Tang v Police HC Auckland CRI-2011-404-142
[2011] NZHC 768
•7 July 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2011-404-142
BETWEEN CHI KEUNG TANG Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 4 July 2011
Counsel: M Kan for Appellant
W Fotherby for Respondent
Judgment: 7 July 2011 at 2:00 PM
JUDGMENT OF POTTER J
In accordance with r 11.5 High Court Rules
I direct the Registrar to endorse this judgment with a delivery time of 2 p.m. on 7 July 2011.
Solicitors: M Kan - [email protected]
Crown Solicitor – [email protected]
TANG V NEW ZEALAND POLICE HC AK CRI-2011-404-142 7 July 2011
Introduction
[1] Chi Keung Tang appeals against a sentence of twelve months supervision with special conditions, imposed on him following a defended hearing in the District Court at Manukau on 11 April 2011. Following the hearing Judge Inglis found proved beyond reasonable doubt the charge under s 21(1)(a) of the Summary Offences Act 1981 that Mr Tang threatened to injure his twelve year old daughter knowing that his conduct was likely reasonably to frighten her. The maximum penalty for this offence is three months imprisonment or a fine of $2,000.
Sentencing decision
[2] Judge Inglis sentenced the appellant immediately following the defended hearing and her finding that the charge was proven beyond reasonable doubt.1
[3] In sentencing the appellant the Judge said:2
Everyone is entitled to feel safe in their own home, and particularly safe from their parents. The offending in this case involved a breach of trust and authority.
[4] She noted that the appellant had one previous conviction which was not directly relevant to the matters at issue (a drink driving offence in 2007). She said that based on the evidence she heard, counselling would be beneficial to address the issues underlying the offending, to ensure that the risk of further offending of this
sort is minimised and also to address the interests of the victim.3
[5] The Judge imposed the sentence of twelve months supervision with special conditions that the appellant was to undertake such counselling as directed by the probation officer and to undertake such alcohol addiction assessment, counselling,
and treatment as the probation officer directed.
1 New Zealand Police v Tang CRI-2010-092-011552, 11 April 2011.
2 At [3].
[6] The judgment following the defended hearing records that the incident giving rise to the charge occurred on 27 July 2010.4 The complainant’s evidence was that she went upstairs to the computer room in their home after telling her mother that the appellant had left the back door open. She subsequently heard him “stomping up the stairs”. He started swearing at her and cursing her. She said he threatened to “smash” or hit her and that when he said this he was holding her shoulder in a firm,
quite hard, grip and was waving his arm in the air. He gestured a hitting motion towards her. She said she was very scared by this. She went into the master bedroom and subsequently called the Police. In the intervening period she heard banging and loud noises downstairs.
[7] The complainant’s mother also gave evidence. She firmly denied that she had cut up some items of her daughter’s, invited a family friend around and then told the daughter to ring the Police because her relationship with the appellant was in difficulties.
[8] The Judge said:5
[6] The key evidence was the evidence of Wing Kei. I found her to be a very impressive witness. I had the advantage of seeing and hearing her give her evidence. She had a very good recall about the events in question. She did not prevaricate. She was direct, consistent, and clear in her evidence, and she as plainly upset recalling events on the night in question involving her father. She described her father’s mood swings and how she felt on 27 July. She was clear and cogent about the nature of the threats that were made to her, and she was clear and cogent about how she felt about them at the time.
[7] I am left with no doubt that the complainant was frightened by the defendant’s words and threats, and that these words and threats (to “smash” or hit her) were coupled with threatening gestures, and came after he had “stomped” up the stairs. I have no doubt that she took the words seriously, and I have no doubt based on the evidence before me that they were intended to frighten the complainant, and were intended to be taken seriously. They certainly had that effect. The complainant was scared and crying, and her mother’s evidence in that regard was corroborating.
4 New Zealand Police v Tang CRI-2010-092-011552, 11 April 2011.
[9] There is a general right of appeal against sentence to the High Court provided by s 115 of the Summary Proceedings Act 1957.
[10] Section 121(3) provides that the High Court may confirm the sentence or quash or vary the sentence or any part of it or any condition imposed in it if:
... the sentence ... is clearly excessive or inappropriate, or if the High Court is satisfied that substantial facts relating to the offence or to the offender’s character or personal history were not before the Court imposing sentence, or that those facts were not substantially as placed before or found by that Court.6
[11] In Yorston v Police7 Andrews J endorsed the approach enunciated by the
Court of Appeal in R v Shipton:8
(a There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle”.
(b) To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.
(c) It is only if an error of that character is involved that the appeal
Court should re-exercise the sentencing discretion.
Appellant’s submissions
[12] Mr Kan for the appellant raised some preliminary matters arising out of the Crown’s written submissions. First, that the caption summary annexed to the Crown’s submissions did not accurately reflect the evidence at the District Court hearing in that it states that the defendant had been drinking alcohol throughout the evening and was intoxicated. Mr Fotherby for the Crown accepted that no evidence to this effect appears to have been given in the District Court hearing.
[13] Secondly, Mr Kan was concerned about a reference in the Crown’s submissions to the Family Court having “independently concluded that the appellant
6 Section 121(3)(b).
7 Yorston v Police HC Auckland CRI-2010-404-164, 14 September 2010 at [13]-[15].
8 R v Shipton [2000] 2 NZLR 218 at [138].
is in need of professional assistance to address issues with violence”. Mr Kan noted that the appellant’s wife obtained a protection order against him on a without notice basis after the events on 27 July 2010 relating to the daughter, and that a charge of breach of the protection order relating to an incident in November 2010 is to be defended, with a hearing date in November 2011. Mr Kan advised that the appellant is attending a Stopping Violence programme with Patrick Au, an approved programme provider, which is a requirement arising from the protection order as well as a condition of the sentence of supervision. Accordingly there has been no “independent conclusion” by the Family Court. Mr Fotherby accepted that it was speculative whether this information, had it been available to the sentencing Judge, would have impacted on her reasoning.
[14] Thirdly, Mr Kan noted that there have been no allegations of misconduct of this kind against the appellant since November 2010 or since sentence was passed on
11 April 2011.
[15] Mr Kan submitted that to all intents and purposes the appellant was a first offender, this was a “one off” situation in a father/daughter relationship which did not involve a breach of trust or authority as held by the Judge, and because the appellant has no continuing contact with his daughter there is no risk of reoccurrence of this type of behaviour towards her. In the latter context Mr Kan explained that as a consequence of the protection order, the appellant does not have access to his daughter who is in the day to day care of her mother.
[16] Mr Kan advised that the appellant fully accepts the factual findings of the Judge, and although he defended the charge he now appreciates and acknowledges that his behaviour was inappropriate.
[17] Counsel submitted the sentence of twelve months supervision is manifestly excessive and that the appropriate outcome would be an order that the appellant come up for sentence if called upon within twelve months. He referred to Bicknell v New Zealand Police9 which concerned an appeal against conviction of a charge
under s 21(1)(a) of the Summary Offences Act 1981. Priestley J described an order
9 Bicknell v New Zealand Police HC Tauranga AP72/01, 11 March 2002.
that the appellant come up for sentence if called upon within twelve months as “... totally appropriate having regard to the factual background of the alleged offence”.10
He said the sentence “... recognises the fraught emotional background to the events of 16 July 2001”. The background referred to by Priestley J in Bicknell was the termination of a relationship by a woman with whom the appellant had previously been involved. The abusive words were spoken to a male third person by the appellant from outside the home of the woman while the complainant remained inside. The judgment records that at the relevant times the complainant was holding a thin metal pillar from a dismantled standard lamp.
Crown’s submissions
[18] In opposing the appeal, Mr Fotherby for the Crown emphasised that before the Court can interfere there must be an error of law or principle,11 which precludes “tinkering” with sentences that fall within an available range.
[19] Counsel emphasised that the trial Judge was better placed than this Court on appeal to assess all the circumstances relevant to the sentence and made clear findings of fact. He submitted that comparing like cases is of limited assistance because the type of offending is context specific. In relation to Bicknell he submitted that the circumstances of that offending were quite different from those in this case. He submitted that supervision is an appropriate sentence in terms of s 46 of the Sentencing Act which provides:
46 Guidance on use of sentence of supervision
A court may impose a sentence of supervision only if the court is satisfied that a sentence of supervision would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender.
[20] Counsel submitted that the protection order obtained by the wife does not sufficiently minimise the risk to the daughter which must be the main consideration.
10 At [5].
11 K v B [2010] NZSC 112 at [32].
[21] Mr Fotherby also submitted that s 54 of the Sentencing Act enables the respondent to apply to have the sentence of supervision varied or cancelled if it becomes inappropriate. However, he accepted that this provision relates to a situation where the sentence may become inappropriate in future, and does not impact on this appeal where the appellant maintains that the sentence imposed is manifestly excessive.
Evaluation
[22] No error in principle in the Judge’s approach to sentencing in this case has been identified. I do not accept the appellant’s submission that the Judge wrongly categorised the case as involving a breach of trust and authority rather than an issue of “parental discipline”, as the appellant chose to categorise it. The Judge’s statement that this case involved a breach of trust and authority must be read in the context of her immediately preceding statement “everyone is entitled to feel safe in
their own home, and particularly safe from their parents”.12
[23] The appellant urged that the Judge attributed greater gravity to this offending than was warranted. Mr Kan submitted that this was a one-off incident in a family context.
[24] I accept that this case concerned a single incident in a family context but I do not accept that the Judge attributed undue weight to the gravity of the offending. That violence or threatened violence occurs in a domestic or family situation does not in any way diminish the seriousness of the offending. The Judge was well placed, having heard evidence from the appellant’s daughter, her mother and the appellant, to assess the gravity of the offending. She reached clear findings that the daughter was frightened by the appellant’s words and threats, that his words (to “smash” or hit her) were coupled with threatening gestures and came after he “stomped” up the stairs. The Judge said she had no doubt that the daughter took the words seriously and the words were intended to frighten her and to be taken
seriously.
12 At [3].
[25] There is no basis upon which this Court should be persuaded to take a different view of the gravity of the offending from the Judge who heard all the evidence in the case.
[26] In relation to the submission that the personal circumstances of the offender were not sufficiently known to the District Court Judge, Mr Kan noted that sentence immediately followed the hearing and the Judge’s determination of guilt and that no stand-down report was before the Court. However, the relevant personal circumstances advanced by the appellant as not considered by the sentencing Judge are:
(a) The mother of the victim and the appellant have been separated since
28 July 2010
(b) The appellant does not have a prevailing alcohol problem;
(c) The appellant travels between Hong Kong and New Zealand regularly to visit the children of his first marriage.
[27] It was submitted that these personal circumstances, including particularly separation from the victim’s mother and the victim, make re-offending highly unlikely.
[28] Mr Kan accepted in the course of submissions that the fact the appellant travels regularly between Hong Kong and New Zealand is not a relevant circumstance for sentencing.
[29] As to the issue of an alcohol problem, there is no indication that the Judge placed any emphasis or took particularly into account, that the appellant had or might have an alcohol problem. The condition in relation to alcohol she imposed simply required him to undertake an assessment, counselling and treatment as the probation officer directs. If the assessment showed no need for counselling and treatment, then none would be required. It appears that the appellant is currently
undertaking only counselling for violence by attending the Stopping Violence
Programme for Asian Men.
[30] According to Mr Kan the fact of the appellant’s separation from the complainant’s mother from 28 July 2010, the subsequent protection order against him obtained by his wife in November 2010 and the alleged breach of that protection order were not matters placed before the Judge when she sentenced in April 2011, for which Mr Kan took responsibility. However, given that the Judge was concerned to address the issues underlying the offending and to ensure the risk of further offending of that sort was minimised, it is unlikely that measures relating to the mother’s protection from the appellant would have had a significant impact at sentencing.
[31] Section 46 of the Sentencing Act requires the Court before imposing a sentence of supervision to be satisfied that such a sentence “... would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender”. The purpose of a sentence of supervision is thus more broadly focused than protecting the immediate victim, although the effect of the offending on the victim and her protection are important factors for the Court.
[32] In all the circumstances of this case I reject the submission for the appellant that a sentence of supervision is inappropriate and that an order to come up for sentence if called upon would be more appropriate. The observation of Priestley J in Bicknell that this sentence was appropriate in the circumstances of that case does not assist the appellant. Bicknell concerned a situation involving three adults which the Judge described as “fraught” and emanated from the woman’s determination to end her previous relationship with the appellant. In that case the victim was an adult male third party. In this case the victim is the appellant’s child, aged only twelve years. She did not equip herself with a defensive item as did the third party in Bicknell. She was vulnerable to the threats and anger of the appellant.
[33] I consider the sentence of supervision to be entirely appropriate for the purposes identified by the sentencing Judge. The period of supervision, namely twelve months being the maximum that can be imposed under s 45 of the Sentencing
Act, could be viewed as lengthy, but the sentence is within the range available to the Judge given the purposes she identified. No error of principle arises. In those circumstances this Court will not intervene on appeal.
Result
[34] The appeal is dismissed.
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