R v He HC Auckland CRI-2003-004-025672

[2005] NZHC 1740

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2003-004-025672

THE QUEEN

v

SHANGBIN HE LING LI ZHENG

Charges:He: Attempted murder; Attempting to escape from custody Zheng: Attempted murder

Plea:               Not Guilty Appearances: Kevin Glubb for Crown

Ron Mansfield for Prisoner He Hugh Leabourn for Prisoner Zheng

Sentenced:     29 April 2005

He:     Attempted murder – 8½ years imprisonment

Escaping from custody – 3 months imprisonment (concurrent) Ordered to serve minimum term of 4 years and 3 months

Zheng: 7 years imprisonment

Ordered to serve minimum term of 3 years

SENTENCING NOTES OF HARRISON J

SOLICITORS

Meredith Connell (Auckland) for Crown Ron Mansfield (Auckland) for He

Hugh Leabourn (Auckland) for Zheng

R V HE And Anor HC AK CRI-2003-004-025672 [29 April 2005]

Introduction

[1]                  Mr Shangbin He and Mr Ling Li Zheng, you were found guilty by a jury in this Court after trial of one charge of attempted murder. Additionally, Mr He, you were found guilty of one charge of attempting to escape from lawful custody. Each of you appears today for sentence following conviction.

[2]                  The maximum term of imprisonment for which you are each eligible on the charge of attempted murder is 14 years. The maximum term of imprisonment for which Mr He is eligible on the charge of attempting to escape is two and a half years.

[3]                  Before dealing with the formal aspects of my sentence, I wish to acknowledge the constructive assistance provided by Mr Kevin Glubb for the Crown and Mr Ron Mansfield and Mr Hugh Leabourn for each of you in the written and oral sentencing submissions they have made.

Facts

[4]                  I shall deal first with the facts. On 31 January 2003 you were both at Elmo’s Bar in Karangahape Road, Auckland city. You were with a wider group of friends and associates in a karaoke room at the back of the bar. Another group of young Chinese men arrived at the bar at about 11 p.m. Among them was Mr Kaixiang Zhang. Evidence was given at trial that this group had come to the bar to apologise or make amends for some misconduct the previous evening.

[5]                  Both of you were summonsed from the back room by a member of the other group. You and your friends went into the middle of the bar where you confronted the other group. A fight started. Mr Zhang was either singled out or emerged from the other group. You two and some other members of your group attacked him. Having heard the evidence at trial, I am satisfied that Mr He was armed with a military type knife about 30 cm long. I am equally satisfied that Mr Zheng had a smaller pen knife. Each of you used these knives in an attack on Mr Zhang. At trial Mr Glubb accurately described the attack as fast, furious and frenzied.

[6]                  Your attack moved from the hallway out on to Karangahape Road. I am satisfied that both of you used your knives to inflict many wounds on Mr Zhang. Within a short time you had reduced him to a defenceless state. Your attack continued at a furious rate. I am satisfied that Mr He was the principal offender. He was responsible for the many knife wounds inflicted on the front part of Mr Zhang’s body. Mr Zheng also played a role by striking the back of Mr Zhang with his knife.

[7]                  Mr Zhang suffered major injuries. They were life threatening. You inflicted between 13 and 16 stab wounds on his body. He suffered lacerations to his forehead, his abdomen, his left hand, his thigh, and his left shoulder. The shoulder wound exposed his muscle. The abdomen wound was so severe that it caused the contents  of his bowel to seep into the wound. He suffered puncture wounds to his back and rear left hip. His nose was fractured. He suffered loss of a litre of blood. He was in hospital for nearly a month. I have no doubt that you would have killed Mr Zhang if it had not been for the very brave actions of Ms Fetongi Finau, the bar manager who intervened.

Starting Point

[8]                  I must now fix the starting point for your sentence. I do that by referring to the facts of your offending, particularly any aggravating features. I shall then take into account any favourable or mitigating factors.

[9]                  There are a number of aggravating features of your crime. First, there is the nature and duration of the attack. Second, there is the use of knives. Third, there is your combination or acting together against somebody who was, I am satisfied, defenceless. Fourth, there is the impact on your victim.  He was so scared of you  that he refused to return to New Zealand to give evidence. I have the benefit of a written statement taken by Madam Interpreter from Mr Zhang. He says in his own words that he feels he has already died once. His personality has undergone a major and bad change. He feels emotionally isolated. He has had suicidal thoughts.

[10]               There is no fixed sentence for the crime of attempted murder. The only guiding line is that the maximum term of imprisonment is 14 years. Our Court of

Appeal has discussed the appropriate guidelines in a number of cases. Until I heard from Mr Mansfield today, I was satisfied that the closest case was the decision of the Court of Appeal in R v Khan (CA83/02, 4 December 2002). That was a crime committed by a man who stabbed his wife on a number of occasions. It was unprovoked and premeditated.  The Court of Appeal considered a starting point of  10 years was justified. There are many similar features between that crime and your case. However, I accept the submission made by Mr Mansfield and Mr Leabourn that, in contrast to Khan’s case, there was no premeditation or pre-planning. There was a degree of provocation also. I accept that this crime was spontaneous, although of course both of you were armed beforehand.

[11]               Taking those facts into account, I apply a reduced starting point for your sentence of eight and a half years imprisonment. A starting point of that length takes into account the need to denounce what you have done, to deter you and others from doing these things again, and to punish you for your crimes. That starting point also reflects my acknowledgement that for each of you serving a term of imprisonment in New Zealand will be unusually harsh. You will be away from your families and support structures. You will serve the penalty in an alien cultural environment.

[12]I now come to the sentences to be imposed on each of you separately.

Shangbin He

[13]               Mr He, there are no mitigating or favourable personal factors for you. You are 30 years of age. You  have  previous  dishonesty  and  violence  offences  in  New Zealand. You have entered New Zealand under false pretences. You have not worked in New Zealand. You have kept company, I am satisfied, with criminal associates. You regard yourself as the leader of a gang.  I suspect that it is simply  the product of your imagination or self delusion. You continue to deny your offending. You show no remorse.

[14]               I have been provided with a letter from your fiancé. I understand that your imprisonment in New Zealand will cause her and your little child great hardship. However, you have chosen to live a criminal life in New Zealand. You have brought

shame on a proud and law abiding race. I sentence you to a term of eight and a half years imprisonment on the charge of attempted murder, and to three months imprisonment on the charge of attempting to escape from custody. Those sentences are to be served concurrently or together.

Ling Li Zheng

[15]               Mr Zheng, you are in a different category. You are 22 years of age, much younger than Mr He. You are a first offender. You are of otherwise good character. You have admitted your crime. You have expressed remorse and sorrow. I am satisfied that your participation in the attack on Mr Zhang was lesser than Mr He. You are a follower, not a leader.  To your credit you have not attempted to blame  Mr He for your involvement. Taking those factors into account, I impose a term of seven years imprisonment on the charge of attempted murder.

Minimum Term

[16]               I must now consider whether to impose a minimum term of imprisonment. I must ask myself two questions. First, is this crime sufficiently serious to require a minimum term of imprisonment? I am satisfied that it is. I do not need to repeat my findings about the circumstances. Second, I must ask whether a term of one third of your sentence of imprisonment is sufficient to denounce or deter or punish you? In the circumstances of this case I am on the opinion that eligibility for parole after one third would not be a sufficient punishment. An appropriate term of minimum non parole, which I now impose, in Mr He’s case is four years and three months, and in Mr Zheng’s case three years to reflect his lesser participation.

[17]               Before you stand down, I want to record that each of you has committed a very serious crime according to our law. For that reason you have been sentenced to lengthy terms of imprisonment. I repeat my acknowledgement that serving a term of imprisonment in a New Zealand jail will be difficult. Inevitably you will be  deported from New Zealand when you complete those terms. I trust that you use

your time in New Zealand in a constructive or positive way and that when you return to China each of you makes a positive contribution to your society there.

[18]               Finally, I wish to express my appreciation to you, Madam Interpreter, for your assistance today and during trial and I wish to acknowledge the officers in charge of this case who have been present during sentencing. Please stand down.

Rhys Harrison J