Liev v R
[2019] NZCA 242
•21 June 2019 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA625/2017 [2019] NZCA 242 |
| BETWEEN | SENG LEK LIEV |
| AND | THE QUEEN |
| Hearing: | 20 May 2019 |
Court: | Stevens, Duffy and Dobson JJ |
Counsel: | N P Chisnall for Appellant |
Judgment: | 21 June 2019 at 10 am |
JUDGMENT OF THE COURT
The appeal against conviction and sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Stevens J)
Introduction
This is an appeal against conviction and sentence. The appellant, Mr Liev, was convicted of charges of kidnapping and manslaughter. He was sentenced to 12 years and four months’ imprisonment, with a minimum period of imprisonment of six years and two months.[1] On appeal, Mr Liev complains that the trial Judge’s directions to the jury were insufficient and that the sentence was manifestly excessive.
[1]R v Liev [2017] NZHC 2253 at [87].
In summary Mr Liev advances his conviction appeal on the basis that the trial Judge, Palmer J, erred in his directions to the jury about reasonable foreseeability in the context of the manslaughter charge under s 160(2)(d) of the Crimes Act 1961. Mr Liev challenges his sentence on the grounds that the starting point was too high and the Judge’s approach resulted in unfair disparity between the appellant and his co‑offenders.
Factual background
The deceased, Ms Prutsiriporn, was taken from her home on 29 February 2016. At trial the reasons for the kidnapping were unclear. Mr Liev had arranged for his co‑defendants (some of whom were associated with the Head Hunter gang) to carry out the kidnapping.
Ms Prutsiriporn was herself involved in the drug world and had numerous convictions for drug-related offending. She and Mr Liev were once close friends but their relationship broke down after both were arrested for possession of drugs in 2015. Mr Liev arranged that she would be coaxed out of her house under the pretence of a proposed drug deal. At around 9.30 pm, she got into the back seat of a car, at which point threats of violence were made against her and her family. She was then placed in another car.
The trial Judge found that she was over the next 20 hours or so detained and was in dire fear for her life, and that during that time she was transported to various parts of Auckland.[2] At one point she was detained in a garage.
[2]At [13]–[15].
Some time before 7.00 pm on 1 March, she was bound and placed in the boot of a Toyota Mark X which was being driven by one of Mr Liev’s co‑defendants, Mr Sao.[3] The vehicle was driven around parts of South Auckland with Ms Prutsiriporn in the boot. In the car boot, Ms Prutsiriporn found a knife and a chef’s steel. At 6.58 pm on Huia Road, Mangere, when the car was approaching an intersection with traffic lights, the boot came open and Ms Prutsiriporn, still bound, came out of it with the chef’s steel in her hand. Her head hit the road fracturing her skull. She escaped from the boot, as the Judge observed, “because of the fear of violence the offenders put in her”.[4]
[3]Mr Sao pleaded guilty to kidnapping and manslaughter shortly before the trial.
[4]R v Liev, above n 1, at [18].
Ms Prutsiriporn suffered severe head injuries from which she later died. As a result Mr Liev was jointly charged with his co-defendants under ss 209 (kidnapping) and 160(2)(d) (manslaughter) of the Crimes Act. The latter section provides for culpable homicide where a person causes another person’s death “by threats or fear of violence”.
At trial, Mr Liev argued that he was not involved in the offending, and that the Crown had not proved its case. Trial counsel submitted that he did not aid or assist in the kidnapping and had no knowledge that she had been kidnapped or was in the boot of the car. The defence also challenged the Crown’s case that Ms Prutsiriporn was attempting to escape from the boot. It was put to the jury that the boot could have “popped open”, resulting in the deceased accidentally falling out. This line of reasoning was intended to undermine the contention that the co-defendants’ actions caused her death. Finally, it was argued that an attempt to escape from the boot would not have been reasonably foreseeable.
In summing up, Palmer J gave the following direction to the jury in relation to the issue of reasonable foreseeability:
This question requires a similar approach for all of the manslaughter charges but it is not exactly the same for each defendant. As I said already the law requires, for this sort of manslaughter, you have to be sure that a reasonable and responsible person, in the defendant’s shoes at the time of his actions, could reasonably have foreseen someone in Ms Prutsiriporn’s circumstances of being bound in the car boot, attempting to escape and suffering some harm. …
This question does not, as some counsel suggested to you, require someone in a defendant’s shoes to foresee all of the specific details of how Ms Prutsiriporn escaped. Rather, what has to be foreseeable is the kind of action by a person in Ms Prutsiriporn’s circumstances. So the question you have to answer is whether you are sure a reasonable person could have foreseen someone in her circumstances attempting to escape from the boot of the car? Her circumstances were being bound, in the boot of the car. So it is important whether a defendant, and therefore someone in the defendant’s shoes, knew she was in the boot of the car. If the defendant did not know she was in the boot it would be difficult to foresee she would try to escape from the boot. So you would not be sure a defendant did foresee that, if he did not know she was or was going to be put into the boot.
Mr Liev was convicted of the two charges he faced. At sentencing, the Judge treated the kidnapping as the lead offending, concluding that Mr Liev was the architect of the kidnapping and found his offending to be “the worst of those involved due to his instigating and supervisory role”.[5] The Judge indicated that a 10-year starting point was appropriate. This was uplifted to a starting point of 12 years and two months for the totality of the offending, and because the offending occurred while on bail.
Appeal
[5]At [43]–[44].
The conviction appeal concerns the manslaughter charge, and how the Judge addressed that in his summing-up (at [9] above). Mr Chisnall for Mr Liev submits:
(a)The Judge’s summing-up and question trail did not focus clearly on the act of Ms Prutsiriporn which resulted from Mr Liev’s acts (causing death). The Judge should have directed the jury that it had to be satisfied that the actions of Mr Liev and of his co-defendants caused Ms Prutsiriporn to escape from a moving motor vehicle. However, the Judge only focused on “the act of escape in general”.
(b)There was insufficient focus on whether the deceased’s actions were proportionate to the threat alleged.
In relation to the sentence appeal, Mr Chisnall submits the Judge erred in treating Mr Liev’s culpability as comparable to that in Hall v R (where there was a premeditated home invasion involving weapons).[6] There was also a disparity as the Judge adopted lower starting points for the principal offenders. A starting point of eight and a half years for the kidnapping offending should have been adopted.
[6]Hall v R CA296/05, 28 February 2006.
For the Crown Mr Lillico argues that:
(a)New Zealand law does not require foreseeability of all of the details of the deceased’s response. The test requires the jury to consider the kind of action by a person in the deceased’s circumstances. The directions on reasonable foreseeability were correctly framed in accordance with that requirement.
(b)There is no requirement for the jury to be directed to consider whether the deceased’s actions were proportionate to the threat. As indicated by this Court in Perry v R, considerations of proportionality are encompassed within the test of reasonable foreseeability.[7]
(c)The starting point was justified by the seriousness of the offending, and the Judge’s reliance on Hall was appropriate. The offending was premeditated and involved lengthy detention of a vulnerable victim. She was taken outside her home, and there were threats that she would be shot (as well as threats made against her family).
Conviction appeal
Were the Judge’s directions on reasonable foreseeability inadequate?
[7]Perry v R [2018] NZCA 595.
The trial Judge directed that the jury needed to be sure that “a reasonable and responsible person, in the defendant’s shoes at the time of his actions, could reasonably have foreseen someone in [the victim’s] circumstances of being bound in the car boot, attempting to escape and suffering some harm”. The Judge emphasised that the question did not require foreseeability of all the specific details of the victim’s escape. Rather, “what has to be foreseeable is the kind of action by a person in [the victim’s] circumstances” or whether a reasonable person “could have foreseen someone in her circumstances attempting to escape from the boot of the car”.
Courts in New Zealand dealing with a “fright and flight” case have never required foreseeability of all of the details of the deceased’s response. As recently affirmed by this Court in Perry v R, the leading case on s 160(2)(d) is R v Tomars.[8] In relation to the foreseeability element of the offence, the Court in Tomars stated that it must be determined whether the actions of the deceased were a natural consequence of the defendant’s actions “in the sense that it was the kind of action … which could reasonably have been foreseen by reasonable and responsible persons in the appellants’ shoes”:[9]
This question must of course be answered by reference to the likely actions of a person in the circumstances of the deceased; in other words someone subjected to whatever course of conduct is proved against the appellants.
[8]At [61].
[9]R v Tomars [1978] 2 NZLR 505 (CA) at 510.
This Court in Perry emphasised the need for the charge, the summing-up and the jury question trail to focus clearly on the act of the deceased which caused his or her death and which resulted from the defendant’s actions.[10]
[10]Perry v R, above n 7, at [53].
Mr Chisnall relied strongly on the approach in Perry. This is misplaced. In Perry, the deceased had drowned in a levee after hiding from a group which was trying to rob him. The summing-up invited the jury to determine whether the deceased’s actions of “running and/or hiding” was a natural consequence of the group’s actions. One of the main arguments on appeal was that the act of “running” could not have been causative of victim’s death. In noting that the summing‑up must focus clearly on the act of the deceased, the Court stated that the formulation of the charge was “an unfortunate and imprecise compound of two actions”.[11] The Court nevertheless rejected the argument that this formulation of the deceased’s actions resulted in a misdirection of the jury.[12]
[11]At [53].
[12]At [54].
In Perry, it was also argued that the jury was not asked whether hiding in the way that the deceased did was a reasonably foreseeable consequence. The fact was highlighted that the action was “strikingly unusual”, in that the deceased chose to hide in shallow water on a cold autumn night when there were better places in the vicinity to hide. The Court, however, rejected this argument and held that the Judge had correctly applied Tomars.[13]
[13]At [54].
On the facts of the present appeal we make three points:
(a)Here (unlike in Perry), there was no risk of the jury focusing on different actions. The action was framed as escaping from the boot of a vehicle. The jury was properly directed they needed to be sure Ms Prutsiriporn’s attempt to escape from the boot of the car (the act which was said to have caused her death) was reasonably foreseeable in the circumstances.
(b)The Court in Perry clearly rejected the argument that all of the details relating to the deceased’s actions which might make those actions “unusual” should be put to the jury. Here Palmer J correctly directed the jury that foreseeability of the specific details of Ms Prutsiriporn’s escape was not required.
(c)While the Crown did not need to prove the reasonable foreseeability of the details of the escape, it is important that the test required the jury to consider the reasonable foreseeability of the kind of action by a person in Ms Prutsiriporn’s circumstances. This is how Palmer J directed the jury. There is no risk that the nature and quality of Ms Prutsiriporn’s actions were not adequately assessed. Whether the vehicle was momentarily stopped or moving as it approached a traffic light, the circumstances of Ms Prutsiriporn included being bound in the boot of a travelling car. It is inherent in the act of a vehicle being driven around suburban Auckland that the vehicle will both stationary and moving at different times.
We are satisfied that the summing-up was sufficiently focused on the kind of actions the deceased might take in response to the circumstances she was in. The Judge directed the jury to answer the question of whether a reasonable person could have foreseen someone in the deceased’s circumstances (that is, being bound in the boot of a car) attempting to escape from that boot. It was not necessary for the Judge to provide further specific details on those circumstances (such as the fact that the car was moving). A greater level of specificity was not required in the summing-up.
The question trail was consistent with the Judge’s summing-up and for similar reasons we reject the submission that the question trail did not adequately focus on the deceased’s actions.
Finally, Mr Chisnall submits that the Judge should have directed the jury on the question of proportionality between the actions of Ms Prutsiriporn and the threats she was facing. This submission involves an assertion that her acts were so unusual as to break the chain of causation before death occurred — thus there was on the evidence a novus actus interveniens. Mr Chisnall argues the jury needed to be specifically directed to consider whether Ms Prutsiriporn’s actions were “proportionate to the threat” or, to employ the wording of the United Kingdom direction, “within the ambit of reasonableness and not so daft as to make it [a] voluntary act which … broke the chain of causation”.[14]
[14]R v Williams [1992] 1 WLR 380 (CA) at 388.
We do not accept this submission. This Court in Perry concluded that proportionality considerations are encompassed within the Tomars test of reasonable foreseeability.[15] This Court stated:
[63] On this approach, however, we see no need to engraft a further jury direction as to proportionality in the context of causation. If the kind of reaction by the deceased would reasonably have been contemplated, and is a not insignificant cause of death, no further enquiry is needed. No policy consideration necessitates further complicating the jury’s analysis.
[15]Perry v R, above n 7, at [62].
We are satisfied that there was no need for Palmer J in this case to give the type of proportionality direction contended for by Mr Chisnall.
For all the above reasons the appeal against conviction fails.
The sentence appeal
At sentencing Palmer J adopted the approach proposed by the parties of treating the kidnapping as the lead charge and providing an uplift to take into account the manslaughter charge.[16] The Judge rightly recognised that there is no tariff case for kidnapping and observed that there has been a divergence in approach taken in earlier decisions.[17] The Judge found that in cases involving “aggravated violence”, starting points of 10 plus years’ imprisonment were common.[18] In contrast, in those cases where there was only a moderate level of violence, the starting point ranged from three to seven years’ imprisonment.
[16]R v Liev, above n 1, at [23].
[17]At [25]–[26].
[18]At [26].
The Judge concluded that the degree of culpability justified a starting point of between eight and 10 years[19] — comparing the relative gravity with that in Hall and R v Wyatt.[20]
[19]At [34].
[20]R v Wyatt [2009] NZCA 464.
The Judge considered the manslaughter was of an unusual kind, and was referred to only one recent case involving an offence under s 160(2)(d) — R v Lucas.[21] Palmer J held that the available range for the manslaughter, considered in isolation, was four to five years’ imprisonment.[22] It was agreed that a totality adjusted uplift of between one to two years was required.[23]
[21]R v Lucas [2017] NZHC 651.
[22]R v Liev, above n 1, at [38].
[23]At [39].
Palmer J held that Mr Liev’s offending was “the worst” of those involved emphasising his “instigating and supervisory role”.[24] The Judge adopted a starting point of 10 years for the kidnapping on the basis that his culpability was “similar to that in Hall”.[25] The Judge then uplifted the starting point by two years for the manslaughter and a further two months to reflect the fact that Mr Liev was subject to a sentence when he offended.
[24]At [43]–[44].
[25]At [44].
In considering Mr Liev’s personal circumstances, the Judge provided an uplift of two months for Mr Liev’s personal aggravating features — being his two relevant convictions for violence.[26] The Judge declined to provide a discount for personal mitigating factors, which comprised Mr Liev’s letter of apology to the deceased’s family, his drug addiction issues and his personal circumstances as a Cambodian national who arrived in New Zealand in his early teens.[27] An overall sentence of 12 years and four months’ imprisonment was imposed.[28]
[26]At [66].
[27]At [64].
[28]At [87].
The essence of Mr Chisnall’s challenge to the sentence is that the Judge erred by treating Mr Liev’s culpability as comparable to that of the offenders in Hall.[29] The offenders in Hall committed a premeditated home invasion armed with deadly weapons which were deployed. The victim was injured before he was subdued, gagged and bound, and then sustained further serious injuries during his escape.
[29]Hall v R, above n 6.
Further, it is argued that an issue of disparity arises given that the Judge adopted lower starting points for the principals. This raises the question of whether the Court is satisfied that there is an unjustified disparity “not to be consonant with the appearance of justice”.[30] Mr Chisnall submits the co‑offenders Messrs Korhomklang and Sao were significantly involved in the planning and execution of the kidnapping. While Mr Liev might have been the “architect”, his lack of direct physical involvement ought to have had a tempering effect on the starting point. Thus, there was no principled basis upon which to adopt a higher starting point.
[30]R v Lawson [1982] 2 NZLR 219 (CA) at 223.
We disagree. The Judge correctly described what occurred to the victim over her approximately 20-hour ordeal and Mr Liev’s role in the offending. The Judge accepted that there was no evidence of aggravated violence.[31] However, the Judge stated:[32]
… because [the victim] died we don’t know exactly what happened to her in the sort of detail like many other kidnappings. We do know that she was taken by threat to herself and her family who was in the house. She was taken by a large group of large people including gang members, who had planned her taking carefully. She was held for 22 hours without food or water and she soiled herself and she was bound in the boot of a car for two-and-a-half hours.
[31]R v Liev, above n 1, at [27].
[32]At [27].
We agree with Mr Lillico’s submission that this was highly premeditated group offending involving gangs and affiliates with the prospect they would be paid for their involvement. Despite the lack of evidence of actual physical violence or proven use of a weapon, the kidnapping involved the prolonged detention of a vulnerable 50-year-old woman. There is no doubt she would have been terrified during the ordeal and it was her fear that caused her to escape from the boot of the car.
We are satisfied that the factors of the absence of clear evidence of physical violence and the use of a weapon and the fact the offending did not involve a home invasion carries little weight in the circumstances. We consider that the general seriousness of Mr Liev’s offending warranted a starting point of 10 years and that the case is comparable to R v Hall. There is no inevitability that a kidnapping will involve actual violence resulting in injury or the proven presence of weapons. This case involved aggravating features that were different from those present in Hall, for example: abduction by a large group of physically strong people whose involvement was financially motivated; a physically vulnerable victim; and confinement for many hours and degrading treatment. Further, the act of binding and confining the victim in the boot of a car may be considered inherently violent. This was not a kidnapping effected only by an implied threat to the victim’s physical safety. Accordingly, while factually different, the present case involved offending at a similar level of seriousness as in Hall. It follows that an overall starting point of 12 years for the kidnapping and the manslaughter charges was appropriate.
Mr Chisnall submits that the lower starting points (of nine years’ imprisonment for the kidnapping charge) adopted for the co‑offenders Messrs Korhomklang and Sao created an unjustified disparity. We also do not accept that submission. The trial Judge carefully considered the respective involvement of all offenders. Mr Liev was the architect, instigator and director of the overall offending. He arranged for others to provide the muscle. The co‑offenders sought direction from him where and when required. He was, as the Judge described, “the link between the various groups of those involved in the offending”.[33] Mr Liev was rightly considered to be more blameworthy than those acting at his behest.
[33]At [43].
Finally, Mr Chisnall submitted that Mr Liev was not directly involved in the physical taking and detention of Ms Prutsiriporn. We give little weight to this submission. Regardless of Mr Liev’s attempts to maintain some distance between himself and the victim during the offending, he was more culpable than others because he was the director of the entire operation. Further, the Judge noted that Mr Liev was in fact present at certain places at relevant times. For example, he was in the vicinity when the victim was taken from outside her home.[34] He visited one of the residences at which the victim was detained before she was moved.[35]
[34]At [17].
[35]At [15].
For the reasons given the appeal against sentence fails.
Result
The appeal against conviction and sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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