Pu v Police

[2023] NZHC 2838

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2023-419-60

[2023] NZHC 2838

BETWEEN

SUNTAHNA KRUZ PU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	9 October 2023
Appearances:	M James (on behalf of G A Walsh) for Appellant J Lewis for Respondent
Judgment:	10 October 2023
Reissued:	12 October 2023

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by Justice Lang on 10 October 2023 at 4.00 pm

Registrar/Deputy Registrar Date:…………………………

Solicitors/counsel:

Hamilton Legal, Office of the Crown Solicitor, Hamilton G A Walsh, Hamilton

PU v NEW ZEALAND POLICE [2023] NZHC 2838 [10 October 2023]

[1]    Mr Pu pleaded guilty in the District Court to a large number of dishonesty and driving offences. The charges related to four separate incidents that occurred between 8 December 2022 and 25 January 2023. On 27 June 2023, Judge G A Fraser sentenced Mr Pu to 27 months imprisonment on all charges.1

[2]    Mr Pu appeals against sentence. He contends the Judge failed to properly apply totality principles and this led to an end sentence that is manifestly excessive.

The charges

8 December 2022

[3]    On 5 December 2022, a Nissan Bluebird motor vehicle was stolen from an address in Hamilton. On the morning of 8 December 2022, Mr Pu drove the stolen vehicle to a service station where he put petrol to the value of $64.36 into the vehicle. He then drove away without making any effort to pay for the petrol.

[4]    The person who had stolen the vehicle gained entry to it by smashing the left rear quarter window. The ignition shroud and barrel had been pulled out so that the vehicle could be started without using a key.

[5]    Mr Pu was driving the vehicle whilst he was disqualified from holding or obtaining a drivers licence. He had been disqualified from driving for 12 months on 18 August 2022.

[6]    This incident led to Mr Pu facing charges of driving whilst disqualified, unlawfully getting into a motor vehicle and theft of petrol. He was released on bail but continued to commit similar offences over the next six weeks.

3 January 2023

[7]    On 3 January 2023, Mr Pu arrived at another service station driving a Mitsubishi motor vehicle. That vehicle had earlier been reported stolen. He drove off without paying for petrol worth $51.70.

1      New Zealand Police v Pu [2023] NZDC 13189.

[8]    This incident led to Mr Pu facing charges of driving whilst disqualified and theft of petrol.

8 January 2023

[9]    In the early hours of 8 January 2023, a Honda motor vehicle was stolen from an address in Hamilton. Entry was gained by smashing the rear quarter light window and the vehicle was started after the ignition barrel had been prised out with a screwdriver. Later the same day, Mr Pu arrived at a service station in Hamilton driving the stolen vehicle. He went inside the service station whilst an associate put $60 worth of fuel in the vehicle. Mr Pu then returned to the vehicle and drove away.

[10]   This incident led to Mr Pu facing charges of unlawfully using a motor vehicle, driving whilst disqualified and theft of petrol.

25 January 2023

[11]   On the night of 16 January 2023, a Toyota motor vehicle was stolen from an address in Hamilton East. Mr Pu was found driving the vehicle on 25 January 2023. By this stage the vehicle had been fitted with false registration plates.

[12]   Officers in a police patrol vehicle endeavoured to stop Mr Pu by activating their red and blue flashing lights and siren. Mr Pu failed to stop and accelerated away on the incorrect side of the road. He then reached speeds of up to 110 kilometres per hour in a posted 60 kilometre per hour area. He continued driving at speed, overtaking other cars and driving into oncoming traffic. The police called off the pursuit given the danger Mr Pu posed to other motorists.

[13]   The police subsequently located and arrested Mr Pu. This incident led to Mr Pu being charged with dangerous driving, failing to stop for red and blue flashing lights, driving while disqualified and unlawfully getting into a motor vehicle.

The sentence

[14]   The Judge constructed the sentence by imposing a series of cumulative sentences for each set of charges. These began with three cumulative sentences

totalling 15 months imprisonment on the charges relating to the incident that occurred on 25 January 2023. The cumulative sentences imposed for the other three incidents produced a sentence of 36 months imprisonment. The Judge then applied a discount of 25 per cent, or nine months, to reflect guilty pleas. This produced an end sentence of 27 months imprisonment. The Judge imposed the sentence through a series of cumulative sentences imposed in relation to each of the four incidents as follows:

(a)8 December 2022 — seven months imprisonment.

(b)3 January 2023 — four months imprisonment.

(c)8 January 2023 — four months imprisonment.

(d)25 January 2023 — 12 months imprisonment.

The appeal

[15]   Mr Walsh does not take issue with any of the sentences the Judge imposed on individual charges. He contends, however, that a sentence of 36 months imprisonment before taking into account guilty pleas was manifestly excessive. He says the Judge failed to apply totality principles when fixing the sentence.

[16]   Mr Walsh suggests that, applying totality principles, the Judge ought to have reached a sentence of no more than 22 months imprisonment. He accepts that an uplift of three months would have been appropriate to reflect the fact that Mr Pu has numerous previous convictions for similar offending. Thereafter, the credit to be applied for guilty pleas would have reduced the sentence to one of around 18 months imprisonment.

Analysis

[17]   Like the Judge, I consider the most serious aspect of Mr Pu’s offending relates to that which occurred on 25 January 2023. Unlike the offending in the other incidents, this involved an appalling piece of driving designed to prevent the police from stopping him. It needlessly placed the police officers and other motorists at significant

risk. Like the Judge, I consider the charges arising out of this incident justified a starting point of 15 months imprisonment on a stand-alone basis.

[18]   The remaining charges relate to Mr Pu arriving at service stations in a stolen vehicle on three separate occasions. On each occasion, he drove off without paying for petrol having a value of less than $70. He was also driving whilst disqualified, which added to the overall seriousness of the offending. The offending on 3 and 8 January 2023 was slightly more serious than that on 8 December 2022 because it reflects Mr Pu’s determination to continue to drive stolen vehicles whilst disqualified and to steal petrol even though he had been arrested for the same type of offending following the incident on 8 December 2022. Even so, it is difficult to see how an effective uplift of seven months imprisonment could be justified for each incident.

[19]   Having regard to totality principles I do not consider an uplift of more than three months could be justified for the offending on 8 December 2022 and four months each for the offending on 3 and 8 January 2023. Stepping back, I consider a sentence of no more than 26 months imprisonment was justified before taking into account aggravating and mitigating factors personal to Mr Pu.

[20]   Mr Pu has a lengthy history of convictions for similar offending. The majority of his current offending was also committed while he was on bail. An uplift of three months is sufficient to reflect these factors. Adding the three-month uplift to a sentence of 26 months, the sentence becomes one of 29 months imprisonment. A discount of seven months, or approximately 25 per cent, remains appropriate to reflect guilty pleas.

[21]   This results in a sentence of short-duration. However, I am satisfied that a sentence of home detention would not be appropriate to hold Mr Pu accountable for his offending or to achieve the sentencing principles of deterrence and denunciation. I therefore consider a sentence of 22 months imprisonment to be appropriate to reflect the overall culpability of Mr Pu’s offending. It follows that the sentence the Judge imposed infringed totality principles because it was wholly out of proportion to the gravity of the overall offending.2

2      Sentencing Act 2002, s 85(2).

Result

[22]   The appeal against sentence is allowed. The sentences imposed on the charges of driving whilst  disqualified  and  unlawfully  getting  into  a  motor  vehicle  on  25 January 2023 remain intact. These are cumulative sentences of nine months and three months imprisonment respectively. However, the sentence imposed on the charge of driving whilst disqualified is to be served concurrently with other charges rather than cumulatively as is presently the case. The concurrent sentence of one month imprisonment on the charge of dangerous driving is set aside and replaced with a cumulative sentence of one months imprisonment. This means Mr Pu is effectively sentenced to 13 months imprisonment on the charges arising out of the incident on 25 January 2023.

[23]   To achieve an end sentence of 22 months imprisonment I set aside the existing sentences imposed on the charges of driving whilst disqualified on 8 December 2022, 3 January 2023 and 8 January 2023. I substitute cumulative sentences of three months imprisonment on each of those charges.

Lang J