McGill v Police
[2021] NZHC 2020
•5 August 2021
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 had been disqualified on five occasions, but only once for driving whilst disqualified. The Judge accepted not being able to drive would impact on Mr McGill’s ability to progress his preferred career option of working in the building industry.
[10] The Judge was impressed that after more than “10 years of inaction and ignoring the law”, Mr McGill had accepted responsibility and obtained a full driver’s licence.5 He was prepared to exercise his discretion to commute a period of disqualification for a community-based sentence. But his Honour observed this would have to be “quite substantial given that you would otherwise be disqualified for at least a year”.6 The Judge assessed the gravity of the offending as high and considered the most restrictive community-based sentence available was appropriate. Mr McGill was then sentenced to community detention for five months.
Principles on appeal
[11] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An
5 At [8].
6 At [0].
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.7 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.8 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.9
Submissions
Appellant’s submissions
[12] Ms Cole, representing Mr McGill, makes two preliminary points. First, she submits the Judge erred in his assessment of the gravity of the offending as “relatively serious” and “high”. In her submission, the deliberate offending with full knowledge of it being unlawful and in breach of a court order are features that are common to all driving while disqualified offences. Ms Cole observes that the offending took place during the national lockdown when public transport was unavailable at normal levels. Ms Cole submits Mr McGill’s obtaining a full licence and completing a defensive driving course serve to mitigate the gravity of the offending.
[13] Secondly, Ms Cole submits the delay in obtaining a pre-sentence report did not prejudice the position of the police and thus Mr McGill’s failure to report to and make contact with Community Probation should not be counted as an aggravating factor.
[14] I will shortly deal with a chronology of the delay in relation to which Ms Cole developed in oral submissions; the further explanation of the chain of events as indicating that the period taken to ultimate sentence would have elapsed through the need for Mr McGill to pursue his defensive driving course and to obtain his licence.
[15] Ms Cole submits the end sentence was beyond the available range. In her submission, the Judge did not turn his mind to a sentence other than the most restrictive
7 Criminal Procedure Act, ss 250(2) and 250(3).
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
9 Ripia v R [2011] NZCA 101 at [15].
community-based sentence. She submitted an appropriate sentence would have been 150 hours community work. In her oral submissions she put the matter essentially in the alternative on the basis that an appropriate sentence would have been approximately three months which Mr McGill has now served on community detention.
[16] Ms Cole referred to appeal decisions of this court where periods of community work were substituted for disqualification. I will discuss those authorities.
Respondent’s submissions
[17] For the respondent, Mr Harvey submits that the end sentence was within range, the Judge being entitled to treat the delay caused by Mr McGill as an aggravating feature. He submits that the appeal should be dismissed. Mr Harvey referred to a number of relevant authorities which I take into account in the following discussion.
Analysis
Relevance of delay
[18] Fourteen months elapsed from the date the charges were laid to the date Mr McGill was sentenced. Mr Harvey helpfully provided a chronology of events:
(a)On 8 October 2020, Mr McGill pleaded guilty and a pre-sentence report was ordered.
(b)On 24 November 2020, Mr McGill breached his bail conditions not to drive unless licensed to do so. This breach was certified. His sentencing date was vacated and a new pre-sentence report was ordered.
(c)On 16 February 2021, the Department of Corrections filed a memorandum advising the court that Mr McGill had failed to attend a meeting with probation on 26 November 2020. The Department also advised Mr McGill did not respond to six attempts to contact him.
(d)On 23 February 2021, notwithstanding Mr McGill’s desire to proceed on his s 94 application, his sentencing was adjourned to enable a pre- sentence report to be prepared and for Police to file a response to defence submissions. It was also anticipated by Judge Crosbie that Mr McGill would thereby have the opportunity to complete his defensive driving course and obtain a licence, the test then scheduled for April.
(e)On 7 May 2021, a pre-sentence report was prepared.
[19] Ms Cole notes that in the events around the hearing in February 2021, Mr McGill would have been prepared to have his s 94 application dealt with then but the Police opposed the granting of the application. There is more detail around this which Mr Harvey provided to me as to the readiness of the matter for hearing in terms of the late provision of evidence unsworn but the matter on my assessment has to be resolved in the following way.
[20] Section 9(1)(k) Sentencing Act 2002 provides that “any failure by the offender personally… to comply with a procedural requirement that, in the court’s opinion, has… caused a delay in the disposition of the proceeding” may be considered an aggravating factor.
[21] Given that the legislature has put the aggravating factor in those terms, it is appropriate that it be respected in what it says. I am not satisfied here that the disposition of the proceeding has been delayed. The prosecution’s preference in the context of what was going on in February was to have a later hearing. Up until that point, it is clear that the defensive driving course had started, the driver’s licence yet to be obtained with the need for Mr McGill to line up with others for that. It may be that Mr McGill is fortunate that in the chain of events that occurred, I do not find myself able to find that his unavailability and failure to respond did not lead to the delay. I am satisfied that the appropriate way to view this is in the context of the s 94 application the delay that ensued was largely if not fully the consequence of the fact that Mr McGill’s application could scarcely have succeeded without substantial progress on the courses and tests he was pursuing.
Gravity of offending
[22] The Judge elected to assess the gravity of Mr McGill’s offending without a distinct separation of matters relating to the offending itself and those relating to the offender. That is understandable having regard to the nature of the penalty which is under consideration.
[23] In my review of the Judge’s sentencing approach, I consider the following circumstances — aggravating or mitigating — fell for consideration:
(a)Mr McGill’s conviction history — an aggravating feature of the offending was, as noted by Judge Couch, Mr McGill’s history of driving offences. It is also relevant, although not expressly identified by the Judge, that Mr McGill’s conviction history includes repeated instances of breaching court orders such as in relation to community work, intensive supervision and bail conditions, all indicating a disregard if not disdain for court orders. The explanation offered by Mr McGill through Ms Cole that the present offence took place at a time when the national lockdown was in place and public transport not available to the extent it normally is, is further indication of some misplaced sense of entitlement given the location of Mr McGill’s residence at the time (Main North Road) and the location at which he was stopped driving (Queenspark Drive, Parklands, Christchurch).
(b)Mr McGill’s achievements — Mr McGill’s obtaining of a full licence and completing a defensive driving course before he was sentenced were, as recognised in the provision of advice to the Court, both matters to be appropriately taken into account in mitigation but they also have to be seen as the basic steps that Mr McGill needed to achieve his wish to have his s 94 application granted and no disqualification imposed.
[24] Those, in my assessment, were the identifiable aggravating and mitigating features. They then needed to be brought into account at the point the Judge was considering the sentence on the driving charge and whether or not to substitute a community-based sentence for the minimum one year’s disqualification (or longer).
Section 94 application
[25] The sentencing court is entitled to adopt a stern approach to recidivist driving offenders, particularly where their offending involve breaches of court imposed orders.10
[26] The sentence reached must meet the purposes and principles of sentencing contained in ss 7 and 8 Sentencing Act 2002. Relevantly, the sentence must denounce Mr McGill’s conduct, must deter him and others from committing similar offences, and assist in his rehabilitation.
[27]Section 94(1) provides:
94 Substitution of community-based sentences
(1)This section applies if—
(a)the offender has previously been ordered on conviction for an offence to be disqualified from holding or obtaining a driver licence; and
(b)the court, having regard to—
(i)the circumstances of the case and of the offender; and
(ii)the effectiveness or otherwise of a previous order of disqualification made in respect of the offender; and
(iii)the likely effect on the offender of a further order of disqualification; and
(iv)the interests of the public,—
considers that it would be inappropriate to order that the offender be disqualified from holding or obtaining a driver licence; and
(c)the court considers that it would be appropriate to sentence the offender to a community-based sentence in accordance with Part 2 of the Sentencing Act 2002.
[28] The section is often referred to as being a mechanism that may assist offenders to avoid the “wheel of offending”.11 I agree with the District Court Judge that Mr
10 Lord v Police [2015] NZHC 1756 at [11].
11 Grimwood v Ministry of Transport HC Christchurch AP184/91, 16 August 1991.
McGill does not seem to be trapped in a cycle of being disqualified for driving whilst disqualified. However, the s 94 application has a wide application and is not limited to drivers who are in an endless cycle of like offending.12
[29] The District Court Judge explained his decision to grant the s 94 application as follows:
[9] I am prepared to apply s 94 in your case but you must realise this requires me to impose a more substantial community-based sentence to balance the fact that you are not being disqualified. That has to be quite substantial give that you would otherwise be disqualified for at least a year.
[10] Given that the gravity of offending was high, this can only be achieved through the most restrictive community-based sentence available. That is community detention. So, you will be sentenced to community detention for five months. The curfew will start today. The curfew address is 51 Kidson Terrace. The curfew at this stage will be 7.30 in the evening until six in the morning each day.
[30] Previous cases may be referred to, as counsel did, to indicate that a range of community work that is often seen as appropriate on the outcome of a s 94 application. I recognise that that approach may be seen as the generally imposed outcome when a community-based sentence is imposed in lieu of disqualification.
[31] Limited assistance may be drawn from those previous cases as each turns on the circumstances of the case and of the offender. However, they do indicate that a range of sentences has been imposed for this offending, including periods of community work.
[32] In Lord v Police the appellant was sentenced to a six months’ imprisonment on two charges of driving whilst disqualified.13 The first disqualification occurred 11 years before the second disqualification. The third and fourth disqualifications occurred in quick succession. Mander J noted the most recent charges were to be viewed against the appellant’s limited background of recidivism.14 The sentence of imprisonment was quashed and a sentence of 230 hours’ community work imposed. There was no application under s 94 in the case. Mr Harvey submits Lord may be
12 Beeston v Police [2012] NZHC 106.
13 Lord v Police [2015] NZHC 1756.
14 At [24].
distinguished as Mr McGill has three recent disqualifications, a significant demerit point and licence suspension history and the offending occurred against a background of poor driving and recent breaches.
[33] In Maeva v Police Keane J reduced a sentence of 200 hours community work and nine months disqualification to a sentence of 140 hours community work (80 hours for the offence itself and, under s 94, 60 hours in place of the order for disqualification).15 The offence was the appellant’s third conviction for driving whilst disqualified. Keane J noted the appellant’s offending was “a simple instance of disobedience” without any aggravating features such as being charged with additional offences.16
[34] Ms Cole refers to Borrell v Police where Moore J considered 150 hours community work was appropriate in the circumstances of that case for a third conviction of driving whilst disqualified.17 However, there, no s 94 application was made and the disqualification from driving for six months was not disturbed on appeal.
[35] In Burgess v Police Dunningham J, on appeal, allowed a s 94 application and imposed 50 hours community work in lieu of disqualification, taking into consideration the period of disqualification already served and the fact the appellant would be completing that work alongside full-time employment.18 There, the Judge considered the appellant was on the “wheel of offending”, and the circumstances of the case were exactly those that the substitution application was designed for.19
The pre-sentence reports
[36] After the Court directed the preparation of a pre-sentence report, the Court received two memoranda from the report writer. Both in November 2020 and February 2021 all attempts to have Mr McGill interviewed were unsuccessful.
15 Maeva v Police HC Auckland CRI-2010-404-402, 11 March 2011.
16 At [36].
17 Borell v Police [2014] NZHC 2422 at [47].
18 Burgess v Police [2021] NZHC 362.
19 At [24].
[37] The Department of Corrections was finally able to make a report available in May 2021 after Mr McGill attended an interview. That report recognised the positive steps Mr McGill was taking. That said, the report which the District Court Judge had to take into account, recommended community detention to be served at Mr McGill’s address with a curfew from 8.00 pm to 6.00 am daily. (If that were not to be imposed, the alternative first recommendation was for 400 hours community work).
[38] The recommendation of community detention was explained by reference to the need to deter Mr McGill from further offending and reservations as to any sentence of community work given that Mr McGill had reported in the past that he is easily influenced by anti-social peers.
[39] In her submissions Ms Cole has interpreted the Judge’s reference to the need to deter Mr McGill from further offending to be a reference to further driving while not having a licence but I do not interpret the Judge’s comments in that way. This is a man who has shown disdain for lawful requirements. The natural reading of the Judge’s comments is deterrence from going out and doing what he is not allowed to do.
Conclusion
[40] The approach to sentencing urged on Mr McGill’s behalf comes close to suggesting that there should be a direct substitution of a community-based sentence for the disqualification, with little if anything added by way of penalty for the offence of driving while disqualified (third or subsequent).
[41] Here, there is some force in Ms Cole’s submission that the Judge’s reference to the offending having been “deliberate in full knowledge of it being unlawful and in breach of a court order” simply reflects the elements of the offence. But at that point the Judge was coming to an overall conclusion in relation to the gravity of the offending, including by reference to what he described as “Mr McGill’s very poor driving history”.
[42] The Judge’s overall assessment of the gravity of Mr McGill’s offending, when all the circumstances I have referred to are taken into account, was fully justified — as his Honour stated, the offending was “relatively serious for this offence”.
[43] The Judge was also entitled to attach weight (although he did not expressly do so) to the recommendations of the Probation Officer. There was a sound foundation for those recommendations in that Mr McGill did not present as a reliable candidate for a lengthy period of community service. All the evidence in his history of disregard of lawful requirements suggests that he would have been doomed to failure by a sentence of community work. Mr Harvey has also identified within the judgment the recognition given to the greater flexibility that Mr McGill in fact received through having a sentence of community detention in circumstances where he was emphasising a wish to get back into the community, obtain work in his chosen area. The Judge left open the door through the way he dealt with the community detention to Mr McGill coming back and obtaining greater flexibility in relation to his curfew hours in a way that was recognised would not be available if he were in the process of serving hours of community work. Had a sentence of community work been imposed in this case it would justifiably have been significantly longer than the 150 hours proposed by Ms Cole, rendering the satisfactory completion of a sentence of community work even less attainable for Mr McGill.
[44] I conclude that the sentence imposed, bearing in mind that it was the sentence for the offending and it was carrying the weight of the need for a substituted outcome once disqualification was removed reflected both the charge of driving while disqualified and the substitution of that disqualification.
Orders
[45]I order:
(a)Leave to appeal is granted; and
(b)The appeal is dismissed.
Osborne J
Solicitors:
Raymond Donnelly & Co, Christchurch Barrister:
M M Cole Barrister, Christchurch
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