He v The Queen

[2005] NZCA 256

IN THE COURT OF APPEAL OF NEW ZEALAND

CA169/05

THE QUEEN

v

SHANGBIN HE

Hearing:18 October 2005

Court:Chambers, Potter and Doogue JJ

Counsel:R M Mansfield for Appellant

M F Laracy for Crown

Judgment:28 October 2005 

JUDGMENT OF THE COURT

AAn order that, instead of allowing the appeal against the conviction for attempted murder, the verdict of guilty on that charge is quashed and substituted for it is a verdict of guilty on the alternative charge of wounding Kaixiang Zhang, with intent to cause him grievous bodily harm.

BOn the substituted verdict, the Court sentences the appellant to seven and a half years’ imprisonment.  The appellant must serve a minimum period of imprisonment of three years, nine months.

____________________________________________________________________

REASONS

(Given by Chambers J)

A frenzied attack in Elmo’s Bar

[1]       On the evening of 31 January 2003, Shangbin He, the appellant, and his co-accused, Ling Li Zheng, were with a wider group of friends and associates at the back of Elmo’s Bar in Karangahape Road, Auckland.  Another group of young Chinese men arrived at the bar at about 11 p.m.  Among them was Kaixiang Zhang.  Evidence was given at trial that this group had come to the bar to apologise or make amends for some misconduct the previous evening.

[2]       The two groups of men confronted each other in the middle of the bar.  A fight started.  Mr Zhang was either singled out or emerged from his group.  Some members of Mr He’s group attacked Mr Zhang.  Mr Zhang was knifed, kicked, and punched.  He was stabbed many times.  Mr Zhang very nearly died.  He was in hospital for almost a month. 

[3]       Messrs He and Zheng were charged with the attempted murder of Mr Zhang.  In the alternative, they were charged with wounding him, with intent to cause grievous bodily harm, contrary to s 188 of the Crimes Act 1961. 

[4]       Sometime later a further charge was brought against Mr He.  He was charged with attempting to escape from lawful custody. 

[5]       In March this year, Messrs He and Zheng were tried before Harrison J and a jury in the High Court at Auckland.  Both were found guilty of attempted murder.  Mr He was also found guilty of attempting to escape from lawful custody.  Subsequently Harrison J sentenced Mr He to eight and a half years’ imprisonment on the charge of attempted murder and three months’ imprisonment on the charge of attempting to escape from custody.  The sentences were concurrent.  Mr Zheng was sentenced to seven years’ imprisonment.  A minimum term of imprisonment was imposed on both men under s 86 of the Sentence Act 2002: in Mr He’s case, the minimum term of imprisonment (the MPI) was four years and three months and in Mr Zheng’s case three years.

[6]       Mr He has appealed against his conviction for attempted murder.

Issues on the appeal

[7]       The Crown at trial advanced its case on the basis that whoever stabbed Mr Zhang was guilty as a principal of attempted murder.  It was the Crown case that both Messrs He and Zheng had knives which they used to stab Mr Zhang.  Alternatively, the Crown said, even if both of them did not have knives, one of them did and the other assisted in the attempted murder by helping the stabber, in particular by joining in the attack and punching and kicking Mr Zhang.  The other would thereby be a party to the attempted murder under s 66(1) of the Crimes Act.

[8]       Harrison J summed up on both bases.  There is no criticism of his summing up in so far as it set out what the Crown had to prove if Mr He was the stabber.  But it is accepted by the Crown and us that His Honour’s summing up was erroneous as to what had to be established if the jury found Mr He was just a puncher or kicker.  The error was reinforced in answers the judge gave to questions asked by the jury while they were deliberating.  The details of the errors do not matter. They relate to what the Crown must prove by way of intent in the case of a charge of assisting someone in his attempt to murder.  While we satisfied ourselves that the conceded errors had been made, they were not the principal They were not in issue before us.  What was in issue was what should happen next.

[9]       Ms Laracy, for the Crown, submitted that the case against Mr He as stabber was so overwhelming that we could safely confirm the conviction for attempted murder, there being no challenge to the judge’s summing up on the “principal” basis.  Mr Mansfield, for Mr He, responded that there was no way in which this court could conclude that the jury must have found Mr He liable as the stabber. 

[10]     Ms Laracy’s fuallback position was that, even if the attempted murder charge could not stand, this was a case where we could exercise the power conferred on this court by s 386(2) of the Crimes Act:

Where an appellant has been convicted of an offence and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Court of Appeal or the Supreme Court that the jury must have been satisfied of facts which proved him guilty of that other offence, the Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed as may be warranted in law for that other offence, not being a sentence of greater severity.

[11]     She submitted that the jury must have been satisfied of facts which proved Mr He guilty of the alternative charge under s 188 of the Crimes Act.  There was no challenge to the summing up on that charge.  Ms Laracy submitted, therefore, that, instead of allowing or dismissing the appeal, we should substitute for the verdict of attempted murder a verdict of guilty of the charge of wounding with intent to cause grievous bodily harm.  Mr Mansfield submitted that we should not exercise that power but instead should allow the appeal and order a new trial on both counts.

[12]     If we adopted the Crown’s suggestion and exercised the s 386(2) power, then a third issue on the appeal was what the appropriate sentence would be on the s 188 charge.

[13]     We shall deal with those three issues in turn.

Must Mr He have been the stabber?

[14]     Ms Laracy’s first argument was that the evidence was overwhelming that Mr He must have been the stabber.  For this reason, she said, we could be satisfied that the conviction was safe, because there was no error in that part of His Honour’s summing up where he dealt with the elements of liability as a principal.  Ms Laracy very fairly said that, while she raised this suggestion as a possible solution to the problem which had arisen, she did not press it. 

[15]     We think it was proper for Ms Laracy to raise this as a possible solution, but we cannot accept it.  It is clear from the transcript and from the judge’s summing up that there was a real issue at trial as to just who was involved in the attack on Mr ZhangHe and what each did.  We appreciate that, when it came to sentencing, Harrison J proceeded on the basis that both Mr He and Mr Zheng had knives and used them.  He was, of course, entitled to form his own view of the likely factual scenario underlying the jury’s verdict for purposes of sentencing.  But the exercise in which we are engaging is a different one: must the jury have concluded that Mr He was a stabber rather than merely a puncher or kicker?  We find it impossible to answer that question affirmatively. 

[16]     Our unease is increased by the two questions asked by the jury:

-     Does the person assisting in the assault need to know that the intention of the other attackers was to kill Mr Zhang?

-     Is he equally guilty if he was unaware of the intention but participated in the assault?

[17]     Those questions reveal that it was, at the least, a live issue in the jury’s minds as to whether both men were stabbers or only one of them.  While we can speculate as to which of them the jury considered to be the stabber and which the assister, it can be no more than speculation. 

[18]     It is also noteworthy that the jury did not find this case simple.  They were sent out at 10.20 a.m. one day.  They deliberated that day until some time after 8.30 p.m.  They resumed their deliberations at 8.30 a.m. the next day and did not finally return their verdicts until 12.55 in the afternoon.

[19]     We feel unable to accede to Ms Laracy’s first suggestion.

The alternative charge

[20]     We know that the jury must have found that Mr He was “one of those who participated (whether by stabbing, kicking, or punching) in the assault on [Mr Zhang]”.  That was Harrison J’s issue 1.1 in a statement of issues provided to the jury.  We also know that the jury must have found that Mr He either stabbed Mr Zhang or participated in the assault with the intention of assisting the stabbing.  There was no dispute at trial that Mr Zhang had been wounded.  Further, the judge specifically recorded in his summing up that Mr Mansfield and Mr Leabourn, who appeared for Mr Zheng, had “responsibly accepted that the person carrying out the stabbing and any people who assisted him in that exercise must have intended to cause grievous bodily harm”.  Mr Mansfield before us confirmed that he had had instructions to make the concession recorded by His Honour. 

[21]     We can therefore conclude that the jury must have been satisfied of all facts in dispute on the alternative charge.  Mr Mansfield accepted that was the case.  The error in the judge’s summing up and in the answers to the questions do not affect the alternative charge.

[22]     The only question therefore is whether we should exercise the power conferred by s 386(2).  Ms Laracy said that we should.  Mr Mansfield submitted we should not, but should instead order a new trial on both charges.  He could advance no reasons why it would not be appropriate to exercise the power; he merely reiterated that his instructions were to seek a new trial. 

[23]     In the circumstances, we have no doubt that we should follow the course urged by Ms Laracy.  There can be no doubt, given the facts we know the jury must have found proved, that Mr He was guilty of the alternative charge.  The alternative charge was almost as serious as the main charge.  We can well understand the Crown not wishing to pursue the main charge again at a new trial.  It is not suggested that there is anything improper in the Crown’s being content with a verdict of guilty on the alternative charge.

[24]     Accordingly, instead of allowing or dismissing the appeal, we substitute for the jury’s attempted murder verdict a verdict of guilty on the s 188 charge.

Sentence on the alternative charge

[25]     We must now pass sentence on the alternative charge.  That sentence cannot be higher than the sentence the judge imposed. 

[26]     Harrison J on the attempted murder charge adopted a starting point for both Mr He and Mr Zheng of eight and a half years’ imprisonment.  He considered that there were no mitigating or favourable personal factors in Mr He’s case.  Accordingly, the sentence was eight and a half years’ imprisonment.  The judge also considered that this was a case where an MPI was required on the ground that the one-third MPI prescribed by s 84(1) of the Parole Act 2002 would be insufficient in terms of holding the offenders accountable for the harm done to the victim and by way of denunciation.  His Honour thought that Mr He should serve at least half his sentence.

[27]     Mr Mansfield conceded that there were no mitigating factors to be considered.  He also accepted that, if Mr He were the stabber, then this would be a case justifying a s 86 MPI order.  If, however, Mr He were merely an assister, then he submitted that no s 86 order was justified. 

[28]     Both Ms Laracy and Mr Mansfield agreed that the starting point in this case should be fixed in light of R v Hereora [1986] 2 NZLR 164, notwithstanding that that decision has been superseded by R v Taueki [2005] 3 NZLR 372 at [60]. Taueki was decided after Harrison J sentenced Mr He.  Both counsel considered that it would be unfair on Mr He if Taueki were to be applied to him, in light of the fact that Taueki may properly be seen as increasing sentences, at least in the upper range: Taueki at [19]-[25].

[29]     Both counsel accepted that the present case fell within category 2 of Hereora: the range for that category was five to eight years’ imprisonment.  But counsel were not agreed as to where in that range this case fell.  Mr Mansfield suggested that the starting point should be somewhere in the range of six to seven and a half years.  Ms Laracy submitted it should be at the top of the range, somewhere between seven and a half years and eight years’ imprisonment.   She pointed out that the only difference between what Harrison J sentenced Mr He for and what we are sentencing him for lies in Mr He’s intent.  The acts are identical; the results of the acts are identical.  The maximum penalty for the two offences is identical.  Some reduction was justified on the basis that the sentencing is proceeding merely on an intent to cause grievous bodily harm rather than on the basis of a murderous intent, but little discount was justified for that distinction. 

[30]     We essentially accept Ms Laracy’s submissions.  We regard this as a bad category 2 case, with a number of aggravating features, as Harrison J found.  There was the nature and duration of the attack.  There was the use of knives.  There was the fact that this was a concerted attack by two men on somebody who was, so Harrison J found, defenceless.  There was the impact on the victim.  That was very significant.  Further, Mr He had previous convictions for dishonesty and violence in New Zealand.  Harrison J was satisfied that he kept company with criminal associates and indeed regarded himself as the leader of a gang.

[31]     In those circumstances, we consider that a starting point of seven and a half years’ imprisonment, inclusive of the aggravating circumstances, is justified.  There being no mitigating factors, that will be the sentence as well. 

[32]     This is an appropriate case for a s 86 order.  We follow the analysis in Taueki.  That case can be considered for these purposes, as it in no way changed the law: it is merely a very lucid exposition of how sentencing judges are to approach the s 86 test.

[33]     The first question under s 86 is whether an MPI minimum period of imprisonment should be imposed.  We are satisfied that the one-third statutory MPI is insufficient in this case for the purposes of accountability and denunciation – just as Harrison J was.  The second question is the length of the minimum period.  Harrison J fixed that at 50% of the headline sentence.  We accept that as being appropriate.

Result

[34]     For the reasons given, we substitute a verdict of guilty on the alternative charge of wounding Mr Zhang, with intent to cause him grievous bodily harm.  On that substituted verdict we sentence Mr He to seven and a half years’ imprisonment, with an MPI of three years, nine months.

[35]     His appeal against conviction on the charge of attempting to escape from custody was not pursued.  It is dismissed.  The sentence of three months’ imprisonment on that charge stands and is to be served concurrently with the sentence we have imposed on the alternative charge.

Effect of this judgment on Mr Zheng

[36]     This judgment has implications for Mr Zheng.  We request the Solicitor‑General to bring it to his attention.

Solicitors:
Crown Law Office, Wellington