Makisi v Police - [2023] NZHC 3066

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…

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.

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Details

Case: [2023] NZHC 3066
Decision Date: 1 November 2023

CaseChat Overview and Summary

Samuel Makisi appeals the sentence imposed by the District Court for driving with excess blood alcohol and driving contrary to an alcohol interlock licence. The appeal was heard by Tahana J, who considered whether the sentence was excessive and whether a community-based sentence was appropriate. The District Court Judge had adopted a starting point of 18 months for the excess alcohol charge and an uplift of eight months for the driving while disqualified charge. An uplift of four months was applied for previous convictions, and a discount of 25 per cent was applied for the guilty plea, resulting in an end sentence of 23.5 months’ imprisonment.

The appeal court considered the aggravating and mitigating factors present in the case and compared them to other cases with similar offending and personal histories. The court found that the starting point of 30 months was appropriate, and the end sentence of 23.5 months was not excessive. The court also found that the District Court Judge had taken a considered and principled approach in deciding not to commute the sentence to home detention, as the appellant's history indicated that previous community-based sentences had not deterred him from reoffending.

The appeal is dismissed, and the original sentence is upheld.

Orders