R v Pan - [2020] NZHC 2342

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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Pan

Details

AGLC: R v Pan [2020] NZHC 2342
Case: [2020] NZHC 2342
Decision Date: 9 September 2020

CaseChat Overview and Summary

In this case, the defendant, Xianju Pan, was sentenced for driving while intoxicated and causing the death of Martine Gale, as well as failing to stop to ascertain injury. The court heard the case on 9 September 2020, with counsel A Gordon representing the Crown and B Lawson representing the defendant. The court acknowledged the loss suffered by the victim's family and proceeded to address the legal issues pertinent to the case.

The primary legal issue before the court was to determine an appropriate sentence for Pan, who had pleaded guilty to both charges. The court needed to consider the aggravating and mitigating factors of the case, and whether a sentence of imprisonment or home detention would be more suitable. The court also had to take into account the principles of sentencing, including deterrence, denunciation, protection of the community, and rehabilitation.

The court determined that the aggravating factors of the case included Pan's high level of intoxication, poor driving prior to the accident, and the victim's pain and suffering. The court settled on a starting point of three years and 10 months for both charges. The mitigating factors included Pan's good character, remorse, early guilty plea, and his participation in a restorative justice conference. The court applied discounts for these factors, resulting in a final sentence of 21 months or one year and nine months imprisonment. However, the court concluded that home detention would better serve the purposes and principles of sentencing, given the circumstances of the case.

Pan was sentenced to 11 months' home detention, to be served concurrently for both charges, and disqualified from driving for four years. The court also ordered Pan to pay a reparation of $15,000 to the victim's family. The decision acknowledges the seriousness of the offence but takes into account Pan's remorse, good character, and the wishes of the victim's family.

This case demonstrates the court's consideration of both aggravating and mitigating factors in determining an appropriate sentence. The court balanced the principles of sentencing and the unique circumstances of the case to arrive at a sentence of home detention, which the court believed would better serve the purposes of sentencing and promote rehabilitation.

Orders