McCoy v Police - [2022] NZHC 252

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2021-409-161

[2022] NZHC 252

BETWEEN
JAKE ELIJAH MCCOY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 17 February 2022

Appearances:

A J Bailey for Appellant

J E Lancaster for Respondent

Judgment:

23 February 2022

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 23 February 2022 at 9.30 am

Registrar/Deputy Registrar Date:

MCCOY v NEW ZEALAND POLICE [2022] NZHC 252 [23 February 2022]

Introduction

[1] Mr McCoy was convicted and sentenced for dangerous driving,1 common assault,2 speaking threateningly,3 resisting arrest4 and wilful trespass (x2).5

[2] He pleaded guilty to all charges other than the dangerous driving charge, which he 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 driving charge 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 a parked taxi driver. He told the taxi driver that he had to move his taxi, or it would be towed away. Mr McCoy moved his vehicle behind the taxi and attempted to attach a tow rope to it. When the victim attempted to move, Mr McCoy approached his window and grabbed his phone from above the steering wheel. The victim exited his vehicle and confronted Mr McCoy. Mr McCoy punched the victim in the face with a closed fist, causing the victim’s glasses to break. The victim suffered swelling under his left eye and bruising to such an extent that he took one week off work. This incident 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 his vehicle towards the victim’s car, stopping when the victim stepped between the two vehicles.

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 McCoy tried to close the door on police and pulled away from them, refusing to put his hands behind his back.

[8] These incidents resulted in the charges of speaking threateningly, resisting arrest and dangerous driving. Mr McCoy pleaded guilty to the former charges and was 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 29 August 2021…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NZHC 252
Decision Date: 23 February 2022

CaseChat Overview and Summary

The appellant, Jake Elijah McCoy, was convicted and sentenced for dangerous driving, common assault, speaking threateningly, resisting arrest, and wilful trespass. He now appeals against his conviction in relation to the dangerous driving charge and the sentence imposed by the District Court. The appellant submitted that the District Court Judge erred in finding the driving was dangerous because he did not consider the manner of the actual driving but instead focused on the appellant's internal aggression and his behaviour. The appellant submitted that the driving was not inherently dangerous and that the threats or intentions were irrelevant to the charge of dangerous driving. The respondent submitted that the District Court Judge's conclusion that the driving "might have been dangerous" was appropriate given the wording of s 7 of the Land Transport Act 1998. The Court found that the Judge erred in finding the driving was dangerous because he focused unnecessarily on the appellant's aggressive feelings. However, the Court held that it was open to the Judge to have a general regard to the broader circumstances and that the conviction has not been shown to be unsound. The Court found that the sentence imposed was appropriate and did not constitute a manifest excess. However, the sentence of community work was quashed as the justification for its imposition was unclear and the overall sentence, without community work, adequately addressed sentencing principles. The Court dismissed the appeal against conviction and allowed the appeal against sentence to the extent that the sentence of community work was quashed.

Orders