Liang v The Queen

[2005] NZCA 139

IN THE COURT OF APPEAL OF NEW ZEALAND

CA448/04

THE QUEEN

v

QICHAO LIANG

Court:Glazebrook, Hammond and Robertson JJ

Counsel:P J Boylan for Appellant

M D Downs for Crown

Judgment:2 June 2005 

(On the papers)

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS

(Given by Glazebrook J)

Introduction

[1]       Mr Qichao Liang was convicted, after a guilty plea, in the Auckland District Court of kidnapping. He was sentenced on 24 October 2004 to four years imprisonment. He appeals against that sentence on the basis that it is manifestly excessive.

[2]       The appeal is being heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001.  The relevant materials, including written submissions, which have been received in accordance with r 29 of the Court of Appeal (Criminal) Rules 2001 have been considered by members of the Court who have conferred and agreed upon this judgment.

Facts

[3]       An associate of the victim, Mr Wang, damaged Mr Wang’s car, to the tune of some $24,000. On 7 April 2003 the associate arranged to meet Mr Wang in an internet café in New Lynn, purportedly to pay him the money. When Mr Wang arrived, the debtor suggested they go out the back to count the money and then go to a restaurant. Mr Wang agreed and went to the back of the café where a large group of people were waiting. He recognised one of that group as Mr Liang and another as Mr Zhu, who was also charged with kidnapping. Mr Wang was then punched and kicked by a number of people.

[4]       Mr Wang was bundled into the back seat of a car, which was driven by Mr Liang, and told to keep his head down. He was driven to an unknown location where again a large group of people punched and kicked him. Mr Wang’s nose began to bleed, his wallet was taken, and he was driven around several banks in an attempt to withdraw money from his bank account. Mr Wang was put back into the car, a jersey was placed over his head and he was driven to Mr Liang’s house where Mr Zhu told him to have a shower and clean the blood off. Mr Wang was then given some clothes to change into and allowed to go to sleep.

[5]       The next morning, Mr Zhu and others drove Mr Wang to another bank. They were followed by another vehicle with further associates and Mr Zhu’s girlfriend. On Mr Zhu’s instructions, Mr Wang, accompanied by Mr Zhu’s girlfriend, withdrew $44,000 from the bank and gave this to Mr Zhu. Mr Liang and another associate took Mr Wang to a doctor for his nose to be examined. The doctor said a full body examination was needed, but Mr Liang told the doctor that they had to do some other things and returned to his house with Mr Wang. While some of the associates were sleeping, Mr Wang was able to take his car and escape.

[6]       Later that evening, Mr Zhu phoned Mr Wang and told him that, if he did not want any more trouble, he had to come back and see the group. He was warned not to phone the police. Mr Wang met Mr Zhu and a number of associates at a bar. On Mr Zhu’s instructions, Mr Wang went to a bank and withdrew another $20,000. Mr Wang was then dropped off back in the city. He called the police when he got home.

Summary of sentencing remarks

[7]       In sentencing, Judge A E Kiernan noted that only Mr Liang and Mr Zhu, who both pleaded guilty, faced charges arising out of these events. The Judge referred to the victim impact statement, which set out the effect this offending had upon the victim, the physical injuries he suffered, and the financial costs of the kidnapping, in addition to the $64,000 that was taken from him. Mr Wang detailed the time he spent hiding during the police investigation, the fees that he lost at the language college he was attending, the great burden on his family, the after effects of the incident and how it has affected his life in New Zealand.

[8]       The Judge also referred to an emotional harm reparation report, which again outlined the physical, emotional and intellectual consequences of these offences. In terms of financial loss, $88,000 expenses were incurred directly by Mr Wang and his family and a further $512,000 reflected the costs incurred by his father and the father’s business losses in coming to New Zealand to support his son. The Judge emphasised that the offending has had a serious impact on Mr Wang and his family.

[9]       The Judge then discussed the pre-sentence report, which outlined Mr Liang’s background, early life in China and arrival in New Zealand in 1996. Mr Liang agreed with the police summary of facts and stressed that he was not involved in the actual assaults. He said that he became involved in the kidnapping through giving a lift to some little known associates and thought that the kidnapping was actually only a dispute amongst friends. He told the probation officer that he was told not to ask questions if he did not want trouble. Mr Liang said that he was too afraid of the others to distance himself from it and that he only knew two of the ten or so people involved. The Judge noted that Mr Liang was assessed as being at a low risk of re‑offending. He told the probation officer that he would be willing to pay $2,000 as reparation to show the victim some goodwill even though he did not receive any money from these offences.

[10]     The Judge considered that the recommendation in the pre-sentence report for community work and reparation was inappropriate and unrealistic. Rather, a term of imprisonment was required for this serious offending. The Judge found that the actual and threatened violence was an aggravating feature, even though Mr Liang was not personally involved in this violence or threats. Further aggravating features were the two day period of detention and the further detention after Mr Wang escaped, the fact that Mr Liang allowed his house to be used to detain Mr Wang and the extent of the financial loss, even though Mr Liang did not receive any of that money. The Judge also considered that the premeditation or planning of the kidnapping was an aggravating feature. Even though Mr Liang was not the ringleader, he was very much part of the kidnapping as his car was used during the offence, the victim was kept in his home and he took the victim to the doctor during the kidnapping.

[11]     The Judge identified various mitigating factors including Mr Liang’s youth, his guilty plea (although at a late stage), his somewhat limited involvement in the kidnapping, the fact that he was not the ringleader and did not personally gain, his genuine remorse, his reparation offer and his previous good character.

[12]     In sentencing Mr Liang, the Judge had regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community. She also had regard to the fact that a sentence of imprisonment can only be imposed for the purposes of sentencing as set out in the Sentencing Act. These purposes are to hold Mr Liang accountable, to promote in him a sense of responsibility, to provide for the interests of the victim, to denounce or punish his behaviour, to deter him and other people from committing similar offences and to protect the community from him.

[13]     The Judge referred to the following principles of sentencing:

(a)The seriousness of this offence in comparison with other offences, as indicated by the maximum penalty of 14 years imprisonment.

(b)The need for consistency with appropriate sentencing levels.

(c)The information provided to the Court concerning the effect on the victim.

(d)The least restrictive outcome appropriate in the circumstances.

[14]     Although the decisions in other cases were of assistance to the Judge, she pointed out that she must sentence Mr Liang on the facts in this case and against a background in Auckland of a disturbing number of offences similar to that which Mr Liang was involved in – holding people to obtain money, kidnapping, threatening and dealing violence, particularly in the context of a group of young Chinese people. Consequently, she considered that the sentence must be strongly deterrent.

[15]     Having taken into account all of the factors, the Judge considered that an appropriate starting point would be six and a half years imprisonment. From this starting point, she gave Mr Liang credit for his young age, guilty plea, offer of reparation and other factors and reduced the sentence to a term of four years imprisonment. The Judge did not impose special conditions on parole for that sentence and did not exercise her discretion in respect to a minimum non-parole period. She also made an order that $2,000 reparation be paid to the victim.

Parties’ submissions

Mr Liang

[16]     Mr Liang appeals against his sentence on the ground that it is manifestly excessive taking into account the gravity of the overall offending, the circumstances of his culpability and his personal circumstances. Mr Boylan, for Mr Liang, conceded that a sentence of imprisonment is inevitable and that the sentence was within the range. However, despite this, he submitted that the starting point of six and a half years imprisonment reduced to four years was manifestly excessive. Mr Boylan outlined three reasons in support of this submission.

[17]     First, Mr Boylan submitted that the Judge erred by determining a starting point for sentencing Mr Liang which took into account the aggravating features of the group’s offending, rather than those features solely attributable to Mr Liang. He accepted that the Judge correctly correlated the severity of the damaging criminal offending of many Chinese males in Auckland with the serious offending of this group. However, he submitted that she incorrectly, on the ground of deterrence, attributed such combined severity to Mr Liang’s individual culpability. Mr Boylan accordingly submitted that the Judge erred in determining Mr Liang’s starting point on the basis of seeking to deter Chinese group offending as a whole when he was the sole offender being sentenced.

[18]     Secondly, counsel submitted that, pursuant to the parity principle, the sentence is inconsistent with appropriate levels of sentencing for similar offenders and offending circumstances. He referred to various decisions which he submitted involved similar mitigating circumstances of first time offending, youth and the societal interest in rehabilitation: R v Tana CA149/91 7 October 1991, R v Greaves CA101/88 1 June 1988, Hall v Police HC HAM A7-00 2 June 2000, R v S CA225/03 3 December 2003.

[19]     Finally, he submitted that the Judge erred in failing clearly to identify and take into account all of Mr Liang’s personal circumstances, as advanced in the pre‑sentence report and his submissions, as mitigating factors. He pointed out that, notwithstanding the fact that the offending was committed by a large group of Asian males, Mr Liang stood before the Court alone and accountable to New Zealand society for his serious part in the overall offence. The Judge’s sentencing summary gave Mr Liang credit for the identified mitigating features but the following integral personal circumstances of Mr Liang were not summarised as mitigating:

(a)Pre-sentence report: The overall tone of credibility and sincerity in his responses and of his explanation for offending to the probation officer who recommended a community sentence.

(b)The impact and repercussions on being a young Chinese immigrant family. Forming pro-social relationships with New Zealand children was extremely difficult and the family was disconnected from Chinese culture. The unfriendly and unwelcome environment became so overwhelming that his parents separated and his mother returned to China, but they refused to allow Mr Liang to return with her. Mr Liang was left to his own resources, as his father was away from home almost constantly.

(c)Mr Liang was lonely, foreign and vulnerable to befriending from Chinese boys/groups on temporary study permits.

(d)The impact of being an only child of an immigrant family.

(e)How and why Chinese students with criminal intent befriended him.

(f)The lack of any evidence that Mr Liang had any role in the planning or premeditation of the offending or any significant role of any kind in the group. The Judge referred to premeditation in the offending despite the absence of any evidence that Mr Liang was involved in the planning.

(g)The application of Mr Liang’s credibility to his explanation for using his car and his house. Mr Liang’s explanation in respect of the use of his house is that he was scared throughout the period of his involvement and especially at the time of the group’s residency at his home and at no time did he invite, volunteer or suggest to the group that his house be used for any criminal behaviour. Nonetheless, the group took over his house.

(h)The assistance and admissions Mr Liang gave to the police by way of video interview. He provided the police with a full admission and assistance by way of video interview. Once the count alleging assault with intent to injure was withdrawn, Mr Liang vacated his not guilty plea and entered a plea of guilty on the kidnapping charge.

The Crown

[20]     The Crown submitted that the sentence of four years imprisonment was not manifestly excessive. Kidnapping for gain is a crime of particular seriousness and the courts in New Zealand are facing a dramatic increase in this type of offending. Understandably, and necessarily, the response of the courts has been emphatic. The Crown pointed to R v Song CA218/02 29 November 2002, R v Liu & Anor CA196/02 and CA198/02 18 November 2002 and R v Wan CA206/03 21 August 2003.

[21]     In light of those cases, it was submitted that the starting point of six and a half years was in fact lenient. In the Crown’s submission, an eight year starting point would have been justifiable given the nature of the offending and the aggravating features that include:

(a)Actual violence by associates of Mr Liang;

(b)Deprivation of the victim’s liberty over a period of two days;

(c)Harm suffered by the victim, including significant financial loss;

(d)Premeditation; and

(e)A financial motive for the offending.

[22]     The Crown accepted that Mr Liang played a lesser role than the others did (most of whom have not been caught), but pointed out that offending of this nature requires weight of numbers and co-ordination between offenders. To that extent, compartmentalising culpability for such offending is somewhat artificial. Further, the Crown submitted that it is an inescapable inference that Mr Liang agreed to take part in this course of criminal conduct.

[23]     In terms of parity of the sentence, the Crown pointed out that no other offenders had been sentenced for this offending. With regard to the authorities referred to by Mr Boylan, the Crown submitted that they do not exhibit the constellation of aggravating features this case contains.

[24]     In response to Mr Boylan’s submission that the sentencing Judge gave insufficient credit for Mr Liang’s personal circumstances, the Crown submitted that personal circumstances necessarily have little relevance in cases such as this.  Hence the reduction given by the Judge could be said to be generous. Accordingly, the Crown submitted that the resulting sentence is anything but manifestly excessive.

Discussion

[25]     A sentence of four years imprisonment was clearly well within the range available to the Judge for a serious kidnapping involving violence and a significant period of detention, the stealing of large sums of money and premeditation and could even be considered lenient.  The cases relied on by Mr Boylan, where there were lower sentences, either involved a much shorter period of detention or quite different circumstances to the present case.

[26]     In addition, there was no error of principle in the Judge’s approach. She was clearly entitled, and indeed obliged, to take into account the aggravating features of the offending of the group, even though Mr Liang did not directly participate in some of those activities. Mr Liang was clearly a party to the offending and his involvement was far from minimal. He, for whatever motive, acted as the driver and permitted his house to be used to detain the victim.

[27]     We also do not accept Mr Boylan’s submission that there was a failure to take into account Mr Liang’s personal circumstances. Mr Liang received a very large discount from the starting point chosen by the Judge because of his personal circumstances.  Most of the factors identified by Mr Boylan were specifically taken into account and the Judge was clearly aware of the other factors. In any event, we accept the Crown’s submission that personal circumstances are of limited relevance in cases involving offending of this kind.

Result

[28]     The appeal is accordingly dismissed. 

Solicitors:
Crown Law Office, Wellington