Li v The Queen

[2004] NZCA 61

IN THE COURT OF APPEAL OF NEW ZEALAND

CA15/04

THE QUEEN

v

FU DONG LI

Hearing:5 April 2004

Coram:Anderson J
McGrath J
Glazebrook J

Appearances:  L L Heah for Appellant

R P Bates for Crown

Judgment:12 May 2004 

JUDGMENT OF THE COURT DELIVERED BY McGRATH J

Introduction

[1]       In November 2003 the appellant was convicted by a jury in the District Court at Christchurch of wounding with intent to cause grievous bodily harm.  He was sentenced to 5 years 6 months imprisonment and appeals against that sentence.

Facts

[2]       On 20 September 2002 the complainant, two other men and two young women went out together looking for a Mr Yang.  They intended to persuade him to repay a large sum of money that he had borrowed from one of the women.  The complainant’s group came upon a vehicle which they knew to be that of Mr Yang.  He was not in the vehicle, but the appellant, and a person later charged with him as a co‑offender, were.

[3]       One of the complainant’s group demanded that the appellant and the co‑offender take the group to Mr Yang, but instead they drove Mr Yang’s vehicle around the city ending up in a car park in the early hours of the morning.  The complainant and his two male associates then got out of the vehicle they were in and approached that of the appellant and the co-offender.  The trial Judge said that it was likely that a member of the complainant’s group grabbed the co‑offender’s hair at this point, and then forced his head onto the door surround of the car he was in.

[4]       The co‑offender drove forward.  One of the complainant’s male associates then struck at the passenger window and held on to the moving car.  The co‑offender stopped the car, and both he and the appellant got out.  They immediately began brandishing large knives and both of them slashed at the unarmed complainant.  He received a large cut to his triceps, a cut to his wrist and a small cut to his back.  As well his thumb was cut off during the altercation probably, the Judge said, by a blow from the co‑offender. 

[5]       The Crown presented its case against the appellant on alternative bases.  Either both the appellant and the co‑offender had wounded the complainant, or the appellant had slashed at him, without causing any injury, but had helped and encouraged the co‑offender to wound him.  The Judge observed at sentencing that questions from the jury indicated that they may have been considering the latter basis, but that it was unclear whether they had found the appellant guilty as a principal offender or as a party.  The Judge concluded, as indicated, that a blow from the co‑offender probably cut off the complainant’s thumb, but decided that both the co‑offender and the appellant had wounded the complainant and that they were both equally to blame for his injuries.

Judge’s sentencing remarks

[6]       On sentencing the appellant and the co-offender Judge Moran identified certain aggravating features in the offending. The offenders had armed themselves with large knives that were carried in the car and got out of the car in the carpark to use them.  They had not deliberately lured the complainant’s group to the carpark but they had been quick to resort to the knives that were available when they could have simply driven off.

[7]       The Judge also said that the offenders had also picked on an unarmed man who had taken no part in the earlier confrontation.  They had slashed at him six to eight times, even though he offered no resistance, and the complainant had suffered serious injury.  His left thumb has been completely severed, and had to be reattached by plastic surgery. His hand had been seriously disfigured and his thumb was virtually useless.  The complainant also suffered emotional harm and the ongoing ramifications of the attack for him would be life-lasting.

[8]       Addressing matters in mitigation, the Judge said that the offenders were followed by a group by whom they had been confronted and that he accepted that the co-offender may have been assaulted.  The Judge also accepted that it was very likely that the appellant and co‑offender were afraid at the time of the incident and that they might have seen attacking members of the complainant’s group as the only means of putting them off.

[9]       The Judge adopted a starting point for the sentence of 7 years imprisonment, placing the offending in the middle of the second of three categories identified in  R v Hereora [1986] 2 NZLR 164. He recognised that the appellant was 19 years of age and did not have a criminal record. He also noted that the appellant regretted the injuries suffered by the complainant, but blamed the co-offender for them. The Judge saw this as indicating little remorse for the appellant’s own conduct. He imposed a sentence of five years six months imprisonment on each offender.

Submissions on appeal

[10]     Ms Heah for the appellant submitted that the offending should have been treated by the Judge as being either at the top of the first category (warranting three to five years imprisonment) or alternatively at the bottom of the second (five to eight years).  The starting point accordingly ought to have been between five and six years rather than seven.  In support of this submission Ms Heah cited R v Clotworthy (1998) 15 CRNZ 651, where this Court had held that offending involving wounding or causing grievous bodily harm with intent, involving weapons such as knives, usually attracted sentences within the bracket of three to five years imprisonment.  Sentences of five to eight years imprisonment were reserved for cases exhibiting substantial aggravating features.

[11]     Counsel also argued that the circumstances of the particular case, especially the actions of the complainant’s group leading up to the violence, made it unjust to place the offending in the second category.  The first violent act had been that of a member of the complainant’s group and the offenders’ initial reaction to it was to attempt to drive away.  One of the complainant’s group had held onto the car preventing that course.  Ms Heah cited a number of judgments of this Court in support of her submissions.

[12]     On the second ground of appeal counsel pointed to evidence given by the appellant at his trial to the effect that he had a minimal involvement in the violent incident.  She said that the evidence had established that it was the co‑offender who inflicted the major injuries on the complainant.  Counsel submitted that the appellant’s actions had only caused a small cut to the complainant’s back.  Counsel referred to a question from the jury, during the deliberations, enquiring whether a chopping action by a person without making contact with the victim could constitute “aiding”. She said this question pointed to the basis of the jury’s verdict convicting the appellant being that the appellant had not made any contact with the complainant or contact beyond that causing a small cut to his back.  She submitted that this justified a disparate sentence.

[13]     Mr Bates for the Crown acknowledged that identifying the category in Hereora into which the offending falls is appropriate in sentencing for this type of offending, but warned that while categories and bands are useful, the sentence that is ultimately appropriate is always a matter of judgment.  He said that care must be taken by this Court not to let categorisation result in too rigid or mathematical an approach, citing Clotworthy in support of the submission.

[14]     Mr Bates argued that, the Judge was entitled to take into account that there was an element of premeditation by the appellant and co‑offender through arming themselves and using 30cm long knives.   The seriousness of the offending was reflected in the fact that the complainant was unarmed and had suffered deliberate and multiple blows.  He had also suffered serious injury.

[15]     On the appellant’s second ground of appeal, relating to the appropriateness of disparate sentences for the appellant and his co‑offender, Mr Bates submitted that such disparity was not appropriate.  First, the evidence showed that the attack was a joint attack, involving both offenders. Secondly, the jury’s question did not assist the Court to draw an inference that the jury had found the appellant guilty as a party, especially in light of the Court’s answer to the question.  This was that the appellant should not be considered a party if it were found he did not strike the complainant.

Discussion

[16]     The principal issue raised by the appeal concerns whether the starting point of the Judge of seven years imprisonment was too high.  The reduction thereafter made to reach the sentence of five years six months imprisonment reflected the mitigating circumstances of the offenders to which the Judge referred.  We are of course concerned solely with whether the sentence imposed on the appellant was manifestly excessive.  In that respect the starting point put the appellant’s case towards the top end of the second category identified in this Court’s judgment in Hereora.  To put the case at that level the Judge, who referred to Hereora, must have been satisfied that, as a case of wounding, with intent to cause grievous bodily harm, the offending showed substantial aggravating features.  In the appellant’s case these included being quick to resort to knives that were in the car and slashing at the complainant six to eight times even though he offered no resistance.

[17]     The Judge accepted that the appellant had not lured the complainant’s group to the carpark, but also said that he and the co-offender could simply have driven off.  However it seems to us that there was an attempt to do so which was frustrated by one of the group clinging on to the car, creating a situation in which driving off itself could have led to serious injury.  It was only when the vehicle was stopped that the offending commenced.  By then the appellant’s co-offender had been assaulted.  He and the co-offender were outnumbered and the appellant was understandably in a state of some apprehension for his safety. The appellant’s resort to the knives in the car, in these circumstances, must be seen as an impulsive act spurred by that apprehension.

[18]     Regrettably the appellant thereafter, as the Judge recognised, proceeded to slash at a defenceless man with a knife some six to eight times in an attack in conjunction with the co-offender.  This was rightly seen by the Judge as a serious aggravating feature of the offending as was the danger of the situation and the serious injury that resulted. 

[19]     Nevertheless we have concluded that to put the offending at the higher end of the second category of Hereora fails to give due recognition to the impulsive nature of the original act of arming themselves and confronting the group and the circumstances which generated it.  In reaching this conclusion we have compared the sentencing decision reached in this case with that of this Court in R v Moon CA366/02 27 February 2003, where a 59 year old offender had an altercation with a neighbour and returned with a knife, which he embedded in the complainant’s back.  The complainant required emergency surgery and spent 15 days in hospital.  The sentencing Judge’s starting point of eight years imprisonment was reduced to five years on appeal.  We have also considered this Court’s decision in R v Manh Toan Le and Truong Manh Le CA208/100 and CA209/00, 30 August 2000 where, following an incident involving the vehicles of the appellants and the complainant, the appellants armed themselves with a knife and wheel brace and attacked the complainant.  They caused injuries, which included an 8cm cut down to the skull, but which were otherwise assessed by the Court as being comparatively mild.  This Court substituted a 4 year term of imprisonment for the starting point of 5 years set by the sentencing Judge.

[20]     We consider that, seen in the light of these decisions, the starting point of 7 years imprisonment in this case was too high. The appropriate starting point in relation to the appellant was six years imprisonment, from which we would make the same deduction as did the Judge for mitigating factors of eighteen months, and impose a sentence of four and a half years imprisonment. 

[21]     Having reached this decision it is not strictly necessary for us to consider Ms Heah’s second ground of appeal which was that the appellant’s lesser role in the offending warranted a lesser sentence than that imposed on the co‑offender.  We were not however persuaded that this submission had merit.  It is true that the appellant was sentenced on the basis that it was the co‑offender’s blow that caused the most serious injury but it is artificial to treat the two offenders as having acted separately.  The reality is that the complainant was subject to a joint attack in which the primary offender attacked him from in front while the appellant prevented him from retreating by slashing at the victim from behind.

Conclusion

[22]     We conclude however, for the reasons given, that the sentence imposed on the appellant was manifestly excessive.  We quash the sentence of five and a half years imprisonment imposed on the appellant and substitute a sentence of four and a half years imprisonment.

Solicitors:
Crown Solicitors, Dunedin