McGeogh v Police

[2023] NZHC 178

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 hands raised to placate Mr McGeogh, who aggressively swore at his victim and reiterated he was going to beat him up and would take his car. Despite the driver’s pleas he would still take him home, Mr McGeogh got into the taxi and sped away.

[5]    Mr McGeogh drove the vehicle at speeds approximated at as much as 185 kph around city streets. He was observed to weave amongst traffic, nearly colliding with oncoming vehicles. He finally crashed the taxi outside a bar in Victoria Street and was restrained by members of the public when he attempted to flee. After police arrived they found a very small amount of cannabis on Mr McGeogh’s person. A subsequent breath alcohol test revealed a level of 879 micrograms.

[6]    The taxi driver suffered minor swelling to his upper lip and damage to an AirPod that was in his ear at the time. The taxi’s roof light had been lost during the course  of  Mr McGeogh’s  reckless   driving.   In   explanation   for  his   actions,  Mr McGeogh simply offered that he had lost control. He was initially charged with robbery, but this was later substituted with a charge of unlawfully taking a motor vehicle. He also faced charges of assault, reckless driving, excess breath alcohol, and possessing cannabis. Mr McGeogh was remanded on bail with conditions that he observe a curfew and not consume alcohol.

The August 2022 offending

[7]    Some two months later, on 6 August, Mr McGeogh found himself intoxicated in the central city on Oxford Terrace. He attempted to enter a bar but was refused by door staff due to his intoxicated and aggressive state. Mr McGeogh took exception and became angry. He punched a doorman in the jaw and grabbed and squeezed a second doorman’s face, scratching him.

[8]    Other security staff restrained Mr McGeogh until police arrived. However, he continued with his aggressive behaviour. Mr McGeogh refused to place his hands behind his back as directed by police and resisted arrest. He spat at the officers, punched one of them in the leg, and twice kicked another, also in the leg. He continued to wrestle  police  while  being  forced  into  a  patrol  car. At the police station, Mr McGeogh refused to allow police to take his fingerprints or be photographed.

Approach to appeal

[9]    The focus of an appeal against sentence is not on the process by which it was reached but the correctness of the end result.9 An appellate court may only allow an appeal if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.10 It will not intervene where the sentence is within the range that can properly be justified when applying accepted sentencing principles. Only if the sentence is “manifestly excessive” will it be appropriate for this Court to intervene and substitute its own views.11

District Court decision

[10]   In approaching the sentencing exercise for the June offending, Judge Hix treated the unlawful taking offence as the lead charge. The maximum sentence of seven years’ imprisonment was correctly identified, although the Judge commented that Mr McGeogh had originally been charged with robbery. Reference was made to an example provided in the guideline judgment for robbery, R v Mako,12 which was considered comparable to the present offending, where a starting point of between four and five years’ imprisonment had been taken. Having made that observation, the Judge also noted the limited applicability of that decision given the charge with which Mr McGeogh was for sentence carried a lower maximum sentence.

[11]   Key factors taken into account by the sentencing Judge included the associated assault on the taxi driver, the subsequent reckless driving and Mr McGeogh’s high level of intoxication. Taking all these matters together, the Judge adopted a starting point of 27 month’s imprisonment for the June offending. In relation to the August offending, the Judge applied a two-month uplift. No adjustment for totality was considered necessary.

[12]   That total starting point was then uplifted by seven months to  reflect  that  Mr McGeogh was already subject to a sentence at the time of this offending; the fact the second incident occurred while he was subject to bail on charges arising out of the

9      Ripia v R [2011] NZCA 101 at [15].

10     Criminal Procedure Act 2011, ss 250(2) and 250(3).

11     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33]; and Ripia v R, above n 9.

12     R v Mako [2000] 2 NZLR 170 (CA).

first episode of offending; and to recognise Mr McGeogh’s recent previous convictions.

[13]   A discount of eight months (22  per  cent)  was  applied  in  recognition  of Mr McGeogh’s guilty pleas and to give limited recognition to personal factors. The guilty plea was entered shortly after the original robbery charge had been amended but, in light of the strong prosecution case, the Judge did not consider a full discount was warranted.

The appeal

[14]   On behalf of Mr McGeogh, Mr McKenzie submitted the starting point for the June offending was excessive. He was critical of the Judge making comparisons with sentencing levels for robbery, and argued that Mr McGeogh should have been sentenced as an opportunistic car thief who became violent, instead of his actions being compared with robbery precedents. Mr McKenzie submitted a starting point of no more than 24 months should have been adopted. He made no complaint about the uplift for the August offending.

[15]   In relation to the uplift of 25 per cent for what was described by the sentencing Judge as the “three personal aggravating factors”, Mr McKenzie argued there was no real nexus between Mr McGeogh being subject to release conditions and the lead offence of unlawfully taking the taxi, because Mr McGeogh had no history for that type of offending. In relation to the aggravating feature of offending whilst on bail, Mr McKenzie noted that factor only applied to the latter August offending which only attracted an uplift of two months’ imprisonment. He argued the Judge’s approach had a disproportionate effect because, he claimed, the Judge had applied it to the global starting point for all the offending. As regards to Mr McGeogh’s previous convictions, it was acknowledged the present offending had some “resonance” with what was described as Mr McGeogh history of lower-level violence and driving offending, but again argued that past history did not have any connection with the lead charge of unlawful taking. It was submitted that an uplift of no more than three months should have been applied.

[16]   Applying a 25 per cent discount for the guilty pleas, which Mr McKenzie argued Mr McGeogh was entitled to, he submitted an end sentence of between 20 and 24 months would have been appropriate. He further noted that possible discounts could also have possibly been applied to recognise some months spent on bail while being subject to a curfew and Mr McGeogh’s willingness to attend restorative justice.

The respondent’s position

[17]   Mr Brand, on behalf of the Crown, argued the Judge was legitimately entitled to draw on guidance from R v Mako, as the present offending contained many of the elements of robbery, and the Judge had been cognisant of the lesser maximum sentence that applies to a charge of unlawful taking. Mr Brand referred to a sentencing decision of this Court, Curle v Police, in which Wylie J reviewed a number of sentencing decisions concerning the unlawful taking of a motor vehicle. It was suggested in that case that for a single conversion of a motor vehicle, a starting point of between 12 and 18 months would generally be appropriate.13 Having regard to the level of violence used in the present case, it was argued a starting point at the upper end of that range was justified before taking into account the reckless driving by Mr McGeogh, his state of severe intoxication and the significant risk to the public.

[18]   While perhaps stern, it was submitted the 27-month starting point for the June offending was not outside the range available to the sentencing Judge and that the uplift of only two months for the August offending, which involved Mr McGeogh acting in a persistently violent manner, was generous. The overall 29-month starting point, it was submitted, accurately reflected the totality of the two separate episodes of offending.

[19]   In relation to the uplift for other aggravating factors, Mr Brand emphasised the nature of Mr McGeogh’s previous convictions, for which he had only relatively recently been released from prison, and the direct link between the circumstances of the August offending and the breach of the conditions of bail which required him not to consume alcohol and not to be out at night in a public place. In relation to credit

13 Curle v Police [2017] NZHC 1194 at [27], citing Muir v Police [2015] NZHC 1425; Affleck v R [2015] NZHC 1741; Duxfield v R [2015] NZHC 3018; Gideon v Police [2014] NZHC 1065; Kushell v Police [2012] NZHC 2380; and Riini v Police [2016] NZHC 2218.

for the guilty plea, Mr Brand referred to the observations of the Supreme Court in Hessel v R relating to the entry of guilty pleas where charges have been amended, and the recognition that such discounts may need to be adjusted to avoid providing a double benefit.14

Analysis

Starting point

[20]   No issue was taken with the unlawful taking charge being adopted as the lead offence, nor with the way Judge Hix structured his sentencing decision. I do note the additional aggravating factors tended to merge features relating to the offending (whilst on bail and subject to a sentence) with personal aggravating factors (previous convictions) and the sentencing may not have strictly followed the two-step approach outlined by the Court of Appeal in Moses v R that modified the calculation of credit for a guilty plea.15 However, in the circumstances of this case, that is not particularly material. If anything, Mr McGeogh would have benefitted from the calculation of the percentage discount for his guilty pleas after the uplift for aggravating factors had already been added.

[21]   This Court in Wood v Police held that, “a single unlawful taking charge can give rise to a starting point of at least 18 months' imprisonment, if the offence has a significant aggravating feature or features”.16 The present offending included a number of significant aggravating features. The primary feature of the unlawful taking is that it was inextricably linked to the violence and threats inflicted on the taxi driver. The subsequent driving was highly dangerous and endangered the public. It was only a matter of good fortune that Mr McGeogh’s driving came to an end when it did, after crashing into a planter box outside a bar in the central city, without anyone being killed or seriously injured.

14     Hessel v R [2010] NZSC 135, [2011] 1 NZLR 607.

15     Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

16     Wood v Police [2018] NZHC 1629 at [24].

[22]   Inevitably, the factual circumstances of different cases will vary and care is required when making comparisons, but the following two cases suggest the starting point of 27 months was within range:

(a)In O'Sullivan v Police,17 the appellant pleaded guilty to six charges: unlawfully taking a car, driving while disqualified, failing to stop, driving with excess breath alcohol, resisting arrest, and possession of cannabis. Police observed the defendant driving the car on a state highway. He did not stop and was pursued for 17 kilometres. During that time, he reached speeds of up to 150 kph and drove through road spikes without stopping. He eventually was brought to a halt but decamped and resisted arrest. He was intoxicated. A global starting point of 20 months’ imprisonment was adopted.

(b)In Geros v Police,18 Mr Geros approached the vehicle of the victim, who was sleeping in it at the time after having been drinking. He opened the door, threatened the victim with a knife, punched him in the face once, and continued to threaten the victim in order to get him out of the car. The appellant then took the vehicle. A starting point of 30 months’ imprisonment was not disturbed on appeal. Notably, this Court took no issue with the sentencing Judge referring to R v Mako because of the similarities the appellant’s taking of the vehicle had with robbery.

[23]   The presence of the knife in Geros tends to make the offending in the present case less serious, but regard must be had to the way the public was imperilled by the way Mr McGeogh drove the vehicle in a built-up urban area, which was comparable to the driving in O’Sullivan, although that occurred in a rural area. When assessed against these cases, I consider Mr McGeogh’s offending falls towards the serious end of this spectrum.

[24]   On balance, I consider Mr Brand’s description of the 27-month starting point as being stern but within range is accurate. Mr McKenzie is probably correct that a

17     O'Sullivan v Police [2015] NZHC 2032.

18     Geros v Police [2017] NZHC 1544.

lesser starting point, perhaps two or three months less, for the June offending would have been more appropriate. However, any concerns regarding the 27-month starting point for that offending rapidly dissipate when regard is had to what must be considered a generous minimal uplift of only two months for the August offending, despite Mr McGeogh’s high level of aggressive behaviour, which involved a number of persons, including police officers, being assaulted and ongoing violence while intoxicated in a public place. I therefore do not consider the total 29-month starting point as being outside the range available to the sentencing Judge.

Uplift for aggravating factors

[25]   Mr McGeogh had previously been sentenced in October 2021 for offending that occurred in May and June of that year which, at least on its face, has strong parallels with  his current offending.  He was sentenced to an  overall  sentence of  15 months’ imprisonment on charges of assault with intent to injure, aggravated assault, resisting police, and three charges each of threatening and disorderly behaviour. It was the post-release conditions from this sentence that he was subject to at the time of both incidents giving rise to the present charges.

[26]   There is a clear nexus between this past offending and the charges for which Mr McGeogh was for sentence. It is also to be noted that Mr McGeogh has two previous convictions for breath alcohol driving offences. Within a short period of time, and while Mr McGeogh remained subject to the previous sentence, the present offending was committed. It is notable that offending appears to represent a continuation of Mr McGeogh’s previous criminal conduct, marked as it is by the use of violence and abuse of alcohol.

[27]   This previous offending needed to be recognised by an uplift that demonstrated the need for personal deterrence and the protection of the community, and which appropriately recognised the frequency and seriousness of those convictions, as well as their linkage with the current charges. Mr McGeogh’s criminal record is relatively short, relating as it does primarily to a two-month period in 2021, but the number and nature of that prior offending was clearly relevant to the sentencing exercise before the District Court and required a significant uplift.

[28]   Similarly, the repetition of offending whilst on bail for the June offending was a relevant aggravating feature in relation to the subsequent August offending, particularly when regard is had to the nature of the conditions that were breached as a result, namely a prohibition on the consumption of alcohol and an overnight curfew. The breach of these conditions, which were designed to prevent or, at least, mitigate the risk of a repetition of the earlier June offending, demonstrated a complete disregard for the Court’s orders. The non-compliance could not have been more flagrant.

[29]   I accept there is to some degree an overlap between Mr McGeogh’s criminal record and the fact he was subject to a sentence at the time of his offending, although that feature only tends to highlight how quickly Mr McGeogh has reoffended after being released from prison and, at least at this stage, his apparent limited rehabilitative prospects until he addresses his obvious issues with alcohol. I accept Mr McKenzie’s submission that the relevance of the aggravating feature of Mr McGeogh being on bail is limited to the August offending and that this factor could have had a disproportionate effect if it is applied broadly to the offending.

[30]   What is required, however, is an overall assessment of whether the total uplift of seven months to reflect these aggravating features has resulted in a manifestly disproportionate final sentence. For myself, I doubt whether an uplift of more than six months was legitimately available to the Judge in the exercise of his sentencing discretion, but any adjustment of that degree would simply amount to tinkering.

Discount for guilty plea

[31]   I do not consider the 22 per cent discount for Mr McGeogh’s guilty plea is realistically open to challenge. As noted by the Crown, the sentencing Court is entitled to take into account the circumstances in which the guilty plea was entered, including a situation where charges may have been amended in favour of a defendant. However, leaving that consideration to one side, it is well-established that a judge may have regard to the strength of the prosecution case in setting the appropriate discount for this factor, as the Judge did here.19 I do not consider the Judge erred in the approach he took to this part of the exercise. Nor do I consider Mr McGeogh was entitled to

19     Mathias v New Zealand Police [2018] NZHC 1910; and R v Tamatea [2012] NZCA 443.

any credit for being subject to a curfew while being on bail for the earlier offending, given he obviously breached that condition.

Conclusion

[32]   The ultimate effective sentence imposed of 28 months’ imprisonment was at the upper end of the sentencing range available to the sentencing Court in the exercise of its discretion. However, while perhaps stern, given the features of the offending, I consider the Judge was entitled to take such an approach and that the ultimate sentence imposed was not manifestly excessive.

Result

[33]The appeal is dismissed.

Solicitors:
Crown Solicitor, Christchurch