PU v NEW ZEALAND POLICE [2023] NZHC 2838

PU v NEW ZEALAND POLICE [2023] NZHC 2838 [10 October 2023]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2023-419-60[2023] NZHC 2838BETWEEN SUNTAHNA KRUZ PUAppellantAND NEW ZEALAND POLICERespondentHearing: 9 October 2023Appearances: M James (on behalf of G A Walsh) for AppellantJ Lewis for RespondentJudgment: 10 October 2023Reissued: 12 October 2023JUDGMENT OF LANG J[on appeal against sentence]This judgment was delivered by Justice Langon 10 October 2023 at 4.00 pmRegistrar/Deputy RegistrarDate:Solicitors/counsel:Hamilton Legal, Office of the Crown Solicitor, HamiltonG A Walsh, Hamilton[1] Mr Pu pleaded guilty in the District Court to a large number of dishonesty anddriving offences. The charges related to four separate incidents that occurred between8 December 2022 and 25 January 2023. On 27 June 2023, Judge G A Fraser sentencedMr Pu to 27 months imprisonment on all charges.1[2] Mr Pu appeals against sentence. He contends the Judge failed to properly applytotality principles and this led to an end sentence that is manifestly excessive.The charges8 December 2022[3] On 5 December 2022, a Nissan Bluebird motor vehicle was stolen from anaddress in Hamilton. On the morning of 8 December 2022, Mr Pu drove the stolenvehicle 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 leftrear quarter window. The ignition shroud and barrel had been pulled out so that thevehicle could be started without using a key.[5] Mr Pu was driving the vehicle whilst he was disqualified from holding orobtaining a drivers licence. He had been disqualified from driving for 12 months on18 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 bailbut 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 aMitsubishi motor vehicle. That vehicle had earlier been reported stolen. He drove offwithout 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 andtheft of petrol.8 January 2023[9] In the early hours of 8 January 2023, a Honda motor vehicle was stolen froman address in Hamilton. Entry was gained by smashing the rear quarter light windowand the vehicle was started after the ignition barrel had been prised out with ascrewdriver. Later the same day, Mr Pu arrived at a service station in Hamilton drivingthe stolen vehicle. He went inside the service station whilst an associate put $60 worthof 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 anaddress 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 activatingtheir red and blue flashing lights and siren. Mr Pu failed to stop and accelerated awayon the incorrect side of the road. He then reached speeds of up to 110 kilometres perhour in a posted 60 kilometre per hour area. He continued driving at speed, overtakingother cars and driving into oncoming traffic. The police called off the pursuit giventhe danger Mr Pu posed to other motorists.[13] The police subsequently located and arrested Mr Pu. This incident led to Mr Pubeing 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 cumulativesentences for each set of charges. These began with three cumulative sentencestotalling 15 months imprisonment on the charges relating to the incident that occurredon 25 January 2023. The cumulative sentences imposed for the other three incidentsproduced a sentence of 36 months imprisonment. The Judge then applied a discountof 25 per cent, or nine months, to reflect guilty pleas. This produced an end sentenceof 27 months imprisonment. The Judge imposed the sentence through a series ofcumulative 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 onindividual charges. He contends, however, that a sentence of 36 months imprisonmentbefore taking into account guilty pleas was manifestly excessive. He says the Judgefailed to apply totality principles when fixing the sentence.[16] Mr Walsh suggests that, applying totality principles, the Judge ought to havereached a sentence of no more than 22 months imprisonment. He accepts that an upliftof three months would have been appropriate to reflect the fact that Mr Pu hasnumerous previous convictions for similar offending. Thereafter, the credit to beapplied for guilty pleas would have reduced the sentence to one of around 18 monthsimprisonment.Analysis[17] Like the Judge, I consider the most serious aspect of Mr Pu's offending relatesto 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 fromstopping him. It needlessly placed the police officers and other motorists at significantrisk. Like the Judge, I consider the charges arising out of this incident justified astarting point of 15 months imprisonment on a stand-alone basis.[18] The remaining charges relate to Mr Pu arriving at service stations in a stolenvehicle on three separate occasions. On each occasion, he drove off without payingfor 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 8January 2023 was slightly more serious than that on 8 December 2022 because itreflects Mr Pu's determination to continue to drive stolen vehicles whilst disqualifiedand to steal petrol even though he had been arrested for the same type of offendingfollowing the incident on 8 December 2022. Even so, it is difficult to see how aneffective 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 thanthree months could be justified for the offending on 8 December 2022 and four monthseach for the offending on 3 and 8 January 2023. Stepping back, I consider a sentenceof no more than 26 months imprisonment was justified before taking into accountaggravating and mitigating factors personal to Mr Pu.[20] Mr Pu has a lengthy history of convictions for similar offending. The majorityof his current offending was also committed while he was on bail. An uplift of threemonths is sufficient to reflect these factors. Adding the three-month uplift to asentence of 26 months, the sentence becomes one of 29 months imprisonment. Adiscount of seven months, or approximately 25 per cent, remains appropriate to reflectguilty pleas.[21] This results in a sentence of short-duration. However, I am satisfied that asentence of home detention would not be appropriate to hold Mr Pu accountable forhis offending or to achieve the sentencing principles of deterrence and denunciation.I therefore consider a sentence of 22 months imprisonment to be appropriate to reflectthe overall culpability of Mr Pu's offending. It follows that the sentence the Judgeimposed infringed totality principles because it was wholly out of proportion to thegravity of the overall offending.22 Sentencing Act 2002, s 85(2).Result[22] The appeal against sentence is allowed. The sentences imposed on the chargesof driving whilst disqualified and unlawfully getting into a motor vehicle on25 January 2023 remain intact. These are cumulative sentences of nine months andthree months imprisonment respectively. However, the sentence imposed on thecharge of driving whilst disqualified is to be served concurrently with other chargesrather than cumulatively as is presently the case. The concurrent sentence of onemonth imprisonment on the charge of dangerous driving is set aside and replaced witha cumulative sentence of one months imprisonment. This means Mr Pu is effectivelysentenced to 13 months imprisonment on the charges arising out of the incident on25 January 2023.[23] To achieve an end sentence of 22 months imprisonment I set aside the existingsentences 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 monthsimprisonment on each of those charges._______________________________Lang J