R v Li CA299/05
[2006] NZCA 479
•1 November 2006
IN THE COURT OF APPEAL OF NEW ZEALAND
CA299/05
CA314/05
THE QUEEN
v
CHANG SONG LI ZUPING ZHOU
Hearing: 19 October 2006
Court: William Young P, John Hansen and Rodney Hansen JJ Counsel: S J Bonnar for Appellant Li
P J Kaye for Appellant Zhou
S N Haszard for Crown
Judgment: 1 November 2006 at 11 am
JUDGMENT OF THE COURT
A The appeal by Mr Li is dismissed.
BThe appeal by Mr Zhou is allowed and his sentence on both charges is reduced to five years six months imprisonment.
R V LI AND ANOR CA CA299/05 1 November 2006
REASONS OF THE COURT
(Given by William Young P)
Introduction
[1] The two appellants, along with two other men, Ziang Kwan Chen and Wanze Gui, kidnapped a forty-three year old Chinese woman for the purpose of obtaining a ransom of $1,000,000. The two appellants, along with Mr Chen, pleaded guilty to resulting charges of kidnapping and aggravated burglary. Mr Chen also pleaded guilty to a further charge associated with his use of a firearm during the offending. All three were later sentenced by Judge Blackie to ten years imprisonment. Mr Gui went to trial before Judge Johns and a jury on the charges which he faced. He was found guilty and sentenced to 13 years imprisonment.
[2] The two appellants now appeal against the sentences imposed on them. In the case of Mr Li, the challenge is to the starting point adopted by the Judge of 13½ to 14 years imprisonment. Mr Zhou’s appeal covers a wider range of issues but primarily focuses on the contention that he is entitled to a substantial discount for assistance given to the authorities.
Factual background
[3] The offending was carefully planned. The primary purpose of the offenders was to relieve the victim’s husband of some of what they considered to be his considerable wealth, a purpose which they intended to achieve by either stealing money from his house or kidnapping a member of his family.
[4] Messrs Chen, Gui and Li entered the victim’s house in the early hours of the morning. Mr Zhou, whose role was that of lookout and driver, remained outside the property. Messrs Gui and Chen were armed with knives and a pistol. Mr Li carried tape. They assaulted and immobilised the victim’s elderly father, binding his hands and legs and covering his eyes and mouth with tape. They treated the victim and her
mother in the same way. They demanded money from the victim and obtained from her a wallet containing $2,500 in cash, two credit cards and some vouchers. Before leaving the house with the victim they instructed her parents that they required payment of ransom of which $500,000 was to be paid by noon that day and a further
$500,000 the next day. They reinforced this demand with threats to kill the victim. As they were about to leave the property the victim’s husband arrived. Messrs Li and Gui confronted him with a knife and a pistol but he managed to escape. Messrs Gui, Li and Chen (along with the victim) left the premises in a car belonging to the victim which they then abandoned for the car belonging to, and driven by, Mr Zhou.
[5] The victim was then taken to pre-arranged premises where she was held in conditions of considerable discomfort. The appellants and the other two offenders concluded that the police had become involved as a result of the incident with the victim’s husband and that they would not be able to obtain a ransom. So about 20 hours after they abducted the victim, they dumped her outside a factory in Onehunga. Throughout she had been bound with tape which also covered her mouth and eyes.
[6] We have dealt with the facts briefly but do not wish to be thought to be under-stating their seriousness. The offending involved organised criminal activity, a high level of planning, home invasion, an assault on, and the immobilisation of, an elderly man, the immobilisation of (and thus an associated assault on) an elderly woman, the kidnapping of the victim, threats to kill her which were made to encourage the payment of a ransom, an armed confrontation with the victim’s husband and then the detention of the victim for some 20 hours before she was dumped in Onehunga. For her it was plainly a terrifying experience. The offending must have been similarly terrifying for her parents and husband all of whom must have thought it likely that they would never see her alive again.
[7] Mr Zhou, although aged only 19 years, was in a real sense the instigator of this offending. He had worked at the victim’s house and had been impressed by the indicia of wealth. The other three men were in their late 20s or early 30s.
[8] In the sentencing remarks, the Judge referred to R v Wei Hua Liu CA196/02
18 November 2002. He concluded, largely by reference to that case and s 8(d) of the Sentencing Act 2002 that the appropriate starting point for the offending was between 13½ and 14 years. He saw the three offenders he was sentencing as equally culpable. He then went on:
[61] From the starting point of 13½ to 14 years, how much credit can I give each of you? Well obviously I give you credit for your guilty plea. I give you some credit for appearing here as first offenders. I give you some credit, Mr Li, for the fact that you might have come in slightly later than the others, you were not an initial perpetrator.
[62] I give you some credit, Mr Chen and Mr Zhou for the fact that you have sworn affidavits which might be useful to the prosecution in the case against your co-offender but I do not regard what you have said in those affidavits as being earth shattering. It is not a case where what you have said has brought somebody before the Court who might otherwise have escaped any form of detection. What you might be doing here is putting a small bit of icing on the prosecution cake but not much more. Nevertheless, I give you some credit for that.
[63] There are occasions Mr Zhou when I might have been able to have given you more credit for your age but because of the remarks made by the Probation Officer and your apparent reluctance to accept responsibility for your actions I do not consider it appropriate on this occasion.
[64] I do however consider it appropriate that you should all be seen to be dealt with equally, with equal responsibility. Accordingly the final sentence for each of you on each of these charges, that is the burglary charge and the kidnapping charge, is one of 10 years imprisonment.
[65] You, Mr Chen, involved in the charge of presenting the firearm are sentenced to 2 years imprisonment but that will nevertheless be concurrent with the other sentences.
[66] The total sentence for you all overall, is one of 10 years imprisonment. Normally in a case of this severity in order to demonstrate the concern that the Court has for offending of this magnitude I would have set a minimum parole period. Whether that period would have been half the sentence or two-thirds of the sentence, I do not need to say today because I have not heard precise arguments upon it but normally I would be imposing a minimum parole period. However I understand through the prosecution that upon completion of whatever sentence is considered appropriate by the Parole Board, the three of you will be deported from this country.
[9] Mr Li challenges this sentence solely in relation to the starting point chosen by the Judge of 13½ to 14 years imprisonment. Mr Bonnar, who appeared for Mr Li, contended that the appropriate starting point was not more than 12 years imprisonment. The appeal on behalf of Mr Zhou focused primarily (although not exclusively) on the assistance he provided after sentencing in terms of giving evidence at the trial of Mr Gui.
[10] The issues associated with the two appeals can be best addressed by first considering the appropriate starting points and then addressing the additional factors relied on by Mr Kaye on behalf of Mr Zhou.
The appropriate starting points
[11] The maximum sentence for kidnapping is 14 years imprisonment and Mr Bonnar suggested that in this context the starting point selected was simply too long, particularly for Mr Li who was the last of the offenders to join the conspiracy and had not personally been armed when the offenders broke into the victim’s house. He maintained that the Judge’s starting point implied a conclusion that the offending was in the worst category of kidnapping which under s 8(c) of the Sentencing Act would have warranted a starting point as high as 14 years. He also noted that when Mr Gui was sentenced, the starting point adopted was 13 years as opposed to
13½ -14 years. Mr Kaye, in his submissions, addressed the limited participation of
Mr Zhou in the offending itself.
[12] We have looked at the sentencing remarks of Judge Johns in relation to the sentence of 13 years she imposed on Mr Gui. This sentence was based on a starting point of 13 years as there were no mitigating personal factors. In fixing this sentence the Judge was not explicit as to why she departed from the starting point range identified by Judge Blackie but it seems that she took a view of the facts which was slightly more favourable to the offenders than what appears in the summary of facts
which was prepared for the hearing before Judge Blackie. The point of difference was whether the planning for the offending extended to the possibility of kidnapping or was initially confined to robbery.
[13] We consider that the Judge was entitled to treat Mr Li as being as culpable as his co-offenders. He may have been the last to join the conspiracy but did so in advance of the actual offending. He was not armed with a weapon when he entered the house but this was presumably because he had the tape and it was his task to immobilise the victim and her parents. Likewise we do not place much significance on the fact that Mr Zhou did not enter the victim’s house and was thus not a direct participant in what happened inside. His limited role was associated with the reality that if he had gone inside, the victim and her parents may have recognised him given his prior association with the property.
[14] We agree with Mr Bonnar that the Judge would appear to have treated this case as being within s 8(c) of the Sentencing Act and we likewise agree that s 8(c) was not the controlling provision as it is possible to imagine more serious offending of this type. Where we differ from Mr Bonnar (and perhaps the Judge) is that we do not see the setting of a starting point as being absolutely constrained by the 14 year maximum for kidnapping. This is because a substantial component of the criminality in this case was captured by the aggravated burglary charge (including the assaults on and immobilisation of the victim’s parents, the theft/robbery which occurred and the confrontation with the victim’s husband). We agree that it is important not to double count aggravating features but we are nonetheless satisfied that it would have been open to the Judge to have imposed cumulative sentences in relation to the aggravated burglary charge, see R v Wei Hua Liu at [40]. On this point reference can also be made to R v Mako [2000] 2 NZLR 170 at [45].
[15] In Wei Hua Liu, the appellants had pleaded guilty to offending very similar to what was involved in the present case and finished up with effective sentences of 14 and 12 years respectively. We recognise that Wei Hua Liu was decided at a time when the maximum penalty for kidnapping aggravated by home invasion was
19 years and not 14 years. But given that cumulative sentences could have been
imposed (see [14] above), we do not see that a decisive consideration. Accordingly the starting point range identified by the Judge was available to him.
[16] Our view is not affected by the 13 year sentence later imposed on Mr Gui by Judge Johns. Judge Johns obviously had to sentence Mr Gui on the basis of the facts proved at trial on the basis of evidence which was admissible against him whereas the present appellants were sentenced on the summary of facts which was presented (and presumably based in large measure on what they had told the police). Further, the difference between the starting points of 13½ - 14 years as fixed by Judge Blackie and 13 years as fixed by Judge Johns is not sufficient to engage disparity principles, particularly given that the actual sentence imposed on Messrs Li and Zhou was ten years imprisonment.
[17] Our conclusions on this aspect of the case mean that the appeal by Mr Li must be dismissed.
Mitigating factors in the case of Mr Zhou
[18] Mr Kaye argued that the 10 year sentence for Mr Zhou was inappropriate given his role in the offending, his guilty plea, age and the assistance he provided the authorities.
[19] What we have said already in relation to the appropriate starting point disposes of the issue as to his role in the offending. It is fair to say, however, that the discounts allowed for personal mitigating factors was far from generous. His age is a relevant consideration and we do not necessarily agree with the Judge that it is out- weighed by his tendency to minimise the seriousness of his conduct and unwillingness to address the causes of his offending as indicated by the pre-sentence report. A total discount of just under 30% is arguably inadequate to reflect his age, his pleas of guilty and the co-operation which he had, prior to sentencing, provided to the police. In the context of his appeal as whole, however, the primarily significant issue relates to the assistance Mr Zhou has provided to the authorities.
[20] As the Judge’s sentencing remarks indicate, the Judge was well aware of information which Messrs Zhou and Chen had provided to the authorities and in particular their undertaking to give evidence against Mr Cui. However, on the basis of what we were told by the Crown (supported by an affidavit from a detective), Mr Zhou’s assistance in relation to Mr Gui was more significant (at least potentially) that the Judge recognised. As it turned out Mr Chen reneged on his undertaking to give evidence but Mr Zhou gave evidence at Mr Cui’s trial, this despite being personally threatened with physical harm by Mr Gui and his family in China receiving similar threats. The Crown accepts that his evidence at trial was of real significance and that a substantial discount “of up to 60%” off the starting point to reflect this (and all other mitigating factors) would be appropriate.
[21] Having regard to the concession from the Crown and what was said by this Court in R v Stark CA104/06 31 July 2006, we accept that Mr Zhou’s appeal should be allowed and that his sentence should be reduced to five years six months imprisonment.
Result
[22] The appeal by Mr Li is dismissed.
[23] The appeal by Mr Zhou is allowed and his sentence on both charges is reduced to five years six months imprisonment.
Solicitors:
Meredith Connell, Auckland
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