Blakey v R [2014] NZHC 62 (4 February 2014)

Last Updated: 11 March 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-337 [2014] NZHC 62

BETWEEN SHANE DAVID BLAKEY Appellant

AND THE QUEEN Respondent

Hearing: 4 February 2014

Appearances: G D Packer for Appellant

H Musgrave for Respondent

Judgment: 4 February 2014

_{JUDGMENT OF COOPER J}

Solicitors:

G D Packer, Auckland

_{Meredith Connell, Crown Solicitors, Auckland}

BLAKEY v R [2014] NZHC 62 [4 February 2014]

[1] The appellant, Mr Blakey, pleaded guilty to —

(a) One charge of receiving property contrary to s 246 and 247 of the Crimes Act 1961 for which the maximum available penalty is one year’s imprisonment.

(b) One charge of driving while disqualified, contrary to s 32(1) of the Land Transport Act 1998 for which the maximum available penalty is two years’ imprisonment or a fine of $6,000 under s 32(4) of the Land Transport Act 1998, having regard to the number of previous offences the appellant had committed.

(c) Two charges of possessing methamphetamine and amphetamine contrary to s 7(1)(a) of the Misuse of Drugs Act 1975 for which the maximum available penalty is six months’ imprisonment or a fine of

$1,000 under s 7(2).

(d) One charge of possessing LSD contrary to s 7(1)(a) and (2)(f) the Misuse of Drugs Act for which the maximum available penalty is six months’ imprisonment or a fine of $1,000 under s 7(2).

(e) One charge of wilful trespass contrary to s 4(4) of the Trespass Act

1980 for which the maximum available penalty is three months’

imprisonment or a fine of $1,000 under s 11(2)(a).

[2] The appellant appeals against the sentence imposed on his conviction.

[3] These offences were committed on various dates between 30 May and

26 August 2013. In addition, there were guilty pleas to two charges under the Bail Act 2000, one of failing to answer District Court bail and one of breach of bail, committed respectively on 18 and 25 July 2013.

[4] It is relevant also to note that on 28 May 2013 the appellant was convicted of driving whilst disqualified and breach of release conditions. The Judge found that those offences and the fact that they had been dealt with just prior to the first of the current charges were aggravating aspects of the relevant sentencing facts.

[5] In his sentencing notes¹ the Judge dealt briefly with the facts of the offending. The receiving charge related to what was referred to as a Komatsu post-hole borer stolen from a property in Warkworth between September and October 2013. The appellant purchased it on 30 May from an associate in Warkworth. It has a value of

$1,100 and the appellant agreed to purchase it for a total price of $100 and then endeavoured to sell it. One of the points advanced on the appeal is that notwithstanding a lengthy history of prior offending the appellant has only one previous conviction for receiving.

[6] The next set of offences discussed by the Judge related to events on 27 June

2012 at the Sky City Casino which the appellant entered notwithstanding a trespass notice that had been served on him on 28 March 2012. Recognised as somebody who had been subject to a trespass notice the appellant was apprehended and searched. In the course of that operation containers containing methamphetamine and LSD fell from his clothing.

[7] On 28 May 2013 the appellant appeared in the District Court and was disqualified for 12 months and one day on a charge of driving whilst disqualified on a third or subsequent occasion. By my count it would in fact have been the eleventh occasion on which he was so convicted. Notwithstanding that, on 26 August he was apprehended driving a Holden motor car in Matakana. He was searched and methamphetamine was found in his possession together with a glass pipe. On that occasion the appellant acknowledged that the pipe was for his own use in concealing methamphetamine.

[8] The Judge dealt with the appellant’s history of offending in a summary way

at paragraph [5] of his sentencing notes:

[5] You have a serious criminal history running to some seven pages littered with offences that constitute breaches of Court orders. They include no fewer than 10 breaches of community work orders, 11 offences are driving whilst disqualified, two offences of breaching prison release conditions, and four offences of failing to answer bail. And a serious aggravating feature, in your case, is that you were last before the Court as recently as 28 May of this year when you were up for offences both of driving whilst disqualified and breaching your present release conditions. However, at that stage, you were the subject of a sympathetic pre-sentence report and a further community work order was made, coupled with a final warning. Whilst that final warning was still ringing in your ears, within 48 hours you were, to put it colloquially, at it again, by receiving the stolen post hole borer with other offences being committed regularly thereafter. The latest pre-sentence report in your case recommends, not surprisingly, imprisonment. I entirely agree with that and the only question that remains, therefore, is one of length. I have to do, at this stage, a rather artificial calculation which is to work out what the appropriate sentence would be, all up, and then have a look at the overall picture before applying discounts to reflect a guilty plea.

[9] In composing the sentence, the Judge adopted a starting point for the receiving charge of four months’ imprisonment, of two months’ imprisonment for the Bail Act offences and 15 months for the charge of driving whilst disqualified. At that point in the sentencing the Judge said that the sentences should be cumulative, one upon the other, because they were all offences of a totally disparate type committed repeatedly and often whilst on bail. Turning to the drug offences, he noted that normally they would not attract prison sentences and said that he would simply convict and discharge the appellant on those.

[10] That left an overall starting point for sentencing purposes of 21 months’ imprisonment adding the three notionally cumulative sentences together for that purpose. He discounted that 21 months by five months to reduce the final sentence to one of 16 months’ imprisonment in total. When he came to impose the sentence the Judge frankly said that he would adopt an approach based on simplicity and avoid imposing numerous cumulative sentences of imprisonment.

[11] The sentence actually imposed was as follows:²

(a) All up, as I say, the sentence will be one of 16 months’ imprisonment. That will be imposed on the charges of receiving and driving whilst disqualified for the third or subsequent occasion;

(b) There will be six months’ concurrent on breaching Court bail;

(c) All the other offences will be dealt with simply by way of a convict and discharge;

(d) I have been reminded that you are liable for further disqualification and that can only commence on 5 October of next year and the disqualification will run for a period of two years from that date so you are now disqualified until 5 October 2016.

[12] In her argument in support of the appeal, Ms Packer has focused on the fact that having adopted a starting point of four months’ imprisonment for the receiving charge in the end the Judge imposed a sentence of 16 months’ imprisonment to be served concurrently with the sentence in respect of the offence of driving whilst disqualified. She submits that this was an unjustified increment having regard to the four months’ starting point.

[13] It has been said by the Court of Appeal on numerous occasions, and it is too elementary to require now the citing of authority, that what matters in the end is not the way in which a sentence has been composed, but the overall outcome of the sentencing process. In this case, Ms Packer accepts that the starting point of two months’ imprisonment in respect of the bail offences was well justified as was the starting point of 15 months’ imprisonment in respect of the offence of driving whilst disqualified.

[14] I have to say that having regard to the history of offences under the Land Transport Act, this being the twelfth offence of driving whilst disqualified, the sentence of 16 months’ imprisonment that was imposed in respect of that offence could not possibly be criticised, even if it were considered on its own account. In the context of all the other offending here the effective sentence of 16 months’ imprisonment is plainly not a clearly excessive one. It makes no difference to the sentence imposed that a sentence of 16 months was required to be served concurrently for the receiving charge, although I accept that on the face of it that particular offence was one which on its own may not have justified a sentence of that length. I say that in part because the value of the equipment received, at $1,100, was only $100 above the offence of receiving stolen property with a value of between

$500 and $1,000 which would have justified a maximum term of only one year’s

imprisonment. Perhaps more importantly, the sentence does not itself explain the reasoning which led to the increment from four to 16 months.

[15] Ms Packer referred to R v Williams³ as authority for the proposition that where concurrent sentences are imposed care should be taken to ensure that the appropriate level of sentence is fixed for each of the lesser offences. I am satisfied in the circumstances of this case that the receiving charge was a lesser offence although the sentence, as has been explained, effectively treats it as on all fours with the driving whilst disqualified offence. R v Williams was decided in 1988, but for present purposes it is really not necessary to go past s 85(4)(b) of the Sentencing Act

2002 which encapsulates the rule on which Ms Packer sought to rely.

[16] There is merit in Ms Packer’s argument and altering the sentence imposed so as to provide for a sentence of six months to be served concurrently in respect of the receiving charge is in my view the appropriate course to follow. That need not, however, have any effect on the sentence imposed in respect of the driving whilst disqualified charge, so in the end the overall effective sentence imposed by the Judge will remain. I say that because of my view that a sentence greater than the 16 months imposed in respect of that charge could well have been justified having regard to the appellant’s very bad history of offending in that respect.

[17] The one other issue that has been pursued in oral argument concerns a suggestion that instead of disqualifying the appellant under the Land Transport Act, the Court should quash the disqualification having regard to the appellant’s rehabilitative prospects when he is released from imprisonment and the need to secure employment.

[18] The argument is advanced that the Court should act pursuant to the powers given by ss 94(2) and (3) of the Land Transport Act. However, if pursuant to s 94(2) of the Act the Court is not to order disqualification, s 94(3) requires the Court to impose one of a range of alternative sentences. The difficulty is that none of the options in s 94(3) could be implemented in circumstances where the appellant is

_{already to serve a sentence of imprisonment in respect of the other offending before}

³ R v Williams [1988] 1 NZLR 748.

the Court. That is because s 19 restricts circumstances in which other kinds of sentence may be imposed when a person is imprisoned and is being sentenced in respect of one or more offences. In the end, Ms Packer accepted that s 19 prevents the exercise of the powers given by s 94 in these circumstances, as had been submitted by Ms Musgrave.

[19] In the result, in this very limited way the appeal is allowed: the sentence imposed of 16 months’ imprisonment in respect of the charge of receiving is quashed. In lieu of that sentence there is to be a sentence of six months’ imprisonment to be served concurrently with the other sentences of imprisonment.

[20] The appeal is otherwise dismissed.