Luo v The Queen

[2005] NZCA 235

IN THE COURT OF APPEAL OF NEW ZEALAND

CA171/05

THE QUEEN

v

QI LUO

Hearing:10 October 2005

Court:Robertson, Baragwanath and Heath JJ

Counsel:H B Leabourn for Appellant

A R Burns for Crown

Judgment:12 October 2005 

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS

(Given by Robertson J)

[1]        Following a jury trial in the District Court at Auckland, the appellant was found guilty of four counts arising out of an incident which occurred at Auckland on 13 March 2003.  The charges were:

·     Kidnapping, contrary to s 209 of the Crimes Act 1961 (the Act);

·     Demanding with menaces with intent to steal $20,000 contrary to s 239 of the Act;

·     Aggravated robbery of $2,700 contrary to s 235 of the Act;

·     With intent to defraud by violence compelling the execution of a valuable security, namely a promissory note, for $20,000 contrary to s 236 of the Act.

[2]        On each count the allegation was that the offence had been carried out with others.  Judge A E Kiernan, who presided at the trial, at sentencing on 17 May 2005 described the factual circumstances as follows:

[4]       At your trial, the jury heard that you involved yourself in a business matter concerning your victim Mr Chen and a former business partner of his Mr Ma.  The evidence was that you threatened Mr Chen when he came to Mr Ma’s business premises and through putting pressure on another person, Mr Chen’s friend Mr Wei, you and others went around to where Mr Chen was staying.  Amongst those others were Mr Tan and Miss Feng.  When Mr Chen answered the apartment door, he was assaulted.  He was then kidnapped, forced into the van which you were in and which was driven by Mr Tan, and taken to the Blockhouse Bay beach area late at night.  He was then marched from the van to a secluded area at Blockhouse Bay.  He was beaten by you and others.  He was robbed of his wallet and what was in it and bankcard.  He gave the pin number for his bankcard.

[5]       He was then driven back in that van with you and the others to the city and a total of $2,700 was withdrawn from his bank account using his EFTPOS card at various places in the city.  Each time withdrawals of money were made, the evidence was that the cash was given to you in the van.  At the end of that period of him being held in the van, you forced him to write an IOU to you stating that he owed you $20,000.  That was a sum of money you had mentioned much earlier in the evening.  He was then brought back to where he had been kidnapped from, but you arranged to meet him later on that morning to get that $20,000.

[6]       When he was brought home again, Mr Chen did something that you did not plan for.  He went to the police.  Police officers were waiting and arrested you a little later when he met you as arranged by you on the telephone.  You had with you in the car you were driving both the IOU note and a large sum in cash.  The total amount the police found in your possession was $3,312.35.

[7]       Your defence in your evidence at trial was that you were trying to make things easier for Mr Chen;  you were actually trying to stop others beating and robbing him;  it was not your idea to obtain the IOU; and you kept it only to ensure that he was released.  The jury by its verdicts rejected those defences.

[3]        The Judge referred to a Victim Impact Statement which had been completed, noting that Mr Luo had previous convictions and referred to a Pre-sentence Report.  She acknowledged a substantial number of previous decisions of this Court and the High Court dealing with not dissimilar offending which had been referred to by counsel.

[4]        The Judge then said:

[22]     The aggravating factors I identify, Mr Luo, are firstly that this offending involved actual violence.  It was also offending involving a group of others over a period of hours.  Also aggravating is the effect upon the victim, Mr Chen, not just the physical and psychological effects but also the money that was taken from him, the total of which exceeds $3,000.  Clearly, this offending was planned.  I find on the evidence given at trial that clearly it was you, Mr Luo, who was calling the shots.  You were in charge from the meeting with Mr Chen, by chance, at Mr Ma’s business premises right through to the morning when you were to meet Mr Chen near Sky City.  The evidence given by Mr Chen and, indeed, by Mr Wei, was that it was you who was deciding what should be done, taking the money that was obtained, and forcing the completion of the IOU.  Also relevant as an aggravating factor are your previous convictions.  Although they are minor compared to this offending, you do not come before the Court as a first offender.

[23]     There are not mitigating factors that I can identify except that you are still a young man.  You are 23 years old.

[5]        Judge Kiernan indicated the purposes and principles of sentencing which she had in mind:

[24]     The purposes of your sentence are to hold you accountable, to provide for the interests of the victim, to denounce or punish your behaviour and, importantly, to deter or put off you and others from committing these sorts of offences.  Finally, a purpose of your sentence is to protect the community from you.

[25]     Principles of sentencing I have in mind are the seriousness of these offences and your culpability.  You were not playing a minor role.  I find you were the driving force behind these offences.  Another relevant principle of sentencing is the seriousness of these offences, as indicated by the maximum penalty for each of 14 years’ imprisonment.  I have in mind the general desirability of consistency with appropriate sentencing levels, the information provided concerning the effect on Mr Chen, and the least restrictive outcome appropriate in these circumstances.

[6]        The Judge concluded:

[27]     I sentence you looking at the totality of this offending.  Each of these offences has the same maximum penalty.  They are part of a sequence.  In my view, an appropriate starting point for the totality of this offending is a term of six years’ imprisonment.  The particular aggravating features I have identified, in my view clearly justify an additional twelve months, bringing a sentence to seven years’ imprisonment.  There is no real mitigating feature I can take into account.

[7]        No minimum non-parole period was imposed.

[8]        The appeal is advanced on the basis that the seven years’ imprisonment was manifestly excessive in the circumstances of the case.  In particular the six year starting point identified by the Judge was too high in light of other decisions and that the uplift of one year was unjustified.

[9]        For the Crown it was contended that the sentence was well within the range available to the Judge, accorded well with sentences in similar cases, and that the Judge had properly concluded that despite his youth and the nature of his previous convictions, there were no mitigating circumstances while the offending had serious aggravating features.

[10]     There is no challenge to the approach to sentencing adopted by the Judge or the principles applied.  The appeal point is narrow and confined.

[11]     The penalty in respect of each of the counts was 14 years’ imprisonment.  The appeal submissions became something of an exercise of dissecting decisions in both the Court of Appeal and the High Court and trying to weigh the factual position in each one against the facts which were established in the present case.

[12]     Treating like offending in a like way is important, but a more high-level and principled approach is required in assessing whether the sentencing Judge (particularly when that is the Judge who has presided at a trial) has imposed a penalty within the properly available sentencing discretion.

[13]     In the instant case we are not satisfied that the sentence imposed was manifestly excessive and therefore unavailable.

[14]     We identify as the critical factors in this case:

·     the offending involved more than one person;

·     it continued over a number of hours;

·     it involved actual violence;

·     it involved the constraining of a vulnerable man against his will and without his consent in a variety of circumstances;

·     there was nothing spontaneous about what occurred.  It was planned and continued as an organised arrangement which was thwarted only because the complainant had the strength and good sense to seek police intervention in respect of what was happening to him.

[15]     The jury heard Mr Luo’s explanation that his role was simply assistance in facilitating a payment of money owing and that Mr Luo’s presence had been an endeavour to stop others harming the complainant and to precipitate his release.

[16]     It is hardly surprising that such an explanation was rejected.  Whether this is typified as heavy-handed stand-over tactics or old-time bully boy intimidation matters little.  It was gratuitous violence being administered in a way which is an anathema in our community.  It was to be condemned in the strongest terms and in the hope that a condign sentence will act as a deterrent to others who are like minded.

[17]     The Judge’s starting point of six years, when coupled with the uplift of one year because of the identified aggravating factors, is consistent with the decision of this Court in R v Wan CA206/93 21 August 2003 where a starting point in the vicinity of ten years was considered appropriate.  It is also consistent with the starting point in R v Moffat CA193/01 30 October 2001; R v Song CA218/02 28 November 2002; R v Qichao Liang CA448/04 2 June 2005.

[18]     It is unhelpful to contend that the dollars demanded or the hours in which a person is confined are of mathematical significance in determining the actual culpability involved.  In this case the Judge found, as she was well entitled to, that Mr Luo was the person “who was calling the shots”.  Although only 23 years of age he had previous convictions including assault with intent to injure and an obstruction of the course of justice.  His actions were demonstrative of a consistent belief that this sort of self-help intervention was acceptable and available.

[19]     The community is entitled to be protected from those who, for whatever reason, are of the view that this is behaviour which will be tolerated in New Zealand.  It cannot be said that the six year starting point was excessive.  There was ample justification for the uplift and, as the Judge noted, there were no mitigating circumstances.

[20]     The appeal against sentence is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington