R v Pan
[2020] NZHC 2342
•9 September 2020
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2020-063-442
[2020] NZHC 2342
THE QUEEN v
XIANJU PAN
Hearing: 9 September 2020 Counsel:
A Gordon for Crown
B Lawson for Defendant
Sentence:
9 September 2020
SENTENCING NOTES OF WHATA J
Solicitors: Crown Solicitors, Rotorua
R v PAN [2020] NZHC 2342 [9 September 2020]
[1] Before I get started, I just want to acknowledge Mr Gale, and your presence here today. I want to acknowledge the loss that you have suffered. I know that nothing in this sentence will really help you greatly, but I just wanted to acknowledge your loss before I start.
[2] Mr Pan, you face sentencing having pleaded guilty to driving with excess blood alcohol causing death and failing to stop to ascertain injury.
Facts
[3] The facts of your offending are as follows. On 23 January 2020, you joined some friends for lunch at a local restaurant, where you drank beer and a Chinese spirit called Baiju. You became very intoxicated. It also appears you took some medication for vertigo earlier that day.
[4] Regrettably, in your impaired state, you chose to drive to a patient’s house for a social visit. You got into your BMW SUV, drove through the Rotorua Central Mall carpark area and then turned onto Ranolf Street. Your driving was sufficiently poor that it drew the attention of two concerned motorists.
[5] At about this time, Martine Gale was walking home from the local supermarket. She was walking with the aid of her wheeled walking stroller which was loaded with her shopping. She had commenced crossing the road at the intersection roundabout of Ranolf Street and Malfroy Road when you arrived travelling at about 40-50 kilometres per hour. She was clearly visible, but you did not slow. The front of your vehicle struck her and knocked her to the ground. You then drove over her, with the front and rear wheels on the right-hand side of the vehicle running her over. It appears you slowed down momentarily after the impact but continued to drive down Ranolf Street.
[6] You were followed by another motorist to a Devon Street address. The police officers who arrived at the address 30 minutes after the accident described you as smelling of alcohol, with glazed eyes and slurring speech. A subsequent evidential
blood sample returned a result of 214 micrograms of alcohol per 100 millilitres of blood.1
[7] Ms Gale sustained complex pelvis and femoral fractures and a severe head injury as a result of the accident. She was transferred to Waikato Hospital and died on 29 January 2020. Pathology findings identify the head trauma due to being hit by the car as the cause of death.
Personal circumstances
[8] Mr Pan, I now turn to your personal circumstances. You were born in China and moved to reside in New Zealand with your immediate family some years ago. You have medical qualifications and you operate an acupuncture clinic. You have no prior convictions and you are well-regarded within your local community. You are a father to four children under the age of 16.
[9] Your PAC report evaluates your risk of harm to others as low and recommends a sentence of home detention on the basis that this will better allow you to continue with rehabilitative intervention. The report notes you are someone who, since understanding the consequences of his actions, has “appeared to demonstrate insight into how the active offending has irrevocably impacted on Ms Gale and her family”.
The victims
[10] I have the benefit of a victim impact statement of the victim’s son, Quinten. The victim of your offending was 71. She was an artist who had attended Art School at the Otago School of Art and she loved to travel. She is survived by two children, Quinten and Mieka, and two grandchildren. Naturally, they were devastated at the news of their mother and grandmother’s death, and the circumstances of it. Quinten also expressed great difficulty in coming to terms with finding his mother in so much pain and so broken. [Redacted]
1 Mr Pan’s blood alcohol level was 214 milligrams of alcohol per 100 millilitres of blood.
Court-referred Restorative Justice Conference Report
[11] Since the victim impact statement was made, you and Quinten have participated in a restorative justice conference. The restorative justice report provides important insights. You are clearly deeply remorseful for what you have done. It is also clear Quinten does not want you to go to prison and is pleased that you are receiving counselling. He hopes you continue to give talks about the effects of alcohol and driving. The two of you also talked about what you could do to help Quinten and his family. Quinten then accepted your offer to make a reparation payment of $15,000 and you have confirmed today that you will make that payment irrespective of the outcome of this sentence.
My sentence
[12] Turning then to my sentence. In fixing your sentence, Mr Pan, there are three mandatory steps, and a potential fourth step, namely:
(a)First, given the seriousness of your offending, I must identify what is called a “starting point” for a term of imprisonment. I will consider starting points adopted in similar cases to yours and any aggravating or mitigating factors of your offending.
(b)Second, I must identify any personal aggravating or mitigating factors, including your guilty plea, that might require I increase or reduce that starting point.
(c)Third, I will fix a start point sentence for a term of imprisonment.
(d)Finally, if that sentence is less than two years, I may consider whether to impose a sentence of home detention.
[13] I have had the benefit of detailed submissions from Ms Gordon, for the Crown, and from Mr Lawson on your behalf. Referring to the same case law, both arrive at not too dissimilar starting points. The Crown submits a combined starting point for
both charges should be four years. Mr Lawson submits a starting point of three years to three years and six months would be appropriate.
[14] It is necessary, first, to identify the aggravating features of your offending. Needless to say, drink/driving causing death is inherently serious, as is the failure then to stop. When I speak of “aggravating features,” I am referring to the additional factors that should inform my starting point. They are:
(a)a high level of intoxication at 214 micrograms per 100 millilitres of blood when tested sometime after you first drove;2
(b)some evidence of poor driving prior to the accident; and
(c)the victim’s pain and suffering immediately prior to her death. Quinten referred to her screams at the hospital – screams which continue to haunt him.
[15] With these aggravating features in mind, I am satisfied that a starting point of three years and 10 months is appropriate for both charges. This is slightly more than the starting point of three years, eight months adopted by Thomas J in a similar case, Brampton.3 In that case, the defendant drove his car while intoxicated, struck and killed a cyclist, and failed to stop. However, his blood alcohol level - at 160 micrograms per 100 millilitres4 - was less than yours.
[16] The starting point is justifiably less than the starting points in Walker5 (five years), Latimer6 (five years) and Te Amo7 (four years).8 In Walker, the defendant’s driving involved excessive speed (up to 120 kilometres per hour) and total loss of control.9 In Latimer, the defendant drove after having been refused alcohol because
2 Mr Pan’s blood alcohol level was 214 milligrams of alcohol per 100 millilitres of blood.
3 Brampton v Police [2015] NZHC 2618 at [58].
4 Mr Brampton’s blood alcohol level was 160 milligrams of alcohol per 100 millilitres of blood.
5 Walker v R [2016] NZHC 1963 at [31].
6 Police v Latimer [2018] NZDC 7672 at [25].
7 Te Amo v R [2010] NZCA 307 at [11].
8 The starting point was in fact three years, ten months’ imprisonment. See [6], [11] and [12].
9 At [4].
of his intoxication and the driving conduct was more serious in that case.10 In Te Amo, the driver was also grossly intoxicated with a breath alcohol level at 938 micrograms per litre and the starting point took into account a prior conviction for similar offending.11
[17] Ms Gordon agrees that there are no personal aggravating features that require an uplift. She also accepts that a discount for good character is available. Mr Lawson submits there should be discounts for good character, remorse, restorative justice and early guilty plea (that is, you made that plea once the Crown agreed to withdraw the manslaughter charge).
[18] I agree there must be discounts for these factors. Mr Pan, you are plainly a man of good character – you are a productive member of your local community and a caring family man. You are clearly remorseful and you deserve credit for that. I also agree, as mandated by s 9(2)(f) of the Sentencing Act, that you should be afforded a discount for your participation in the restorative justice conference and for the reparation payment. I want to make clear in this regard, however, that the reparation payment is not some sort of “trump card” for those who can afford it. Significantly, in this case, prior to any offer of reparation, you expressed your remorse in an unfettered way and Quinten expressed his desire that you not go to prison. This shows that the restorative justice process had already served an important purpose – that is, to secure your acknowledgment of your wrongdoing in a way that can be safely received and acknowledged by the victims of your offending. The offer of reparation, then, provides further mitigation of the harm you have done.
[19] Given these mitigating factors, I am satisfied that discounts of 10 per cent for good character, 10 per cent for remorse and 10 per cent for restorative justice are appropriate. You should also receive a 25 per cent discount for your guilty plea – which was given at the first available date (1 July 2020) after the Crown confirmed that the manslaughter charge would not be pursued if you pleaded guilty to the present charges.
10 At [18].
11 At [12].
[20] In the result, your offending attracts a sentence of imprisonment of 21 months or one year, nine months. This comprises a starting point of three years and four months for the drink/driving causing death charge, an uplift of six months for the failing to stop, resulting in a combined start point of three years, 10 months, less 25 months for the discounting factors just mentioned.
Home detention
[21] I turn, then, to examine whether I should impose a sentence of home detention. There is no presumption in favour of imprisonment or home detention. However, authority suggests that home detention is the exception, rather than the rule, where alcohol-impaired driving causes death and the level of intoxication is high.12
[22] For my part, however, it is unnecessary to generalise. Inevitably, though in cases involving death of a victim, the purposes of sentencing (stated at s 7 of the Act) require very careful attention, namely:
(a)To hold you accountable for what you have done;
(b)To promote a sense of responsibility in you;
(c)To provide for the interests of the victim;
(d)To provide for reparation for harm done;
(e)To denounce your conduct;
(f)To deter others from doing it;
(g)To protect the community; and
(h)To assist your rehabilitation.
12 Edmonds v R [2020] NZHC 662 at [18].
[23] A sentence of imprisonment would better achieve the purposes of deterrence and denunciation. On the other hand, I am satisfied that a sentence of home detention (in combination with the outcome achieved through the restorative justice process and a lengthy period of disqualification) will adequately provide for the protection of the community, promote in you a sense of responsibility, provide for the interests of the victim, for reparation and hold you accountable for what you have done. Your rehabilitation and reintegration would clearly also be better achieved with a sentence of home detention.
[24] The principles of sentencing stated at s 8 provide further guidance. As Ms Gordon submitted, the gravity and seriousness of the offending, and consistency with other sentences, favour imprisonment, though Ms Gordon also acknowledged your culpability is not at the highest level of the spectrum in cases of this kind. The requirement to impose a maximum or near maximum are not engaged in this case. However, other information, including the victim’s son’s desire that you not be imprisoned, your offer of reparation and the outcome of the restorative justice conference, favour home detention. Your good character, supportive whānau environment and your children’s need to have their father in their lives, are important considerations also favouring home detention. The fact also that you present a very low risk of reoffending is a further factor favouring home detention.
[25] Overall, I have come to the view that home detention best meets the purposes and principles of sentencing. Drink-driving causing death is a very serious offence that must be deterred. But, in your case Mr Pan, your unqualified remorse and otherwise good character, combined with Quinten’s desire that you should not be imprisoned, mean that a merciful approach may be adopted.
[26] On that basis, Mr Pan, I sentence you to 11 months’ home detention. That sentence is in relation to both charges and, to the extent necessary, to be served concurrently. I also disqualify you from driving for four years and I make an interlock order, pursuant to s 65AB(1)(b)(ii) of the Land Transport Act 1998. I make an order for reparation of $15,000 to be paid into the Court immediately. The home detention will be in accordance with the report and the conditions specified therein. There will
be also six months’ post-detention conditions. So, Mr Pan, that is your sentence. Please stand down.
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