Macnee v Police - [2019] NZHC 1125

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Macnee v Police

Details

AGLC: Macnee v Police [2019] NZHC 1125
Case: [2019] NZHC 1125
Decision Date: 22 May 2019

CaseChat Overview and Summary

Ian David Macnee appealed against his sentence of eight months’ imprisonment, with six months of special release conditions, imposed by Judge Crosbie after he pleaded guilty to driving while impaired, being his third or subsequent offence. Mr Macnee argued that the Judge should have substituted the prison term for a community-based sentence. The appeal hinged on whether the Judge had erred in not considering a community-based sentence, in particular home detention, as the appropriate punishment in Mr Macnee’s case. The Court considered the purposes of sentencing, the hierarchy of sentences, and Mr Macnee’s rehabilitative potential. The Court found that Judge Crosbie had given due consideration to all relevant sentencing purposes and principles and that the sentence imposed was appropriate in the circumstances. The appeal was dismissed.

Orders