He went on to appeal those decisions and while he was successful in challenging his conviction, he has lost his bid for permanent suppression.
Ngarohi McGarvey-Black told NZME he understood his drink-driving “could have had serious consequences” and was “very thankful that no such consequences eventuated”.
He also apologised to New Zealand Rugby for “not representing and living up to our standards and what we live by” and said he was “truly grateful” it had stayed by him through the process and for its “ongoing support and guidance”.
‘A risk you chose to run’
McGarvey-Black told the court, in an affidavit last year, he was “at a loss” as to why he chose to drive that night and would normally have taken a taxi or Uber.
“I suspect, like many, it was simply a risk you chose to run,” Judge Marinovich said.
In declining to grant a discharge without conviction, the judge determined the offending was moderate and noted it wasn’t the first time McGarvey-Black had been caught drink-driving.
“What aggravates your offending is your prior conviction from [2017] for driving with excess breath alcohol, where you were fined and disqualified from driving,” the judge said at sentencing.
The judge also considered there was little to suggest the player had gone “over and above” in his expressions of remorse.
The judge said the man could have, for example, spoken to a local high school about the consequences of drink-driving, or made a formal donation.
After weighing the gravity and consequences of the offending, Judge Marinovich fined McGarvey-Black $1400 and disqualified him from driving for six months. He also denied permanent name suppression.
However, McGarvey-Black appealed the conviction and the refusal to grant permanent name suppression.
High Court considers the issue of travel with All Blacks Sevens
In appealing his conviction, McGarvey-Black’s lawyer, Tom Castle, provided the High Court with further information about his remorse.
Justice Kiri Tahana ruled the expression of remorse went further than simply saying sorry.
“[McGarvey-Black] attended counselling and he continued to contribute to his community by assisting at the local primary school. Since sentencing, he has now also volunteered at a kōhanga reo.”
But Justice Tahana said that in circumstances where McGarvey-Black has a previous conviction for driving with excess breath alcohol, she did not consider the judge erred in assessing the gravity of the offending as moderate, “even when remorse is considered”.
The other key aspect of the application for a discharge without conviction related to the consequences of a conviction, particularly with regard to McGarvey-Black’s plans to travel with the All Blacks Sevens.
Ngarohi McGarvey-Black, pictured at All Blacks Sevens training in 2018. Photo / John Borren
Judge Marinovich had determined a further conviction might mean more effort was needed with applications to gain entry to certain countries, but it would not bar him entirely.
He considered the consequences of a conviction to be “moderate” and balancing that against the moderate seriousness of the offending, did not find the consequences were “out of all proportion”.
“It is not the case that a person of good character with potential for national sporting selection does not have to adhere to the same legal obligations as his fellow citizens,” the judge said.
However, regarding the issue of travel and its impact on McGarvey-Black’s employment, Justice Tahana found the judge erred.
She referred in particular to McGarvey-Black’s entry into Canada.
“While Mr McGarvey-Black had successfully travelled to Canada, he had done so when he only had one conviction,” Justice Tahana said.
There had been affidavit evidence provided from All Blacks Sevens manager David Ormrod that said, “a second conviction for driving with excess breath alcohol would almost certainly result in an individual being deemed inadmissible, unless they can prove that they are rehabilitated”.
In his experience, “proof of rehabilitation in this context is a high threshold and requires significant time to pass (often a period of years) since the offence in question, together with evidence of changed behaviour”.
Justice Tahana found the sentencing judge did “not engage with this issue or explain how additional efforts would likely overcome the rehabilitation requirements”.
She considered the evidence established there was a real and appreciable risk he would be denied entry into Canada.
The next issue was whether denial of entry into Canada would have consequences for McGarvey-Black’s employment.
Justice Tahana referred to McGarvey-Black’s employment agreement, which said the commencement of the contract was conditional on him not “being prevented from entering, or returning from, any country that you may be required to travel to as part of your duties as a professional rugby player”.
Given that, she found there was a “real and appreciable risk that he will lose his employment if entry into Canada is denied”.
She considered his losing employment would be out of proportion to the gravity of his offending.
“The consequences of losing his employment will impact his young family. That he is a professional Sevens player is irrelevant. That is simply the means by which Mr McGarvey-Black earns a living and supports his family.”
She said the issue was whether losing employment was out of proportion to the gravity of his offending, and she considered that it was.
He was granted a discharge without conviction, but the District Court orders for six months’ disqualification and a $1400 fine remained in force.
However, Justice Tahana did not consider the high threshold for permanent name suppression had been met.
There was no evidence of extreme hardship, or an impact on his employment with New Zealand Rugby, nor was there evidence produced as to the hardship his family would suffer if his name was published “beyond the ordinary consequences”.
McGarvey-Black committed to becoming ‘better version’ of himself
McGarvey-Black’s statement said he was “grateful for the court’s decision” and wanted to “sincerely apologise” for his actions.
“I take full responsibility for my actions and am committed to earning the trust of my peers and the community again and becoming a better version of myself,” he said.
He apologised to his whānau, who had “endured the stress, disappointment and hurt”.
He thanked those who had supported him and said he was “committed to becoming a better person”, and would focus on “continuing to contribute to my sport, my whānau, and my community to the best of my ability”.
Hannah Bartlett is a Tauranga-based Open Justice reporter at NZME. She previously covered court and local government for the Nelson Mail, and before that was a radio reporter at Newstalk ZB.