Pukeroa v The King
[2023] NZHC 2952
•20 October 2023
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2023-463-79
[2023] NZHC 2952
BETWEEN TROY PUKEROA
Appellant
AND
THE KING
Respondent
Hearing: 18 October 2023 Appearances:
N Dutch for Appellant
M Tutton-Harris for Respondent
Judgment:
20 October 2023
JUDGMENT OF LANG J
[on appeal against sentence]
This judgment was delivered by Justice Lang On 20 October 2023 at 3.30 pm
Registrar/Deputy Registrar Date:…………………………
Solicitors/counsel:
Pollett Legal, Office of the Crown Solicitor, Tauranga N Dutch, Tauranga
PUKEROA v R [2023] NZHC 2952 [20 October 2023]
[1] Mr Pukeroa pleaded guilty in the District Court to a variety of driving and drug offences. On 28 June 2023, Judge J P Geoghegan sentenced Mr Pukeroa to three years one month imprisonment.1 He also disqualified Mr Pukeroa from holding or obtaining a driver’s licence for two years.
[2] Mr Pukeroa appeals against the sentence of imprisonment. He contends the Judge failed to apply totality principles and to give him sufficient credit for mitigating factors. He says these errors produced an end sentence that is manifestly excessive.
The offending
[3] The charges related to a series of incidents that occurred on 29 December 2022 and during February and March 2023.
The incident on 29 December 2022
[4] On the afternoon of 29 December 2022, Mr Pukeroa was driving a Ford Ranger utility motor vehicle in an easterly direction on State Highway 30 between Rotorua and Lake Rotoiti. As he approached a sweeping left-hand bend, his vehicle was the third vehicle from the front in a line of traffic. As the line of vehicles entered a passing lane, the vehicle in front of Mr Pukeroa’s vehicle moved into the right-hand lane to begin overtaking the vehicle at the front of the line. At this time Mr Pukeroa sped up and began “tailgating” the vehicle in front of him. Mr Pukeroa’s vehicle also crossed the double yellow lines and intruded into the oncoming lane. This occurred as the vehicles were travelling around a corner. The vehicle in front of Mr Pukeroa’s vehicle returned to the left-hand lane as soon as possible and Mr Pukeroa accelerated away in his vehicle.
[5] A short time later, Mr Pukeroa entered a series of corners for which the recommended speed limit was 45 kilometres per hour. As his vehicle travelled through one of the corners it crossed into the opposing lane. An oncoming vehicle attempted to take evasive action but Mr Pukeroa’s vehicle collided with it on the front left-hand side. The force of the collision rotated the oncoming vehicle into the path of Mr Pukeroa’s vehicle and a second collision occurred. The collision resulted in the
1 R v Pukeroa [2023] NZDC 13450.
three elderly adult victims in the other vehicle receiving serious injuries. These required them to be transported to hospital by ambulance and helicopter.
[6] The driver of the oncoming vehicle suffered a broken right leg, broken right arm, fractured sternum and numerous fractured ribs. The passenger in the front seat sustained fractures to almost every bone in her body other than her head and right leg. She also sustained significant internal injuries. The passenger in the rear right seat suffered a fractured skull, broken sternum, broken left wrist and multiple fractures to her vertebrae. The injuries have required ongoing medical attention for all three victims and will have significant and long-lasting effects for them.
[7] Mr Pukeroa was not injured in the collision but was taken to hospital as a precautionary measure. A blood sample was taken and this was subsequently found to contain methamphetamine. Hospital staff also found a small plastic container in the pocket of Mr Pukeroa’s clothing. Inside the container were two plastic snaplock bags, each of which contained a quantity of white crystalline powder. This was subsequently found to be methamphetamine and weighed approximately 1.4 grams. Hospital staff also found a glass methamphetamine pipe in Mr Pukeroa’s pocket.
[8] When spoken to subsequently by the police, Mr Pukeroa said that he was a methamphetamine addict and dealer. He said he had consumed methamphetamine approximately two hours prior to the collision. He said he could not remember exactly how the collision happened but conceded that it was probably his fault.
[9] The items found on the day of the collision prompted the police to obtain a search warrant that authorised them to search Mr Pukeroa’s vehicle and residence. They stopped him whilst he was driving his vehicle on 3 February 2023. When the police searched Mr Pukeroa’s vehicle they found a total of $2,230 in cash and
17.7 grams of methamphetamine that had been divided into 16 separate snaplock plastic bags. The police also found hundreds of new snaplock plastic bags of the type commonly used to package small amounts of methamphetamine for sale. They also found a set of digital scales.
[10] The police arrested Mr Pukeroa and searched his residential address later the same day. In his bedroom they found 2.3 grams of methamphetamine together with
cutting agents and two police scanners. These were in operating order and had been set to the local police channel. Mr Pukeroa had also installed a CCTV system at the address. He had the ability to monitor this on a laptop computer set up in his bedroom.
[11] The police seized Mr Pukeroa’s cellphone when they searched his address. When they analysed the data held on the cellphone, they found text messages confirming that he had sold methamphetamine on 55 occasions between 30 December 2022 and 3 February 2023. These transactions related to a total of 18.75 grams of methamphetamine. The data analysis also showed that Mr Pukeroa had offered to supply methamphetamine having a total weight of 4.45 grams on 15 occasions between 26 January 2023 and 3 February 2023. Mr Pukeroa told the police he had a methamphetamine addiction and had been selling methamphetamine for approximately two months in order to support his habit.
[12] The incident that occurred on 29 December 2022 resulted in Mr Pukeroa facing three charges of causing injury whilst driving with a controlled drug in his blood. He also faced a charge of dangerous driving as a result of the incident when he had overtaken the vehicle in front of him shortly before the collision with the oncoming vehicle. In addition, he faced charges of supplying and being in possession of methamphetamine for supply. Finally, he faced charges of being in possession of methamphetamine and a methamphetamine pipe.
Sentence
[13] The Judge took the driving charges as the lead, or most serious, charges. He considered these warranted a starting point of two and a half years imprisonment. He then noted that Mr Pukeroa had been participated in transactions involving a total of
46.8 grams of methamphetamine. This meant his drug-related offending fell within Band 2 identified in Zhang v R.2 Offending in this band will justify a starting point within the range of two and nine years imprisonment. The Judge described Mr Pukeroa as a street dealer sitting on the cusp of the lesser and significant categories referred to by the Supreme Court in Berkland v R.3 The Judge also accepted that it was more than likely that Mr Pukeroa’s addiction to methamphetamine provided a
2 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].
3 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [67]–[72].
causal link with both the drug-related offending and the driving charges. The Judge considered that an appropriate starting point for the drugs charges was also one of two and a half years imprisonment. The Judge declined to adjust that sentence to reflect totality principles.
[14] Turning to mitigating factors, the Judge applied a discount of 25 per cent to reflect guilty pleas and a further 20 per cent to reflect addiction issues and other issues identified in a report Mr Pukeroa’s counsel had tendered to the Court under s 27 of the Sentencing Act 2002. He considered Mr Pukeroa’s prospects of rehabilitation were open to question and that the remorse he had expressed was adequately recognised by the discount given for guilty pleas.
[15] This process produced a total discount of 45 per cent, or two years, leaving an end sentence of three years imprisonment. The Judge then considered whether this appropriately reflected the gravity of the offending. He concluded that it did and declined to reduce the sentence further to reflect totality principles. An additional one month’s imprisonment was imposed to remit Mr Pukeroa’s fines.
Totality
[16] In any case where a court is considering the imposition of a cumulative sentence, it must ensure that the end sentence is not wholly out of proportion to the gravity of the overall offending.4 In the present case the Judge took that step both when selecting the end starting point and after arriving at an end sentence. In both instances he concluded that no adjustment was required for totality principles.
[17] I note in passing that the Judge was not required to have regard to totality principles until he had arrived at the end sentence. This is because it is the final sentence that must reflect the totality of the overall offending.5 It is immaterial how that sentence is constructed.6
[18] When considering the issue of totality the Judge followed the approach taken in Griffin v R.7 The offending in that case was very similar to that in the present case.
4 Sentencing Act 2002, s 85(2).
5 R v Xie [2007] 2 NZLR 240 (CA) at [16].
6 At [16].
7 Griffin v R [2021] NZHC 3317.
It involved dangerous driving causing injury coupled with drug-related offending. The sentencing Judge had adopted a starting point on the driving charges of three years imprisonment. He had selected a starting point of two and a half years imprisonment on the drug-related charges. No adjustment was then made for totality. The High Court upheld this approach on appeal. The Judge considered that the conduct giving rise to the driving charges was more serious in Griffin. This prompted him to select a starting point of two years six months on those charges for Mr Pukeroa.
[19] On Mr Pukeroa’s behalf Mr Dutch seeks to distinguish Griffin on the basis that the offender in that case had a more significant criminal history than does Mr Pukeroa. However, Mr Pukeroa has previous convictions for being in possession of cannabis plant and methamphetamine. These were entered in 2022. He also has a conviction for driving whilst suspended.
[20] Putting Griffin to one side, it needs to be remembered that the objective of totality principles is to ensure that, when an offender is sentenced for different forms of offending that attract cumulative sentences, the end sentence on all charges is not wholly disproportionate to the gravity of the overall offending. In the present case, Mr Pukeroa was guilty of a very bad piece of driving that caused serious and long- lasting injury to his three elderly victims. The offending was exacerbated by the fact that he was driving with methamphetamine in his blood at that time.
[21] The drugs charges reflected the fact that he was a busy street dealer who was actively involved in the sale of methamphetamine on multiple occasions during the period leading up to the incident underpinning the driving charges. There was also a link between the two sets of charges because of the fact that Mr Pukeroa had consumed methamphetamine before the incident that led to the driving charges.
[22] Taking these factors into account I cannot say that the end sentence of three years one month imprisonment on both sets of charges was wholly out of proportion to the gravity of his overall offending. This ground of appeal accordingly fails.
Mitigating factors
[23] Mr Dutch takes no issue with the discounts the Judge applied to reflect guilty pleas and mitigating factors identified in the s 27 report. However, he contends that
the Judge should have applied a further discount of approximately 10 per cent to reflect Mr Pukeroa’s rehabilitative prospects and remorse. He submits the Judge erred by not giving Mr Pukeroa a discreet discount to reflect either of these factors.
Analysis
[24] The s 27 report differs from many such reports tendered to the Court because it demonstrated that Mr Pukeroa had a stable upbringing. He did not suffer the depravation so commonly seen in the cases of offenders coming before the Courts for sentence on offences such as these. However, the report identified addiction issues arising largely out of the fact that one of Mr Pukeroa’s uncles had begun supplying him with drugs from an early age. He subsequently became addicted to methamphetamine. He reported using significant quantities of methamphetamine on a daily basis during the months leading up to the present offending. This led to him selling methamphetamine to support his addiction.
[25] Whilst Mr Pukeroa was awaiting sentence he sought a grant of electronically monitored (EM) bail to reside at a rehabilitative facility operated by the Grace Foundation. His application for EM bail was ultimately refused but Mr Dutch submits that this was the only way in which Mr Pukeroa could have demonstrated a commitment to rehabilitation whilst in custody awaiting sentence. Mr Dutch contends the Judge ought to have given discrete recognition to this mitigating factor.
[26] Mr Dutch also points out that Mr Pukeroa provided a letter of apology to the Court. During the sentencing hearing Mr Pukeroa also apologised to one of the victims after she had read out her victim impact statement. Mr Dutch contends the Judge ought to have provided him with a discount of least five per cent to reflect this factor.
[27] I consider the relevance of the s 27 report largely lies in its identification of the likely causes of his addiction issues, which clearly had a link to the present offending. Viewing the matter afresh, I consider this would justify a discount of no more than 10 per cent on a standalone basis. Mr Pukeroa’s bid to be bailed to the Grace Foundation facility would not justify a discount beyond five per cent. Even if the Judge had given Mr Pukeroa a further discount of five per cent to reflect remorse, the total discount for factors other than guilty pleas would not have exceeded 20 per cent allowed by the Judge for personal mitigating factors. It follows that Mr Pukeroa has
not established that the end sentence of three years one month imprisonment was manifestly excessive.
A mathematical error
[28] It is, however, necessary to correct a mathematical error the Judge made in calculating the discount to be given for mitigating factors. The Judge considered a reduction of two years was required to reflect the discounts totalling 45 per cent that he had identified. However, by my calculations a discount of 45 per cent would result in a reduction of two years three months. Although the end sentence of three years one month imprisonment was not manifestly excessive it is still necessary to adjust the sentence so that it accords with the sentence that the Judge intended to impose.8
Result
[29] The appeal against sentence is allowed. The concurrent sentences of three years one month imprisonment are set aside and concurrent sentences of two years 10 months imprisonment are substituted in their place.
Lang J
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
0
4
0