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 usual approach in cases such as this would be a starting point of a sentence of imprisonment possibly commuted to home detention I am prepared to give this indication albeit indefinite. I say this, I do not preclude a sentence of a maximum term of community detention together with intensive supervision and substantial community work. With a discount for that last aspect for proven completion of appropriate community work and all of that would be subject, of course, to the contents of a pre-sentence report and any other material that may be put before the Court. That is the indication that I give.

[7]      Mr Pho Fu pleaded guilty pursuant to this indication, and as noted, he was sentenced on 3 November 2015.

[8]      In  sentencing,  Judge  Ronayne  took  into  account  the  pre-sentence  report which the Court had by then received and the victim impact statements.  He recorded that the report assessed Mr Pho Fu as posing a medium risk of reoffending in the same manner.   However the Judge also noted that Mr Pho Fu had done “a considerable amount to put things right”.   He took into account a psychologist’s report and other supporting information which was tendered to him.  He noted that Mr Pho Fu had paid $20,000 in reparation to his employer to pay for the damage to the work vehicle he was driving at the time.  The Judge considered that that penalty was “self imposed”.  He recorded that it was to Mr Pho Fu’s credit that he had paid

$3,700 to one of the victims of his offending so that the victim could replace the other car that was damaged in the accident.  The Judge also accepted that Mr Pho Fu had shown remorse.   The Judge considered that Mr Pho Fu had taken steps to rehabilitate himself, which were not adequately reflected in the pre-sentence report and he took into account the fact that Mr Pho Fu had voluntarily undertaken community work.

[9]      Judge Ronayne recorded that the appropriate end sentence would ordinarily have  been  one  of  10  months’ home  detention,  commuted  from  a  sentence  of imprisonment.  He made a reduction to take into account the various steps Mr Pho Fu had taken and the other personal mitigating factors.  He also took into account that Mr Pho Fu had a work opportunity available from January in China.  He reduced the sentence to seven months’ home detention to reflect these personal mitigating circumstances and to narrow the gap between the time when the opportunity in China would become available to Mr Pho Fu, and the expiry of the home detention sentence.

Submissions

[10]     Mr Gotlieb for Mr Pho Fu submitted that the starting point of 20 months’ imprisonment was too high.1    He argued that a starting point of 14 to 15 months would have been more appropriate in the circumstances, citing Manikpersadh v R,2 where a sentence of 12 months’ imprisonment was adopted by the District Court as the starting point for a similar offence in which two people were injured.  He noted

that that starting point was not criticised by the Court of Appeal.

[11]     Mr Gotlieb’s principle point was that the discount of three months’ home detention allowed by Judge Ronayne was insufficient to take into account Mr Pho Fu’s guilty plea, his extensive rehabilitative efforts, the community work he had completed, the reparation he had paid and the remorse he had expressed.  Mr Gotlieb submitted that a discount of 40 per cent – or four months – would have been more appropriate and that community detention, intensive supervision and community work were all available sentencing options which offered less restrictive outcomes.

[12]     Mr  Gould  for  the  respondent  submitted  that  the  end  sentence  was  not manifestly excessive and it was within the appropriate range.   He referred to Manikpersadh and submitted that it could be distinguished on the facts.  He referred to  the  relevant  sections  in  the  Land  Transport Act  1998  and  argued  that  they demonstrate Parliament’s clear intention that those who are convicted of a third or

subsequent offence of driving under the influence of alcohol are to be punished more

1      Judge Ronayne did not expressly refer to a starting point of 20 months’ imprisonment. As the starting point for home detention was 10 months, Mr Gotlieb suggests that the starting point must have been one of 20 months’ imprisonment.

2      Manikpersadh v R [2011] NZCA 452.

severely than those who are convicted for the first or second time.  He argued that the end sentence of seven months’ home detention was the least restrictive sentence available, and that it was not manifestly excessive.

Approach to appeal

[13]     Mr Pho Fu has a general right of appeal against sentence pursuant to s 244 of the Criminal Procedure Act 2011.  As the first appeal Court, this Court’s powers on appeal are set out in s 250 of the Act, which provides as follows:

250 First appeal court to determine appeal

(1)      A first appeal court must determine a first appeal under this subpart in accordance with this section.

(2)      The first appeal court must allow the appeal if satisfied that—

(a)      for any reason, there is an error in the sentence imposed on conviction; and

(b)      a different sentence should be imposed.

(3)      The first appeal court must dismiss the appeal in any other case.

[14]     In Tutakangahau v R3  the Court of Appeal confirmed that s 250(2) was not intended to change the approach taken to sentence appeals under the now repealed provisions of the Crimes Act 1961 and the Summary Proceedings Act 1957.   The Court confirmed that on appeal, this Court must proceed on an “error principle”.4

While s 250 makes no express reference to the words “manifestly excessive” the Court recognised that this principle is “well ingrained” in the Court’s approach to sentence appeals.5   This Court should not intervene if the sentence imposed is within the range that can properly be justified by accepted sentencing principles.  Further, whether a sentence is manifestly excessive is to be examined in terms of the sentence imposed, rather than the process by which the end sentence was reached.6

Analysis

[15]     The issue in this appeal is whether or not the end sentence imposed was manifestly excessive.

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].

4      R v Shipton [2007] 2 NZLR 218 (CA) at [138].

5      Tutakangahau v R, above n 3, at [33] and [35].

6      Ripia v R [2011] NZCA 101 at [15]; Gibson v R [2015] NZCA 57 at [9].

[16]     The sentence was one of home detention, and the Judge adopted a starting point of 10 months’ home detention.  I agree with Mr Gotlieb that the Judge’s initial starting point must have been a term of imprisonment of 20 months, albeit that the Judge did not state that.  The Judge did note that the sentence of home detention had been commuted from a sentence of imprisonment.  Further in his sentence indication and his sentencing notes, Judge Ronayne indicated that a starting point of imprisonment was appropriate.  In my view this was clearly correct, and it is well

established on the relevant authorities.7

[17]     Mr Gotlieb relied on the Court of Appeal’s decision in Manikpersadh v R, and submitted that, by reference to this case, the starting point of 20 months’ imprisonment was manifestly excessive.  In Manikpersadh, the Court of Appeal was considering the correct approach to be taken in determining whether to sentence an offender to a term of imprisonment or to a sentence of home detention.   I do not consider that the case is directly on point.  The Court of Appeal was not required to address the starting point adopted by the District Court.  Moreover Mr Manikpersadh was a young man who was 19 years of age.  He had pleaded guilty, shown remorse, paid over $9,000 in reparation and taken measures to address his alcohol problem. He had no previous convictions.  In contrast, Mr Pho Fu is 27 years of age.  He has three previous convictions for driving with excess breath alcohol and a history of other driving related offending.  His offending involved three victims, who suffered not insignificant injuries and emotional harm. Two of his victims were children.

[18]     There are a number of other cases where the courts have imposed terms of imprisonment for similar offending and which suggest that 20 months’ imprisonment was not an excessive starting point in this case.8

[19]     The High Court, in Clotworthy v Police,9 identified various factors which can be relevant in offending of this kind.  Some of those factors are relevant here.

7      R v McQuillan CA129/04, 12 August 2004 at [20].

8      See, e.g. Kahukara v Police [2014] NZHC 3254 - 558 micrograms of alcohol per litre of breath, driving in a dangerous manner, starting point of 15 months’ imprisonment not challenged on appeal; Wright v Police HC Christchurch CRI-2009-409-000033, 5 March 2009 - driving with

excess alcohol causing injury, 948 micrograms of alcohol per litre of breath, starting point of two

years’ imprisonment adopted by the  sentencing Judge,  unsuccessful appeal against an  end sentence of 18 months; Marie v Police HC Christchurch CRI-2010-409-000025, 25 February

2010 – driving with excess breath alcohol and while disqualified, an accident but no serious injury, breath alcohol level three times the legal limit, a starting point of 18 months’ imprisonment (imposed for both charges) was upheld on appeal.

(a)       Mr Pho Fu’s breath of alcohol level was almost two and a half times

the legal limit.

(b)      He had been convicted of driving with excess breath alcohol on 23

March 2015 for offending which occurred in November 2014.   His convictions prior to that were in November 2009 and June 2008.  It follows that Mr Pho Fu committed two drink driving offences within six months of each other.  He was still subject to and he breached the conditions of his limited licence when he reoffended.

(c)      His driving was dangerous and erratic.  He swerved from lane to lane, and he was speeding.

(d)He caused an accident which injured three people. Their injuries were not insignificant.  There have been impacts on the victims.  One had to have a piece of glass removed from her eye.  She also suffered a cut below her eyebrow and pain to the left side of her face.   Another victim received internal bruising and a concussion.  She suffered from depression and was unable to work for six weeks.  The accident made her fear driving and she no longer feels able to drive at night.  The third victim damaged the tissue in her neck and had to wear a neck brace for two weeks.

(e)      Mr Pho Fu has a history of other driving related offending, including operating a vehicle carelessly (November 2014), driving while disqualified (November 2008 and again in December 2008), and operating a vehicle in a race or in an unnecessary exhibition of speed or acceleration (July 2008 and December 2008).

[20]     I also take into account the fact that the Land Transport Act, since it was amended   in   March   1999,   now   imposes   heavier   sentences   upon   defendants committing a third subsequent offence of driving under the influence of alcohol.10   In my view, the amendments to the Act demonstrate a clear Parliamentary intention that

those  who  are  convicted  of  a  third  or  subsequent  offence  of  driving  under  the

9      Clotworthy v Police (2003) 20 CRNZ 439 (HC) at [20].

10     Land Transport Act ss 56(3)(a) - (b), 56(4)(a) - (b), 61(3A).

influence of alcohol should be punished more severely than those who are convicted for the first or second time.11    Imprisonment is clearly now the usual but not necessarily the inevitable consequences of recidivist drink driving offending.12

[21]     In my view the assumed starting point of 20 months’ imprisonment was appropriate.  Indeed if anything it was on the light side.  It would have been open to Judge Ronayne to have imposed an uplift to this presumed initial starting point to take account of Mr Pho Fu’s appalling driving record.

[22]     I accept that there were various mitigating circumstances personal to Mr Pho Fu.  Judge Ronayne by and large acknowledged and gave credit for those mitigating factors.  He did not mention every mitigating factor.  I accept that Mr Pho Fu took significant steps towards rehabilitation.  He self referred to a programme offered by the Harmony Trust, and completed the 20 hour “One for the Road” programme.  A Harmony Trust report states that Mr Pho Fu was an engaged member of the group, and that he appeared authentic and honest in his commitment to change in order to avoid further drink driving convictions.  Further, Mr Pho Fu undertook 120 hours of community work at the Salvation Army, and a representative of that organisation gave him a glowing report.  Mr Pho Fu has been to see a psychologist, and he has expressed remorse.  He paid reparation to one of the victims, and he assisted her with purchasing a new vehicle.  He paid reparation to his employer for damage done to the work vehicle.

[23]     Judge Ronayne gave Mr Pho Fu a three month discount for these various factors and for his guilty plea.  That three month discount equated to a 30 per cent discount from the sentence of home detention.

[24]     I accept that Mr Pho Fu pleaded guilty at the earliest available opportunity and that ordinarily would entitle him to a 25 per cent discount from the sentence which might otherwise have been imposed.   Given the other personal mitigating factors the discount afforded to Mr Pho Fu could have been higher.  It also would have been more orthodox for the discount to be applied to the starting point – 20

months imprisonment, but the end result is the same.

11     And see Becroft and Hall’s Transport Law (online ed, LexisNexis) at [LTA 60.29(c)].

12     R v McQuillan CA 129/0412 August 2004 at [20].

[25]     However it is calculated, I am not persuaded that the sentence Judge Ronayne imposed was manifestly excessive.  As I have noted, it would have been open to the Judge to adopt a higher starting point, and in particular to have imposed an uplift to take account of Mr Pho Fu’s prior offending.   On the other hand, rather greater discounts could have been made available for the various mitigating factors.

[26]     The  end  sentence  of  seven  months’ home  detention,  together  with  post detention conditions for a period of six months, and a period of disqualification of one year and six months, was not, in my judgment, inappropriate.  Further it was the least  restrictive  sentence  reasonably  available.    A lesser  sentence,  for  example community detention or intensive supervision and community work, would not have provided adequate denunciation and deterrence for offending of this kind.  It would not have reflected the clear Parliamentary intent that recidivist drink drivers should be sentenced more severely.

[27]     In my judgment the sentence imposed by Judge Ronayne was appropriate in the circumstances. The appeal is dismissed.

Wylie J