Matika-Marsh v Police - [2022] NZHC 1331

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2022-425-000008

[2022] NZHC 1331

BETWEEN
LEVI KOPAHI MATIKA-MARSH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 30 May 2022

Counsel:

S G Vidal for the Appellant

W Chapman for the Respondent

Judgment:

7 June 2022

JUDGMENT OF NATION J

Introduction

[1] Levi Matika-Marsh appeals a sentence of 24 months’ imprisonment imposed by Judge Walker in the Gore District Court on three charges of driving with excess blood alcohol causing injury,1 one charge of dangerous driving,2 one charge of aggravated driving while disqualified3 and two charges of breaching release conditions4.

1      Land Transport Act 1998, ss 61(1)(b) and 61(3A); maximum penalty five years’ imprisonment. Mr Matika-Marsh had at least two previous convictions for offences against ss 56(1), 56(2), 57A(1), 60(1) or 61(2) of the Land Transport Act relating to driving with excess blood alcohol or refusing to supply a blood specimen.
2      Land Transport Act, s 35(1)(b); maximum penalty three months’ imprisonment.
3      Land Transport Act, ss 32(1)(a) and 32(4); maximum penalty two years’ imprisonment.
4      Sentencing Act 2002, s 96(1); maximum penalty one years’ imprisonment.

MATIKA-MARSH v POLICE [2022] NZHC 1331 [7 June 2022]

Facts

[2] On 24 November 2020, Mr Matika-Marsh was aged 27. He had convictions for driving with excess breath alcohol on 29 March 2012, 5 September 2012 and 6 November 2016, and for driving while impaired with drugs for an offence on 2 September 2016. He had convictions for driving while disqualified on 10 November 2017 and 2 March 2019.

[3] On 24 November 2020, Mr Matika-Marsh was sentenced to two months’ imprisonment for common assault (family violence) and five months’ imprisonment for two charges of failing to stop when followed by red/blue flashing lights, driving at a dangerous speed and driving while disqualified. Those offences were committed on 15 September 2020. He was released from that sentence of imprisonment on 15 December 2020. He was to be subject to release conditions for a further 10 months and six days.

[4] On 16 June 2021, Mr Matika-Marsh appeared in the District Court charged with breach of release conditions. The summary of facts for that offence said he had failed to report to his probation officer as directed on 7 April 2021, 22 April 2021, 19 May 2021 and 2 June 2021. He was issued verbal warnings, written warnings and a final written warning. On 9 June 2021, he again failed to report to his probation officer as directed.

[5] At approximately 3.15 am on 8 August 2021, Mr Makita-Marsh was driving a vehicle on Huron Street, Gore. He was travelling north approaching the intersection of Huron Street and Anderson Place. As he approached Anderson place, he crossed the centre line of the road into the opposing lane. He narrowly missed a power pole on the side of the road. The driver’s side wheels of his vehicle mounted the footpath just south of the intersection and began to roll. The wheels…

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: [2022] NZHC 1331
Decision Date: 7 June 2022

CaseChat Overview and Summary

Levi Matika-Marsh appealed the 24-month imprisonment sentence imposed by Judge Walker in the Gore District Court on charges of driving with excess blood alcohol causing injury, dangerous driving, aggravated driving while disqualified, and breaching release conditions. The appeal was heard on 30 May 2022, with S G Vidal representing the appellant and W Chapman representing the respondent. The court delivered its judgment on 7 June 2022. The legal issues in the appeal were whether there had been an error in the imposition of the sentence and if a different sentence should be imposed.

The court found that the Judge had adequately taken into account Mr Matika-Marsh's personal circumstances, including his abusive upbringing, when determining the sentence. The 15% discount afforded included credit for these circumstances. The overall 40% discount, including 25% for Mr Matika-Marsh's guilty pleas, could not be described as inadequate in the circumstances. The court did not consider it likely that, if the sentence was quashed and the matter remitted back to the District Court, the sentencing Judge would come to any different assessment as to Mr Matika-Marsh's culpability.

The court held that there was no error in the Judge describing Mr Matika-Marsh's actions as being selfish, putting others at risk of serious injury or death. The harm that resulted from his offending was serious. The court also found that there was no criticism of the sentencing Judge's refusal to sentence Mr Matika-Marsh to home detention on the information before him. The court was satisfied that a different sentence would not be imposed if the appeal was allowed. Therefore, Mr Matika-Marsh's appeal was dismissed.

In summary, the court found that the District Court Judge had adequately considered the relevant factors in sentencing and that there was no error in the imposition of the sentence. As a result, the appeal was dismissed, and the original sentence of 24 months' imprisonment was upheld.

Orders