McQuillian v Police
[2019] NZHC 2024
•15 August 2019
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2019-409-000093
[2019] NZHC 2024
JUSTIN GARY McQUILLIAN v
NEW ZEALAND POLICE
Hearing: 15 August 2019 Appearances:
J Tupaea for Appellant
J H Whitcombe for Respondent
Judgment:
15 August 2019
ORAL JUDGMENT OF OSBORNE J
(as to sentence appeal)
[1] On 17 July 2019, Justin McQuillian, on his plea of guilty was sentenced by Judge Cathcart in the District Court on a charge of driving with excess blood alcohol causing injury. He was sentenced to 26 months’ imprisonment. He was disqualified from holding or obtaining a driver’s licence for two years six months. He appeals his sentence. His ground of appeal is that the sentence was manifestly excessive.
[2] Mr Tupaea appearing for Mr McQuillian identifies the error involved as a procedural error through not addressing restorative justice considerations for the purpose of sentencing.
McQUILLIAN v NEW ZEALAND POLICE [2019] NZHC 2024 [15 August 2019]
The facts
[3] On 16 May 2018, Mr McQuillian was driving a Holden Commodore sedan, driving north on Lineside Road toward Rangiora. The road was wet and slippery due to heavy rain. Traffic was heavy due to work being done on the railway lines. The section of road has 100 km/h speed limit. Mr McQuillian approached the car travelling ahead of him. He began tailgating it, looking to overtake. The car slowed down, pulled to the left side of the road to allow Mr McQuillian to pass. Despite oncoming traffic, Mr McQuillian passed the car, crossing the centre-line. This caused oncoming drivers to take evasive action by driving to the left to avoid Mr McQuillian’s vehicle.
[4] Mr McQuillian continued travelling north, approaching the S-bend in the road where it crosses the railway line. The advisory speed of the corner notified by signage is 35 km/h. At the time a rubbish truck was turning right out of nearby driveway on the right side of the road in relation to Mr McQuillian’s direction of travel. The truck was still in the process of his turn and at a 45-degree angle to the road as Mr McQuillian approached. The driver of the truck didn’t see Mr McQuillian’s car approaching as Mr McQuillian was driving at a high speed. Mr McQuillian swerved left to avoid colliding with the truck but his right wing mirror took the left side of the truck as he went past.
[5] Mr McQuillian began to lose control of his vehicle at that point but continued at high speed through the S-bend, trying to regain control as he navigated the corner. There was a line of stationary traffic ahead of him waiting for the barrier arm to be raised after a train had passed through the crossing. Mr McQuillian drove on the wrong side of the road to get past these vehicles. He accelerated heavily through the corner causing his tyres to lose traction. He lost all control of his vehicle, crossed onto the wrong side of the road and collided with the car of the victim who was injured in the crash. The force of the collision caused the victim’s vehicle to be shunted into the air and off the road. Both vehicles suffered extensive damage.
[6] The 74-year old victim suffered severe injuries including two broken ankles, a broken left elbow and wrist, a fractured pelvis, a fractured upper and lower spine, seven broken ribs and a ruptured spleen. The spleen required immediate surgery with
a permanent coil having to be inserted. The next day, screws were inserted by operation into the victim’s ankles, elbows and ribs. In the following period she suffered spells of delirium and a heart stoppage which required CPR. This was followed by a tracheotomy undertaken to enable the victim to breathe more easily. She went without a meal for 52 days. When she provided her victim impact statement almost three months later, she still had a tube in her throat and could talk only with a finger over the hole.
[7] A blood sample subsequently taken from Mr McQuillian was tested for alcohol. It showed the proportion of alcohol in his blood was 93 mg of alcohol per 100 ml of blood, at the low end of such offending as noted by Judge Cathcart.
The District Court decision
[8] Judge Cathcart regarded the emotional harm to the victim and those related to her as significant. He noted the victim had been getting over the trauma of losing her husband at the time of the crash. The injuries and effects she suffered from the crash were significant and added to her emotional pain as well as to financial problems for herself and associated family members.
[9] The Judge noted that Mr McQuillian’s criminal history is dominated by driving offences. Mr McQuillian incurred his first conviction for driving while intoxicated at 19 years of age in 1996. His Honour noted his several convictions for operating a vehicle carelessly, driving whilst disqualified and driving whilst suspended.1 The Judge noted particularly, Mr McQuillian’s conviction for careless operation of a motor vehicle in 2010, noting that on that occasion, Mr McQuillian was also driving while intoxicated and that he almost killed himself. Yet, noted the Judge, he has still not learned the lesson.2 In relation to his driving record, his Honour highlighted Mr McQuillian’s demerit points for speeding, noting their “real relevance” to the sentencing,3 and concluded: “[i]n simple terms, you pose a real risk to the public on the roads”.4
1 Police v McQuillian [2019] NZDC 13965 at [10].
2 At [11].
3 At [11].
4 At [13].
[10] In turning to the gravity of the offending, the Judge observed that the level of alcohol in this case was “not at the high level some of [the cited] cases reflect”.5 However, his Honour noted that it was the manner of driving that was the dominant aggravating feature of Mr McQuillian’s offending.
[11] Taking into consideration Mr McQuillian’s “significant” driving offence history, the Judge adopted a starting point of two years and 11 months’ imprisonment.
[12] The Judge considered that it was difficult to accept as an expression of genuine remorse Mr McQuillian’s statement that he was “sorry for what occurred”, as recorded in the pre-sentence report. His Honour categorised it as an expression of regret for the consequences of his actions. The Judge also concluded that too little information was available to allow a discrete discount for remorse beyond that inherent in a discount for an early guilty plea.
[13] The Judge acknowledged Mr McQuillian’s early guilty plea by applying a full 25 per cent discount, arriving at a “round[ed] down” end sentence of two years and two months’ imprisonment.
[14] The end-sentence was therefore beyond the 24 months threshold for consideration of a sentence of home detention. His Honour recorded that, even had an end-sentence of 24 months or less been appropriate, a sentence of home detention would have remained “inappropriate” on account of Mr McQuillian’s posing a “high risk to the public”, the need for deterrence and denunciation and the fact that Mr McQuillian had failed to learn the lesson after his near-fatal offending in 2010. He concluded that the gravity of the offending and Mr McQuillian’s driving history demanded a sentence of imprisonment.
Principles on appeal
[15] This appeal against sentence is brought as of right under s 244 Criminal Procedure Act 2011. It must be determined in accordance with s 250 of the Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there
5 At [14].
has been an error in the imposition of the sentence and that a different sentence should be imposed.6 The Court of Appeal observed in Tutakangahau v R that a “…court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.7 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.8
Submissions
Appellant’s submissions – discount for willingness to participate in restorative justice
[16] Mr Tupaea for Mr McQuillian submits that the end sentence imposed by Judge Cathcart was manifestly excessive because of a failure to consider Mr McQuillian’s willingness to engage in restorative justice.9 Section 8(j) Sentencing Act 2002 requires the Court when sentencing an offender to take into account any outcomes or likely outcomes of restorative justice. Mr Tupaea submits that the Judge should have made a discount for Mr McQuillian’s willingness to engage in the order of two months to reflect this mitigating feature. A discount of this nature has been recognised in a number of cases.
[17]Mr Tupaea cited four cases:
(a)Brown v Police, where Thomas J on appeal left undisturbed a discount of two months for a willingness to participate in restorative justice.10 In relation to a starting point of two years and two months, Thomas J found this discount to be “generous in the circumstances”.11
(b)Grogan v R, where Lang J endorsed a 15 per cent discount to reflect “mitigating features including remorse and the fact that Ms Grogan had been prepared to attend a restorative justice conference”.12 There does
6 Criminal Procedure Act 2011, ss 250(2) and 250(3).
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
8 Ripia v R [2011] NZCA 101 at [15].
9 A restorative justice process was inappropriate as the victim indicated she did not want to engage in restorative justice.
10 Brown v Police [2017] NZHC 1846.
11 At [25].
12 Grogan v R [2018] NZHC 856 at [14].
not appear in his Honour’s judgment to be an apportionment of the elements of remorse, willingness to engage in restorative justice and other unnamed mitigating factors.
(c)R v Dhillon, another decision of Lang J, where his Honour gave a discount of five months in relation to a starting point of 12 years and six months.13 This discount represented something under four per cent of the starting point.
(d)The Court of Appeal’s decision in Barnes v R.14 The District Court had made a discount of five per cent to take account of the defendant’s remorse and willingness to participate in restorative justice.15 The discount for a willingness to participate in restorative justice was not in issue on appeal. The Court of Appeal concerned itself with whether it was appropriate in some cases for a court to take into account parole eligibility considerations, particularly with reference to the consequences of the three-strikes regime.
The appellant’s submission – appropriateness of home detention
[18] Mr Tupaea then addressed the availability of home detention if the sentence were reduced to two years or less. Section 80I Sentencing Act provides:
80ILeave to apply for cancellation of sentence of imprisonment and substitution of sentence of home detention in certain cases
(1)This section applies if—
(a)a court has sentenced an offender to a short-term sentence of imprisonment; and
(b)at the time of sentencing, the court would have sentenced the offender to a sentence of home detention if a suitable residence had been available.
(2)At the time of sentencing, the court must make an order granting the offender leave to apply to the court of first instance for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if the offender finds a suitable residence at a later date.
13 R v Dhillon [2018] NZHC 820 at [6].
14 Barnes v R [2018] NZCA 42, [2018] 3 NZLR 49.
15 At [19].
[19] Mr Tupaea submits that concerns as to the serious risk Mr McQuillian may pose to the public can appropriately be dealt with by way of home detention sentence which has the benefit for Mr McQuillian of a rehabilitative approach. He submits that that involves as sentencing principles require, the least restrictive approach.
Submissions for the Police
[20] Mr Whitcombe provided detailed written submissions which I have taken into account in this judgment. I did not require him to speak to those submissions.
Analysis – approach on appeal
[21] The Court of Appeal’s emphasised that the focus on appeal is whether the end- sentence imposed can be considered manifestly excessive, rather than requiring the Court to re-examine the process by which the end sentence was arrived at.16
[22] Mr McQuillian’s primary complaint is that Judge Cathcart erred in failing to make a discount for Mr McQuillian’s willingness to participate in restorative justice. To succeed on appeal, Mr McQuillian must show that this error has led to an end sentence that is manifestly excessive.
The sentence
Starting point
[23] R v Fallowfield is a guideline judgment for driving whilst under the influence of alcohol causing injury.17 The Court of Appeal found that in cases of driving whilst under the influence causing death or injury, culpability was not necessarily greater when death resulted as the consequences of the offending are but one aspect to be taken into account in assessing culpability.18 The Court therefore found the list of aggravating and mitigating features provided in its earlier decision in R v Skerrett
16 R v Ripia, above n 8, at [15].
17 R v Fallowfield [1996] 3 NZLR 657 (CA); see Geoff Hall Sentencing Law and Practice (3rd ed, LexisNexis, Wellington, 2014) at 23.
18 At 661–662.
remained a helpful guide, although that case related to driving under the influence causing death.19
Aggravating and mitigating factors
[24] In Skerrett, the Court of Appeal listed a number of aggravating and mitigating factors, citing the decision of the Court of Appeal of England and Wales in R v Boswell:20
1.Consumption of alcohol or drugs;
2.Racing, competitive driving on the highway, grossly excessive speed, showing off;
3.The disregard by the driver of warnings from his passengers;
4.A persistent and deliberate course of very bad driving;
5.Other offences committed at the same time and related offences such as driving while disqualified or without ever having had a licence;
6.Previous convictions involving bad driving or offences involving the consumption of excessive liquor before driving;
7.The incidence of death as a result of the reckless driving;
8.Behaviour at the time of the offence, e.g. failure to stop or endeavouring, at further risk to the victim, to escape;
9.Causing death in the course of reckless driving carried out in attempting to avoid detection or apprehension.
On the other hand mitigating factors may include:
10.The fact that the driving is a “one off” piece of driving; a momentary reckless error of judgment [sic];
11.The existence of a good driving record;
12.A plea of guilty or genuine remorse;
13.Where the victim was either a close relative or close friend of the defendant and the consequent emotional shock is likely to be great.
Notably, the Court of Appeal in Skerrett said that, “[b]ecause so many [factors] have to be taken into account the discretion of the sentencing Judge must be recognised”.21
19 R v Skerrett CA236/86, 9 December 1986.
20 At 12–13; R v Boswell [1984] 1 WLR 1047 (CA) at 1051–1052.
21 At 12.
[25] The Court of Appeal in Fallowfield emphasised that drunken driving causing death or injury is serious offending and is condemned by the community as such, observing:22
[i]t is more so when there is involved recklessness, bravado, stupidity, exhibitionism or other particular irresponsibility.
While noting that there cannot be a fixed tariff in these cases due to the range of conduct covered by the offence, the Court continued that:23
…where the consumption of drink or drugs is heavy, the conduct reckless or worse and the consequences are serious[,] terms of imprisonment up to three years, and more in very bad cases, should be expected.
Turning to the case before it, the Court of Appeal concluded that, even allowing for the guilty plea,24 a sentence of three years was not excessive. That took into account the high level of intoxication, disqualification and exhibitionism.25 The defendant in that case had a reading of 210 mg of alcohol per 100 ml of blood”.26 The driving was appalling. The injuries to the two victims were extremely serious and long-lasting, if not permanent.
[26] In Morris v Police, Dobson J found that the starting point of two years adopted by the District Court Judge was in the appropriate range.27 Again, the driving was appalling. The injuries to one victim were serious.
[27] In Begg v Police, Nation J found an end sentence of three years to be within the properly justifiable range, implicitly endorsing the starting point of three years adopted by the District Court Judge.28 In Begg, the defendant drove at very high speeds through the city centre of Invercargill. The driving was again appalling. There
22 At 662.
23 At 663.
24 Gault J writing for the Court noted the guilty plea was entered only after conviction was inevitable, saying “[it] can attract little discount”.
25 This sentence was imposed without specific reference to a “starting point” as it was imposed prior to the Sentencing Act 2002 and the modern sentencing approach set out in R v Taueki [2005] 3 NZLR 372 (CA).
26 At 559.
27 Morris v Police [2008] DCR 716 (HC).
28 Begg v Police [2016] NZHC 2639 at [39].
were three victims including one who suffered serious injuries. Nation J found as aggravating factors that:
(a)the driving was “seriously reckless”;
(b)the reckless conduct had lasted a sustained period;
(c)the defendant continued driving recklessly even after his passengers had repeatedly told him to slow down;
(d)the breath alcohol content was well over the legal limit.29
Aggravating factors of this case
[28] In the present case, there are two relevant aggravating factors of the offending of the nature identified in Fallowfield and Skerrett:
(a)excessive speed; and
(b)a deliberate and persistent course of bad driving, even after one incident of collision.
[29] The wet road conditions, heavy traffic and the S-bend road layout all demanded great caution. Given those conditions, Mr McQuillian exhibited extreme recklessness in his behaviour through both his speed and the other aspects of his driving. The collision with the truck should have caused Mr McQuillian to stop at that point and identify the outcome of that collision. He did not. His subsequent conduct became even more reckless, predictably disastrous, particularly in the setting of the S-bend layout with its 35 km advisory speed.
[30] In this case, the extent of injuries suffered by the victim constituted a further aggravating feature of Mr McQuillian’s offending. I will not repeat what I have already summarised. The injuries inflicted were as predictable as they were grave.
29 At [29].
[31] Judge Cathcart fixed an overall starting point of two years eleven months. He had regard not only to the nature of the driving but also to Mr McQuillian’s driving record. The more usual approach now is to distinguish between those factors which aggravate the offending and those aggravating features personal to the defendant. But I do not on the facts of this case see a different outcome between the two approaches. The two approaches which might be adopted are:
(a)Judge Cathcart: nature of driving, extent of injuries, record – “start point” – two years 11 months;
discount of 25% for early guilty plea – nine months; end sentence – two years, two months.
(b)alternative approach: “start point” based on factors aggravating the offending – two years eight months;
increase for personal aggravating factor – three months; discount of 25% for early guilty plea – nine months; end sentence – two years, two months.
[32] By whatever route Judge Cathcart had reached the sentence of two years two months, it was a sentence which, in the circumstances of this case, and leaving aside any discount for the defendant’s offer of restorative justice, was well within the range.
Relevance of restorative justice in this case
[33] The cases establish that a sentencing judge may in their discretion take account of a defendant’s willingness or offer to engage in the restorative justice process. But it must be borne in mind that Parliament in s 8(j) of the Sentencing Act has not itself made such willingness or offer a mandatory consideration in sentencing. What Parliament requires in relation to restorative justice is the consideration of an actual or likely outcome of such a process. Here, there was no likely outcome. I am not
persuaded that Judge Cathcart erred in attaching no weight to Mr McQuillian’s offer to engage in restorative justice. Each case must depend on its own facts. As Justice Lang expressly indicated in R v Dhillon, his Honour’s preparedness to give a 3.3 per cent discount in that case reflected the defendant’s willingness to “front up to [his] victims and acknowledge [his] wrongdoing”.30 Implicitly the Judge accepted the defendant’s sincerity and that there would have been a purpose to the process.
[34] Mr Whitcombe, in his written submissions, submitted that Judge Cathcart had correctly refrained from applying a discount for remorse or the offer to participate in restorative justice. Mr Whitcombe noted on the authorities that the defendant is not entitled to a separate discount for remorse for merely professing remorse. A discount may be earned by demonstrating remorse through understanding the wrongfulness of the offending, tangible acceptance of responsibility for the conduct and its effect on any victims.31
[35] Mr Whitcombe invoked the Supreme Court’s decision in Hessell v R where the Court emphasised in relation to remorse that the statutory requirement is that it be “shown”.32 The Court recognised that expressions of remorse may be no more than self-pity of a defendant for their predicament. That approach has since been applied in this Court by reference to “pro forma letters of apology” and “routine” offers to participate in restorative justice meetings.
[36] Mr Whitcombe submitted on the basis of these authorities that an offender should not receive credit for offering to participate in restorative justice as a matter of course.
[37] He then turned to the conduct of Mr McQuillian in making a Facebook post while in custody and submitted that it demonstrated an attitude on the part of Mr McQuillian which ran counter to a successful outcome from restorative justice.
30 Dhillon, above n 13, at [6].
31 Whitcombe v Police [2018] NZHC 1409 at [27].
32 Hessell v R [2010] NZSC 135, at [64], [2011] 1 NZLR 607; Sentencing Act 2002, s 9(2)(f).
Discussion
[38] The victim impact report before Judge Cathcart identified the difficulty created by the defendant himself in relation to any restorative justice approach. As the victim wrote:
I heard about what Justin said on Facebook and that really upset me. It sounded like he didn’t care what happened to me and made it all about his meals in prison.
[39] Mr Whitcombe has today provided a screen shot of the Facebook entry. Mr Whitcombe understands that the entry was posted before Mr McQuillian’s first appearance on 24 July 2018. In the Facebook post, Mr McQuillian attached a copy of his summons for all to see. He wrote:
I got 6 more dayz of freedom, then jail or home D. Fun times lol I don’t give fuck think jail be more fun can’t wolk out the door and they cook me tea hahahahaha
[40] It does not lie in the mouth of Mr McQuillian to air in the public domain such views about his situation following the accident and then, when his evident self-focus is followed by the victim’s understandable rejection of the restorative justice conference, to nevertheless seek a discount for his offer to take part in such a conference.
[41] I add this. It may be observed that Mr McQuillian was fortunate that the Judge did not view the Facebook post as in itself an aggravating factor. Mr McQuillian constructed an offensive message, publicly posted, likely to be seen by others, likely to be passed on to the victim, and in fact passed on to the victim. The further traumatising effect of that upon the victim could have been viewed as an aggravating feature warranting an uplift of the end sentence.
Home detention
[42] As I have found the Judge did not err in imposing a sentence of 26 months’ imprisonment, Mr Tupaea’s further submission in relation to home detention falls away.
Outcome
[43]I dismiss the defendant’s appeal against sentence.
Osborne J
Solicitors:
Raymond Donnelly & Co, Christchurch J Tupaea, Barrister, Christchurch
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