Peng v R - [2015] NZCA 45

IN THE COURT OF APPEAL OF NEW ZEALAND

CA268/2014
[2015] NZCA 45

BETWEEN	KAI MING PENG Appellant
AND	THE QUEEN Respondent

Hearing:	2 March 2015
Court:	Harrison, Fogarty and Dobson JJ
Counsel:	H B Leabourn for Appellant W Cathcart for Respondent
Judgment:	5 March 2015 at 11.15 am

JUDGMENT OF THE COURT

The appeal against the sentence of imprisonment for five years is dismissed.

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REASONS OF THE COURT

(Given by Fogarty J)

Kai Ming Peng was convicted on a charge of wounding with intent to cause grievous bodily harm after being found guilty following a trial in the Auckland District Court before Judge Dawson and a jury. He was sentenced by Judge Dawson to five years imprisonment.[1] He now appeals against the sentence only.
[1]R v Peng DC Auckland CRI-2011-090-843, 28 April 2014.
The Judge reached that sentence by first taking the view that Mr Peng’s offending fell within the upper area of band two of R v Taueki[2] and adopting a starting point of a sentence for imprisonment of eight years.[3] The Judge deducted one year as there was initially some element of defence of Mr Peng’s son involved.[4] He deducted a further two years taking into account Mr Peng’s age (60), his poor health, his good record and his lack of English, making a sentence of imprisonment arduous.[5]
[2]R v Taueki [2005] 3 NZLR 372 (CA).
[3]R v Peng, above n 1, at [13].
[4]At [13].
[5]At [14].
The ground of appeal was that the starting point was too high. The argument was that the Judge’s findings of fact did not appropriately reflect the jury verdict. This Court was invited to make different findings of fact upon which to impose a sentence.
Kai Peng had stood trial, along with his biological son, Haodong Peng. Haodong was acquitted of all charges, including a charge of wounding with intent to cause grievous bodily harm to Mr Guangjin Tian. The Judge found:
[7]       In sentencing you today I need to impose a sentence that holds you accountable for the harm caused by you to the victim of your offending. Regardless of the circumstances that led to your offending your conduct cannot be excused. A sentence needs to be imposed to make it clear that this conduct is unacceptable, and to deter you and others from offending in this way. The gravity of your offending for this offence is high.
[8]       I need to take into account the effect of your offending on the victim which is set out in the victim impact statement. He incurred significant injuries which involved ongoing surgery, a period of 10 months loss of income from his business, and followed by an ongoing loss of business due to the absence of time he had been away from his work.
[9]       The aggravating factors to your offending are the extreme violence used by you with a particularly dangerous and lethal weapon.   Your violence was a continued attack resulting in approximately twenty deep…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Peng v R

Details

AGLC: Peng v R [2015] NZCA 45
Case: [2015] NZCA 45
Decision Date: 5 March 2015 at 11.15 am

CaseChat Overview and Summary

The case of Kai Ming Peng versus The Queen was heard in the Court of Appeal of New Zealand, with the appeal being dismissed. The appellant, Kai Ming Peng, was convicted in the Auckland District Court of wounding with intent to cause grievous bodily harm. He was sentenced to five years imprisonment, which he now appeals. The appeal focused solely on the sentence imposed. Peng was found guilty following a trial before Judge Dawson and a jury. The Judge adopted a starting point of eight years imprisonment for the offence, which was within the upper area of band two of R v Taueki, and deducted a total of three years for mitigating factors such as the initial element of self-defence, the age and health of Peng, his good record, and his lack of English. The appeal was grounded on the argument that the starting point was too high and that the Judge's findings of fact did not appropriately reflect the jury's verdict. The Court found that the trial Judge was entitled to make the findings in question, and that the end sentence of five years imprisonment was within the range for offending of this severity. The appeal was dismissed.

Orders