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: (09) 336-7629 – N Webby

Counsel: B J Hart, P O Box 47016, Ponsonby, Auckland 1144
Fax: (09) 378-8842

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…

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 R v Hu

Details

AGLC: R v Hu [2012] NZHC 54
Case: [2012] NZHC 54
Decision Date: 3 February 2012

CaseChat Overview and Summary

The case of R v Hu is a sentencing decision in the High Court of New Zealand, Auckland Registry. Xiaoyan Hu was sentenced for the manslaughter of her former partner, Mr Xiao, which occurred in December 2010. The couple had a tumultuous relationship, marked by suspicions of infidelity, violence, and arguments, which culminated in the fatal stabbing. The court heard victim impact statements from Mr Xiao's wife, who spoke of the grief experienced by her and her children, and from Hu, who also lost her chance to see her child grow up with his father.

The court had to determine an appropriate sentence considering the nature of the offence, the degree of Hu's culpability, the effect of the offence on the victims, and the desirability of consistency in sentencing. The court found a starting point of four years and nine months, reflecting the gravity of the offence and previous similar cases. However, reductions were made due to Hu's personal circumstances, including her mental health issues, history of abuse, and remorse. The court also considered her guilty plea, which was entered a year after the offence due to translation issues.

Ultimately, the court decided on a sentence of two years and seven months imprisonment, with eligibility for parole likely due to the strong mitigating factors and Hu's remorse. The court rejected a plea for home detention, deeming it inappropriate for an offence resulting in loss of life through a deliberate act.

Orders