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 RespondentJudgment:
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…
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CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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