McCloy v Police
[2014] NZHC 3129
•9 December 2014
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2014-409-94 [2014] NZHC 3129
BETWEEN DAMEN MCCLOY
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 4 December 2014 Appearances:
B Meyer for Appellant
D Elsmore for RespondentJudgment:
9 December 2014
JUDGMENT OF MANDER J
[1] Damen McCloy pleaded guilty in the District Court to a charge of driving with excess breath alcohol. Mr McCloy has a previous conviction for the same offence, which was entered in May 2011.
[2] Judge Garland sentenced Mr McCloy to 150 hours community work and supervision for a period of 12 months. Pursuant to s 65 of the Land Transport Act
1998 (the Act), he was ordered to attend an assessment centre and was disqualified from holding or obtaining a driver’s licence until the Director of Land Transport removes the disqualification. Pursuant to s 65B of the Act, an order was made authorising him, at the end of his disqualification period, to apply for a zero alcohol licence. An order was also made confiscating Mr McCloy’s 1995 Toyota motor vehicle.
[3] Mr McCloy appeals his conviction, effectively to vacate his plea, on the basis that he did not fully appreciate the nature of the charge to which he was pleading
guilty. In the alternative, he appeals the confiscation order.
MCCLOY v NEW ZEALAND POLICE [2014] NZHC 3129 [9 December 2014]
[4] In support of his appeal, Mr McCloy filed an affidavit about what had occurred when he attended at the Christchurch District Court and was seen by the duty solicitor, Ms Maslinca Grant. Ms Grant was requested by the respondent to prepare an affidavit about the advice she gave Mr McCloy, and she has also made available the notes that she made at the time. Both Mr McCloy and Ms Grant gave oral evidence on the hearing of the appeal.
The facts that gave rise to the charge
[5] The circumstances of the offending are not disputed. On the night of 15
August 2014, Mr McCloy went to a Burger King restaurant, which he found was only open for the purposes of the drive-through operation. He attempted to order food at the drive-through counter but was refused service. He announced his intention to solve that problem by going home and getting his car. A member of staff considered Mr McCloy to be too intoxicated to drive and alerted the police, who were waiting for him when he returned in his vehicle. A subsequent evidential breath test showed that Mr McCloy had a breath alcohol level of 1002 micrograms of alcohol per litre of breath.
The circumstances of the entry of the guilty plea
[6] On the day Mr McCloy was summonsed to attend Court, he spoke to Ms Grant, in one of the interview rooms. He had brought with him a copy of the police disclosure. Mr McCloy’s evidence is that Ms Grant read the summary of facts and asked him if he wanted to deal with the matter today, or get it put off for legal advice. Mr McCloy claims that he asked Ms Grant for her advice and she suggested that he deal with it then, as he was guilty. He agreed to this. Mr McCloy also stated that he asked about his car and whether that would be confiscated. The advice he received from Ms Grant, on his evidence, was that she told him that it might be. He explained to her that he had money owing on the vehicle and other people would be put, in his words, in a significantly difficult situation if the car was confiscated.
[7] Mr McCloy’s evidence was that he knew that he would be disqualified, but believed it would be for a finite period only and that a fine was likely. His evidence is that at no point did Ms Grant explain the effect of a disqualification under s 65 of
the Act. Mr McCloy in his affidavit states that he attempted to explain to the duty solicitor that he had some “real issues with what had happened that night with the police”, but that his time with her was rushed as it was a busy day at Court. He felt that they did not have time to go over possible defences to the charge.
[8] Under cross-examination, the summary of facts that was reviewed with Ms Grant was put before him. Mr McCloy confirmed that he had endorsed the document in the following terms, “I have read this caption summary and plead guilty” which he then signed. He accepted that apart from the meaning of some of the sections referred to in the summary of facts, he did not disagree with its contents. Specifically, he agreed that he did drink and drive, he agreed that the evidential breath test had returned a result of 1002 micrograms of alcohol, and that the explanation that he had offered to the police about going back to get his car in order to be served at the Burger King restaurant was correct. Mr McCloy confirmed however that he did not understand what s 65 of the Land Transport Act was, as referred to in the summary.
[9] In his affidavit, Mr McCloy deposed that he was surprised that none of the factors about his car and its importance to him were raised before the Judge by Ms Grant. He also states that he was very surprised to be disqualified pursuant to s
65, and did not appreciate that outcome.
[10] Ms Grant has no independent recollection of attending on Mr McCloy as duty solicitor. This is unsurprising having regard to the number of people Ms Grant would have seen in that capacity, particularly since August 2014. She does however have notes that she made at the time of her attendance on Mr McCloy on this particular day, and, as already mentioned, a copy of the summary of facts which Mr McCloy endorsed with his guilty plea.
[11] From her notes, Ms Grant deposed that she spent a considerable time with Mr McCloy and explained to him s 129 of the Sentencing Act and s 65 of the Act, as referred to in the body of the summary of facts. She believes that Mr McCloy would have been aware that he would be disqualified and his car confiscated. Ms Grant, after recording Mr McCloy’s particulars, records in her notes the following:
EBA – Second
s 129 and s 65 apply – aware will be disqualified and car confiscated. Read and signed caption summary and criminal/traffic history.
[12] Ms Grant’s evidence was that it is never her practice to tell people to plead guilty. She provides the client with an option as to how they wish to proceed. If they want to admit the charge, they can. Alternatively, she advises they can have the matter remanded for two weeks to be able to either see their own lawyer, or, if they are eligible for legal aid, she will assist them to fill out the legal aid application form. If asked, “what would you do?”, her practice is to reply that they must decide that for themselves.
[13] Ms Grant’s evidence was that she goes through the summary of facts with her clients and their criminal history. In reference to her notation, “s 129 and s 65 apply”, Ms Grant said she would have explained those sections to Mr McCloy.
[14] Ms Grant refuted Mr McCloy’s evidence that she had only advised that there was a chance that his car might be confiscated and that the potential difficulties for him and others resulting from the vehicle being confiscated were discussed. Ms Grant stated that her written record, “s 129 and s 65 apply – aware will be disqualified and car confiscated”, was definitive of the fact that Mr McCloy was informed of that consequence. Under cross-examination, Ms Grant confirmed that if any hardship issues had been raised with her by Mr McCloy, she would have put that before the Judge, as is her practice, notwithstanding any view she may have as to the likelihood of success of such an application. She noted that some Judges would deal with such a matter on the spot, and others adjourn the issue for determination on another date.
[15] Ms Grant’s notes further provide a series of what she described as “prompts” for when she addresses the sentencing Judge. This is information she has obtained from the client. In Mr McCloy’s case, the following information is recorded:
- pleaded at first opportunity.
- aged 30.
- single.
- e/ed [employed] full time – mechanic.
- paying fines off at $25 p.w.
- able to pay a fine at the same rate.
- aware will be disqualified and car confiscated.
Analysis of evidence
[16] Under cross-examination, Mr McCloy accepted that in the knowledge that he would be disqualified, that his car could be confiscated, and that the summary of facts was correct, he made a decision not to seek further legal advice and to plead guilty. Mr McCloy, while qualifying his answer with the rider that he did not fully understand what he was getting himself into, confirmed that he made the decision to plead guilty knowing that he had only had a brief meeting with the duty solicitor and had not obtained full legal advice regarding whether any defences to the charge were available to him. He confirmed that he was happy on the day to proceed on that basis, and that his discontent with what happened arises out of the consequences of his subsequent conviction.
[17] I accept Ms Grant’s evidence that she would have left it to Mr McCloy to decide whether to plead guilty. There may well have been a discussion about Mr McCloy’s options, but I do not accept that she would have suggested that he plead guilty. Mr McCloy acknowledged in cross-examination that he knew that his car was at risk of confiscation, however the compelling inference from Ms Grant’s notes is that he was aware that the car would be confiscated. Ms Grant’s note to that effect is consistent with the fact that she did not make an application to the Judge for relief from extreme or undue hardship resulting from such an order. It may be that the likely success of such an application based upon what Mr McCloy could offer as the basis for such an application was discussed and abandoned. In any event, I am prepared on appeal to re-examine that issue de novo.
[18] Mr McCloy’s evidence is that he did not understand the effect of s 65 of the
Act and was labouring under the misapprehension that he would receive another
finite period of disqualification, as had previously been imposed upon his last appearance in respect of a breath alcohol charge.
[19] The summary of facts only makes reference to the section number, and Ms Grant’s note refers only to an awareness on the part of Mr McCloy that he would be disqualified. Unsurprisingly, given the nature of the note, it is not expanded upon in any further detail. I accept the likelihood is, as is Ms Grant’s usual practice, she would have explained the effect of s 65, however there remains the possibility that Mr McCloy did not fully appreciate the type of disqualification that he would become subject to as a result of pleading guilty. On that limited basis therefore I proceed to consider Mr McCloy’s grounds of appeal against conviction, that the plea of guilty was entered in error.
The law
[20] Mr Meyer, who appeared on behalf of Mr McCloy, acknowledged that there was no contest as between the parties as to the law which applies when an appellant is seeking to appeal his or her conviction after a plea of guilty.
[21] In Udy v Police, Gresson J observed that it would require a very strong case and exceptional circumstances for a Court to reopen a case on appeal after a defendant had pleaded guilty.1 Examples of cases where such an appeal might succeed included:
(a) a defendant who, in entering his or her plea of guilty, made it plain that he or she was denying an element of the offence; or
(b) a defendant who may not have appreciated the nature of the charge; or
(c) cases where there had not actually been a plea of guilty because of the way the charge had been put to the defendant.
1 Udy v Police [1964] NZLR 235 (SC) at 237.
[22] Both Gresson J, in Udy v Police, and the Court of Appeal, in R v Stretch,2
cited with approval the following passage from R v Ford:3
A plea of guilty having been recorded, this Court can only entertain an appeal against conviction if it appears (1) that the appellant did not appreciate the nature of the charge, or did not intend to admit he was guilty of it, or (2) that upon the admitted facts he could not in law have been convicted of the offence charge.
[23] More recently the Court of Appeal has reiterated these principles in R v Kihi, observing that the discretion is not lightly exercised.4 While the list is not exhaustive, the Court of Appeal in that case recognised that a plea may be vacated where:
(a) the accused has “not really” pleaded guilty;
(b) on entering the plea the accused acted upon a material mistake; (c) the proceedings were defective or irregular; or
(d) there is a clear defence to the charge.
[24] Mr Meyer has acknowledged that it is not sufficient for a defendant to make an error as to the consequences which may follow a guilty plea, for example, mistake as to a mandatory penalty, or the possibility of confiscation proceedings following conviction, or the effects of conviction on a defendant’s immigration status.5 The discretion to allow a plea of guilty to be withdrawn is reserved for cases where there is doubt that the plea represents a genuine acknowledgment of guilt.6
The appellant’s argument
[25] Mr McCloy argues that, at the time of his meeting with the duty solicitor, he did not fully understand the charge he was facing, nor the implications of a
2 R v Stretch [1982] 1 NZLR 225 (CA).
3 R v Forde [1923] 2 KB 400 (Crim App) at 403.
4 R v Kihi CA395/03, 19 April 2004.
5 R v Sheikh [2004] EWCA Crim 492, [2004] 2 Cr App R 13; Alhosan v Police HC Auckland CRI-
2004-404-511, 10 August 2005.
6 R v Sheikh, above n 5, at [16].
conviction. He submits there was inadequate time to discuss matters with the duty solicitor and raise possible issues about the police procedure which might give rise to a defence in his case. He was not therefore in a position to make an informed decision about entering a guilty plea. While acknowledging that it is not sufficient for an appellant to make an error as to the consequences which might follow a guilty plea, it was submitted that, upon a proper review of the charge, a potential identified defence may have existed. In that regard, reliance is placed on a possible argument available to the appellant relating to the timing of the print-out from the breathalyser, which may provide a basis to challenge procedural compliance.
Decision
[26] It is clear from the evidence that Mr McCloy appreciated the constituent elements of the charge he faced. His plea represented a formal admission of being guilty of the charge of driving with excess breath alcohol. Mr McCloy does not dispute this, and indeed confirmed it in the course of his evidence. His complaint is that he did not have a full appreciation of the extent of the disqualification to which he would be subject as a consequence of conviction on the charge, the elements of which he does not dispute.
[27] In terms of not being appraised of potential defences, I am satisfied, and indeed Mr McCloy does not dispute, that he made a choice to continue with the matter on the day and plead guilty, rather than electing to have the proceeding adjourned in order for him to obtain fuller legal advice. There could be no expectation upon seeing the duty solicitor that he would receive a forensic examination of the procedural steps taken by police in implementing the breath alcohol procedures. If Mr McCloy wanted that type of examination to be undertaken and wished to seek such legal assistance, then I am satisfied Ms Grant gave him that option when she attended on him in her capacity as duty solicitor. I am satisfied that Mr McCloy fully appreciated, before he entered his plea, what he was doing in not seeking to avail himself of more comprehensive legal advice.
[28] As counsel for the respondent observes, Mr McCloy is a mature man of 30 years and this is not his first appearance before the Courts. That he now regrets his
choice as a result of the consequences of his conviction does not provide the necessary grounds for a successful appeal based on a challenge to the validity of his plea.
[29] Mr McCloy sought to emphasise that he had not been advised of the significance of his breath alcohol level of 1002 micrograms of alcohol per litre of breath, which was very high. As a result, the disqualification provisions of s 65 of the Act were triggered. I have already acknowledged and proceeded on the basis that Mr McCloy may not have appreciated the consequences of pleading guilty to a breath alcohol charge, being a second or subsequent offence, when the level is so high. However, that does not raise any issue concerning the validity of his acknowledgment of guilt as communicated by his plea. The only reservation now raised about his formal admission of the charge arises from the nature of the disqualification that resulted as a consequence. That concern does not bear on whether Mr McCloy was truly confessing his guilt or whether he had actually committed the offence.
[30] Mr McCloy is not, on appeal, denying any element of the offence. Nor does he say that he did not appreciate the nature of the charge that he faced, nor that he did not understand what he was doing in entering the plea of guilty. His regret is as to the consequences which followed from the entry of the plea. While I accept he may have been under a misapprehension as to the nature of the mandatory penalty, that of itself does not provide a sufficient basis to put his formal admission, by way of plea, to one side in order for him to be provided the opportunity of contesting the charge in the hope that he might now avoid that consequence.
[31] I do not consider there was any irregularity in the way Ms Grant approached her task in assisting Mr McCloy. This is not a case where there is a likely defence to the charge which the appellant ought, in the interests of justice, be allowed to have considered by the Court and which in the absence of such opportunity risks a
miscarriage of justice.7 I am well satisfied that the plea represented a genuine
acknowledgment of guilt.
7 Criminal Procedure Act 2011, s 232(2)(c).
Appeal against sentence
[32] As an alternative to Mr McCloy’s appeal seeking to have his guilty plea vacated, he appeals the order made pursuant to s 129 of the Sentencing Act 2002 confiscating his motor vehicle. As I have earlier indicated, I am prepared to consider this issue afresh.
[33] Section 129 of the Sentencing Act 2002 provides as follows:
129 Confiscation of motor vehicle after second offence
…
(3) If the court by or before which the offender is convicted of the second offence is satisfied that any motor vehicle owned by the offender or in which the offender has any interest was being driven by, or in the charge of, the offender at the material time, the court must order that the motor vehicle be confiscated.
(4) Despite subsection (3), the court must not make an order under that subsection if it will result in extreme hardship to the offender or undue hardship to any other person
…
[34] It is not disputed that s 129 applies to Mr McCloy’s case, he having a previous qualifying offence within the prescribed timeframe. Mr McCloy however submits that undue hardship would be caused to his family if the order for confiscation is not rescinded.
[35] Mr McCloy gave evidence that he works near Christchurch Airport and lives a significant distance from his place of work. The confiscation of his motor vehicle, he argues, places an inordinate amount of pressure on his mother and his mother’s partner to provide him with transport to work. This, it is said, presents difficulty in relation to their own employment. Mr McCloy submits that, in the absence of the confiscation order, he could arrange for a friend or colleague to drive the car, thus removing the pressure on his mother and her partner. He submits the burden that falls on them to drive him to work gives rise to undue hardship and should result in the Court exercising its discretion to rescind the confiscation order.
[36] I am not satisfied that the circumstances relied upon provide a sufficient basis upon which the Court’s discretion could be exercised. Mr McCloy is a healthy adult who has employment. That his mother and her partner are willing to provide him with transport to his employment is an indulgence they are extending to him and ought not give rise to hardship, let alone undue hardship, to them. As the respondent has observed in its written submissions, no information has been provided as to why Mr McCloy cannot access public transport to make his way to and from work, as many people ordinarily do.
[37] Mr McCloy would still have to recruit a person to drive him to and from work in his vehicle if it was returned to him. It appears to me that the greater obstacle to such an arrangement is not the availability of a vehicle but a volunteer willing to provide such assistance throughout the working week. Mr McCloy has not satisfied me that undue hardship will result to any other person as a result of the confiscation of his vehicle pursuant to s 129 of the Sentencing Act 2002. There is therefore no basis upon which the discretion provided for in that section can be exercised in his favour.
[38] I note for the sake of completeness that in his affidavit Mr McCloy made reference to money owed on the car. This ground, relating as it does to him in respect of a possible claim of personal extreme hardship, was understandably not pursued on appeal. Unfortunately, it is a situation which many drivers whose vehicles are confiscated find themselves in.
Result
[39] It follows therefore that both Mr McCloy’s appeal against conviction and
sentence are dismissed.
Solicitors:
B Meyer, Barrister, Auckland
Raymond Donnelly & Co, Christchurch
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