IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2019-412-12
[2019] NZHC 1125
BETWEEN IAN DAVID MACNEE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 16 May 2019 Appearances:
B Stephenson for Appellant R Smith for Respondent
Judgment:
22 May 2019
JUDGMENT OF MANDER J
Introduction
[1] The appellant, Ian Macnee, pleaded guilty to one charge of driving while impaired, being his third or subsequent offence. After considering advice that home detention would not be suitable, Judge Crosbie sentenced Mr Macnee to eight months’ imprisonment, with six months of special release conditions, along with reparation of
$750.11 and two years’ disqualification from driving. Mr Macnee appeals the sentence of imprisonment on the basis the Judge erred in not substituting the prison term for a community-based sentence.
Facts
[2] At about 11.40 am, Mr Macnee was driving south on the Taieri Plains Highway near the Dunedin Airport. He passed another south-bound vehicle while entering a righthand bend. In undertaking that manoeuvre he drove entirely within the north- bound lane and caused an oncoming north-bound vehicle to take evasive action. He
MACNEE v NEW ZEALAND POLICE [2019] NZHC 1125 [22 May 2019]
continued south and was seen driving erratically, weaving in and out of the south- bound lane crossing over the centre line. At times he drove entirely within the north- bound lane in the face of oncoming traffic.
[3] A driver in a south-bound vehicle ahead of Mr Macnee used his car horn and hand gestures to try and warn oncoming vehicles. Such was his concern, the driver attempted to slow and stop Mr Macnee by braking in front of him. However, Mr Macnee passed him on the left-hand side, driving onto a footpath and forcing the driver to take evasive action.
[4] Eventually Mr Macnee came to a stop when he accelerated behind a vehicle towing a trailer and struck it in the rear. Police attended the scene and described Mr Macnee as speaking slowly, stuttering, having glazed eyes and being unsteady on his feet. A breath screening test showed no signs of alcohol but Mr Macnee admitted to having consumed prescribed methadone earlier that morning. After undergoing an Impairment Test which demonstrated “very noticeable” signs of impairment, Mr Macnee gave a blood specimen which tested positive for cannabis, methadone and diazepam/Valium.
[5] Mr Macnee has two previous convictions for driving with excess blood alcohol in 1994.
District Court decision
[6] In sentencing Mr Macnee, Judge Crosbie first noted that the drug and alcohol report that had been requested had not been completed because the provider had been unable to get a response from Mr Macnee. While Mr Macnee’s counsel submitted that there should be an adjournment for a report to be prepared, the Judge declined to do so. Judge Crosbie considered he had sufficient information before him in the probation report and other documents to sentence Mr Macnee.
[7] The Judge recognised that Mr Macnee was on the methadone programme as a…
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