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)

1. 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.

2. 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].

3. 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.

4. 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 skull lacerations, six of which penetrated the skull bone.  There were other lacerations, including a partly severed wrist of the victim which resulted in a heavy loss of blood to the victim, and he came very close to dying from your offending.  The urgent medical attention that he received and the blood transfusions he received saved his life.  Had that not happened you no doubt would have been facing more serious charges.  The victim was vulnerable in that your attack upon him continued after he had been chopped to the ground by you.

5. Mr Leabourn submitted in this appeal that the acquittal of Haodong Peng of this charge meant that the jury had found that Mr Tian was in possession of a knife.  He said it followed that the jury had accepted Mr Peng’s evidence that he was acting in defence of his son.  By contrast, the trial Judge in his findings of fact for sentencing said:

   [11]     You are now 60 years of age and a person previously of a good character in that you have no previous convictions.  There may have been some element of self-defence in your offending in that you intended to protect your son but if so this defence was rejected by the jury.  Any element of self-defence you may have had in your mind is negated by extreme excessiveness of your action, and your continued and sustained attack with a potentially lethal weapon well after any concerns for self-defence could have existed in your mind.

6. Consequent upon the jury verdict, the trial Judge had the right and duty to make findings of fact for the purpose of sentencing.

7. Mr Leabourn was unable to persuade us that these findings in [11] of the sentencing notes were not available to the Judge.  Consistently with those findings, the Judge described the knife as “one that we would normally associate as being described as a meat cleaver”.[6]  We would add, as emphasised by Mr Cathcart, that Mr Peng’s attack continued after his victim had lost consciousness.

   [6]At [4].

8. The trial Judge was entitled to make these findings.  We are satisfied that when all the aggravating features of Mr Peng’s offending are taken together a starting point of eight years imprisonment was not excessive.  The Judge’s allowance of three years for a number of mitigating factors including one year for the element of self-defence cannot be criticised.  The end sentence of five years imprisonment was within range for offending of this severity.  Mr Peng has failed in his appeal to this Court to substitute less grave and less culpable findings.    

9. The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent