R v Hu

[2012] NZHC 54

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-092-019469 [2012] NZHC 54

THE QUEEN

v

XIAOYAN HU

Appearances: N R Webby for Crown

B J Hart for Prisoner

Judgment:      3 February 2012

SENTENCING NOTES OF COURTNEY J

Solicitors:           Meredith Connell, P O Box 2213, Auckland 1140

Fax: [phone] – N Webby

Counsel:             B J Hart, P O Box 47016, Ponsonby, Auckland 1144

Fax: [phone]

R V HU HC AK CRI-2010-092-019469 [3 February 2012]

[1]      Xiaoyan Hu, you appear for sentence today having pleaded guilty to the manslaughter of your former partner, Mr Xiao.   This occurred in December 2010. You and your partner had been involved in a relationship for about two years previously and had lived together for a little over a year at the time of his death. You had a two-month-old baby together which had been born in September 2010.  There were, however, serious problems in your relationship.  It seems that Mr Xiao had not completely broken off his relationship with his wife who lived in another town with their two children.  You were also suspicious that Mr Xiao had relationships with other women and there had been violence in the relationship between you.  These problems were the source of many arguments between you.

[2]      On 8 December 2010 you and Mr Xiao argued.  You tried to leave but he brought you back into the house.  In the bedroom you continued to argue.   Mr Xiao was sitting at the computer with his back to you.  You went to the kitchen and got a small paring knife.  As you continued to argue you became angry and stabbed Mr Xiao.  Although you thought you were aiming for his shoulder, the knife penetrated his neck.  The blade penetrated Mr Xiao’s carotid artery and he died within a short time, although you did try to help him.

[3]      Mr Xiao’s death has left his three children without their father.  His wife’s victim  impact  statement  speaks  of  the  grief  that  she  and  her  children  have experienced at that loss. Your child too will never know his father.

[4]      The objectives in sentencing for this offence are to hold you accountable for the  harm  that  you  have  done  through  your  offending,  promote  a  sense  of responsibility and acknowledgement for that harm, and denounce your conduct.1    I am required to follow the principles set out in the Sentencing Act 2002.  In this case these particularly include taking into account the gravity of the offending, the degree of your culpability, the seriousness of the offence, the desirability of consistency in sentencing and the effect of the offending on the victims of the crime.2

[5]       In reaching the appropriate sentence I must first find a starting point that reflects the nature of the offending.  This case involves a single stab wound inflicted

1 Sentencing Act 2002 s 7(1)(a), (b) and (e).

2 Section 8(a), (b), (e) and (f).

during a verbal argument between domestic partners.  Although the argument that day did not involve actual violence towards you, there had been violence in the relationship before, police had been called and you had applied for a protection order.  In addition, your description of the events leading up to the stabbing suggests that your partner had exerted some physical force, although that fell short of actual violence.    In  finding  a  suitable  starting  point  I have  also  had  regard  to  recent

sentencing decisions which have some similarity to the facts in this case.3    Having

regard to the nature of the offending, the context in which it occurred and those previous similar cases I consider the appropriate starting point to be four years nine months.

[6]      I must, however, make reductions to reflect other aspects of the offending that relate to your personal circumstances.  I note first that you do have a criminal history in New Zealand but the convictions are for quite low level offending over a short time.  You have not previously served a term of imprisonment.  I therefore do not place any weight on those convictions for the purpose of sentencing.

[7]      The second aspect, and more important, is your mental state at the time you committed  this  crime.     Your  pre-sentence  report  and  report  by  psychiatrist Dr Cavney paint a bleak picture of your life so far.  You are now 32 years old.  You grew up in China and have described sexual and physical abuse as a child and young woman there. As a result of that abuse you became a drug user for a time. You came to New Zealand in 2002 as an adult with your husband and child.   However, that marriage broke down and you subsequently became involved with Mr Xiao.  You have suffered for quite some time now from a chronic depressive disorder and, in addition, suffered depression specifically associated with the birth of each of your two children.  You have previously been under the care of both maternal and general mental health services here and have taken prescribed anti-depressant medication for some years.  In addition, you have a history of alcohol abuse.  Most of your previous

convictions seem to have resulted from that problem.

3 Woods v R [2011] NZCA 573; R v Mahari HC Rotorua CRI-2006-070-8179, 14 November 2007; R v

Stone HC Wellington CRI-2005-078-1802, 9 December 2005; R v Tamati HC Tauranga CRI-2009-
087-1868, 27 October 2009.

[8]      Despite being under the care of mental health services you have a pattern of poor engagement with those services, particularly in the period leading up to the offence.  I note that it was part of your birthcare plan that you would be referred to maternal mental health services for follow-up but that appears not to have happened and there is no record of you being seen by those services following your release from hospital after your second child was born.  In your interviews with Dr Cavney you have described symptoms that he views  as suggesting post-traumatic stress disorder.  You are currently under the care of the Mason Clinic and continuing to take  anti-depressant  medication.    Your  diagnosis  currently  is  of  chronic  mood disorder complicated by borderline personality disorder.

[9]      Prior to your baby being born you had, however, converted to Christianity and were feeling worried and guilty about the ongoing relationship with Mr Xiao, who was still married and refused to do anything to regularise your relationship. You resolved to leave the relationship. Your baby was born in about September 2010 by caesarean section and the baby himself was sick and had to stay in hospital after his birth.  Against medical advice you went back to work very soon after the birth to try and earn money to progress your plans to end the relationship you were in.  At the time of the argument that led to Mr Xiao’s death you had had little sleep, you were exhausted, under stress from the demands of the new baby, work, arguments with your partner and your ongoing depression.

[10]     Although I accept Mr Webby’s submission that your mental state was not directly causative of the offence, it is very close to it and a very important context against which the offending happened.   I accept too that you were genuinely remorseful for your actions.  Your actions immediately after the stabbing were to try and help Mr Xiao and I accept that you have genuine regret over the loss of life you have caused.  You are now assessed as being at low risk of re-offending and have strong community support from your church community.

[11]     Taking all of these factors into account I consider that a reduction of 18 months from the starting point is justified to reflect them.   This would bring the sentence down to three years three months.  A further reduction is justified to reflect your guilty plea.  That plea was entered in November 2011, a year after the offence.

Mr Hart has explained that, although you signalled your intention to plead guilty some months beforehand, a formal plea was postponed to resolve difficulties in translation of the police interview.  Although it does seem to me that a plea could have entered earlier, I will accept today that there were genuine reasons that it was not and I intend to allow a further reduction of 20 percent to reflect that ultimate guilty plea entered. This brings the final sentence to two years seven months.

[12]     Mr Hart has sought a period of home detention rather than imprisonment but for an offence that resulted in loss of life through a deliberate act I do not consider that this is an appropriate course and that the sentence I have reached, in any event, exceeds the two years that would be required for eligibility for home detention.   I note, however, that you have been in custody since December 2010 and are therefore eligible to apply for parole probably immediately or at least within a very short time, and given the very strong mitigating factors and your obvious remorse and change in some of your problematic habits, I would have expected prospects for parole to be good.

[13]     I wish you well Ms Hu. You can stand down now.

P Courtney J