Hou v The Queen

[2018] NZHC 3174

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-000320

[2018] NZHC 3174

BETWEEN

MU HOU

Appellant

AND

THE QUEEN

Respondent

Hearing:	3 December 2018
Counsel:	KT Cheung on instruction for DS Niven for Appellant SM Murphy for Respondent
Judgment:	5 December 2018

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 5 December 2018 at 1 pm.

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor, Manukau. DS Niven, Auckland.

KT Cheung, Auckland.

HOU v R [2018] NZHC 3174 [5 December 2018]

The appeal

[1]    Mr Hou believed the victim was having an affair with his estranged wife. He went to the victim’s home, armed with a knife. Mr Hou attacked the victim, stabbing him repeatedly. The victim’s young children were present—and witnessed the attack. Fortunately, none of the victim’s injuries was life-threatening. Judge A J Johns sentenced Mr Hou to a term of four and a half years’ imprisonment.1 Mr Hou contends the sentence is manifestly excessive because the Judge adopted a starting point that was too high, and inadequately provided for his mental health.

Starting point

[2]    The Judge placed the offending within band two of the Court of Appeal’s guideline judgment of R v Taueki.2 Band two requires starting points of between five and 10 years’ imprisonment. The Judge adopted a starting point of seven years, hence a little below band two’s midpoint. Mr Hou contends his offending “straddles” bands one and two. Band one requires starting points of between three and six years’ imprisonment.

[3]    Mr Hou emphasises the victim’s injuries were not life-threatening. He observes brief medical notes given to the Judge at sentencing refer to five seemingly superficial injuries (to the left thumb, left bicep, left upper chest, central sternum and left scalp), whereas the summary of facts refers to six; it has an additional wound to the chest, near the collar bone, and records the thumb wound as “deep”. Mr Hou also argues aggravating factors—about which more shortly—ought to have attracted a lesser starting point; the home invasion component of the offending was modest because he never entered the victim’s home. To assess these submissions, a little more background is necessary.

[4]    Mr Hou had earlier confronted the victim at his home about the alleged affair, and sent like text messages to him. On 5 November 2017 Mr Hou sent this message to the victim’s estranged wife: “In New Zealand there is no death penalty. I will watch [the victim] forever.” The offending occurred just under a month later, on 3 December

1      R v Hou [2018] NZDC 19670.

2      R v Taueki [2005] 3 NZLR 372 (CA).

2017. Mr Hou had been waiting for the victim to come home. When he did, Mr Hou confronted him. The victim dialled 111. As he did so, Mr Hou attacked the victim with a 20-centimetre steak knife. Mr Hou stabbed the victim at least five times. The summary of facts says the victim suffered:

(a)Two puncture wounds near the collar bone (see the discussion at [3]);

(b)A puncture wound to the middle of his chest;

(c)A puncture wound to his left bicep;

(d)A gash to his head; and

(e)A “deep slice on his left hand”.

[5]    The victim’s children saw the attack. They were in the back of his car. The victim ran away. Mr Hou gave chase. During this, Mr Hou threatened to kill the victim. Police arrested Mr Hou that afternoon. He admitted the offending, but said “it’s actually more of my wife’s fault”.

[6]    Contrary to Mr Hou’s submission, no obvious differences emerge between the summary of facts and medical notes, save perhaps for the possible presence of an additional chest wound in the summary. The notes appear to use the term “superficial” in a technical manner. So, for example, the laceration to the victim’s head did not require “a CT scan” as it “seem [sic] superficial”. The laceration to the bicep appears to have been “deep 5-7 cms est”, which if correct, is not obviously superficial. An x-ray appears to have been necessary in relation to the thumb. And, the victim was described as having reduced sensation there.

[7]    These observations illustrate an associated impediment to this argument: the absence of expert testimony in relation to the notes’ interpretation, another reason why an agreed summary of facts is conventionally treated as definitive at sentencing.    Mr Hou offered no argument why this should not be so. Materially, he agreed the summary of facts was correct when he pleaded guilty. It follows the Judge cannot be criticised for sentencing on the summary (rather than the notes).

[8]    The balance of Mr Hou’s argument in relation to the starting point must also be rejected. Taueki holds band two is appropriate for offending that genuinely attracts two or three of the aggravating factors identified in that case, and Mr Hou’s has several.

[9]    First, the offending was premeditated. As will be recalled, Mr Hou sent several text messages, including one almost a month earlier, in which he said he would watch the victim “forever”, and noting the absence of the death penalty in New Zealand. In context, this remark can only be construed as a thinly-veiled threat of serious bodily harm to the victim.  Second, the offending involved “use of a lethal weapon such as a

… knife”.3   Third, the attack included one to the head: the victim sustained a gash to

his scalp from the knife. Fourth, the offending was committed at the victim’s home, albeit not inside it. Whether the fact the victim’s children witnessed the attack is treated as an aspect of this aggravating feature or a discrete one matters not. The point remains Mr Hou attacked the victim at his home, with a knife, having gone there to do just that.

[10]   This combination also addresses Ms Cheung’s submission the victim’s injuries were not life-threatening; band two does not require that.

[11]   Mr Hou invites attention to four cases. It is not necessary to rehearse three: these are first-instance decisions, and so have never been tested. The fourth, a post-Taueki decision of the Court of Appeal, has relevance. In Waterhouse v R the defendant went to the home of the victim, who was seeing the defendant’s former partner.4 The two had recently separated. The defendant had a knife. It appears the victim did not see it, and struck the defendant to the head. The defendant then stabbed the victim at least four times. The victim required hospitalisation, but the wounds were not life-threatening. Text messages by the defendant earlier that day confirmed premeditation. The Judge adopted a starting point of six years’ imprisonment. The Court of Appeal concluded this was “stern”, but within range.5

3      R v Taueki, above n 2, at [31](d).

4      Waterhouse v R [2012] NZCA 500.

5 At [25].

[12]   Mr Hou’s offending was more serious than that of Mr Waterhouse. Unlike  Mr Waterhouse, Mr Hou attacked the victim’s head, and committed the offence in the presence of the victim’s children.6 Mr Hou’s offending was also more premeditated than that of Mr Waterhouse: the latter’s threatening text messages appear to have been confined to the same day as the offence; Mr Hou’s began almost a month earlier.

[13]In short, Mr Hou’s offending was firmly within band two.

Discount for mental health

[14]   Mr Hou retained Dr Karl Jansen, a consultant psychiatrist. Dr Jansen prepared an extensive report in relation to Mr Hou. Dr Jansen considered Mr Hou had an adjustment disorder at the time of the offending, and either a personality disorder, mild autism, or both. Dr Jansen believed “Mr Hou would have known that his actions with the knife were wrong for him to perform”, but “the likelihood that he would engage in such an action … was significantly elevated by a condition that he did not choose to have, regardless of which of these two conditions (or possibly both) is the correct diagnosis”. Dr Jansen said the adjustment disorder “provides further grounds for mitigation”.

[15]The Judge dealt with this information this way:7

[24]     I am now being asked to give you a further discount of between 20 and 30 percent further because you may have a mild form of autism or possibly a personality disorder. To that end I received a report from Dr Jansen, a consultant psychiatrist, prepared on 22 August. It is a very lengthy document. It refers to some self harming around the time of your offending (banging your head against a wall), issues you have with anxiety, that you have possibly had some period of depression but there was nothing about your presentation that gave him any significant concern about those matters.

[25]     He did not consider that you had any significant mental health issues, such as bipolar or schizophrenia or chronic or significant depression. With a mild form of autism or possibly a personality disorder Doctor Jansen says you would have known your actions with the knife were wrong for you to perform, as evidenced by your subsequent remorse. Nevertheless, the likelihood that you would engage in such an action in the context of a marital and family failure was significantly elevated by a condition that you did not choose to

6      It appears to have been common ground Mr Hou might not have appreciated their presence, at least initially. However, Mr Hou must have known there was a risk they would he home: the victim arrived home at 2.30 pm; his children were in the car; and Mr Hou was waiting for him.

7      R v Hou, above n 1, at [24], [25], [27], [28] and [29].

have regardless of which of these two conditions, or possibly both, is the correct diagnosis. In other words, because you possibly have one or either of those conditions it meant that perhaps your decision making on that occasion was impaired by that.

...

[27]    In terms of the information before me, as I say, the psychiatrist says that you have no thought disorder, no auditory hallucination, a mild degree of Autistic Spectrum Disorder, but are unlikely to have significant depression.

[28]    Under the Sentencing Act 2002 a mitigating factor can be that you have or had at the time the offence was committed, diminished intellectual capacity or understanding. I do not find that situation to be here. The only way it would become part of mitigation would be if I accept these possible conditions you have may have influenced your actions on that day.

[29]    I am satisfied that there are some issues specific to you and I am prepared to give a small discount for that but my view is that the information before me does not mean that I can discount of any great significance. My view is that  a further five percent discount is available to you for the information contained in the psychiatric report which would mean an end sentence, with a discount of 35 percent, of four years six months’ imprisonment. In relation to the charge you are now convicted and sentenced to four years six months’ imprisonment.

[16]   Mr Hou contends the Judge’s remarks at [25] and [28] demonstrate she might have believed, wrongly, he did not have a condition or conditions in addition to an adjustment disorder, and a five percent discount was inadequate.8

[17]   The Judge’s references to possible conditions could imply she misunderstood Dr Jansen’s opinion. But, her Honour’s remarks need to be read as a whole. The Judge concluded this topic by noting “there were some issues specific to [Mr Hou]”.9 This implies the Judge was alive to the existence of more than one condition. In any event, Dr Jansen’s extensive report was muted on the crucial point: existence of a casual nexus between Mr Hou’s conditions and the offending. Dr Jansen did not explain why he considered the conditions meant the offending was more likely. Indeed, Dr Jansen did not identify any direct linkage between the conditions and the offending.

8      Dr Jansen has confirmed, post-sentence, Mr Hou has at least one condition beyond an adjustment disorder.

9      R v Hou, above n 1, at [29] (emphasis added).

[18]   Another aspect is relevant here. Dr Jansen appears to have been impressed by what he described as Mr Hou’s  expression  of  “appropriate  remorse”.  However, Mr Hou’s description of the offending to Dr Jansen is at odds with the agreed summary of facts—and somewhat self-serving.

[19]   Mr Hou said he went to the victim’s home to talk to him, but did not know what to say when he arrived. Mr Hou said he took a knife for “self-defence”, and raised the weapon only when he thought the victim “might punch me”. Mr Hou confirmed these aspects in a second interview with Dr Jansen, adding “he never had any intention of causing harm to [the victim]”. So, whereas the summary of facts reveals a premeditated attack by Mr Hou with a potentially lethal weapon, Mr Hou’s account to Dr Jansen implies a different event in which his intentions were misinterpreted, and harm a product of circumstance. All of which highlights the limitations of expert opinion in this context, and associated need for curial caution.

[20]   For Mr Hou, Ms Cheung emphasised Dr Jansen had the summary of facts and was acting as clinician, “not a probation officer”. However, psychiatry offers no fool proof methodological basis for divining linkage between an offence and a patient’s condition.

[21]   In summary, on the material available to the Judge, Mr Hou’s conditions were not unequivocally linked to the offending. And as observed, Dr Jansen appears to have been attracted to a benign view of facts at odds with the correct position.

Conclusion

[22]   Judge Johns did not commit reversible error in imposing a term of imprisonment of four and a half years.

[23]The appeal is dismissed.

……………………………..

Downs J