IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE	
CRI-2024-412-30
CRI-2024-412-31 [2024] NZHC 2608	

BETWEEN	RICHARD MASON MCQUARRIE
Appellant	
AND	THE KING
First Respondent

DEPARTMENT OF CORRECTIONS
Second Respondent	

Hearing:	9 September 2024	
Appearances:	G S Williamson on behalf of J A T Ross for Appellant P A Norman for Crown
N Watson for Department of Corrections	
Judgment:	10 September 2024	

JUDGMENT OF OSBORNE J

Introduction

[1]	Richard McQuarrie (26 years of age) was sentenced by Judge Turner of the District Court on 13 June 2024 for the following offending, having pleaded guilty to:1

(a)	two charges of assault on a person in a family relationship;2

(b)	intentional damage;3

1	R v McQuarrie [2024] NZDC 13570.
2	Crimes Act 1961, s 194A — maximum penalty two years’ imprisonment.
3	Summary Offences Act 1981, s 11(1)(a) — maximum penalty three months’ imprisonment or a fine not exceeding $2,000.

MCQUARRIE v R [2024] NZHC 2608 [10 September 2024]

(c)	intimidation;4 and

(d)	dangerous driving.5

[2]	At the same hearing, Mr McQuarrie was sentenced on his conviction for breaching a sentence of community work.6

[3]	He appealed against two aspects of his sentence, namely special release conditions and the period of his disqualification from driving. At this hearing, Mr Williamson appearing on Mr Ross’s behalf, advised the Court of two matters. First, the appeal in relation to the period of disqualification was withdrawn. Secondly, the appeal in relation to the appeal conditions could be resolved by amending one of the special conditions. It is appropriate to explain why the appeal will be granted to that extent.

[4]	I orally allowed the appeal to the extent of amending special release condition 6, as recorded at the conclusion of this judgment. The appeal was otherwise dismissed.

Factual Background

[5]	On 19 May 2023, Mr McQuarrie arrived at the victim's home (despite her telling him not to). He assaulted her by putting his hand around her throat the moment she opened the door to let him in. He then left the address, only to return later that evening and continue the altercation. Mr McQuarrie held the victim down, pushing on her chest area.

[6]	On 28 May 2023, the appellant tried to gain entry to the victim’s address. He smashed a pane on her glass sliding door causing the victim to flee her property and call the police. Mr McQuarrie then left, but came back an hour later, by which point the victim had returned home. Mr McQuarrie threw the victim to the ground and

4	Summary Offences Act, s 21 — maximum penalty three months’ imprisonment or a fine not exceeding $2,000.
5	Land Transport Act 1998, s 35(1)(b) — maximum penalty three months’ imprisonment and at least six months disqualification.
6	Sentencing Act 2002, s 71(1)(a) — maximum penalty three months’ imprisonment or a fine not exceeding $1,000.

attempted to kick her in the head twice. He picked her up and hit her head against a washing machine while making threats and abusive remarks. He threatened to kill her if she called the police. He threw her cell phone under the washing machine. While the victim started cleaning up the broken glass from the smashed window outside, Mr McQuarrie started throwing stones at her. Eventually she went back inside the house, found her phone, jumped over a fence, and hid.

[7]	After a period, the victim drove away from her address and called police a second time. While she was on the phone to the police and driving along a road, the appellant drove in the opposite direction towards her. On seeing the victim’s car, the appellant deliberately manoeuvred his vehicle onto the wrong side of the road and drove directly at her, accelerating. The victim took evasive action to avoid a head-on collision. A member of the public had witnessed the event and called the police.

[8]	The next day, the appellant was arrested near the victim’s home and admitted to breaking the window but denied the assaults.

[9]	The victim suffered bruises and a sore jaw and throat. A protection order was made against the appellant upon his guilty plea.

Victim impact statement

[10]	The victim states the incident has been the most horrific thing to happen to her in her life. The victim received messages from the appellant that reinforced her belief he was going to kill her. The victim is fearful of future contact with the appellant. She says it is causing her stress every day.

District Court decision

[11]	The Judge noted the appellant’s significant list of previous criminal convictions dating from 2006 to February 2023. He has an extensive history of family violence related offending involving three female victims each of whom he had been in a relationship with. He has other convictions for violence and one for possession of a knife.

[12]	Judge Turner described the pre-sentence report as one of the most negative he had seen, with Mr McQuarrie’s prospects of rehabilitation described as poor. The probation officer also described Mr McQuarrie as showing neither empathy for the victim nor remorse for his behaviour. That led the Judge to the view that imprisonment with release conditions should be imposed.

[13]	The Judge took a 16-month starting point on the lead offence of the assault on 28 May. He treated the intimidation, intentional damage, and dangerous driving as aggravating features of that assault. The Judge uplifted the starting point by eight months for the earlier assault on 19 May. He applied an additional one-month uplift for the appellant’s breach of community work. That brought the adjusted starting point to 25 months’ imprisonment. Judge Turner applied  an  uplift  of  10  per  cent  for Mr McQuarrie’s history of family violence and five per cent to recognise he was on sentence when he offended. A 20 per cent discount was applied for Mr McQuarrie’s guilty plea. The end sentence was two years’ imprisonment.

[14]	The Judge referred to the dangerous driving, describing Mr McQuarrie as having crossed the centre line and driven at speed towards the victim’s car. The Judge considered Mr McQuarrie’s dangerous driving was at the highest end of the scale and his actions could well have warranted a more serious charge.

[15]	The Judge imposed special conditions having identified that Mr McQuarrie is a violent man who shows no insight into his behaviour and no willingness to change.

[16]	The Judge adopted the recommendations for standard and special release conditions (seven in total) that each continued for six months after the sentence expiry date contained in the pre-sentence report. The special conditions were:

1.	Not to possess, consume or use any alcohol or drugs not prescribed to you;

2.	To attend and complete an appropriate non-violence programme to the satisfaction of a Probation Officer. The specific details of the appropriate programme shall be determined by a Probation Officer.

3.	Not to communicate in any way or associate with any victim/s of your offending, without the prior written approval of a Probation Officer.

4.	To disclose to a Probation Officer, at the earliest opportunity, details of any intimate relationship which commences, resumes or terminates.

5.	To comply with the requirements of electronic monitoring, and provide access to the approved residence to the Probation Officer and representatives of the monitoring company, for the purpose of maintaining the electronic monitoring equipment as directed by the Probation Officer.

6.	Not to enter the Otago region as defined by a Probation Officer in writing unless you have the prior written permission of a Probation Officer.

7.	To submit to electronic monitoring in the form of Global Positioning System (GPS) technology as directed by a Probation Officer in order to monitor your compliance with any condition(s) relating to your whereabouts.

[17]	The Judge disqualified the appellant from holding or obtaining a driver’s licence for 12 months, until 13 June 2025.

[18]	On the breach of his community work, the appellant’s sentence was cancelled and he was instead convicted and sentenced to one month’s imprisonment to be served concurrently.

Principles on appeal

[19]	Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only 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 stated 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

7	Criminal Procedure Act 2011, 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].

Appellant’s submissions

[20]	The appellant’s submissions are summarised from Mr Ross’s written submissions.

[21]	Mr Ross, for Mr McQuarrie, submitted the final three special conditions ((5) to (7)), were inappropriate, rendering the sentence manifestly excessive.

[22]	Mr Ross submitted the challenged conditions were onerous and of unreasonable duration. He submitted the special conditions are unnecessary because other mechanisms are in place to ensure the victim’s safety, such as a protection order; the special condition (3) which “prevents” the appellant from contacting the victim; and the fact the victim is on the Victim Notification Register.

[23]	Mr Ross sought leave to adduce an affidavit of Mr McQuarrie: Mr McQuarrie provided information about his self-employment as a painter working in Otago and Central Otago. He identified the residence of five close family members who live in the Dunedin area and one who lives at Kurow. He said the challenged conditions impeded his access to his family and employment. He referred to a difficulty in uplifting his heavy painter’s equipment from Dunedin. He added this affidavit information was not before the sentencing Judge.

[24]	Today I received a group of letters written by family members of Mr McQuarrie, some signed, some not. One is from Mr McQuarrie himself. They re- emphasised matters covered in Mr McQuarrie’s affidavit. They indicated what a good, hard-working family member Mr McQuarrie is and the family’s uncertainty as to why Mr McQuarrie is cut off from them.

[25]	Mr Ross submitted that the 12-month disqualification period imposed by the Judge was manifestly excessive and should be reduced to six months.

[26]	As this aspect of the appeal has been withdrawn, I will not discuss the grounds of that aspect of the appeal further, save to identify that the 12-month period of

disqualification appeared entirely appropriate — I would not have allowed that appeal on the ground advanced.

Analysis of remaining ground of appeal

Mr McQuarrie’s affidavit

[27]	The same principles apply to the receipt of fresh evidence for a sentence appeal as to a conviction appeal. The Court of Appeal in Mark v R noted that:10

(a)	if the evidence is both credible and fresh it should be admitted unless the appeal court is satisfied it would have had no effect on the sentence;

(b)	if the evidence is credible but not fresh, the appeal court should assess its strength and its potential impact on the sentence. If the appeal court considers that the sentence could be manifestly excessive if the evidence is excluded, then it should be admitted notwithstanding that it is not fresh.

[28]	As Mr Ross has conceded, Mr McQuarrie’s affidavit did not contain fresh evidence. I agree with Ms Norman for the Crown that the information contained in the affidavit could have been proffered at sentencing for the same purpose that the appellant seeks to admit it now, given that Mr McQuarrie was already subject to a bail condition not to enter Otago. Ms Norman also raises a question as to the credibility of what Mr McQuarrie says in parts of his affidavit.

[29]	I do not consider that the contents of the affidavit, (or for that matter today’s letters) even if admitted, could materially affect the assessment of the challenged conditions. Mr Ross submits anecdotally that time with family and employment likely reduces the risk of re-offending. However, it is clear that the presence of family and employment in Mr McQuarrie’s life has not previously deterred him from offending in the past. The sense of bewilderment Mr McQuarrie’s family expressed in relation to his dislocation from them, given their close family relationships, entirely overlooks that the sentence was constructed to protect someone else from violent offending.

10	Mark v R [2019] NZCA 121 at [16].

[30]	In addition, as Ms Norman submits, no evidence is offered to show why collection of Mr Ross’ painting material is not possible under a special permission by his probation officer nor does it explain why other avenues to collect the equipment are not possible. The affidavit evidence also does not address why the appellant cannot find work in Southland to earn income and pay off his debts, beyond indicating that he has never worked in Southland before.

[31]	Because of these shortcomings, the affidavit did not have the potential to impact on the sentence imposed by the Judge. Thus, I declined to admit it.

Challenged conditions

[32]	Mr McQuarrie has repeatedly demonstrated a disrespect for the law in his attitude and actions. That much is clear from the facts of this offending, the pre- sentence report and his previous convictions. Accordingly, I reject Mr Ross’s submission that the other protections in place render the challenged conditions unnecessary. As submitted by Ms Norman, Mr McQuarrie is the archetype offender who should be subject to special conditions which involve geographic exclusions and electronic monitoring. The Judge  found  the  conditions  were  necessary.  Given  Mr McQuarrie’s affidavit is inadmissible, all salient information was before the Judge when he reached the sentencing decision.

[33]	The need for occasional trips into the Otago area such as to uplift equipment is appropriately catered for in the permission provision in condition (6). The same permission provision can appropriately be resorted to for a significant family occasion such as a wedding. It is for Mr McQuarrie to satisfy the probation officer of the reasonableness of such requests and the safety of arrangements that would be in place.

[34]	The need for protection  of  the  victim  was  obvious  in  this  case,  given  Mr McQuarrie’s history and his most recent convictions. The fact that less restrictive sanctions, such as protection orders, are not likely to be a completely satisfactory answer is also evident from that history. An exclusion zone of significant size around the  victim’s  location  is  reasonably  required   to   safeguard   the   victim   when Mr McQuarrie will be free to roam up to the border of such zone.

[35]	Ms Norman, for the Crown, in her written submissions filed last week responsibly raised the fact that the extent of the exclusion zone, because it includes Queenstown, is thereby more restricted than that which was previously imposed on Mr McQuarrie as an (amended) bail condition. Mr McQuarrie, as explained by Mr Ross, had at that time a Stopping Violence course to attend in Queenstown. The victim had reported (in May 2024) she had no concerns for her safety should Mr McQuarrie be permitted to travel to Queenstown. In these circumstances Ms Norman submitted the exclusion zone could be amended by removing Queenstown from it. Ms Watson, for the Department of Corrections, has supported that submission. Counsel filed an amended exclusion zone map before the hearing which the appellant was able to consider. That led to Mr Williamson informing the Court at this hearing that the appellant now sought only that his appeal be allowed to the extent of that proposed amendment.

[36]	As I am satisfied that (without error on the Judge’s part and having regard to the further submissions for the respondents) an amended exclusion zone is the least restrictive, appropriate outcome, I orally allowed the appeal to that extent.

Conclusion

[37]	I allow the appeal to the extent that the special condition 6 is amended to read “Not to enter the specified region as defined by a Probation Officer in writing unless you have the prior written permission of a Probation Officer”.

[38]	Save to the extent special condition 6 is amended, the appeal is dismissed.

Osborne J

Solicitors:
Montrose Chambers, Invercargill Crown Solicitor, Dunedin

Copy to: Mr J A T Ross, Barrister, Invercargill for Appellant G S Williamson (appearing for Mr J A T Ross)
N Watson for Department of Corrections