Boagey v R [2016] NZCA 47 (4 March 2016)

Last Updated: 10 March 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
CA225/2014 [2016] NZCA 47
BETWEEN	GRACE RIANA BOAGEY Appellant
AND	THE QUEEN Respondent

Hearing:	1 March 2016
Court:	Randerson, Peters and Collins JJ
Counsel:	D R F Gardiner for Appellant S K Barr for Respondent
Judgment:	4 March 2016 at 2:30 pm

JUDGMENT OF THE COURT

1. The application for an extension of time to appeal is granted.
2. The appeals against conviction and sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Background

[1] On various dates between 13 April 2009 and 13 March 2012 Ms Boagey was charged with five offences.^[1] The charges arose from events which had occurred on the evening of 11 April 2009 in Manurewa. It was alleged that while driving in an intoxicated state Ms Boagey twice attempted to run over her son and that she rammed her son’s motor vehicle causing it significant damage. When the police arrived they initiated breath and blood alcohol procedures. Ms Boagey ultimately refused to provide a specimen of blood. She was placed in a police car and on the way to Manukau Police Station Ms Boagey kicked a police constable. Ms Boagey pleaded not guilty and elected trial by jury in the Manukau District Court.
[2] On 13 March 2013 Ms Boagey received a sentence indication after which she pleaded guilty to all five charges.^[2]
[3] In providing the sentence indication, the District Court Judge informed Ms Boagey that she would be sentenced to nine months’ supervision and 100 hours’ community work. The Judge, however, overlooked the fact that because Ms Boagey had been convicted of two qualifying offences she was required to be disqualified indefinitely because s 65 of the Transport Act 1998 (the Transport Act) was engaged. After Ms Boagey pleaded guilty she was sentenced to nine months’ supervision and 100 hours’ community work, and disqualified indefinitely pursuant to s 65 of the Transport Act.
[4] Ms Boagey successfully appealed her convictions. This Court remitted the five charges back to the District Court for Ms Boagey to re-plead and, if necessary, proceed to trial.^[3] Even though she had succeeded in the Court of Appeal, Ms Boagey then sought leave to appeal to the Supreme Court. The Supreme Court declined leave to appeal.^[4] When the case was remitted back to the Manukau District Court, the charge of assaulting a constable in the execution of his duty^[5] was substituted for the previous charge of aggravated assault. The other charges were not changed. Ms Boagey opted to plead not guilty when the charges were again put to her in the District Court.
[5] Ms Boagey instituted challenges to the jurisdiction of the prosecution to lay criminal charges against her and to the Crown’s application to amend the indictment. Ms Boagey also applied to stay the prosecution. Ms Boagey’s stay application was dismissed by Judge Moses on 19 December 2013.^[6] In his judgment, Judge Moses summarised the numerous steps that had been taken up to that stage of this case, including the fact that there had been 53 appearances in the District Court as at 19 December 2013 and that by that stage eight different lawyers had been involved in trying to assist Ms Boagey.
[6] On 21 January 2014, prior to the scheduled start of the trial, the Crown offered no evidence on the two charges of assault with a weapon and the charge of intentional damage. The trial Judge then offered to provide Ms Boagey with a sentence indication on the remaining two charges. Ms Boagey agreed to listen to the sentence indication. The Judge indicated she would convict and discharge Ms Boagey and impose the mandatory indefinite period of disqualification in relation to Ms Boagey’s refusal to permit a blood sample to be taken.
[7] Ms Boagey conferred with counsel who had been appointed to assist the Court, accepted the indication, and pleaded guilty to the two remaining charges. She was sentenced in accordance with the sentence indication.^[7] The sentence included an order that Ms Boagey not reapply for her licence within one year and one day of the date of the sentence.
[8] Prior to pleading guilty, Ms Boagey acknowledged in writing that she fully understood the consequences of pleading guilty and that she understood the effects of an indefinite period of disqualification.^[8]

Grounds of appeal

[9] Ms Boagey filed her notice of appeal on 24 April 2014, approximately two months out of time. The Crown does not, however, take issue with the delay in Ms Boagey filing her appeal. In these circumstances we grant Ms Boagey’s application for an extension of time to appeal.
[10] The grounds of appeal advanced by counsel can be conveniently distilled to two points:^[9]

(1) Ms Boagey says the Judge made the dismissal of the assault with a weapon and intentional damage charges contingent upon her entering guilty pleas to the two charges, which are the subject of this appeal.

(2) Ms Boagey says the District Court could not have disqualified her indefinitely because she did not have two previous qualifying convictions.

Analysis

[11] The transcript of the proceedings in the District Court clearly establishes the sentencing indication took place only after the police had offered no evidence in relation to the other charges. The District Court Judge did not make it a condition of dismissing the two charges of assault and the charge of intentional damage that Ms Boagey would have to plead guilty to the remaining two charges.
[12] The record of Ms Boagey’s previous convictions clearly demonstrates she had two previous qualifying convictions. She had been convicted of refusing a request for a blood sample on 13 March 2008 and for driving with excess breath alcohol on 2 April 2009, approximately two weeks prior to the events giving rise to the present appeal.
[13] This Court has previously explained the high threshold faced by those who plead guilty and then seek to challenge their conviction on appeal.^[10] An appellant must show that a miscarriage of justice will result if their conviction is not overturned. Where the appellant fully appreciated the merits of his or her position and made an informed decision to plead guilty, the conviction cannot be impugned.^[11]
[14] Ms Boagey has not demonstrated any miscarriage of justice occurred at the time she pleaded guilty and was sentenced.
[15] We record Ms Boagey herself filed a memorandum with the Court setting out other grounds of appeal. We are satisfied none of the points she has identified in her memorandum have any merit.

Conclusion

[16] The application for an extension of time to appeal is granted, but the appeals against conviction and sentence are dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

---

^[1] Refusing to permit a blood sample to be taken having previously been convicted of two or more qualifying offences under s 60(1)(a) and (3) of the Land Transport Act 1998; intentional damage under s 11 of the Summary Offences Act 1981; aggravated assault under s 192(1) of the Crimes Act 1961; and two charges of assault with a weapon under s 202C of the Crimes Act 1961.

^[2] R v Boagey DC Manukau CRI-2010-092-3698, 13 March 2013.

^[3] Boagey v R [2013] NZCA 30.

^[4] Boagey v R [2013] NZSC 64.

^[5] Crimes Act 1961, s 192(2).

^[6] Boagey v R DC Manukau CRI-2010-092-3698, 19 December 2013.

^[7] R v Boagey DC Auckland CRI-2010-092-3698, 21 January 2014.

^[8] The memorandum signed by Ms Boagey stated:

“I, Grace Reana Boagey, understand that if I plead guilty to the refusing blood and the aggravated assault that it will be a conviction on both (a third and subsequent for the refusing blood). I have been told that by the Amicus Curiae that this means I am pleading to the fact that I refused a blood test when requested by a police officer and that I kicked Sgt Hassall. This is on the understanding I will be convicted and discharged and disqualified for 1 year and 1 day. I also understand that this plea does not effect any right to privately prosecute the assault on me by Sgt Hassall (that occurred after the assault on me). I further understand that I will be indefinitely disqualified and not able to apply for my licence for 12 months and 1 day after going through the assessment procedures required by s 65. G R Boagey”.

^[9] A third ground of appeal concerning a databank compulsion notice was not pursued as the police application for a databank compulsion order was withdrawn by leave of a District Court Judge on 24 June 2014.

^[10] Werahiko v R [2015] NZCA 194 at [4].

^[11] R v Le Page [2005] NZCA 67; [2005] 2 NZLR 845 (CA) at [16].