Drever v The King

[2025] NZHC 1245

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2025-404-141

[2025] NZHC 1245

BETWEEN

AARON CARL DREVER

Appellant

AND

THE KING

Respondent

Hearing:	12 May 2025
Counsel:	S D Withers for the appellant D B Dow for the respondent
Judgment:	20 May 2025

JUDGMENT OF JOHNSTONE J

(appeal against sentence)

This judgment was delivered by me on 20 May 2025 at 4pm

Registrar/Deputy Registrar

Solicitors: MC, Auckland

DREVER v R [2025] NZHC 1245 [20 May 2025]

[1]                Aaron Carl Drever pleaded guilty to charges relating to his unlawful conduct as a bankrupt, and was sentenced in the District Court to 15 months’ imprisonment.1 He appeals against that sentence.

[2]                Mr Drever takes no issue with the sentencing Judge’s calculations, in the sense that he accepts, if a prison sentence were needed, its duration might appropriately have been set at 15 months. But he says that, instead of a prison sentence, the Judge should have imposed a sentence of home detention.

[3]                I must allow the appeal if satisfied that for any reason there is an error in the sentence imposed and a different sentence should be imposed.2

Mr Drever, his offending and the courts’ response to date

[4]                Mr Drever is 41 years old. He has relevant previous convictions, for which he has served a prison sentence. It is important that I set out the nature and timing of the offending for which Mr Drever has served time in prison, and the nature and timing of the offending for which Mr Drever says he should now serve home detention, to assist understanding of his appeal. And, for the same reason, that I set out the courts’ response to date. I will do so chronologically.

[5]                In December 2016, while a suspended real estate agent, Mr Drever committed a fraud on the Avondale Bowling Club, convincing it to sell land for $330,000 to a company associated with him, which on-sold the land for $825,000 to a purchaser he had kept secret from the club.

[6]                From early 2019, Mr Drever commenced work to establish fish and chip takeaway shops in various Auckland suburbs. In April 2019, Mr Drever’s then partner incorporated FC Te Atatū Ltd (FC Te Atatū), which leased premises and commenced a fish and chip business in Te Atatū, with Mr Drever involved in its management.

[7]                In June 2019, Mr Drever was adjudicated bankrupt, and prohibited from being a director of a company, or taking part in business management without consent of the

1      R v Drever [2025] NZDC 5463.

2      Criminal Procedure Act 2011, s 250.

Official Assignee or the Court. From that point, the Official Assignee sought to have Mr Drever comply with his obligation to provide a comprehensive statement of his affairs, outlining his assets and liabilities, income and expenses. Over the years that followed, Mr Drever failed to provide a satisfactory statement, committing an offence under ss 67(1) and 433(1)(a) of the Insolvency Act 2006.3 And Mr Drever did not obtain the Official Assignee’s consent to continue managing FC Te Atatū’s business, but continued  managing  the  business  regardless,  committing  an  offence  under  ss 149(1)(a) and 436(1)(b) of that Act.4

[8]                In September 2019, Mr Drever committed various false invoicing frauds relating to speedway events at Western Springs, by which he unlawfully obtained

$100,000.

[9]                In March 2020, Mr Drever appeared in the District Court at Auckland, charged with the bowling club and speedway frauds. He was remanded on bail, making various appearances  over  succeeding  months.  He  nevertheless  continued  to  manage   FC Te Atatū’s business.

[10]            For example, also in March 2020, the property manager of commercial premises at One Tree Hill received  a  noise  complaint.  She attended,  and  found Mr Drever supervising renovations being undertaken. Falsely referring to himself by an associate’s name, Mr Drever claimed he had arranged a sublease. But the head lease did not permit subleasing without the owner’s approval, which had not been given. Over the next few months, Mr Drever, pretending to be his associate, negotiated an assignment of the lease.

[11]            In September 2020, FC Te Atatū leased premises and commenced a further fish and chip business, in Birkenhead, with Mr Drever continuing his involvement in    FC Te Atatū’s business, including in respect of the new Birkenhead shop.

[12]            While managing FC Te Atatū’s business, he entered three contracts with a digital signage company, dated 1 July 2020, 6 August 2020 and 23 September 2020,

3      Insolvency Act, s 433(1)(a) and 67. Maximum penalty: 12 months’ imprisonment or a $5,000 fine.

4      Insolvency  Act  2007,  ss  149(1)(a),  436(1)(b),  and  437(a).     Maximum penalty: two years’ imprisonment.

for the installation of digital signage at its three fish and chip shops. The contracts provided for Mr Drever to pay a deposit, followed by monthly payments. As a bankrupt, whose property is held by the Official Assignee, he was not entitled to obtain credit. Indeed, he committed three offences of obtaining credit of $1,000 or more as a bankrupt, 5 the total amount of credit obtained being $28,635.

[13]            In September 2020, the associate of Mr Drever, whose name Mr Drever had used   in   negotiations   over   the   One   Tree    Hill    shop,    incorporated    the Fish and Chip Co Ltd (Fish and Chip Co). Despite his business management ban,  Mr Drever had arranged that he would also manage this company’s day-to-day operations, and would commence to earn an entitlement to its shares which would not be disclosed to the Official Assignee. Mr Drever envisaged receiving transfer of the Fish and Chip Co Ltd’s shares once his bankruptcy was discharged. From October 2020 until January 2021, Mr Drever acted as Fish and Chip Co’s general manager, committing a second offence under ss 149(1)(a) and 436(1)(b) of the Insolvency Act.

[14]            Also, in January 2021, Mr Drever obtained (from Judge E M Thomas, sitting in the District Court at Auckland) a sentence indication on the bowling club and speedway frauds.

[15]            On 15 June 2002, Mr Drever was charged with the bankruptcy-related offending the subject of the present appeal.

[16]            On 12 August 2022, Judge Thomas sentenced Mr Drever (on the bowling club and speedway frauds) to serve two years and two months’ imprisonment, and to pay

$75,000 in reparation. It appears Mr Drever did not inform Judge Thomas of his undischarged bankruptcy, and therefore that his property  had  vested  in  the  Official Assignee. He was in no position to promise, or to pay, reparation. Mr Drever appealed against his two-year, two-month prison sentence, but on 30 November 2022, his appeal was dismissed.6

5      Insolvency Act, ss 433A(a), 343(1) and 435. Maximum penalty: 12 months’ imprisonment or a

$5,000 fine.

6      Drever v R [2022] NZHC 3179.

[17]            In the meantime, on 16 November 2022, Mr Drever was attacked by a fellow prisoner with a metal hook. He suffered serious facial injuries, and permanent disfigurement.

[18]            In October 2023, having served around 14 months of his 26-month sentence, Mr Drever was released on parole.

[19]            On 27 May 2024, in advance of a fixture set for the jury trial of the bankruptcy-related charges described above, Mr Drever signalled to the District Court that a resolution had been reached. In June 2024, he entered guilty pleas.

The Judge’s approach

[20]            Judge Thomas, the same Judge who had sentenced Mr Drever for the bowling club and speedway invoicing frauds, sentenced him for the bankruptcy-related offending on 12 March 2025. The Judge described the latter offending as “reckless and deliberate and cynical”, and amongst the worst examples seen. He adopted an adjusted starting point of 20 months’ imprisonment for all five charges.

[21]            The Judge applied a 15 per cent uplift to recognise that, to the extent it occurred after March 2020 (as much of it did), Mr Drever committed the bankruptcy-related offending while on bail for the bowling club and speedway invoicing frauds. And that Mr Drever was indeed convicted (albeit after the bankruptcy-related offending) of the earlier frauds.

[22]            The Judge also applied a 10 per cent reduction for Mr Drever’s guilty plea, and then a further reduction, citing the totality principle, arriving at a notional final sentence of 15 months’ imprisonment. The Judge then, as he was required, turned to consider whether the sentence of imprisonment indicated by these calculations might be commuted to one of home detention.

Imprisonment or home detention?

[23]            Judge Thomas noted that Mr Drever’s period of imprisonment relating to the bowling club and speedway invoicing frauds was “particularly difficult”, but added

that it had not seemed to develop in Mr Drever a level of insight that might lower his risk of re-offending. Instead, the Provision of Advice to Courts (PAC) report showed “an extremely disappointing lack of insight and understanding and remorse and self-awareness and honesty”.

[24]            On that basis, the Judge found a sentence of imprisonment to be the least restrictive available outcome, and imposed that type of sentence accordingly.

Assessment

[25]            I commence my analysis by observing, as did Judge Thomas himself, that to apply a reduction for totality in the present case was perhaps generous. In R v Skipper, the Court of Appeal found that case, involving offending while on bail for prior offending which had seen a sentence of imprisonment imposed and served, not to be “an appropriate case for totality to apply”.7 But, since Mr Drever’s appeal focuses more upon the type of sentence imposed than its length, I do not address the issue further.

[26]            For Mr Drever, Mr Withers submits that the Judge overemphasised deterrence and did not sufficiently consider the rehabilitative possibilities of a sentence other than imprisonment. In this way, the Judge failed to observe the need to make the necessary “considered and principled choice between the two forms of sentence”.8

[27]            Mr Withers further  submits  that  the  Judge  failed  to  take  into  account  Mr Drever’s particular circumstances which, in terms of s 8(h) of the Sentencing Act mean that a sentence of imprisonment would be “disproportionately severe”. He says that, following the November 2022 prison attack described above, Mr Drever is particularly anxious and fearful, spending as much time as he can in his room with the door locked. His room forms part of a house in which he and other prisoners live. The house is in a segregated wing of the prison, but the wing (including, in particular the house) houses violent prisoners.

[28]I do not accept Mr Withers’ submissions.

7      Skipper v R [2011] NZCA 250, at [36].

8      Fairbrother v R [2013] NZCA 340 at [30].

[29]            First, I share the Judge’s view that Mr Drever’s comments to the PAC report writer disclose a remarkable lack of insight, understanding or remorse. Mr Drever was dismissive of his failure to file a statement of his financial affairs, despite the statement being an obvious and important starting point for any orderly bankruptcy which might be fair to all creditors. He denied that he was intending to deceive anyone when pretending to be his associate. He claimed that he did not know his agreement to manage his associate’s business, until he was discharged from bankruptcy and could lawfully manage the business, was unlawful.

[30]            Relatedly, Mr Drever’s offending itself confirms his disregard of the constraints he was under as a bankrupt, and his unwillingness to accept accountability for harm done to others.

[31]            Overall, I consider that Mr Drever’s mindset makes it inappropriate to prioritise rehabilitative possibilities over other sentencing purposes, such as those of holding Mr Drever accountable for harm, promoting in him a sense of responsibility and an acknowledgement of that harm, and protecting the community from him.9 The necessary “considered and principled choice” was that which was made.

[32]            Second, the “strongly rehabilitative” and “generous” approach taken, in Henderson v R, of commuting a prison sentence for bankruptcy-related offending to home detention, can therefore be distinguished.10

[33]            Finally, in the absence of formal psychological reporting (Mr Drever has consulted a forensic psychologist who has offered a preliminary view), I do not consider Mr Drever’s custodial arrangements to be such as to give rise to unusual, or disproportionately severe, consequences which might offset the above sentencing priorities. Judge Thomas specifically referred to Mr Drever’s particularly difficult previous sentence, a clear reference to him having been attacked in prison. His remarks made it plain the issue had been considered and found not to be conclusive.

9      Sentencing Act 2002, s 7(1).

10     Henderson v R [2021] NZHC 2259 at [11].

[34]            In sum, I do not find there to be an error in Judge Thomas’ decision not to commute Mr Drever’s prison sentence to one of home detention.

Result

[35]Mr Drever’s appeal is dismissed.

Johnstone J