McGregor v Police

[2025] NZHC 871

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2025-463-11

[2025] NZHC 871

BETWEEN

DONALD MCGREGOR

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

10 April 2025

Appearances:

X Wang for Appellant

M Tutton-Harris for Respondent

Judgment:

10 April 2025

JUDGMENT OF LANG J

[appeal against sentence]

This judgment was delivered by Justice Lang On 10 April 2025 at 3.00 pm

Registrar/Deputy Registrar Date:…………………………

Solicitors/counsel:

Pollett Legal Ltd, Tauranga

X Wang, Law Aid International

MCGREGOR v POLICE [2025] NZHC 871 [10 April 2025]

[1]    Mr McGregor pleaded guilty in the District Court to charges of causing death whilst carelessly driving a motor vehicle when he had an excess concentration of methamphetamine  and  THC  (a  central  ingredient  of  cannabis)  in  his  blood.   On 10 January 2025, Judge G C Hollister-Jones sentenced Mr McGregor to 19 months’ imprisonment.1

[2]    Mr McGregor appeals against the sentence. He contends the Judge ought to have made an order permitting him to apply to substitute a sentence of home detention for the sentence of imprisonment if he could find a suitable address.

The offending

[3]    On the evening of 19 May 2023, Mr McGregor was the driver of a truck that was travelling in a westerly direction on State Highway 2 between Tauranga and Rotorua. He had commenced work approximately 12 hours earlier. He was returning the truck to his employer’s base in Rotorua at the end of his shift.

[4]    The victim was driving a vehicle in an easterly direction on the same road. Mr McGregor failed to negotiate a slight left-hand bend and drifted onto the wrong side of the road. His vehicle crashed head-on into the victim’s vehicle, thereby causing fatal injuries to the 15-year-old victim.

[5]    Mr McGregor was injured in the collision. He was taken to hospital, where a blood sample was taken.   This showed that his  blood contained a concentration     of 20 nanograms per millilitre of methamphetamine. The tolerance level for methamphetamine  is   10   nanograms   per   millilitre   and   the   high-risk   level   is 50 nanograms per millilitre. The analysis also showed that Mr McGregor had three nanograms of THC per millilitre of blood. The high-risk level for THC is three nanograms per millilitre whilst the tolerance level is one nanogram per millilitre.

1      Police v McGregor [2025] NZDC 308.

The sentence

[6]    Mr McGregor entered his guilty pleas after receiving a sentence indication from Judge Hollister-Jones on 10 October 2024. The Judge had indicated a starting point of two years’ imprisonment with a discount of 17 per cent for guilty plea.

[7]    At sentencing, the Judge maintained the starting point he had selected, as well as the discount for guilty plea. He applied a further discount of three per cent to reflect the fact that Mr McGregor had provided him with a letter in which he accepted responsibility for the offending and expressed remorse. This resulted in the end sentence of 19 months’ imprisonment.

[8]    Turning to the question of home detention, the Judge decided that this would not be appropriate for the following reasons:

[14]      The next question for the Court is whether your sentence should be one of home detention or whether it should be a full-time term of imprisonment. There is a strong need to hold you accountable for the harm you have done and to deter you and others, especially the drivers of heavy motor vehicles, from consuming illegal drugs and driving.

[15]      The pre-sentence report raises your home address as a home detention address. In the report, there are significant concerns about ongoing drug use at this address with daily cannabis use and the view of the writer of the pre-sentence report is that home detention to your home would not be rehabilitative concerning drug issues. I quote, "His cannabis dependency has been normalised and rationalised within the family."

[16]      Mr McGregor, your cannabis level in relation to this offending was at the bottom of the high range. I am not going to sentence you to home detention at an address where cannabis usage on a daily basis is continued. That would be an affront to justice. In my view, the requirements of accountability and deterrence require a  full-time  custodial  sentence  and  you  are  sentenced to 19 months’ imprisonment.

[9]    After the Judge had sentenced Mr McGregor to imprisonment, Mr Wang asked him to make an order under s 80I(2) of the Sentencing Act 2002 granting Mr McGregor leave to apply for home detention if he could obtain a suitable residence. The Judge declined to do so.

The appeal

[10]   On Mr McGregor’s behalf, Mr Wang contends that the Judge erred in rejecting the appropriateness of a sentence of home detention. He does not contend the Judge was wrong to decline to allow Mr McGregor to serve such a sentence at the proposed address. However, Mr Wang contends the Judge was wrong to decline his oral application for an order granting Mr McGregor leave to apply to substitute a sentence of home detention if he could find a suitable address.

[11]   Mr Wang points out that the Judge gave no reasons for rejecting this as an available option. He says Mr McGregor should be permitted to apply have a sentence of home detention substituted if he can find a suitable address. This may take the form of a different residential address or a residential rehabilitation facility.

[12]   Mr Wang also contends that the present offending was not of such gravity that the principles of deterrence and denunciation ruled out a sentence of home detention. He points out  that the collision occurred as a result  of momentary inattention  on  Mr McGregor’s part and it did not involve a sustained incident of careless driving.

[13]   Mr Wang relies upon two sentencing authorities in which the offenders had received sentences of home detention after being convicted of causing death or injury by driving whilst having excess alcohol or drugs in their blood.2 He says the circumstances of the present case are comparable to those in the cases he relies upon.

Analysis

[14]   As Mr Wang accepts, the decision whether or not to impose a sentence of home detention is the exercise of a fettered discretion. The discretion is constrained by the sentencing purposes and principles contained in  ss  7  and  8  of  the  Sentencing  Act 2002.3 As in all cases involving the exercise of a discretion, an appeal will only succeed where it can be shown that the Judge who imposed the sentence took into account irrelevant principles, failed to take into relevant principles or came to a

2      Mitchell v R [2017] NZCA 233; Kinita v R [2020] NZHC 1008.

3      Fraser v R [2013] NZCA 250 at [20].

conclusion that was plainly wrong.4 The weight to be given to relevant factors is a matter for the sentencing Judge. An appeal in this context does not permit re-examination of the merits of the case. Further, an appellate court will not substitute its own view of the weight that should be given to relevant factors.

[15]   In the present case, the Judge concluded, for the reasons given at [14] of his decision, that the sentencing purposes of accountability and deterrence required a full- time custodial sentence. Mr Wang does not argue that those factors were irrelevant to the exercise of the discretion in the present case. They must be relevant given the fact that Mr McGregor had caused the death of another driver by driving a heavy motor vehicle carelessly in circumstances where he had two different types of drugs in his system.

[16]   Further, Mr Wang has not pointed to other relevant factors that the Judge failed into account when settling on a sentence of imprisonment. Nor has he sought to argue the sentence was plainly wrong. In essence, Mr Wang asks me to re-examine the merits of the sentence. That is not the correct approach in the present context.

[17]   Matters raised in the pre-sentence report also militated against a sentence of home detention. It identified numerous concerns about Mr McGregor’s lengthy history of convictions for both drug and driving offences. He also has a history of breaching the electronically monitored sentence of home detention. The report also questioned Mr McGregor’s ability to have insight into, and accept responsibility for his offending:

Mr McGregor has a significant history of convictions dating back to 1984, including cannabis possession, cultivation, and multiple driving offences. His self-reported substance use during a Departmental screening, particularly cannabis, raises concerns around Mr McGregor's ability to abstain in his current    environment    without    intensive    intervention.    It    appears  Mr McGregor's drug use is not being challenged but supported by those around him, as evidenced by Mrs McGregor's (wife) statement "He needs cannabis, it helps him to relax and sleep."

Mr McGregor admitted to using methamphetamine prior to the accident, claiming "It was a one time occurrence given to me by friends at a tangi." He describes his cannabis use as recreational, stating, "It lasts in the system for a long time. I could have smoked it weeks ago and it would still show up. It's

4      Repia-Nicholas v Police [2024] NZHC 311 at [5].

something I only did on the weekends, not when I was at work." However, the high levels of both substances in his system on the day of the accident, combined with his extensive criminal history, indicates that substance use plays a significant role in his daily life.

Mr McGregor has displayed blame-shifting behaviour. He stated "There was also drug paraphernalia found in her car," and criticised the victim's father: "If I was the father, I would never have let my fifteen-year-old daughter drive in those conditions." Mr McGregor also claimed he lost his job due to his employer's connection with the victim's family, as opposed to being a result of his actions. These statements suggest a lack of insight into the impact of his behaviour on the accident, and therefore the level of remorse is questioned.

Mr McGregor has historically breached Court-ordered conditions, including seven breaches of Home Detention and failure to Answer District Court Bail. His pattern of non-compliance raises concerns about his ability to comply with any community-based sentence or rehabilitation program. Given his history and ongoing substance abuse, it is questioned what his response to rehabilitation would be.

Mr McGregor is considered a high risk of re-offending due to his persistent drug use, and ongoing disregard for driving. Considering the severity of the offence, Mr McGregor's criminal history, substance abuse, peer associates, and lack of compliance with previous sentences, the recommendation is for imprisonment, with release conditions.

Decision

[18]   Given the comments contained in the pre-sentence report it is not surprising the Judge considered home detention was not a suitable sentencing option. Rather, he considered the sentencing purposes of accountability and deterrence required a sentence of imprisonment.

[19]   I am therefore satisfied the Judge took into account relevant sentencing purposes. As I have already noted, the weight that he gave to those was a matter for him. There is no justification for this Court interfering with the sentence in the exercise of its appellate jurisdiction.

Result

[20]The appeal against sentence is dismissed.

Lang J