R v Chen

[2023] NZHC 1947

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-044-000104

[2023] NZHC 1947

THE KING

v

CHAO CHEN

Hearing:

25 July 2023

Appearances:

F Culliney for Crown

L Cordwell for Defendant

Sentenced:

25 July 2023

SENTENCING NOTES OF VENNING J

Solicitors:           Crown Solicitor, Meredith Connell, Auckland Counsel: L Cordwell, Auckland

Copy to:            C Kapitan, NZME

S Braunias, NZ Herald

R v CHEN [2023] NZHC 1947 [25 July 2023]

[1]    Chao Chen, you are for sentence this morning because you killed Lele He. Following trial the jury found you not guilty of murder but guilty of manslaughter.

[2]    In the early hours of the morning on Wednesday, 12 January 2022, you drove to Mr Li’s house at Vinewood Drive, Albany. Mr Li and Mr He (the victim) were there. You were all known to each other. On the previous evening Mr Li and Mr He had a meal during the course of which Mr He gained the impression you had said words to the effect that he was stubborn. This upset Mr He. He sent you WeChat messages after midnight on his return to Mr Li’s home and then there were telephone calls between you. You initially did not want to meet Mr He that night but after speaking to Mr Li you went to Mr Li’s property to confront Mr He.

[3]    When you arrived at the property Mr Li met you and shortly after Mr He appeared. You and Mr He then engaged in what became a very heated argument which took place mainly on the grass verge with Mr Li trying to keep the two of you off the road. Both you and Mr He were angry. You exchanged abuse. There was a bit of pushing and shoving. At one stage you went back to your car and took a knife from your fishing kit and brought it back to the confrontation with Mr He. Mr Li took the knife off you. The argument between you and Mr He continued. At some point you turned to leave. However one abusive comment Mr He made to you upset you so much you grabbed the knife from Mr Li, lashed out at Mr He, and stabbed him in the left shoulder area. The stab was in a downward motion and was inflicted with enough force that it entered Mr He’s chest cavity and severed an artery. Mr Li and you immediately called emergency services and both of you attempted to give Mr He assistance. Despite that he died in the ambulance on the way to hospital.

[4]    In fixing the appropriate sentence for you the Court has regard to the purposes and principles of the Sentencing Act 2002. In this case the principal purposes are:

(a)to promote in you a sense of responsibility and accountability for your actions and harm caused to the deceased, his family and the community;

(b)to provide for the interests of the deceased’s family as victims of your offending;

(c)to denounce and deter such violent actions; and

(d)to consider your position in terms of your future rehabilitation.

[5]    The victim impact report from Mr He’s widow outlines very clearly to the Court the impact your offending has had on her, her family and their son. You seem to be aware of the impact your offending will have had on that family from the comments you have made to the probation officer, even though you may not have seen the victim impact report itself.

[6]    I note that as regards your rehabilitation it is inevitable that on your release from prison you will be deported to China.

[7]    As to the relevant principles the Court must take into account the gravity of the offending, including your culpability, your blameworthiness. The Court is also directed to take into account any particular circumstances personal to you that mean a sentence of imprisonment, which in this case is inevitable, would be disproportionately severe. Obviously this offending is serious. It has led to the loss  of another person’s life.

[8]    The Crown submits the Court should take a starting point for sentence of between seven and eight years’ imprisonment and then allow appropriate deductions for your personal circumstances.

[9]    Mr Cordwell submits the Court should take a starting point of sentence of seven years’ imprisonment and then allow appropriate deductions, particularly taking account of your offer to plead guilty to manslaughter at an early stage and other mitigating factors.

[10]   In Waipuka v R,1 the Court of Appeal confirmed an appropriate approach may be to consider the sentence that would be applied if death had not ensued having regard to a Court of Appeal judgment of R v Taueki,2 (with an appropriate adjustment for the

1      Waipuka v R [2013] NZCA 661.

2      R v Taueki [2005] 3 NZLR 372 (CA).

fact that a death was involved) and then test that by reference to sentences involved in comparable cases involving manslaughter.

[11]Both Crown and Mr Cordwell have adopted that approach.3

[12]   There are in my assessment a number of aggravating features of the offending in your case. The first is the use of the weapon and the weapon itself. It was a fishing knife with a long blade which you would have been very familiar with.

[13]   Next, the extent of the harm which is reflected, as I have said, in the victim impact report. Then, the fact that you returned to the car and deliberately brought the knife back to your confrontation with Mr He despite the fact that you knew by then Mr He was himself unarmed.

[14]   In terms of mitigating factors I accept there was a degree of provocation in that Mr He initiated the incident by ringing you and challenging you about what he considered you had said about him. The evidence was that he remained aggressive towards you during the course of the incident. However I consider that the provocation is only available to a limited degree.4 You willingly engaged in the argument, which carried on for quite some time, and you had come to Mr Li’s property in the early hours of the morning. You actively engaged in the argument before you went and got the knife and returned to the scene.

[15]   On a Taueki analysis a starting point of six and a half to seven years would be appropriate if death had not ensued. As death ensued a starting point of eight years would be appropriate.

[16]I test that by reference to the relevant authorities that counsel have referred to.5

3      Waipuka v R, above n 1, at [32]; and R v Taueki, above n 2.

4      R v Taueki, at [32](a)

5      R v Te Heu [203] NZHC 506; R v KH [2023] NZHC 1210; R v Ariki [2015] NZHC 3240; R v Edwardson HC Rotorua CRI-2006-069-1101, 27 April 2007; R v Owens [2017] NZHC 319; R v Skeen [2016] NZHC 1904; R v Harris [2016] NZC 1687; and R v Raivaru HC Rotorua CRI- 2004-077-1667, 5 August 2005.

[17]   I regard your offending as more serious than that in Edwardson and more similar to that in Ariki. Further, I accept the Crown submission that the provocation in your case was less than Raivaru. Overall I am satisfied the appropriate starting point for you is eight years’ imprisonment.

[18]   I then have regard to mitigating factors. There are a number. You have a very positive pre-sentence report from an experienced probation officer. At the age of 32 you have no previous convictions in New Zealand nor in your home of China. You are reported as telling the probation officer that you wanted to apologise. You clearly understand the seriousness of what you have done and you said, “it is not just about me and the victim, it is about our two families being changed forever”. You have said you will try your best to help the people you have harmed. I accept you have insight into your offending and the consequences of it. You want to apologise and the probation officer accepted that you were genuinely remorseful, which I also accept.

[19]   You are entitled to a substantial credit for your offer through counsel, Mr Cordwell, to plead guilty to manslaughter at an early stage. In the case of a homicide, a killing, the Crown can only accept a plea of manslaughter after referral to the Solicitor-General. Given the circumstances of this offending it was entirely reasonable and understandable the Crown decided to decline that offer and to proceed with the charge of murder.

[20]   But you are entitled to a credit for your offer which acknowledged your acceptance of responsibility at an early stage. Given the timing of that offer and having regard to the comments of the Court of Appeal in R v Hessell,6 a discount approaching the full 25 per cent is appropriate. You are also entitled to a further credit of five per cent for the remorse which, as I have said, I accept is genuine. You are also entitled to a credit for other factors, such as your lack of previous convictions, and the fact that given your very limited English and disconnection from family and culture generally, the sentence of imprisonment will be harder for you. Overall I assess you are entitled to a reduction of approaching 37 per cent from the starting point.

6      R v Hessell [2009] NZCA 450.

[21]   The Crown do not seek and I do not consider a minimum non-parole period to be necessary in your case.

[22]Mr Chen please stand.

[23]   Mr Chen for the manslaughter of Lele He you are sentenced to imprisonment for five years. Stand down.

Venning J