Maney v Police

[2013] NZHC 3205

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2013-470-36 [2013] NZHC 3205

BETWEEN  JASON REX MANEY Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   28 November 2013

Appearances:           J M Holmes for Appellant

N Belton for Respondent

Judgment:                28 November 2013

JUDGMENT OF KEANE J

Solicitors:

Crown Solicitor, Tauranga

MANEY v POLICE [2013] NZHC 3205 [28 November 2013]

[1]      On 24 September 2013 Jason Maney was convicted in the District Court, Tauranga, of driving while disqualified on a third or subsequent occasion on 29

August 2013.  He was sentenced to imprisonment for six months.  He appeals that sentence as manifestly excessive.

[2]      Mr Maney appeals out of time and requires leave.  His present counsel was not assigned to Mr Maney until 17 October 2013 and then on unrelated matters.  His counsel was not able to take up that assignment until 22 October 2013.  It was only then that Mr Maney was able to take advice.   Leave is not opposed if it is in the interests of justice that it be granted.

Context

[3]      The practical reason why Mr Maney was imprisoned was that on the date of his plea and sentence he was already in custody, as he had been since 30 August

2013, on four firearms charges; those on which his present counsel was assigned to him.   That immediately excluded, in a practical sense, a sentence within the community.

[4]      The Judge, noting that to be the reality, recorded that Mr Maney waived the need for any pre-sentence report.  He saw it as very much in Mr Maney’s interests that his time on remand be served as a sentenced prisoner for his immediate offence. He took a starting point of nine months imprisonment and gave him a three month credit for his plea and sentenced him to the sentence under appeal.

[5]      Mr Maney is on the point of release because his half date is imminent but, as Mr Holmes points out, that does not make this appeal insignificant.  He will continue to be in custody on remand and it may well be that if his sentence is reduced, he will take the benefit of that if he is convicted on the firearms offences and sentenced to imprisonment for them.

Submissions

[6]      On this appeal Mr Maney contends that he did not waive a pre-sentence report.   Apart from anything else, he was then under a sentence of intensive supervision, which had only just begun, and such a report might have been material.

[7]      Principally,  however,  Mr  Maney  contends  that  the  sentence  is  out  of proportion to the gravity of his offence, to the extent that can be assessed against like cases.  It gives disproportionate weight to his previous convictions for driving while disqualified, of which he has three.  He drove while disqualified in 1998, and twice in 1999, receiving corrective training, three months periodic detention for the second and three months imprisonment for the third.

[8]         Mr Maney cannot contest, his counsel accepts, that while 14 years may have elapsed  between  his  last  related  conviction  and  sentence,  and  this  present offence, it is aggravated in a quite different way.  He was disqualified on 22 August

2013 for driving recklessly on 6 August 2013, and was then an unlicensed driver and failed to stop. He breached that disqualification within seven days.

Conclusions

[9]      To  my mind  that  is  the  truly  aggravating  factor.    Mr  Maney’s  previous convictions for driving while disqualified, given the 14 years that have passed, are not aggravating to anything like the same degree.

[10]     If Mr Maney had not been in custody at the date of sentence, it is open to question whether the Judge would have imprisoned him.  In principle, I consider, a sentence of imprisonment for driving while disqualified, even in the aggravating circumstances I have described, would not have been proportionate; certainly not a sentence with a nine month starting point.

[11]     Counsel have both looked to serial excess breath alcohol offending cases by analogy  but  that  cannot  be  exact  even  though  they  have  the  same  maximum penalties.   Excess breath alcohol offences carry risk to the public.   Driving while disqualified  offences,  unaggravated  by  other  offences,  are  instances  of  criminal

disobedience; a reality recognised by s 94 of the Land Transport Act 1998, which enables community based sentences to be imposed to break the cycle of offending. In any event everything turns on when the aggravating offences were committed and here there is the 14 year gap.

[12]     Returning then to Mr Maney’s immediate offence, it involved no risk to the public.  But it was a breach of a Court order for a term of disqualification imposed for an offence that did carry that risk.  That aggravating feature, to my mind, justifies a sentence of imprisonment of three months.  I allow Mr Maney’s appeal and reduce

his sentence accordingly.

P.J. Keane J