort, relating as it does primarily to a two-month period in 2021, but the number andnature of that prior offending was clearly relevant to the sentencing exercise beforethe District Court and required a significant uplift.[28] Similarly, the repetition of offending whilst on bail for the June offending wasa relevant aggravating feature in relation to the subsequent August offending,particularly when regard is had to the nature of the conditions that were breached as aresult, namely a prohibition on the consumption of alcohol and an overnight curfew.The breach of these conditions, which were designed to prevent or, at least, mitigatethe risk of a repetition of the earlier June offending, demonstrated a complete disregardfor the Court's orders. The non-compliance could not have been more flagrant.[29] I accept there is to some degree an overlap between Mr McGeogh's criminalrecord and the fact he was subject to a sentence at the time of his offending, althoughthat feature only tends to highlight how quickly Mr McGeogh has reoffended afterbeing released from prison and, at least at this stage, his apparent limited rehabilitativeprospects until he addresses his obvious issues with alcohol. I accept Mr McKenzie'ssubmission that the relevance of the aggravating feature of Mr McGeogh being on bailis limited to the August offending and that this factor could have had a disproportionateeffect if it is applied broadly to the offending.[30] What is required, however, is an overall assessment of whether the total upliftof seven months to reflect these aggravating features has resulted in a manifestlydisproportionate final sentence. For myself, I doubt whether an uplift of more thansix months was legitimately available to the Judge in the exercise of his sentencingdiscretion, but any adjustment of that degree would simply amount to tinkering.Discount for guilty plea[31] I do not consider the 22 per cent discount for Mr McGeogh's guilty plea isrealistically open to challenge. As noted by the Crown, the sentencing Court is entitledto take into account the circumstances in which the guilty plea was entered, includinga situation where charges may have been amended in favour of a defendant. However,leaving that consideration to one side, it is well-established that a judge may haveregard to the strength of the prosecution case in setting the appropriate discount forthis factor, as the Judge did here.19 I do not consider the Judge erred in the approachhe took to this part of the exercise. Nor do I consider Mr McGeogh was entitled to19 Mathias v New Zealand Police [2018] NZHC 1910; and R v Tamatea [2012] NZCA 443.any credit for being subject to a curfew while being on bail for the earlier offending,given he obviously breached that condition.Conclusion[32] The ultimate effective sentence imposed of 28 months' imprisonment was atthe upper end of the sentencing range available to the sentencing Court in the exerciseof its discretion. However, while perhaps stern, given the features of the offending, Iconsider the Judge was entitled to take such an approach and that the ultimate sentenceimposed was not manifestly excessive.Result[33] The appeal is dismissed.Solicitors:Crown Solicitor, Christchurch