The Queen v Da Wan

[2003] NZCA 200

IN THE COURT OF APPEAL OF NEW ZEALAND

CA206/03

THE QUEEN

v

DA WAN

Hearing:20 August 2003

Coram:Gault P
Rodney Hansen J
Salmon  J

Appearances:  P J Kaye and N R Webby for the Appellant

H D M Lawry for the Crown

Judgment:21 August 2003 

JUDGMENT OF THE COURT DELIVERED BY RODNEY HANSEN J

[1]       The appellant pleaded guilty in the District Court at Auckland to a charge of kidnapping for ransom.  He was sentenced to eight years imprisonment with a minimum non-parole period of four years.

Background facts

[2]       The victim was seized in an Auckland city street in the early hours of the morning in November 2002 as he left a bar to walk to his car.  He was accosted by three men and forced into his car.  The car was then driven to a prearranged meeting place in West Auckland where the three met with the appellant.  The appellant bound the victim’s hands and feet and blindfolded him.  He was then transferred into the boot of the appellant’s car.  The three co-offenders then left, having been paid for their services by an associate of the appellant.

[3]       The appellant drove the victim to his home and placed him in a spare bedroom, still bound and blindfolded.  He was guarded by the appellant who then telephoned the victim’s parents in China and demanded a ransom of $NZ1.25M.  While the victim was held in the bedroom, he felt the appellant hold a large bladed knife to his cheek in a threatening manner.  He was also punched by the appellant in the mouth.

[4]       In the morning, while the appellant was in the toilet, the victim managed to untie himself and escape through the bedroom window.  He ran to a nearby service station.  The appellant chased him in his car to the service station.  He was hit by the car and had to take evasive action in order to avoid injury. 

Sentence

[5]       The Judge noted that the appellant, like the victim, was from mainland China.  He is 25 years of age and had been in New Zealand since December 2001, studying English.  He had no previous convictions.

[6]       The Judge identified as aggravating factors the use of violence, including the threat with the knife while the victim was detained, and chasing and ramming him with the car after he had escaped.  She referred to threats made to the victim that he would be killed.  She identified the appellant as the principal offender and to the proliferation of this type of offending in the Chinese language student community.  She said a message of denunciation was important and reassurance given to victims that they need have no hesitation about coming forward and reporting offending.  In mitigation she identified the appellant’s early plea of guilty and some limited assistance he had been able to give the police.  She noted also that he was young and unlikely to reoffend.

[7]       The Judge referred to two recent decisions of this Court involving kidnapping for ransom.  In R v Song (CA218/02, 28 November 2002) a starting point of eight years was approved and a sentence of six years imprisonment upheld.  In R v Liu and Wei (CA 196/02, 198/02, 18 November 2002) where the offending was aggravated by home invasion and serious violence, starting points of fourteen and sixteen years were adopted and sentences of ten and twelve years imprisonment upheld.

[8]       Having regard to these decisions, the Judge determined a starting point of ten to twelve years as appropriate.  Allowing for the plea of guilty and the assistance the appellant had given to the police, she arrived at a sentence of eight years imprisonment.

[9]       The Judge decided that the pursuit of the victim after his escape and the attempt to run him down took the offence out of the ordinary range of offending of its type, such as to justify the imposition of a minimum non-parole period.  She determined four years as appropriate.

Grounds of appeal

[10]     In support of the appeal, Mr Webby submitted that the Judge’s starting point was too high, having regard in particular to the decision in Song.  He argued that insufficient weight was given to mitigating factors, especially the guilty plea which had spared the victim the trauma of reliving the experience. 

[11]     Mr Webby also complained of disparity between the sentence imposed on the appellant and those imposed on the accomplices who abducted the victim.  They received sentences of three years, two years and eighteen months which reflected their respective roles in the abduction.  They were described by the Judge as “dupes” who were roped into the offending by others and who played subsidiary roles in the abduction of the victim.  Mr Webby submitted, nevertheless, that the discrepancy of six years between their sentences and that imposed on the appellant was excessive, having regard to the principles laid down in R v Lawson [1982] 2 NZLR 219.

[12]     Finally, it was submitted that the circumstances of the offending were not of such seriousness as to take the offence out of the ordinary range of offending and did not warrant the imposition of a minimum non-parole period.

Decision

[13]     In our opinion, the term of imprisonment imposed was excessive.  We acknowledge the aggravating factors identified by the Judge, particularly the violence and threats of violence offered while the victim was held by the appellant and the appellant’s pursuit of him after he escaped.  These factors justify a higher starting point than was adopted in Song.  The Judge suggested a range of ten to twelve years.  In our view, the appropriate starting point could not be more than ten years which in itself reflects very serious offending.

[14]     We consider a discount of two years is insufficient recognition of the mitigating factors which exist in this case.  The plea of guilty was entered at an early stage.  The appellant showed genuine remorse.  He provided limited assistance to the police for the purpose of identifying the fifth person involved.  He is a young man of previous good character, judged unlikely to reoffend.  Having regard to these considerations, we consider that the sentence should not have exceeded seven years. 

[15]     Although the role of the appellant in the offending differed markedly from those of his co-offenders and no real issue of disparity arises, we consider the lesser sentence more fairly reflects the relative culpability of the appellant and his co-offenders. 

[16]     Before a minimum non-parole period can be imposed under s 86 Sentencing Act 2002, the Court must determine that the circumstances of the offence are sufficiently serious to justify a minimum period of imprisonment longer than one-third of the sentence imposed: see the discussion in R v Brown [2002] 3 NZLR 670, paras 28-36. In this case, the Judge considered that the appellant’s pursuit of and attempt to run down the victim met that criterion. We do not agree.

[17]     According to the summary of facts, the incident had its culmination at a nearby service station.  We infer that the appellant was endeavouring to corner his victim.  There is no suggestion that his vehicle was travelling fast and that serious injury was threatened.  The incident appears to have been a somewhat Chaplinesque end to a bungled operation and not one which, in our opinion, is sufficient to take the overall offending beyond the statutory threshold.

Result

[18]     The appeal is allowed.  The sentence of eight years imprisonment with a minimum non-parole period of four years is quashed.  In its place the appellant is sentenced to seven years imprisonment.

Solicitors:
Crown Solicitors, Auckland