McCoy v Police
[2022] NZHC 252
•23 February 2022
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 and 24 September 2021.
Principles on appeal
[10] Section 232 Criminal Procedure Act 2011 provides that the High Court must allow an appeal if satisfied that the trial judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.” Miscarriage of justice is defined in s 232(4) as follows:
(4)In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
[11] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.8
8 Criminal Procedure Act 2011, ss 250(2) and 250(3).
District Court decision
Conviction
[12] Judge Brandts-Giesen, in the District Court, first set out the timeline of the proceeding and facts of the case.
[13] The Judge then highlighted that Mr McCoy was aggressive towards the victim and verbally abused him, which included the use of racial slurs. He described how Mr McCoy hurled abuse at the complainant and then turned at a roundabout to drive back towards him. Having parked or stopped in the middle of the road, Mr McCoy then manoeuvred to the wrong side of the road and accelerated or backed towards Mr McCoy’s vehicle after threatening to damage it. The Judge explained that Mr McCoy stopped reversing after the victim got between his vehicle and Mr McCoy’s vehicle. The reverse, according to a neighbour who saw it, was not fast nor slow. The Judge concluded it would be hard to estimate the speed because of the short distance covered.
[14] After traversing these facts, the Judge concluded as to whether there had been dangerous driving. He held that:
[8] I find that the defendant may well have stopped short of hitting the complainant and when he started the backing movement the complainant was not immediately behind the vehicle. Nevertheless, the aggression that he had shown before, during, and after this incident were such that in my view he was driving in a manner which could have been dangerous or might have been dangerous to the complainant and the two onlookers who were close by on the footpath.
[9] When a person acts in such a dangerous manner, anything can happen. The fact that the complainant got in between the two vehicles was, I suggest, possibly unwise and it could be said that he thereby created the danger, however, the danger that existed in my view is in a wider context of how the defendant was driving and how he was behaving. While he may have said that he was going to damage the complainant’s vehicle, his general demeanour was such that anything could have happened, and this man was dangerous in my view at the wheel of that vehicle at that time in the manner in which he was driving it. Accordingly, I find the charge to be proved beyond reasonable doubt.
Sentence
[15] After referring to the facts of Mr McCoy’s offending, the Judge noted Mr McCoy’s previous convictions, most of which are violence related. He then acknowledged the victim impact statements.
[16] The Judge noted the sentencing was adjourned because Mr McCoy did not co-operate with the pre-sentence report when it was ordered. In the pre-sentence report Mr McCoy was described as a medium risk of reoffending and his conduct was described as compulsive and sometimes violent. The Judge recognised that Mr McCoy realised he had to work towards managing his anger and he expressed some regret and remorse. The Judge acknowledged that Mr McCoy’s childhood was full of violence. The pre-sentence report recommended intensive supervision, counselling and community detention.
[17] As to Mr McCoy’s age, the Judge noted Mr McCoy was 22 years of age but suggested he was “hardly an innocent young man because [he has] managed to rack up almost four pages of previous convictions”.9
[18] The Judge recognised the need to help Mr McCoy rehabilitate. He recorded that credit was given for Mr McCoy’s remorse and his guilty plea on most of the charges.
[19] The Judge imposed 15 months’ intensive supervision, six months’ community detention (with a curfew of 10 hours per day), 120 hours’ community work, reparation of $380 to one victim, and two emotional harm payments of $300 and $200. He also disqualified Mr McCoy from driving for six months (but deferred the operation of the period of disqualification until the outcome of this appeal is known).
9 Sentencing judgment, above n 7, at [15].
Submissions
Appellant’s submissions
Conviction
[20] Mr Bailey, for Mr McCoy, submitted the District Court Judge erred in his finding that the driving was dangerous on the basis that he did not consider the manner of the actual driving, but instead focussed on Mr McCoy’s internal aggression and his behaviour. Mr Bailey provided instances in which, according to his submission, the Judge had become “side-tracked” from this focus.
[21] He summarised the Judge’s findings in relation to Mr McCoy’s driving as being that Mr McCoy started reversing his vehicle towards the victim’s vehicle while there was no-one standing in front of this vehicle, the victim then moved between the two vehicles, and Mr McCoy stopped reversing after the victim did this.
[22] Mr Bailey referred to Bowman v Police to support his submissions.10 In Bowman the offender had a dispute with a neighbour of the property she was visiting. When the victim went out to the roadside to call police, the offender got into her vehicle, which was parked on the opposite side of the road, revved the engine and then accelerated towards the victim at speed before coming to an abrupt stop, no more than one metre from where the victim was standing. This Court upheld the conviction for dangerous driving on the basis the offender had driven the vehicle directly towards the victim and had stopped only one metre from them. In making this determination, the High Court followed Greenwood v Police, a case in which the offender was convicted of dangerous driving after he drove between 25 to 30 km/h and swerved his car deliberately at the victim, who was on the footpath.11 The car came within a metre or so of the victim.
[23] Justice Dunningham, in Bowman, considered the manner of driving had similar aspects to Greenwood, in the sense that the “the smallest misjudgement could easily have had more serious consequences, and so made the driving dangerous”.
10 Bowman v Police [2016] NZHC 1300.
11 Greenwood v Police HC Hamilton M250-84, 2 October 1984.
[24] Mr Bailey distinguished these authorities from the present case on the basis that Mr McCoy did not intentionally drive his vehicle towards the complainant, he was reversing at a low speed and he stopped reversing when the complainant placed himself between the two vehicles. He submitted that, viewed objectively, moving or parking vehicles in close proximity to other vehicles or people is an everyday occurrence. He submitted Mr McCoy’s threats or intentions had little relevance to the charge of dangerous driving. In Bowman and Greenwood, Mr Bailey submitted the driving would have still been dangerous even if the victim did not feel threatened because the vehicle was still travelling at a relatively quick speed and braking at the “last second” is inherently dangerous, irrespective of a drivers’ intention.
Sentence
[25] As to the appeal against sentence, Mr Bailey noted that many different starting points have been adopted for the charge of common assault, which he identified as the most serious of the charges.
[26] Mr Bailey then submitted that Mr McCoy’s youth had not been accorded adequate weight by the Judge as a mitigating factor and had instead been conflated with the notion of “innocence”. Authorities discussing the discounts available for youth and the reasoning behind this were provided.12
[27] In addition, Mr Bailey submitted the Judge did not adequately take into account Mr McCoy’s difficult upbringing. He submitted that factors of whānau dysfunction, youth justice issues, and alcohol and drugs were identified in the pre-sentence report. Mr Bailey said these factors have a clear nexus to the offending, as most of Mr McCoy’s offending seems to occur as a result of an inability to control his emotions, which in turn was the consequence of Mr McCoy’s difficult upbringing and lack of meaningful parental support.
[28] Mr Bailey provided the following authorities to support his submission that a greater discount for Mr McCoy’s background factors was available:
12 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77]; Millar v R [2019] NZCA 570;
and Waikato-Tuhega v R [2021] NZCA 503 at [64].
(a)In Waikato-Tuhega v R the Court of Appeal held that the assessment of whether there is a nexus between the offender’s background and the offending does not need to be a mechanical exercise based on extensive evidence, but rather an overall assessment assisted by the evidence available and how personal circumstances might have contributed to culpability or offending.13 The Court noted whānau dysfunction, care and protection and youth justice issues, and alcohol and drugs as background factors. It was held that a discount of 15 per cent was appropriate.
(b)In R v Kuru a discount of 20 per cent was imposed on the basis there was a clear link between the social and cultural deprivation suffered by the offender and the offences they committed.14
(c)In Solicitor-General v Heta, Whata J upheld a discount of 40 per cent for personal mitigating factors, noting that the presence of systemic Māori deprivation in the offender’s life could be reasonably inferred.15
[29] Mr Bailey cited the case of Skerten v Police by way of analogy, in which the appellant had pleaded guilty to charges of driving with excess breath alcohol, assault on a person in a family relationship and intimidation.16 In the District Court he was sentenced to two months’ community detention, 16 months’ intensive supervision, 80 hours’ community work and seven months’ disqualification from driving. On appeal, this Court quashed the sentence of community work.
[30] An appropriate sentence for Mr McCoy was suggested to be one of intensive supervision and community detention, along with payments of emotional harm and reparations. Mr Bailey submitted the period of community detention should be reduced to a term of one and a half months and the sentence of community work should be quashed.
13 Waikato-Tuhega v R, above n 12, at [51].
14 R v Kuru [2021] NZHC 1932 at [33].
15 Solicitor-General v Heta [2018] NZHC 2435, [2019] NZLR 241.
16 Skerten v Police [2021] NZHC 3425.
Respondent’s submissions
Conviction
[31] Ms Lancaster, for the respondent, first submitted the District Court Judge’s conclusion that Mr McCoy’s driving “might have been dangerous” was appropriate given the wording of s 7 Land Transport Act 1998 (LTA) stipulates a person may not drive a motor vehicle in a manner that “is or might be dangerous”. Ms Lancaster submitted that for the threshold to be met, there does not need to be proof of actual danger to any person. Ms Lancaster submitted the test encompasses situations where the driving might be dangerous to a hypothetical person coming into the area of driving.17 There must be a reasonable likelihood of danger to persons who might reasonably be expected to be on the road.18
[32] Ms Lancaster submitted the District Court Judge was correct to find Mr McCoy’s driving might have been dangerous to the victim or the onlookers. The victim gave evidence that he had been standing “very close” to Mr McCoy’s car and that he had to stand in front of his own car to stop Mr McCoy backing into it. Ms Lancaster observed that, given the acceptance of the Judge that Mr McCoy began backing three or four meters from the victim’s vehicle, the victim must have been very close to both vehicles to get between them in time. She also highlighted evidence from multiple witnesses that when Mr McCoy stopped reversing, his vehicle was close enough to the victim that the victim could touch it.
[33] Ms Lancaster noted that, in terms of s 7 LTA, the Judge was entitled to take into account the surrounding circumstances in determining whether the manner of driving was or might have been dangerous. Those included Mr McCoy’s verbally abusing the victim, stopping his vehicle near the victim and the victim’s vehicle, and threatening to damage the victim’s vehicle. These circumstances are submitted to be important as they differentiate this case from the appellant’s analogy of an everyday occurrence of moving or parking a vehicle near other vehicles or people, such as in a
17 Citing Ebert v Transport Department [1967] NZLR 459 (CA).
18 Citing Transport Department v Giles [1965] NZLR 726 (SC).
parking lot. From the circumstances, Mr McCoy was clearly not attempting to park or otherwise manoeuvre his vehicle as part of his every day activities.
[34] It was noted the victim was standing close by, and although Mr McCoy may not have been driving fast enough to accidentally hit a person remaining on the footpath, it was reasonable to anticipate the victim may have moved given the impending threat of damage to his vehicle. The proximity between Mr McCoy and the victim at the point the car stopped reversing shows there was a real risk of danger to the victim’s person.
Sentence
[35] Ms Lancaster agreed the most serious charge was that of common assault under the Summary Offences Act 1981. After referring to the facts, she submitted the aggravating features present in this case were the attack to the head and the level of premeditation given the fact that Mr McCoy intentionally aggravated the victim by attempting to tow the vehicle and taking his phone.
[36] Ms Lancaster also noted Mr McCoy was also sentenced on charges of dangerous driving, speaking threateningly, resisting police and two charges of wilful trespass. She submitted that given this, along with Mr McCoy’s considerable criminal history at the age of 22, the sentencing purposes of denunciation, deterrence and accountability were significant.
[37] On Mr McCoy’s age, Ms Lancaster submitted the courts have made it clear that previous convictions are a relevant factor in determining the extent to which a defendant’s youth may justify leniency in sentencing.19 An approach often taken is to view these factors as cancelling one another out. Ms Lancaster submitted both these considerations had been appropriately taken into account by the District Court Judge, particularly in the decision to impose a community based sentence.
19 Citing R v Putt [2009] NZCA 38; Cropp v R [2015] NZHC 2077; and Wiringi v Police [2017] NZHC 1734.
[38] Ms Lancaster observed that youth and rehabilitation were the primary factors considered by the Judge when imposing sentence.20 The sentence of intensive supervision was imposed precisely so Mr McCoy could receive appropriate interventions, while the sentence of community detention was to ensure Mr McCoy would be home to support his pregnant partner and to prevent further potential offending.
[39] Insofar as a sentence of community work was also imposed, Ms Lancaster submitted it represented a punitive aspect of the overall sentence.
Analysis
Conviction
[40]Dangerous driving is governed by ss 7 and 35 LTA. Section 35 provides:
35Contravention of section 7, or section 22 where no injury or death involved
(1)A person commits an offence if the person—
(a)operates a motor vehicle recklessly on a road; or
(b)drives or causes a motor vehicle to be driven on a road at a speed or in a manner which, having regard to all the circumstances, is or might be dangerous to the public or to a person; or
(c)without reasonable excuse, contravenes section 22 by failing to stop and ascertain whether any person has been injured, after an accident where no other person has been injured or killed.
(2)If a person is convicted of an offence against subsection (1),—
(a)the maximum penalty is imprisonment for a term not exceeding 3 months or a fine not exceeding $4,500; and
(b)the court must order the person to be disqualified from holding or obtaining a driver licence for 6 months or more.
(emphasis added)
20 Citing Sentencing Judgment, above n 7, at [16]–[17].
[41] Whether driving is dangerous is to be judged objectively and does not depend on the defendant’s state of mind.21 It must be shown that the situation viewed objectively was or might have been dangerous and that the driver failed to meet the standard of care expected of a competent and experienced driver.22
[42] The District Court Judge’s conclusion that Mr McCoy’s driving “could have been dangerous or might have been dangerous”, clearly adopted the appropriate statutory test. Both ss 7 and 32 LTA provide that dangerous driving is driving that “is or might be dangerous”. As Ms Lancaster submitted, this wording contemplates danger at varying levels of imminence. The phrase covers situations in which the driving may be dangerous to a hypothetical member of the public in the area of the driving, as long as there is a reasonable likelihood of danger to persons who might reasonably be expected to be in the area.23 The case of Whiteman v Ministry of Transport discussed the difference between actual and potential danger.24 Here the Judge may clearly have had in mind the likelihood of a dangerous situation.
[43] The issue is thus whether the Judge erred in finding the speed and manner in which Mr McCoy drove, having regard to all the circumstances, was or might have been dangerous to the public or to a person.
[44] I accept Mr Bailey’s submission that this case differs from Bowman and Greenwood, insofar as the speeds involved in those cases were significantly greater, with greater room for error or adverse outcome.25
[45] Although I accept the Judge may have focussed unnecessarily on Mr McCoy’s aggressive feelings, it was open to the Judge to have a general regard to the broader circumstances. The Judge did not conclude the driving was dangerous simply because of Mr McCoy’s aggression. Rather, he found that “the danger that existed in [his] view is in a wider context of how the defendant was driving and how he was behaving”.26
21 Ebert v Transport Department, above n 17.
22 R v Gosney [1971] 2 QB 674 at 680.
23 Ebert v Transport Dept [1967] NZLR 459 (CA); and Wagg v Shaw [1962] NZLR 498.
24 Whiteman v Ministry of Transport [1980] 2 NZLR 507 (CA).
25 Bowman, above n 12; and Greenwood, above n 11.
26 Conviction Judgment, above n 6, at [9].
[46] That saw the Judge conclude Mr McCoy’s driving was dangerous in the wider context of how he was driving. The Judge had earlier noted that “[Mr McCoy] stopped in the middle of the road … and then proceeded and stopped the vehicle on the wrong side of the road but just past the complainant’s vehicle.”27 This occurred before Mr McCoy reversed towards the complainant’s vehicle, with pedestrians nearby.
[47] The conviction has not been shown to be unsound — Mr McCoy’s use of his vehicle justified the Judge’s finding that it was dangerous.
Sentence
[48] The Judge imposed a combination of sentences pursuant to s 20 Sentencing Act 2002. Under this section, a court may impose a particular combination of sentences only if satisfied that imposing one of the sentences alone or any less restrictive sentence combination would not accord with the purposes for which the sentence is imposed or the s 8 principles as applied to the case.
[49] Mr Bailey submitted that an available overall sentencing would have involved no more than two months’ community detention and no community work at all.
[50] As both counsel identified, the most serious charge was that of common assault. There is no tariff case for common assault under the Summary Offences Act 1981. Reference to previous authorities is of limited assistance due to the variation of circumstances and context involved with each assault.28 Care must be taken to distinguish between charges of assault under the Summary Offences Act and charges under the Crimes Act 1961, which carry differing maximum penalties.29
[51] This Court has affirmed that a starting point of a community-based sentence is available for one conviction of common assault.30 However, starting points of imprisonment have also been considered appropriate.31
27 Conviction Judgment, above n 5, At [2].
28 Swinton v Police [2014] NZHC 298 at [22].
29 Summary Offences Act, s 9: maximum penalty six months’ imprisonment; and Crimes Act 1961, s 196: maximum penalty of one years’ imprisonment.
30 Mareraki v Police [2015] NZHC 161.
31 Kataina-Marii v Police [2012] NZHC 3497.
[52]Cases with some similarity to the present include:
(a)Gorman v Police where the appellant verbally harassed a taxi driver whilst being driven by them.32 The taxi driver asked him to leave. As the appellant left, he punched the driver once to the side of the head. The appellant was sentenced to 28 days’ imprisonment.
(b)Skerten v Police, relied on by Mr Bailey, where the appellant had pleaded guilty to charges of driving with excess breath alcohol, assault on a person in a family relationship and intimidation.33 The charge of assault on a person in a family relationship has a maximum penalty of two years’ imprisonment.34 In the District Court they were sentenced to two months’ community detention, 16 months’ intensive supervision, 80 hours’ community work and seven months’ disqualification from driving. On appeal, this Court quashed the sentence of community work.
[53] Much of Mr Bailey’s submissions on sentence focussed on the personal mitigating factors of Mr McCoy’s youth and his personal background.
[54] Mr McCoy’s pre-sentence report found Mr McCoy to be a young man who gave voice to his anger but was also accepting of the charges before the Court. It was noted that Mr McCoy was willing to work upon himself to ensure he does not repeat similar “mistakes” in the future, recognising that he sometimes gets angry and says things he later regrets. The report writer assessed Mr McCoy as having a medium likelihood of reoffending, noting his criminal history is littered with impulsive and sometimes violent outbursts.
[55] In terms of compliance with community-based sentences, the report-writer reported that Mr McCoy has engaged with probation and support agencies. His last probation officer for his intensive supervision sentence in 2019 noted Mr McCoy’s efforts to make a change and learn from mentors. The report-writer considered that
32 Gorman v Police HC Christchurch AP128-00, 11 August 2000.
33 Skerten v Police, above n 16.
34 Crimes Act, s 194A.
Mr McCoy would do well upon another sentence of intensive supervision and could be assessed for a department programme or individual counselling so that he could revisit coping strategies for his anger management.
[56] The report also set out Mr McCoy’s background, which involved a disrupted childhood in which both his parents had substance abuse issues and were in and out of prison. Mr McCoy experienced little consistency in caregivers until the age of 15, when he was fostered by his foster father. Mr McCoy still lives with his foster father. Mr McCoy is in a relationship, with his partner expecting their first child in April 2022.
[57] I consider that, as submitted by Ms Lancaster, the Judge was mindful of these circumstances when imposing sentence. Although “youth” and “innocence” may well have been conflated in the sentencing exercise, the balancing of youth with previous convictions was an approach open to a court.35
[58] The Judge directly linked the sentence of intensive supervision to Mr McCoy’s rehabilitative needs and the fact he was a young man looking to make positive change. In this respect, I consider he appropriately took into account Mr McCoy’s needs as a youth.
[59] Although the Judge did not explicitly afford Mr McCoy a discount for his background factors, he did recognise that Mr McCoy’s background had “a lot of violence in it”. Further explanation as to how this affected the sentence would have been preferable, but it is clear the Judge was alive to these factors when determining the sentence.
[60] The circumstances of this case do not justify a view that six months as part of the overall sentence was excessive.
[61] In relation to the sentence of community work, the sentencing notes do not explain the basis on which that was imposed. Ms Lancaster may be correct — it may have been intended to address the need for punishment as contrasted with the focus on rehabilitation in the community detention sentence. As it is, the justification is not
35 R v Putt, above n 19; Cropp v R, above n 19; and Wiringi v Police, above n 19.
clear. As the overall sentence, without community work, adequately addressed sentencing principles, I am satisfied the additional sentence of community work rendered the overall sentence manifestly excessive. The sentence of community work will be quashed.
Orders
[62]I order:
(a)the appeal against conviction is dismissed; and
(b)the appeal against sentence is allowed to the extent that the sentence of community work is quashed.
Osborne J
Solicitors:
A J Bailey, Barrister, Christchurch for Appellant Crown Solicitor, Christchurch for Respondent
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