McGill v Police - [2021] NZHC 2020

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2021-409-82

[2021] NZHC 2020

BETWEEN
SLADE GRAEME MCGILL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 5 August 2021

Appearances:

M M Cole for the Appellant

A M Harvey for the Respondent

Judgment:

5 August 2021

ORAL JUDGMENT OF OSBORNE J

This judgment was delivered by me on 6 August 2021 at 3.30 pm

Registrar/Deputy Registrar Date:

MCGILL v NEW ZEALAND POLICE [2021] NZHC 2020 [5 August 2021]

Introduction

[1] The appellant, Slade McGill, was on his guilty plea convicted of driving while disqualified (third or subsequent).1 He applied under s 94 Land Transport Act 1998 for a community-based sentence in lieu of disqualification. On 15 May 2021, Judge Couch exercised his discretion to sentence Mr McGill to community detention for five months without a disqualification.2 Mr McGill appeals against that sentence on the ground it was manifestly excessive.

Leave to appeal

[2] Mr McGill filed his notice of appeal some 7 days outside the statutory timeframe of 20 working days from the date of judgment appealed against.3 The delay in filing is modest and no prejudice arises to the respondent.

[3]Leave to appeal will be granted.

Sanctions available

[4] The offence committed by Mr McGill carries, under s 32(4) Land Transport Act, a maximum penalty of two years’ imprisonment or a $6,000 fine, and a minimum of one years’ disqualification from driving.

[5] The alternative to disqualification (successfully pursued by Mr McGill) is, under s 94 of the Act, a community-based sentence (under Part 2 of the Sentencing Act 2002), which may be imposed in addition to a fine.4

Background

[6] The facts of the offending can be shortly stated. On 10 March 2020, Mr McGill was disqualified from driving for a period of six months. In breach of that order, on 28 April 2020, Mr McGill was stopped by police whilst driving a vehicle. He explained he was going to the supermarket.

1      Land Transport Act 1998, s 32(4).
2      Police v McGill [2021] NZDC 9482.
3      Criminal Procedure Act 2011, s 248(2).
4      Land Transport Act 1998, s 94(3)(b).

District Court decision

[7] The District Court Judge considered the gravity of Mr McGill’s offending to be relatively serious. His Honour noted Mr McGill had deliberately offended with full knowledge that his actions were in breach of a court order. The Judge recounted Mr McGill’s “very poor history of driving-related offending” which included 55 traffic infringements in 11 years, including six infringements for exceeding the speed limit. Mr McGill had two convictions for driving whilst suspended (dated 10 March 2020 and 27 April 2008).

[8] The Judge considered Mr McGill’s failure on two occasions to co-operate with Community Probation in the preparation of a pre-sentence report, resulting in delays in sentencing, to be an aggravating factor.

[9] In considering Mr McGill’s s 94 application, his Honour did not accept Mr McGill was trapped in a cycle of disqualification. He noted Mr McGill…

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 McGill v Police

Details

AGLC: McGill v Police [2021] NZHC 2020
Case: [2021] NZHC 2020
Decision Date: 5 August 2021

CaseChat Overview and Summary

The case of McGill v Police involves an appeal by Slade Graeme McGill against his sentence for driving while disqualified, for which he had been sentenced to community detention for five months. The appeal was filed outside the statutory 20-working-day timeframe, but leave to appeal was granted as the delay was modest and no prejudice arose to the respondent. The legal issues in the appeal were whether the sentence was manifestly excessive and whether the delay in filing the appeal should have been considered as an aggravating factor. The court found that the sentence was not manifestly excessive, and the delay in filing the appeal did not prejudice the respondent. The court concluded that the sentence imposed was appropriate, taking into account the gravity of the offending, the offender's history, and the purposes and principles of sentencing. The appeal was dismissed, and leave to appeal was granted.

Orders