MAKISI v NEW ZEALAND POLICE [2023] NZHC 3066

MAKISI v NEW ZEALAND POLICE [2023] NZHC 3066 [1 November 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI 2023-404-000468[2023] NZHC 3066BETWEEN SAMUEL VAINGA STANMORE MAKISIAppellantAND NEW ZEALAND POLICERespondentHearing: 30 October 2023Appearances: S D Withers for the AppellantS M Murphy for the RespondentJudgment: 1 November 2023JUDGMENT OF TAHANA J(Appeal against sentence)This judgment was delivered by me on 1 November 2023 at 12 noonRegistrar/Deputy RegistrarSolicitors/Counsel:S D Withers, AucklandMeredith Connell, Crown Solicitor, AucklandIntroduction[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 ofdriving contrary to the requirement to have an alcohol interlock licence.2 Mr Makisiwas also disqualified from holding or obtaining a driver licence for 28 days, tocommence upon release. Mr Makisi will then be able to apply for an alcohol interlocklicence for 12 months, after which he may apply for a zero-alcohol licence which willapply for three years. Judge K J Glubb explained that if Mr Makisi does not obtain analcohol 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 interlocklicence was excessive and resulted in double counting; and(b) that the end sentence was manifestly excessive and a community-basedsentence is appropriate.Background[3] On 1 October 2022 Mr Makisi was stopped by police at a checkpoint forcompulsory breath alcohol testing. He elected to undergo an evidential blood test andthe sample contained 202 milligrams of alcohol per 100 millilitres of alcohol.3 Theappellant has an alcohol interlock licence and the vehicle was not equipped with analcohol interlock device.[4] Mr Makisi was 65 years old at the time of the offending and has numerousprevious convictions for alcohol-related driving charges. He has 12 previousconvictions for driving with excess blood or breath alcohol, and four driving while1 Land Transport Act 1998, s 56(2) and (4). Maximum penalty of imprisonment for a term notexceeding two years or a fine not exceeding $6,000, and the court must order the person to bedisqualified 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 notexceeding two years or a fine not exceeding $6,000, and the court must order the person to bedisqualified 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 ofbreath or 50 milligrams per 100 millilitres of blood.disqualified convictions. He has previously been convicted and sentenced tocommunity work, community detention, home detention and imprisonment. Theconvictions 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 theexcess blood alcohol charge after considering relevant authorities.4 An uplift of eightmonths was then applied for the driving while disqualified charge with the Judgenoting 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 (6.5months) was applied for the guilty plea (taking the sentence to 19.5 months'imprisonment). An uplift of a further four months' imprisonment was applied forpersonal aggravating factors, being the appellant's previous conviction history forexcess breath and blood alcohol convictions, resulting in an end sentence of 23.5months' imprisonment.[6] In declining to grant home detention, the Judge considered the need fordenunciation and deterrence, and the need to protect the community. The Judge notedthe appellant's history and his previous sentences which included imprisonment onfive occasions, home detention, community detention and intensive supervision. TheJudge 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. Theappeal court must allow the appeal if satisfied that, for any reason, there is an error inthe sentence imposed on conviction and a different sentence should be imposed.54 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 andsubsequent) was helpfully set out in Clotworthy v Police6 where aggravating andmitigating factors were provided as follows:(a) The breath or blood alcohol level.(b) The length of time that had elapsed since the last drink drivingconviction (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 injuryresulting or neither? Sometimes this manifests itself in an additionalcharge(s).(e) Whether the offender was disqualified or forbidden from driving atthe time (as to the latter, note the mandatory 28 day suspension periodreferred to in s 95 Land Transport Act 1998).(f) The plea(s) and, if guilty, whether that plea was entered at any earlystage 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 ofoffending.(i) Any genuine remorse shown and/or willingness on the part of theoffender to confront his/her contributing alcohol and/or personalproblems.(j) Any mitigating personal or family circumstances contributing to theoffending.[9] The appellant says that the eight-month uplift is, in effect, double counting ofaggravating factors and is excessive taking into account totality. Counsel for theappellant refers to Samson v Police7 which sets out a summary of a spectrum of casesto assist in identifying an appropriate starting point:[15] Unsurprisingly, sentencing for this type of offending is not amenableto tariff-like categorisation. But the resolution of EBA [excess breath alcohol](third and subsequent) appeals has become encumbered by numerous and6 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. Inorder to make some sense of the jurisprudence, and with the assistance ofcounsel in this appeal and in Bechan v Police, I have reviewed a number ofauthorities for the purpose of identifying where the current offending mightsit in the spectrum of cases that have come before this Court. As a result, Ithink some broad generalisations about starting points are supportable,namely:(a) No seriously or only moderately aggravating factors, 9–12months;(b) One or more seriously aggravating factors, 12–18 months;(c) Multiple offences with seriously aggravating factors, 18–20months; 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 thesentencing process included a high level of intoxication, dangerous driving,very close proximity in previous EBA offending, and/or a prolonged andcontinuous history of driving-related offending. Conversely, the followingmitigating factors appeared significant in terms of the length of end sentenceand/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 theoffending;(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 tariffsor a complete list of matters to be considered. It is simply the outcome of acanvass of authorities which I have found useful for the purpose ofcommencing the finer grained assessment required in this appeal. Indeed, thefollowing analysis aptly illustrates the care that must be taken when relyingon precedent in this context other than as an initial indicator as to thesuitability 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 in2022 (for offending committed in late-2021) and driving with excessblood alcohol conviction was in 2019. Prior to that, Mr Makisi hasdrink 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 theoffending and no interlock device was installed.(d) Mr Makisi's previous sentences included imprisonment for drivingwith excess breath alcohol.[11] In Samson, the Court adopted a starting point of 12 to 18 months' imprisonmentfor the driving with excess breath alcohol charge, and 12 months' imprisonment forthe driving while disqualified charge, resulting in a cumulative starting point of 24 to30 months. This was then commuted to 20 months to reflect the totality of theoffending. After applying a 20 per cent discount for personal factors, this resulted inan end sentence of 16 months' imprisonment. Mr Samson had four previousconvictions for excess breath alcohol and six previous convictions for driving whiledisqualified.[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 TheCourt considered starting points of 20 months' imprisonment for an excess breathalcohol charge and a starting point of 12 months' imprisonment for driving whiledisqualified were within range. Applying a 25 per cent discount for guilty pleas, theCourt 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 andhis 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 whenconsidering 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: McKinlayv Police HC CHCH CRI2006-409-116, 7 August 2006. But the number ofconvictions needs to be set against the span over which they were incurredand when within the span. Convictions remote in time, of themselves, mayamount to little more than a statistic. They may derive such significance asthey have from the convictions that follow. Generally speaking, the closerconvictions 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 asignificant 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 anexcess breath alcohol level within the preceding seven years, although he had drivenwhile disqualified. The Court considered that this took Mr Fair out of the most seriouscategory and that a starting point of 20 months' imprisonment for each offence wasthe maximum justifiable. The Court quashed the concurrent sentences of 24 months'imprisonment and sentenced Mr Fair to 18 months' imprisonment on each offence tobe served concurrently.[15] In Police v Tawhara, Heath J helpfully set out the end sentences adopted in arange of cases:10[22] In Collins v Police, the offender was before the Court on his thirteenthexcess breath alcohol and twentieth driving while disqualified charge. ThisCourt upheld a total cumulative sentence of two years and six months'imprisonment.[23] In Hughes v Police, the offender was for sentence on his fifteenthconviction for driving with an excess breath alcohol concentration andtwentieth 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-sevenprevious convictions for driving while disqualified and eleven for drivingwhile impaired by alcohol.[25] In Miles v Police, the offender was for sentence on his nineteenthcharge of driving with an excess breath/blood alcohol concentration and histwenty-third of driving while disqualified. A sentence of two years and sixmonths' 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 sentencestotalling two years and four months' imprisonment on recidivist breath/bloodalcohol and disqualification charges; Mr Sands had previously been convictedon eight occasions for alcohol impaired driving and on three occasions fordriving while disqualified. While the sentences responded to wider offending,the Judge specifically found that a cumulative sentence of two years and fourmonths' imprisonment on the drink-driving and disqualification offences wasnot manifestly excessive, having regard to the totality principle.[27] In Moon v Police, the offender was before the Court on his eleventhbreath/blood alcohol and sixteenth driving while disqualified convictions. Afinal sentence of two years and six months' imprisonment was upheld.(footnotes omitted)[16] Mr Tawhara was sentenced to two years and six months' imprisonment onappeal.[17] A review of the cases indicates that aggravating factors (whether related to theoffending or personal) have historically been taken into account when setting thestarting point, so any comparison of starting points needs to take account of thatapproach. In Mr Makisi's case, the uplift of four months for previous convictions wasapplied 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 ofthe offending were considered separately to the aggravating personal factors (previousconvictions). The starting point of 18 months (for excess alcohol) and eight months(for driving while disqualified), together with the four-month uplift for previousconvictions, while at the higher end (being 30 months), is not excessive relative toother cases where the defendant had a similar history of recidivism.[19] In Himiona, a cumulative starting point of 32 months' imprisonment (20months for excess breath alcohol, and 12 months for driving while disqualified) wasadopted, and an end sentence of 24 months' imprisonment was imposed after applyinga 25 per cent discount for guilty pleas. Here, the end sentence of 23.5 months sitsbelow 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 inSamson and Fair, Mr Makisi had a very high level of blood alcohol and his convictionhistory is both long and includes offending within the last five years. Mr Makisi hasalso previously been sentenced to imprisonment.[20] I am not therefore satisfied that a sentence of 23.5 months' imprisonment isexcessive relative to comparable cases.Community-based sentence[21] The appellant asserts that a sentence of home detention can achieve the purposeof denunciation and deterrence and refers to Fairbrother v R where the sentencingJudge considered when home detention should be substituted for imprisonment:11[29] Sentences of imprisonment have been quashed and home detentionsubstituted for two errors of law. One is where the sentencing judge hasassumed that the offence category lies beyond a sentence of home detention.The other is where the purpose of deterrence has been given complete prioritywithout regard to any of the countervailing purposes of sentence.[30] That does not mean that a short-term period of imprisonment mustalways be commuted to a sentence of home detention. That equally would bean error of law. What it does mean is that the judge must make a consideredand principled choice between the two forms of sentence, recognising thatboth serve the principles of denunciation and deterrence, and identifyingwhich of them better qualifies as the least restrictive sentence to impose takinginto 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 isassessed 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 Judgetaking into account the principles of sentencing in s 8 of the Sentencing Act 2002. Iam not satisfied that the Judge failed to take a considered and principled approach indeciding not to commute the sentence to home detention. The Judge considered theneed to protect the community alongside the principles of denunciation and deterrence.Relevant to that consideration is the appellant's history, which indicated that despite11 Fairbrother v R [2013] NZCA 340.previous community-based sentences (including home detention), the appellant hadcontinued to drive with an excess blood or breath alcohol level and in completedisregard to the requirement that he have an alcohol interlock device. The Judgeadopted the reasoning in O'Neil v Police that given previous convictions and aprevious home detention sentence, home detention was unlikely to deter Mr Makisi.12[24] The appellant has failed to establish that the Judge erred in circumstanceswhere Mr Makisi's history indicates that there was a reasonable basis for the Judge tobe satisfied that the principles of denunciation and deterrence, and the need to protectthe community, cannot be achieved by the less restrictive sentence of home detention.Result[25] The appeal is dismissed.______________________Tahana J12 Police v Makisi [2023] NZDC 17405 at [21] and [22] considering O'Neil v Police [2022] NZHC1460.