McGregor v Police

[2023] NZHC 3118

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-130

[2023] NZHC 3118

BETWEEN

COREY MCGREGOR

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

7 September 2023

Appearances:

J Lucas for the Appellant

C M Hallaway for the respondent

Judgment:

3 November 2023

Reissued:

4 December 2023

JUDGMENT OF HARLAND J

Introduction

[1]    Corey McGregor appeals Judge Couch’s decision from 4 July 2023 re- sentencing him in respect of a charge of refusing to provide a blood specimen to an enforcement officer1 by imposing a mandatory period of disqualification under s 65 of the Land Transport Act 1998 (LTA).2 When Mr McGregor was originally sentenced on 19 July 2022, the Judge had disqualified him for a period of one year and three months. Mr McGregor contends that the Judge was wrong to grant the Police application to correct his sentence under s 180 of the Criminal Procedure Act 2011 (CPA) and to sentence him to indefinite disqualification under s 65 of the LTA.

1      Land Transport Act 1998, s 60(1)(a); maximum penalty three months’ imprisonment.

2      Police v McGregor [2023] NZDC 13943.

MCGREGOR v POLICE [2023] NZHC 3118 [3 November 2023]

[2]    I have decided to allow the appeal. This judgment sets out my reasons for doing so.

Background

[3]Mr McGregor is currently 26 years of age.

[4]    On 21 December 2020, Mr McGregor was convicted in the Christchurch District Court of driving while disqualified. He was then 23 years old. On 18 October 2021, he was again convicted in the Christchurch District Court of driving while disqualified.

[5]    On 1 November 2021 a number plate was stolen from a vehicle in Cashmere. On 13 November 2021, a BMW was stolen from a New Brighton address.

[6]    On 25 November 2021, Mr McGregor drove the stolen BMW, which had attached to it the stolen licence plate. The summary of facts records that he had been involved in multiple driving complaints around the Christchurch area before heading north towards Blenheim. On the road, Mr McGregor was seen travelling at excess speed.

[7]    The Police were unable to pursue the vehicle as it fled north on State Highway 1. On two occasions, Police patrol units attempted to deploy road spikes, which were unsuccessful. Near Wharanui, a Police patrol was successful in spiking Mr McGregor’s vehicle. Undeterred, Mr McGregor continued to drive the vehicle on three flat tyres for approximately 25 km.

[8]    Unsurprisingly, this destroyed the integrity of the tyres, leaving three with no rubber and practically disintegrating the rims. The summary of facts records that the integrity of the vehicle was so badly affected that the airbags were activated and deployed inside. This caused the vehicle to come to a stop on the side of the road where Mr McGregor was subsequently arrested.

[9]    Mr McGregor was taken to the Blenheim Police station where he underwent a compulsory impairment test for drugs. He did not satisfactorily complete the test and was subsequently requested to give a blood specimen, which he refused to do.

[10]   Mr McGregor was charged with driving while disqualified for the third or subsequent time,3 unlawfully using a motor vehicle,4 refusing to provide a blood specimen5 and failing to stop when followed by red/blue flashing lights6 (laid in its aggravated form).

[11]   Mr McGregor was also charged with escaping from Police custody7 on 29 November 2021 following his appearance in the Blenheim District Court on the charges referred to above.

[12]   Mr McGregor pleaded guilty to the charges on 20 December 2021. Eventually, he was sentenced by Judge Couch on 19 July 2022. There was an amended summary of facts before the Judge which, with reference to the charges of refusing to provide a blood specimen, did not refer to the qualification that applies under s 65 of the LTA. Rather, the maximum disqualification was outlined to be a period of disqualification for six months or more. For the driving while disqualified the summary of facts recorded the disqualification to be one year or more.

[13]   Judge Couch was persuaded to convict and sentence Mr McGregor to a period of supervision for 12 months with conditions. On the lead charge of refusing to permit a blood specimen the Judge disqualified him from holding or obtaining a driver’s licence for a period of one year and three months, commencing on 19 July 2022. A concurrent one year and three-month sentence was imposed for a driving while disqualified charge and a further six month disqualification was added cumulatively for the failing to stop charge. The Judge’s sentence was not appealed.

3      Land Transport Act, ss 32(1)(a), 32(4); maximum penalty two years’ imprisonment.

4      Crimes Act 1961, s 226(1); maximum penalty seven years’ imprisonment.

5      Land Transport Act, s 60(1)(a); maximum penalty three months’ imprisonment.

6      Sections 52A(1)(a)(ii), 52A(3), 52A(6) & 114(2); maximum penalty $10,000 fine..

7      Crimes Act, s 120(c); maximum penalty five years’ imprisonment.

[14]   At the time of his offending and the sentencing before Judge Couch, Mr McGregor was 24 years of age.

[15]   Mr McGregor was still subject to the disqualification imposed by Judge Couch when, by chance, the Police saw him driving at a petrol station this year. Mr McGregor was charged with driving while disqualified and giving false details (the new charges). He has pleaded guilty to these charges and awaits sentence in respect of them. The sentencing awaits the outcome of this appeal for reasons that will shortly become obvious.

[16]   When the new charges came before the Court, Police realised that Mr McGregor should have been disqualified under s 65 of the LTA when he was sentenced in July 2022 on the charge of refusing to provide a blood specimen. This section is entitled “Mandatory disqualification and assessment for repeat offences”. If it applies, the Court must make an order requiring a person to attend an assessment centre and disqualify them from holding or obtaining a driver’s licence until the Director of Land Transport removes the disqualification under s 100 of the LTA.

[17]   Under s 100 of the LTA, the Director must make an order removing the disqualification of an applicant from holding or obtaining a driver’s licence if the director is satisfied that the applicant is a fit person to hold a driver’s licence. In reaching this decision, the Director must have regard to a report from a health practitioner attached to an assessment centre and any other evidence submitted by an applicant relating to the applicant’s medical condition.

[18]   Because s 65 of the LTA had not been referred to the Judge when it ought to have been, upon being made aware of this, the Police applied, under s 180 of the CPA, to correct the sentence of disqualification imposed by the Judge on 19 July 2022 on the basis that it was erroneous. Section 180 enables the Court to correct an erroneous sentence. It provides that, if any sentence is one that could not, by law, have been imposed, the Court may impose a new sentence.

[19]   On 4 July 2023, Judge Couch heard the application under s 180 of the CPA. He set aside the sentence of disqualification he had imposed on 19 July 2022 and

replaced it with disqualification under s 65 of the LTA, back dating it to 19 July 2022. The sentences of disqualification on the other two charges imposed on 19 July 2022 were unaffected by this decision.

[20]   In making his decision, the Judge referred to s 180 of the CPA. He recognised the permissive rather than mandatory nature of this provision, citing Morrell v Police.8 The Judge considered the sentence should be corrected, noting that the fundamental purpose of the LTA is to ensure safety. He also noted that s 65 was enacted to keep repeat impaired drivers off the road until they could demonstrate that they had dealt with the issues underlying their offending.9

Discussion

[21]   Appeals against sentence are allowed as of right by s 244 of the CPA. An 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.10

[22]The parts of s 180(1) of the CPA relevant to this appeal provide:

180 Court may correct erroneous sentence

(1)   If any sentence is one that could not by law be imposed, or if the court does not impose a sentence that is required by law to be imposed, the court may impose a new sentence—

(a)on the application of either of the parties or, as provided in section 181, the chief executive of the Department of Corrections; or

(b)on its own motion.

…

(4)   In this section, the term sentence includes—

(a)an order, and references to the imposition of a sentence include references to the making of an order.

8      The Judge cited Morrell v Police [2020] NZHC 1455, but it is likely he meant to cite Morrell v Police HC Napier CRI-2008-441-12, 12 June 2008.

9      Police v McGregor, above n 2, at [13].

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

Appellant’s submissions

[23]   Mr Lucas, for the appellant, first noted that, when considering an application under s 180 of the CPA, the Court has a discretion to impose a new sentence but to do so is not mandatory. His argument was essentially that, in this case, the discretion ought not to have been exercised to correct the error, as Mr McGregor is prejudiced because of the delay between the sentence and the date of the application to vary. He submits that the Judge did not properly consider the delay and the effect this has had on Mr McGregor.

[24]   Although an order of disqualification usually applies from the date the order is made, Mr Lucas accepted that a Judge has the power to backdate such an order under s 85 of the LTA. Mr Lucas submitted that the effect of backdating the order under s 65 was of no utility in this case because Mr McGregor must still wait one year and one day after the date the order was made before he can apply to the Director to have his licence reinstated - even then, there is no guarantee it will be granted.11 In this regard Mr Lucas submitted he would have done more to help his position if he had known on 19 July 2022 that he was indefinitely disqualified rather than disqualified for a finite period.

[25]   Importantly for Mr McGregor, Mr Lucas highlighted that the sentence amendment means, in respect of the current charge of driving while disqualified, that Mr McGregor cannot apply to have the disqualification for the current offence converted to a community-based sentence under s 94 of the LTA.  Mr Lucas submits a s 94 application, if successful, would “get [Mr McGregor] off the treadmill of constant disqualification.”

Respondent’s submissions

[26]   Ms Hallaway for the Crown referred to a case, where there was a three-month gap between the sentence imposed and the correction, where no issue was taken about

11     Land Transport Act, s 100(3).

the substantial delay,12 and to another case where a seven-month delay in correcting the erroneous sentence was not challenged.13

[27]   Accepting that delay can be relevant where it prejudices a defendant, Ms Hallaway nonetheless submitted that no prejudice arises in this case because:

(a)        if the erroneous sentence is not corrected, Mr McGregor will still be disqualified until 19 April 2024;

(b)       if the erroneous sentence is corrected, he may apply for reinstatement of his licence one year and a day after the order comes into force. Therefore, he would be eligible to apply for his licence on 5 July 2024, an extension of less than three months;

(c)        a comparison of these positions demonstrates that the correction of the erroneous sentence only delays Mr McGregor’s ability to apply to have his licence reinstated by a few months, were it not for his liability to be disqualified for further offences because of his admitted subsequent offending; and

(d)       Mr McGregor is to be sentenced for driving while disqualified (third or subsequent) and is liable to be disqualified for a further 12 months, which is mandatory. It is therefore difficult to see how any prejudice arises given he will face another lengthy disqualification period in any event.

[28]   In conclusion, Ms Hallaway submitted that legitimate public safety concerns outlined by Judge Couch should prevail, as should the ordinary maintenance of the law through the imposition of mandatory sentences. For these reasons, he submitted that it was appropriate for Judge Couch to correct the erroneous sentence and for the appeal to be dismissed.

12     Doidge v Police [2021] NZHC 3195.

13     R v G [2022] NZHC 1519.

Analysis

[29]   When sentencing Mr McGregor in July 2022, the Court was required to make an order of mandatory disqualification under s 65 of the LTA. However, under s 100(3) no order for a removal of the disqualification (under s 100(1)) may be made if the applicant has been subject to the order that “has been in force for less than 1 year and 1 day”.

[30]As noted by the Court of Appeal in Neho v Police:14

…back or postdating the start of the indefinite disqualification cannot affect the requirement for the order to have been in force for at least a year and a day. The order cannot be “in force” before it is pronounced.

[31]   In Neho v Police the Court of Appeal dealt with the issue of backdating an indefinite disqualification. The facts of that case are slightly different from this case. In Neho the defendant had been sentenced to an indefinite disqualification under s 65 of the LTA as an ordinary part of sentencing, not in the context of correcting an erroneous sentence. Nonetheless, I agree with Mr Lucas that the same principle applies. The Court of Appeal held that there was no point in backdating the start of the order, because the time period “year and a day” applies from when the order is made or announced and has been in force.

[32]   In this case, should the District Court’s decision remain in force, Mr McGregor would be able to apply for his disqualification to lapse on 5 July 2024, as opposed to having his disqualification automatically lapse on 19 April 2024, in line with Judge Couch’s original 2022 sentence. With respect, the Judge’s view that Mr McGregor would be disqualified until 19 April 2024, whichever course of action he took, was not correct. The addition of an indefinite disqualification would bar Mr McGregor from driving until 5 July 2024, that being one year and one month after the sentence was passed.

The Crown appears to tacitly acknowledge this point, also noting Mr McGregor may apply for his disqualification to lapse on 5 July 2024 (hypothetically were Mr McGregor not to be awaiting sentence on further driving charges).

14     Neho v Police [2016] NZCA 596 at [22].

[33]   The District Court Judge did not refer to Neho and it is not clear from the Judge’s decision whether the problem with backdating as it arose in Neho was foreseen. In any event, the point determined in Neho about backdating is a subtle and reasonably technical point that would not necessarily be in either a judge or counsel’s everyday toolbox.

[34]   Even though the Judge seems to have intended to “backdate” the sentence, he also appears to have acknowledged that such an action would have no impact on the requirement that the order remain in force for one year and one day before an application can be made to the Director General for removal.15 Because of that acknowledgement and the confusion, I will nonetheless go on to consider whether, assuming the District Court’s indefinite disqualification order is valid in terms of Neho, the sentence adjustment was a reasonable exercise of judicial discretion.

[35]   The Judge correctly identified that the power to impose a new sentence was permissive not mandatory citing Morrell v Police. He then said:

[13]      In this case, I can see no reason why the error should not be corrected. Not to do so would be contrary to the fundamental purpose of the Land Transport Act to ensure road safety. Section 65 was enacted to keep repeat impaired drivers off the road until they can demonstrate that they have dealt with the issues underlying their offending.

[14]      It is apparent also that the other two sentences which I imposed on 19 July 2022 effectively overtake the erroneous sentence in any event. Whether I correct this error or not, the defendant will remain disqualified from holding or obtaining a driver licence until 19 April 2024. The only adverse effect this will have on the defendant is that it may delay the time at which he becomes eligible to ask the Director of Land Transport to reinstate his driver licence.

[36]   Apart from the above there is no analysis of the potential impact of the s 65 LTA disqualification on Mr McGregor’s future sentencing options in relation to on the current charges and the impact that might have on his proposed s 94 LTA application to commute disqualification to community work. This is surprising given that counsel for the defendants written submissions at the time referred to this in detail. The written submissions also outlined Mr McGregor’s efforts at rehabilitation and his compliance

15  Police v McGregor,  above n 2, at p 3, Judge Couch noted “[t]he only adverse effect [correcting   the sentence] will have on the defendant is that it may delay the time at which he becomes eligible to ask the Director of Land Transport to reinstate his driver license”.

with his community work and supervision sentences during this time. All these matters were relevant to the exercise of the discretion under s 180.

[37]   I find that the Judge did not consider and assess all relevant matters when exercising his discretion to resentence Mr McGregor and impose the disqualification he was required at law to impose originally. Although he was correct to refer to the public policy issues behind s 65, equally relevant was the public policy issue behind s

94. Mr McGregor’s positive response to the sentences of supervision and community work, when coupled with his age mean that this public policy issue ought to have been considered, but it was not.

[38]    In my view, when the public policy issue behind s 94 is added to the effect on McGregor of the delay in bringing the application to amend under s 180, the scales of justice favoured the application to correct being declined. In making this finding I am mindful that the s 94 argument is one that is yet to be run and it may not succeed, but the opportunity to make the application in my view is what justice required on the facts of this case. Even though application of s 65 of the LTA was the outcome that was required to be made at the time Mr McGregor was sentenced, it is the delay in this case that required the Court to take a more nuanced approach to the application to correct the erroneous sentence initially imposed by the Judge.

[39]   I am satisfied that there was an error made by the Judge by failing to weigh all relevant matters in the balance when exercising his discretion to impose the original disqualification required by law at the time of sentencing.

Result

[40]The appeal is allowed.

[41]   Under s 251 of the CPA, I can set aside the order of disqualification imposed by the Court on 4 July 2023. My intention is that the order of disqualification for a period of one year and nine months imposed by the Court on 19 July 2022 should remain in force. Counsel are to advise in light of Neho how the earlier order of

disqualification can be imposed or, alternatively, what order of disqualification this Court should make.

Addendum

[42]   Following the issuing of my interim judgment, counsel have conferred in relation to the matters I raised in para [41] of my interim judgment.

[43]In addition to the appeal being allowed, I also make the following orders:

(a)        in relation to the Police application to resentence that was granted in the District Court, this application is quashed and the period of indefinite disqualification imposed by the Judge is set aside; and

(b)       the original disqualification period that was imposed at sentencing on 19 July 2022 is reinstated. This means that Mr McGregor is disqualified from holding or obtaining a driver’s licence for a period of one year and nine months, commencing on 19 July 2022.

Harland J

Solicitors:

J Lucas, Barrister, Christchurch
Raymond Donnelly & Co., Christchurch, for Respondent.