Makisi v Police
[2023] NZHC 3066
•1 November 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2023-404-000468
[2023] NZHC 3066
BETWEEN SAMUEL VAINGA STANMORE MAKISI
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 30 October 2023 Appearances:
S D Withers for the Appellant
S M Murphy for the Respondent
Judgment:
1 November 2023
JUDGMENT OF TAHANA J
(Appeal against sentence)
This judgment was delivered by me on 1 November 2023 at 12 noon
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
S D Withers, Auckland
Meredith Connell, Crown Solicitor, Auckland
MAKISI v NEW ZEALAND POLICE [2023] NZHC 3066 [1 November 2023]
Introduction
[1] On 11 August 2023, Samuel Makisi was sentenced to 23.5 months’ imprisonment on one charge of driving with excess blood alcohol1 and one charge of driving contrary to the requirement to have an alcohol interlock licence.2 Mr Makisi was also disqualified from holding or obtaining a driver licence for 28 days, to commence upon release. Mr Makisi will then be able to apply for an alcohol interlock licence for 12 months, after which he may apply for a zero-alcohol licence which will apply for three years. Judge K J Glubb explained that if Mr Makisi does not obtain an alcohol interlock licence then he would remain disqualified indefinitely.
[2]Mr Makisi appeals the sentence on the following grounds:
(a)that the eight-month uplift for driving contrary to an alcohol interlock licence was excessive and resulted in double counting; and
(b)that the end sentence was manifestly excessive and a community-based sentence is appropriate.
Background
[3] On 1 October 2022 Mr Makisi was stopped by police at a checkpoint for compulsory breath alcohol testing. He elected to undergo an evidential blood test and the sample contained 202 milligrams of alcohol per 100 millilitres of alcohol.3 The appellant has an alcohol interlock licence and the vehicle was not equipped with an alcohol interlock device.
[4] Mr Makisi was 65 years old at the time of the offending and has numerous previous convictions for alcohol-related driving charges. He has 12 previous convictions for driving with excess blood or breath alcohol, and four driving while
1 Land Transport Act 1998, s 56(2) and (4). Maximum penalty of imprisonment for a term not exceeding two years or a fine not exceeding $6,000, and the court must order the person to be disqualified from holding or obtaining a driver licence for more than one year.
2 Land Transport Act 1998, s 32(1)(b) and (4). Maximum penalty of imprisonment for a term not exceeding two years or a fine not exceeding $6,000, and the court must order the person to be disqualified from holding a driver licence for one year or more.
3 The alcohol limit for drivers aged 20 years and over is 250 micrograms of alcohol per litre of breath or 50 milligrams per 100 millilitres of blood.
disqualified convictions. He has previously been convicted and sentenced to community work, community detention, home detention and imprisonment. The convictions have occurred over a period of nearly forty years from 1984 to 2022.
District Court sentencing
[5] Judge Glubb adopted a starting point of 18 months’ imprisonment for the excess blood alcohol charge after considering relevant authorities.4 An uplift of eight months was then applied for the driving while disqualified charge with the Judge noting that the fact there was no interlock device was a significant aggravating feature. The cumulative starting point was therefore 26 months. A 25 per cent discount (6.5 months) was applied for the guilty plea (taking the sentence to 19.5 months’ imprisonment). An uplift of a further four months’ imprisonment was applied for personal aggravating factors, being the appellant’s previous conviction history for excess breath and blood alcohol convictions, resulting in an end sentence of 23.5 months’ imprisonment.
[6] In declining to grant home detention, the Judge considered the need for denunciation and deterrence, and the need to protect the community. The Judge noted the appellant’s history and his previous sentences which included imprisonment on five occasions, home detention, community detention and intensive supervision. The Judge noting that despite those sentences, the offending continued.
Principles applying to appeal
[7] The appeal is brought under s 250 of the Criminal Procedure Act 2011. The appeal court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed.5
4 Police v Makisi [2023] NZDC 17405 at [15] and [16] the Judge considered Samson v Police [2015] NZHC 748 at [15]; O’Neil v Police [2022] NZHC 1460; and Whitby v Police [2016] NZHC 506.
5 Criminal Procedure Act 2011, s 250(2).
Analysis
[8] The framework for sentencing for excess alcohol driving offending (third and subsequent) was helpfully set out in Clotworthy v Police6 where aggravating and mitigating factors were provided as follows:
(a)The breath or blood alcohol level.
(b)The length of time that had elapsed since the last drink driving conviction (in this respect the five year period referred to in s 65(2)(b) of the Land Transport Act 1998 is perhaps of significance).
(c)Conviction for two or more drink driving offences in close succession.
(d)The manner of driving: innocuous or dangerous; accident and injury resulting or neither? Sometimes this manifests itself in an additional charge(s).
(e)Whether the offender was disqualified or forbidden from driving at the time (as to the latter, note the mandatory 28 day suspension period referred to in s 95 Land Transport Act 1998).
(f)The plea(s) and, if guilty, whether that plea was entered at any early stage or only belatedly.
(g)The sentences (in particular whether they included imprisonment) imposed for previous EBA convictions and the response (or lack of it) to those sentences.
(h)The offender’s record, if any, of convictions for other types of offending.
(i)Any genuine remorse shown and/or willingness on the part of the offender to confront his/her contributing alcohol and/or personal problems.
(j)Any mitigating personal or family circumstances contributing to the offending.
[9] The appellant says that the eight-month uplift is, in effect, double counting of aggravating factors and is excessive taking into account totality. Counsel for the appellant refers to Samson v Police7 which sets out a summary of a spectrum of cases to assist in identifying an appropriate starting point:
[15] Unsurprisingly, sentencing for this type of offending is not amenable to tariff-like categorisation. But the resolution of EBA [excess breath alcohol] (third and subsequent) appeals has become encumbered by numerous and
6 Clotworthy v Police (2003) 20 CRNZ 439 at [20].
7 Samson v Police [2015] NZHC 748.
diverse responses to what, at first gloss, appear to be similar fact offending. In order to make some sense of the jurisprudence, and with the assistance of counsel in this appeal and in Bechan v Police, I have reviewed a number of authorities for the purpose of identifying where the current offending might sit in the spectrum of cases that have come before this Court. As a result, I think some broad generalisations about starting points are supportable, namely:
(a)No seriously or only moderately aggravating factors, 9–12 months;
(b)One or more seriously aggravating factors, 12–18 months;
(c)Multiple offences with seriously aggravating factors, 18–20 months; and
(d)Multiple offences and very serious aggravating factors (i.e. offending of the worst kind), 20–24 months.
[16] Seriously aggravating factors that appeared to resonate strongly in the sentencing process included a high level of intoxication, dangerous driving, very close proximity in previous EBA offending, and/or a prolonged and continuous history of driving-related offending. Conversely, the following mitigating factors appeared significant in terms of the length of end sentence and/or the type of sentence (e.g. home detention):
(a)The absence of seriously aggravating factors;
(b)High levels of remorse;
(c)Genuine attempts to address the underlying causes of the offending;
(d)No previous sentence of imprisonment;
(e)No previous sentence with a rehabilitative focus; and/or
(f)Lengthy gaps between the current and prior offending.
[17] To be clear, the foregoing summary does not purport to provide tariffs or a complete list of matters to be considered. It is simply the outcome of a canvass of authorities which I have found useful for the purpose of commencing the finer grained assessment required in this appeal. Indeed, the following analysis aptly illustrates the care that must be taken when relying on precedent in this context other than as an initial indicator as to the suitability of sentence.
(footnotes omitted)
[10]Aggravating factors present in this case are:
(a)Mr Makisi’s blood alcohol level was four times the legal limit.
(b)Mr Makisi’s most recent driving while disqualified conviction was in 2022 (for offending committed in late-2021) and driving with excess blood alcohol conviction was in 2019. Prior to that, Mr Makisi has drink driving convictions from 2015, 2009, 2000, 1999, 1998, 1996, 1989 and 1984.
(c)Mr Makisi was subject to an interlock licence at the time of the offending and no interlock device was installed.
(d)Mr Makisi’s previous sentences included imprisonment for driving with excess breath alcohol.
[11] In Samson, the Court adopted a starting point of 12 to 18 months’ imprisonment for the driving with excess breath alcohol charge, and 12 months’ imprisonment for the driving while disqualified charge, resulting in a cumulative starting point of 24 to 30 months. This was then commuted to 20 months to reflect the totality of the offending. After applying a 20 per cent discount for personal factors, this resulted in an end sentence of 16 months’ imprisonment. Mr Samson had four previous convictions for excess breath alcohol and six previous convictions for driving while disqualified.
[12] In Himiona v Police this Court found that an end sentence of 24 months’ imprisonment was not excessive in circumstances where Mr Himiona had six alcohol- impaired driving convictions and 12 convictions for driving while disqualified.8 The Court considered starting points of 20 months’ imprisonment for an excess breath alcohol charge and a starting point of 12 months’ imprisonment for driving while disqualified were within range. Applying a 25 per cent discount for guilty pleas, the Court accepted an end sentence of two years’ imprisonment was not excessive. Mr Himiona’s previous convictions spanned an 18-year period from 1990 to 2008 and his breath alcohol level was nearly four times the legal limit.
8 Himiona v Police [2012] NZHC 1756.
[13] In R v Fair, the Court of Appeal discussed the relevance of recidivism when considering aggravating factors:9
[13] Sometimes, even in the absence of other highly aggravating factors, sheer recidivism can call for a sentence at or close to the maximum: McKinlay v Police HC CHCH CRI2006-409-116, 7 August 2006. But the number of convictions needs to be set against the span over which they were incurred and when within the span. Convictions remote in time, of themselves, may amount to little more than a statistic. They may derive such significance as they have from the convictions that follow. Generally speaking, the closer convictions are to the offence for sentence the more aggravating they become. If they are close in time they can be highly aggravating; if there has been a significant gap less so. Once again an exercise in judgment is called for.
[14] In Fair the Court of Appeal noted the fact that Mr Fair had not driven with an excess breath alcohol level within the preceding seven years, although he had driven while disqualified. The Court considered that this took Mr Fair out of the most serious category and that a starting point of 20 months’ imprisonment for each offence was the maximum justifiable. The Court quashed the concurrent sentences of 24 months’ imprisonment and sentenced Mr Fair to 18 months’ imprisonment on each offence to be served concurrently.
[15] In Police v Tawhara, Heath J helpfully set out the end sentences adopted in a range of cases:10
[22] In Collins v Police, the offender was before the Court on his thirteenth excess breath alcohol and twentieth driving while disqualified charge. This Court upheld a total cumulative sentence of two years and six months’ imprisonment.
[23] In Hughes v Police, the offender was for sentence on his fifteenth conviction for driving with an excess breath alcohol concentration and twentieth for driving while disqualified. A cumulative sentence of three years’ imprisonment was imposed.
[24] In Sykes v Police, a sentence of two years and six months’ imprisonment was upheld, in respect of an offender who had thirty-seven previous convictions for driving while disqualified and eleven for driving while impaired by alcohol.
[25] In Miles v Police, the offender was for sentence on his nineteenth charge of driving with an excess breath/blood alcohol concentration and his twenty-third of driving while disqualified. A sentence of two years and six months’ imprisonment was confirmed, on appeal.
9 R v Fair [2007] NZCA 282.
10 Police v Tawhara HC Whangārei CRI 2010-488-44, 8 September 2010.
[26] In Sands v Police, the High Court upheld cumulative sentences totalling two years and four months’ imprisonment on recidivist breath/blood alcohol and disqualification charges; Mr Sands had previously been convicted on eight occasions for alcohol impaired driving and on three occasions for driving while disqualified. While the sentences responded to wider offending, the Judge specifically found that a cumulative sentence of two years and four months’ imprisonment on the drink-driving and disqualification offences was not manifestly excessive, having regard to the totality principle.
[27] In Moon v Police, the offender was before the Court on his eleventh breath/blood alcohol and sixteenth driving while disqualified convictions. A final sentence of two years and six months’ imprisonment was upheld.
(footnotes omitted)
[16] Mr Tawhara was sentenced to two years and six months’ imprisonment on appeal.
[17] A review of the cases indicates that aggravating factors (whether related to the offending or personal) have historically been taken into account when setting the starting point, so any comparison of starting points needs to take account of that approach. In Mr Makisi’s case, the uplift of four months for previous convictions was applied at the second stage of sentencing, therefore a starting point of 30 months’ imprisonment is a more appropriate comparator than 26 months.
[18] I do not consider that the Judge double counted as the aggravating features of the offending were considered separately to the aggravating personal factors (previous convictions). The starting point of 18 months (for excess alcohol) and eight months (for driving while disqualified), together with the four-month uplift for previous convictions, while at the higher end (being 30 months), is not excessive relative to other cases where the defendant had a similar history of recidivism.
[19] In Himiona, a cumulative starting point of 32 months’ imprisonment (20 months for excess breath alcohol, and 12 months for driving while disqualified) was adopted, and an end sentence of 24 months’ imprisonment was imposed after applying a 25 per cent discount for guilty pleas. Here, the end sentence of 23.5 months sits below the end sentence in Himiona and the aggravating factors were not dissimilar. While the starting point adopted in Mr Makisi’s case is somewhat higher than in Samson and Fair, Mr Makisi had a very high level of blood alcohol and his conviction
history is both long and includes offending within the last five years. Mr Makisi has also previously been sentenced to imprisonment.
[20] I am not therefore satisfied that a sentence of 23.5 months’ imprisonment is excessive relative to comparable cases.
Community-based sentence
[21] The appellant asserts that a sentence of home detention can achieve the purpose of denunciation and deterrence and refers to Fairbrother v R where the sentencing Judge considered when home detention should be substituted for imprisonment:11
[29] Sentences of imprisonment have been quashed and home detention substituted for two errors of law. One is where the sentencing judge has assumed that the offence category lies beyond a sentence of home detention. The other is where the purpose of deterrence has been given complete priority without regard to any of the countervailing purposes of sentence.
[30] That does not mean that a short-term period of imprisonment must always be commuted to a sentence of home detention. That equally would be an error of law. What it does mean is that the judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.
(footnotes omitted)
[22] The appellant refers to the Provision of Advice to Courts Report (PAC Report) which notes that the appellant’s ability to comply with a community-based sentence is assessed at high. Counsel for the appellant says that this indicates that a community- based sentence is therefore appropriate.
[23] Whether a community-based sentence is appropriate, is a matter for the Judge taking into account the principles of sentencing in s 8 of the Sentencing Act 2002. I am not satisfied that the Judge failed to take a considered and principled approach in deciding not to commute the sentence to home detention. The Judge considered the need to protect the community alongside the principles of denunciation and deterrence. Relevant to that consideration is the appellant’s history, which indicated that despite
11 Fairbrother v R [2013] NZCA 340.
previous community-based sentences (including home detention), the appellant had continued to drive with an excess blood or breath alcohol level and in complete disregard to the requirement that he have an alcohol interlock device. The Judge adopted the reasoning in O’Neil v Police that given previous convictions and a previous home detention sentence, home detention was unlikely to deter Mr Makisi.12
[24] The appellant has failed to establish that the Judge erred in circumstances where Mr Makisi’s history indicates that there was a reasonable basis for the Judge to be satisfied that the principles of denunciation and deterrence, and the need to protect the community, cannot be achieved by the less restrictive sentence of home detention.
Result
[25]The appeal is dismissed.
Tahana J
12 Police v Makisi [2023] NZDC 17405 at [21] and [22] considering O’Neil v Police [2022] NZHC 1460.
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