McQuillian v Police - [2019] NZHC 2024

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…

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 McQuillian v Police

Details

AGLC: McQuillian v Police [2019] NZHC 2024
Case: [2019] NZHC 2024
Decision Date: 15 August 2019

CaseChat Overview and Summary

Justin McQuillian appeals his sentence, imposed by Judge Cathcart in the District Court, for driving with excess blood alcohol causing injury. The sentence was 26 months’ imprisonment and a disqualification from holding or obtaining a driver’s licence for two years six months. The ground of appeal is that the sentence was manifestly excessive. Specifically, McQuillian claims that the sentence was excessive due to a failure to consider his willingness to participate in restorative justice. The police submit that the sentence was not manifestly excessive and the court should not apply a discount for the willingness to participate in restorative justice.

The court found that the sentence imposed was within the appropriate range. Aggravating factors included the excessive speed and the deliberate and persistent course of bad driving, even after one incident of collision. The extent of injuries suffered by the victim also constituted an aggravating feature of McQuillian’s offending. The court found that there was no likely outcome from a restorative justice process, and therefore, the judge did not err in attaching no weight to McQuillian’s offer to engage in restorative justice. The court also found that McQuillian’s Facebook post, which was likely seen by the victim, demonstrated an attitude on the part of McQuillian which ran counter to a successful outcome from restorative justice.

The appeal against sentence was dismissed.

Orders