R v Zheng

[2012] NZHC 1102

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-004-003755 [2012] NZHC 1102

QUEEN

v

LEI ZHENG CHEN CHEN

Hearing:         22 May 2012

Counsel:         G Kayes for Crown

H Leabourn and J Nguy for Zheng
G Newell for Chen

Judgment:      22 May 2012

SENTENCE OF WINKELMANN J

R V LEI ZHENG HC AK CRI 2011-004-003755 [22 May 2012]

[1]      Lei Zheng, you appear for sentence having been found guilty of five counts of blackmail following a jury trial.   The maximum penalty for that offence is 14 years’ imprisonment.   I enter convictions in respect of each of those five counts. Mr Chen,  you  appear  for  sentence  having  been  found  guilty  of  two  counts  of blackmail.  I enter convictions on those two counts.

[2]      The facts in relation to your offending are as follows.  A plan was formed by a group of men to blackmail the proprietors of Chinese massage parlours.  Pursuant to this plan, five massage parlours were visited over the course of several days. Mr Zheng, you were present on each occasion and were accompanied by no fewer than three other men.  Of that group, you played the lead role in what occurred at each place.  You demanded a protection fee of $100 per working girl per week and threatened the safety of the managers or their staff if they refused to pay.  At times the threats were explicit. You threatened the proprietor of the business, the subject of count 1, that if she did not pay the money 30 Polynesian people would come to the business and would not allow her to run the business, and would try to stop her employees from coming back.  She paid $200 because she was scared and did not want her employees to get hurt.

[3]      You threatened the proprietor of the business the subject of count 2 by stating that you had an organisation of 20 to 300 members and you were there to collect protection fees. You told her if she did not pay you would bring petrol over and burn down her house and, if that did not work, would cause her to have a traffic accident.

[4]      You threatened the proprietor of the business in count 3, saying of course something would happen if she did not pay.

[5]      Threats to the proprietors of the other two businesses were less explicit, involving demands for protection fees and an implied threat to one of the proprietors that if she did not pay she would have trouble in the future.

[6]      Mr Chen you played a lesser role.  You visited only two premises, those the subject of counts 4 and 5.  You seem to have been included to keep up the numbers

of those present, but also to act as the group’s English interpreter in case the group had to deal with a non-Chinese speaking person.  At one of the two places you did undertake some interpreting.   Other than that  you played no active role, sitting quietly while Mr Zheng did the talking.

[7]      I have victim impact statements provided by the five women who were the subject of threats.  They all say they were very frightened by what occurred.  One said she kept her employees on site for three nights because she was worried what would happen to them if they left the premises.   One said she was so scared and anxious that she could not sleep and eat for a long time because she was afraid that you would come back and do something to her.  Another expressed fear that you would target her children.

[8]      Dealing first with you Mr Zheng.   I have received a pre-sentence report in respect of you.  You are 26 and were 24 at the time of the offending.  In light of that fact, no discount for youth is available.  You have no siblings and your relationship with your father is strained.  Your mother died of cancer in 2010.  At the time of the offending you had no previous convictions, but have since accrued a conviction for unrelated offending. Applying the Correction Department’s standard assessment tool you are assessed as being at low risk of reoffending.  In the pre-sentence report the report  writer  expressed  doubt  regarding  that  conclusion  on  the  basis  that  you continue to maintain your innocence.   On that same basis he or she also assessed your motivation to rehabilitate as low.  That was a fair assessment as things stood at that time.  But today in Court I have received letters from you to the various victims in which you apologise for your actions, and say that you will accept the sentence imposed upon you.  I therefore propose to sentence you on the basis that you are an offender at low risk of reoffending.  I do not however give you credit for remorse as that has come very late in the piece.

[9]      You hold a Chinese passport and you were in New Zealand on a student visa which has now expired. Your present immigration status is uncertain.

[10]     You have said that you are prepared to pay reparations in the amount assessed by the police, $700.

Crown submissions – Mr Zheng

[11]     The Crown submits that the aggravating features of this offending are that there was a considerable amount of premeditation and planning that went into the events.  It says that you were a leader of the group that went to massage parlours and that you were involved in the planning.  It notes also the vulnerability of the victims to the demands, and the threats of violence that under laid the demands and notes the number of victims involved.

[12]     Because of the absence of any tariff or guideline case both your counsel and the Crown have undertaken a reasonably extensive review of the authorities and have referred me to cases including R v Wilkie[1] and R v Huang.[2]Taking a global approach to your offending, the Crown submits that a starting point in the region of four years imprisonment is appropriate.

Defence submissions

[1] R v Wilkie CA6/05, 27 April 2005.

[2] R v Huang HC Auckland CRI-2005-004-17388, 19 July 2006.

[13]     Your   counsel   disputes   that   you   were   the   ringleader   of   this   group. Mr Leabourn  emphasises  that  the sums  of money demanded  were low and  that although there were five individual counts of blackmail on which you were found guilty, the contact between you and the complainant on three occasions was limited to only one visit.  He accepts that at least on one occasion two visits took place and on another occasion, three.  He also accepts that the victims were vulnerable and that there has been some long term impact upon them.

[14]     In relation to the authorities referred to, Mr Leabourn says that the Wilkie decision is the one of most use, although noting that the demand in that case was for a significantly greater sum of money and that it was accompanied by a direct threat to kill if the money was not paid.  In R v Huang the other case relied upon by the Crown, Mr Leabourn submits that the facts involved actual and threatened violence, visits to the complainant’s home, and intimidation arising by virtue of claimed gang

connections.  Even so, the Judge adopted a starting point of three years three months.

[15]     Mr  Leabourn  submits  that  a  starting  point  of  two  and  a  half  years  as identified in Wilkie is appropriate with an uplift in the vicinity of one year for the presence of other charges.

Sentence

[16]     In sentencing you I consider that the purpose of the sentence should be to hold you accountable for your offending,[3]  denounce your conduct,[4]  and deter you and   others   within   the   wider   community   from   similar   offending.[5]      As   is acknowledged by your Counsel, given the nature and extent of your offending, it is inevitable that you will receive a sentence of imprisonment.

[3] Sentencing Act 2002, s 7(1)(a).

[4] Sentencing Act 2002, s 7(1)(e).

[5] Sentencing Act 2002, s 7(1)(f).

[17]     In assessing the seriousness of your offending I take into account the nature of the threats, the nature of the demands, the vulnerability of your victims and your role in the offending.[6]   On at least one occasion the threats involved a very explicit threat of serious violence.  On two occasions there were implicit threats of violence, none the less potent for that.   Threats that bad things would happen and that the “girls” would be stopped from coming to work.   On the final two occasions the threats of violence were implicit in the demands for protection money.   I take into account that in the course of intimidating these women you took along with you on

each occasion no less than three other men.  It was clearly the intention of the group to intimidate and frighten.

[6] Factors articulated by Keane J in R v Takao HC Rotorua CRI-2004-087-227, 29 April 2005.

[18]     The amount demanded is also relevant in terms of assessing the seriousness of the conduct.  On each occasion the amount demanded was $100 per working girl per week.  Not a large individual payment, but the obvious intention was to establish an  on-going  source  of  income.    That  would,  in  time,  could  add  up  to  a  very

substantial amount indeed.

[19]     It is also significant that you were persistent with your demands, with at least two of the counts involving you returning to the place of business to prosecute your plan.

[20]     It is also an aggravating feature of this offending that it involved significant premeditation  and  planning[7]   and  that  the  victims  were  vulnerable.    They  were women operating their businesses very late at night or in the early hours of the morning.

[7] Sentencing Act 2002, s 9(1)(i).

[21]     I do not propose to sentence you on the basis that you were the ringleader but on the basis that you took the lead role at each site.  You may have been the ring leader, but the evidence of text messages suggests that there were others in the group, including one person “Jerry” from whom you sought directions at times. There must therefore be a reasonable doubt that you were a foot soldier in this criminal enterprise, acting at the direction of others.

[22]     I have had regard to the authorities referred to me by the Crown and the defence.  I consider that the threats of violence made in Wilkie were comparable to the express threats of violence you made on one of occasion in this case.  In Huang, the offender acted in concert with another in making his demands, like this case.  But in that case there was the aggravating factor of actual violence,  which was not present in this case.

[23]     Having considered all the authorities referred to me I am satisfied that an appropriate starting point is two years six months on one count of blackmail.  I then uplift for one year to reflect the fact that there were five incidents. The effective sentence is three and a half years imprisonment.

[24]   Mr Zheng, please stand.   You are sentenced to three and a half years imprisonment on each of the counts.  Those sentences are to be served concurrently which means you do not add them together, so the effective sentence is three and a

half years imprisonment.

[25]     I will not order that you pay reparation as you are to serve a long sentence of imprisonment and you already have outstanding fines.  Please be seated.

Mr Chen

[26]     Mr Chen, I then turn to consider you.  You have been convicted of only two counts of blackmail.   These are the two counts where the threat of violence was implicit in the demand for payment of protection money.

[27]     I have received the pre sentence report.  You are 25 years old and were 23 at the time of the offending.  You have recently completed two computer studies qualifications.  Your parents live overseas and you have no family support here. You do, however, have a partner of 4 years.

[28]     You have no previous convictions, and are entitled to be regarded as someone who was previously of good character.

[29]     You have offered to pay reparation of $700 to your victims.

[30]     Both  your  counsel  and  Crown  Counsel  submit  that  a  community  based sentence is appropriate for you having regard to your lesser involvement in the offending.  You were involved on only the last day of the offending.  You were, it seems, a more peripheral member of the criminal enterprise than the others, and you had a relatively passive role in the offending as it took place.

[31]     I accept that community based sentences are available at the lower end of the culpability range.[8]   I also take into account the provisions of s 16 of the Sentencing Act which requires that I impose the least restrictive sentence upon you consistent with the principles and purposes of sentencing.[9]    In this regard, I note your relative

youth and at 23 I should say you really are at the outside range of those who are

entitled to any consideration of youth in assessing personal culpability.  I also note your previously unblemished record.  Mr Chen stand please.

[8] R v Thomas CA138/05, 6 July 2005; R v Currie HC Auckland CRI-2008-004-21895, 16

September 2010; R v Henderson HC Rotorua CRI-2006-070-7741, 20 September 2007; R v Jefferys

HC Rotorua CRI-2009-070-5635, 4 June 2010.

[9] Sentencing Act 2002, s 8(g).

[32]     I therefore sentence you to 200 community work, and six months supervision on standard conditions, with the added condition that you are not to associate with any of the co-offenders.  I order that you pay reparation of $700.

Winkelmann J