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McGeogh v Police

McGeogh v Police

Case [2023] NZHC 178 13 February 2023

Aggravated & Exemplary Damages

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-409-189

[2023] NZHC 178

BETWEEN
TURLOUGH MCGEOGH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 8 February 2023

Appearances:

A J McKenzie for Appellant P J Brand for Respondent

Judgment:

13 February 2023

JUDGMENT OF MANDER J

This judgment was delivered by me on 13 February 2023 at 3 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date: .

MCGEOGH v NEW ZEALAND POLICE [2023] NZHC 178 [13 February 2023]

[1] The appellant, Turlough McGeogh, was sentenced in the District Court at Christchurch to 28 months’ imprisonment on three charges of assault,1 a charge of assault on police,2 one of unlawfully taking a motor vehicle,3 a charge of reckless driving,4 possession of cannabis,5 driving with excess breath alcohol (third or subsequent),6 resisting police,7 and failing to provide identifying particulars.8 He appeals that sentence on the basis the starting point for the imposition of the sentence was excessive, and a disproportionate uplift was imposed for personal aggravating factors.

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 police he had consumed some eight jugs of beer over the course of the evening. Shortly after midnight, he was picked up by a taxi in Riccarton. During the course of being driven home, he began exhibiting signs he was going to be sick. Mr McGeogh stuck his head out 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 would be charged a cleaning fee.

[4] This appears to have been the catalyst for an argument, during which Mr McGeogh threatened the driver before punching him in the face. The driver

1      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 not exceeding $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 not exceeding $4,500. The Court must also order the person to be disqualified from holding or obtaining 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’ imprisonment and/or a $500 fine.
6      Land Transport Act, s 56(1) and (4) — maximum penalty 2 years’ imprisonment or a fine not exceeding $6,000. The Court must also order the person be disqualified from holding or obtaining a 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 not exceeding $5,000.

retreated with his…

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.

Continue reading McGeogh v Police

Details

AGLC: McGeogh v Police [2023] NZHC 178
Case: [2023] NZHC 178
Decision Date: 13 February 2023

CaseChat Overview and Summary

In the case of McGeogh v Police, the appellant, Turlough McGeogh, appealed against his sentence imposed by the District Court, arguing the starting point for the imposition of the sentence was excessive and a disproportionate uplift was imposed for personal aggravating factors. The appeal was dismissed by the High Court. The appellant was sentenced to 28 months' imprisonment on multiple charges including assault, assault on police, unlawfully taking a motor vehicle, reckless driving, possession of cannabis, driving with excess breath alcohol, resisting police, and failing to provide identifying particulars. The appellant argued that the starting point for the June offending was excessive and that a lesser starting point of no more than 24 months should have been adopted. The respondent argued that the starting point of 27 months was within range and the overall 29-month starting point accurately reflected the totality of the two separate episodes of offending. The court found that the starting point of 27 months for the June offending was within range and the overall 29-month starting point was not outside the range available to the sentencing Judge. The uplift for aggravating factors was also considered appropriate. The discount for the guilty plea was not realistically open to challenge. The appeal was dismissed as the ultimate effective sentence imposed of 28 months' imprisonment was not manifestly excessive.

Orders