R v Lin - [2013] NZHC 2837

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2012-092-6038 [2013] NZHC 2837

THE QUEEN
v

SHU-PING LIN

Hearing: 29 October 2013

Appearances: B H Dickey for Crown
R M Mansfield for Defendant

Sentence: 29 October 2013

SENTENCE OF COOPER J

Solicitors:
Meredith Connell, Crown Solicitors, Auckland
R M Mansfield, Auckland

R v LIN [2013] NZHC 2837 [29 October 2013]

[1] Mr Lin, you were convicted at your trial on one count of sexual violation by rape and on a second count of wounding with intent to cause grievous bodily harm. The person you raped was a young woman with whom you had been in a relationship. The person who you wounded was her new partner. These offences carry with them maximum penalties of 20 and 14 years’ imprisonment respectively.

The facts

[2] I will sentence you on the basis of the following facts. You and the complainant on the rape charge had previously been in a relationship which had ended by early 2012 when she had returned to New Zealand and you remained in China. It appears that you failed to accept that the relationship was over and pending your return to New Zealand you had persistently called her and sent her messages, at times using abusive and threatening language.

[3] You returned to New Zealand on 2 May 2012 and after picking up a car headed to the complainant’s home. You gained entry to the house by use of a ladder and climbing through an upstairs bedroom window. You gave evidence at the trial that you had a key to the property. The complainant denied giving you a key. I am unsure whether or not you had a key. What is clear is that you chose to enter the house through the upstairs bedroom window, probably with the intent of surprising her. You then confronted her aggressively and forced her into the ensuite bathroom of her bedroom, where you raped her as she lay on the floor between the shower and the toilet. In a struggle which took place and in which her resistance was overcome, you injured her by causing bruising injuries to her neck, arm and leg. There were abrasions on her forehead and upper lip. There were ulcers on the inner side of her lower lip consistent with you having placed your finger in her mouth to prevent her crying out during your attack on her.

[4] I note that the jury acquitted you on two other counts alleging that you had sexually violated the complainant by unlawful sexual connection in the course of your assault on her. This was probably because they were not satisfied that the alleged acts occurred to the required standard of beyond a reasonable doubt. However, the implications of the conviction on the rape count are plain. I note too

that you were acquitted on a count alleging that you had…

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 Lin

Details

AGLC: R v Lin [2013] NZHC 2837
Case: [2013] NZHC 2837
Decision Date: 29 October 2013

CaseChat Overview and Summary

Shu-Ping Lin was convicted of one count of sexual violation by rape and one count of wounding with intent to cause grievous bodily harm. The victim of the rape was a former partner of Lin, while the victim of the wounding was her new partner. The court was required to determine the appropriate sentence for Lin, considering the nature and gravity of the offences, the personal circumstances of Lin, and the effect on the victims. The court also had to decide whether to impose cumulative or concurrent sentences.

The court determined that the rape offence fell within band 1 of the sentencing bands, but nearer the upper end of that band. The court found that the offence involved a degree of violence and was a case of home invasion, even though Lin had a key to the property. The court also considered the physical and emotional harm suffered by the victim. The wounding offence involved the use of a large kitchen knife and resulted in significant injuries to the victim. The court found that the use of weapons and the attack on the head justified a higher starting point for the wounding charge. The court took into account Lin's previous good character, support from family and friends, low risk of re-offending, and the hardship of serving a prison sentence in New Zealand with limited English proficiency. The court decided that cumulative sentences were appropriate, as the offences were different in nature and caused harm to different victims. The court also considered the totality of the offending, resulting in an effective sentence of nine years.

The court sentenced Lin to cumulative terms of imprisonment of six years and six months on the rape count and two years and six months on the count of wounding with intent to cause grievous bodily harm. The sentences will be cumulative, resulting in an effective combined term of nine years.

Orders