Boagey v The Queen

[2013] NZCA 30

IN THE COURT OF APPEAL OF NEW ZEALAND

CA202/2012
[2013] NZCA 30

BETWEEN  GRACE RIANA BOAGEY
Appellant

AND  THE QUEEN
Respondent

Hearing:         14 March 2013

Court:             White, Simon France and Asher JJ

Counsel:         Appellant in person by way of audio-visual link
H D M Lawry for Appellant (seeking leave to withdraw)
M J Lillico for Respondent

Judgment:      25 February 2013 at 11.00am

JUDGMENT OF THE COURT

A        The appeal is allowed.

B        The appellant’s pleas of guilty in the District Court are quashed.

CThe charges are remitted to the District Court at Manukau for the appellant to replead and, if necessary, for a retrial.

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REASONS OF THE COURT

(Given by White J)

1. Ms Boagey appeals against her conviction and sentence in the District Court at Manukau on two charges of assault with a weapon (her motor vehicle) and one charge each of intentional damage, aggravated assault and refusing to permit a blood sample to be taken.[1] 

   [1]      R v Boagey DC Manukau CRI-2010-092-3698, 13 March 2012.

2. Ms Boagey pleaded guilty to these charges after her trial had begun on the basis of an indication that she would not be disqualified from holding or obtaining a driving licence again (she had previously been disqualified on the basis of offending in April 2008), but would be sentenced, as she was, to nine months’ supervision and 100 hours of community work.[2]  In giving this sentencing indication, however, the District Court Judge overlooked that s 65 of the Land Transport Act 1998 required fresh, indefinite disqualification, as the refusing blood charge was a qualifying repeat offence in light of Ms Boagey’s earlier offending. Substituting community service for further disqualification was not an available option at sentence.

   [2]R v Boagey DC Manukau CRI-2010-092-3698, 13 March 2012, notes on sentencing indication, at [3].

3. Ms Boagey’s appeal was in effect an application to vacate her pleas of guilty on the grounds that the sentence imposed was not in accordance with the sentence indication and that she was pressured into pleading guilty.

4. At the outset of the hearing of Ms Boagey’s appeal, Mr Lawry advised the Court that as he had been instructed by the appellant to make no submissions on her behalf, he sought leave to withdraw.  We asked Mr Lawry to remain for the hearing, but did grant him leave to withdraw at the conclusion of the hearing.

5. Mr Lillico for the Crown confirmed his advice given to the Court by memorandum dated 13 February 2013 that:

   (a)Ms Boagey’s appeal in relation to the fifth charge (refusing to permit a blood sample to be taken) must be upheld and returned to the District Court for retrial because, contrary to the sentence indication, disqualification must be imposed and the alternative sentence of community work was therefore not available; and

(b)in view of the global sentence indication given to Ms Boagey in the District Court the Crown was not in a position to argue strongly that the Court should not quash her pleas of guilty on all charges, allow the appeal and remit the charges to the District Court for her to replead and, if necessary, for a retrial.

1. We indicated to Ms Boagey that we proposed to proceed as suggested by Crown counsel.

2. Ms Boagey, however, opposed our doing so on the basis that she did not wish the charges to be remitted to the District Court at Manukau as she did not believe that she would receive a fair hearing in that Court.  Ms Boagey suggested that there were other options available to this Court which she wished to pursue. 

3. We explained to Ms Boagey that in fact the steps we proposed to take were in her best interests and that she should consider retaining Mr Lawry again as counsel so that he might raise any of the matters that she wishes to pursue with the Crown prosecutor when the charges are recalled in the District Court.  We also explained to Ms Boagey that it was not this Court’s role to take over the substantive determination of the charges against her.

4. For the reasons given by Mr Lillico, we therefore allow Ms Boagey’s appeal, quash her pleas on the five charges and remit them to the District Court at Manukau for her to replead and, if necessary, for a retrial.

Solicitors:
Crown Law Office, Wellington for Respondent