Fu v Police - [2015] NZHC 3260

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000374 [2015] NZHC 3260

BETWEEN
ADAM PHO FU

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 15 December 2015

Appearances:

G Gotlieb for Appellant
J Gould for Respondent

Judgment:

16 December 2015

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 16 December 2015 at 4.00pm
pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar

Date:……………………………….

Solicitors/counsel:
G Gotlieb, Auckland
Meredith Connell, Auckland

PHO FU v NZ POLICE [2015] NZHC 3260 [16 December 2015]

Introduction

[1] On 3 November 2015 the appellant, Mr Pho Fu, was sentenced by Judge R G Ronayne in the District Court at Auckland on three charges of driving with excess breath alcohol causing injury (third or subsequent), and on one charge of driving contrary to the terms of a limited licence. Mr Pho Fu was sentenced to seven months’ home detention on the three charges of driving with excess breath alcohol causing injury, with post detention conditions of six months. He was also disqualified from driving for one year and six months. He was convicted and discharged on the limited licence charge.

[2] Mr Pho Fu now appeals against the sentence imposed on the basis that the starting point was too high, and that mitigating factors were not adequately taken into account.

Background

[3] On 31 May 2015, at 12.45am, Mr Pho Fu was driving erratically on State Highway 1. He did not remain within his lane. He was travelling faster than the surrounding traffic. He collided with another vehicle causing extensive damage to both. The driver of the other vehicle suffered a head injury and internal bruising. A passenger in the other vehicle – a young child – suffered an injury to the head and neck. The other passenger – also a young child – suffered a laceration to the left eyebrow.

[4] Mr Pho Fu’s breath alcohol level was 963 micrograms of alcohol per litre of breath. That is considerably more than double the then legal limit of 400 micrograms.

[5] At the time, Mr Pho Fu held a limited licence. On 23 March 2015 he had been convicted for driving with excess blood alcohol and he was disqualified from driving for seven months. He applied for a limited licence and was granted that licence with the condition that he was allowed to drive Tuesday to Sunday between the hours of 7am and 7pm.

District Court decisions

[6] Mr Pho Fu was given a sentence indication by Judge Ronayne on 18

September 2015. The Judge indicated that the usual starting point for the offending would be a sentence of imprisonment. He went on to say, that subject to the appropriate reports being received, the sentence would be likely to commute to a term of home detention. He recorded that there were unusual features in the case given that Mr Pho Fu had made extensive efforts to rehabilitate. The indication concluded as follows:

[4] Therefore, having given that indication that the…

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.

Continue reading Fu v Police

Details

AGLC: Fu v Police [2015] NZHC 3260
Case: [2015] NZHC 3260
Decision Date: 16 December 2015

CaseChat Overview and Summary

Adam Pho Fu appealed against his sentence imposed by Judge Ronayne in the District Court, arguing that the starting point was too high and that mitigating factors were inadequately considered. The appeal was heard by Justice Wylie in the High Court of New Zealand. The primary legal issue was whether the sentence imposed by the District Court was manifestly excessive. The court had to determine whether the sentence was within the appropriate range that could be justified by accepted sentencing principles.

Justice Wylie began by considering the starting point of the sentence, which was a term of imprisonment of 20 months, as implied by the Judge. The court held that this starting point was appropriate, noting Mr Pho Fu’s significant history of drink driving offences and the severity of the injuries caused by his latest offence. The court further noted that the amendments to the Land Transport Act in 1999 demonstrated a clear parliamentary intent to punish repeat offenders more severely. While the court acknowledged various mitigating factors, such as Mr Pho Fu’s efforts towards rehabilitation and expressions of remorse, it found that these factors were adequately considered by Judge Ronayne in reducing the sentence. The final sentence of seven months’ home detention, with additional conditions and disqualification, was deemed appropriate and not manifestly excessive, reflecting the need for adequate denunciation and deterrence in cases of repeat drink driving offences. Therefore, the appeal was dismissed.

Orders