The Queen v Wei Hua Liu
[2002] NZCA 289
•18 November 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA196/02 CA198/02 |
THE QUEEN
V
WEI HUA LIU
AND
XIANG JUN WEI
| Hearing: | 21 October 2002 |
| Coram: | Tipping J Williams J Baragwanath J |
| Appearances: | D G Young for Appellant Liu J L Cagney for Appellant Wei K L Raftery for Crown |
| Judgment: | 18 November 2002 |
| JUDGMENT OF THE COURT DELIVERED BY WILLIAMS J |
Issues
In the factual circumstances later recounted the two appellants were jointly charged with burgling a dwellinghouse on 5 April 2002; with aggravated burglary of the same house on 8 April, and with kidnapping a six year old boy who was in the house on the latter date. Prior to depositions, they each pleaded guilty to all counts pursuant to the Summary Proceedings Act 1957 s153A. The District Court declined jurisdiction and remanded them to the High Court for sentence. After hearing evidence as to the facts Morris J on 4 June 2002 imposed the following sentences :
(a) Kidnapping: Mr Wei 12 years
Mr Liu 10 years
(b) Aggravated burglary: Both appellants 3 years
(cumulative on the sentence on the kidnapping charge)
(c) Burglary: Both appellants 1 year
(cumulative on all the other sentences)
Thus Mr Wei was sentenced to a total of 16 years imprisonment and Mr Liu to 14 years.
Both appellants appeal to this Court on the ground that each of the sentences was manifestly excessive particularly having regard to the fact that they were all cumulative.
Facts
According to the police summary of facts, as a result of doing contract work about their home the two appellants, both recent Chinese immigrants, discovered the complainant Chinese family were wealthy.
Late in the evening on 5 April 2002 they went to the complainants’ property where the parents, their six year old son and five year old daughter were sleeping, opened an unlocked door and spent up to 20 minutes inside searching for money. They were unsuccessful and left after stealing two cartons of cigarettes.
On the following Monday, 8 April, they returned to the property at about 3:00a.m. They were unable to enter through a window which they had left unlocked on their previous visit but found another unlocked window and entered the house armed with knives and disguised with balaclavas and gloves. Their being armed with knives was the aggravating feature of the burglary. Having gained entry, they decided to kidnap the son and left the house to obtain rope and tape, usually kept in their vehicle.
After re-entering the property, Mr Liu sat on the mother’s torso and tied her hands. He had a knife in his teeth at the time. Mr Wei held his knife against her throat while he questioned her about the family phone number. She suffered lacerations to the throat as a result. Both punched her. They went to the son’s bedroom where they bound him with cord and stuck adhesive tape across his mouth. They then demanded the family pay them a large sum of money, in default of which they threatened to kill the son. They then left, carrying the son wrapped in a blanket, placed him in the rear of their car and drove to an abandoned house some distance away where he was held in a basement area until later that morning.
During the following day, while they drove about Auckland with the son in the boot, Mr Wei telephoned the parents on four occasions demanding the ransom. Later that day they took the son to their home in West Auckland and kept him in a bedroom until the next day when Mr Wei again telephoned the parents on a number of occasions demanding payment for the boy’s safe return.
A figure having been agreed, the parents left that sum in cash at the nominated address. It was uplifted by the appellants. They then left the son in a vacant industrial building some distance away and directed his parents by cellphone to his whereabouts.
However, against the appellants’ expectations, the parents had contacted the police at the outset. They conducted surveillance of the telephone calls and the uplifting of the ransom payment. When a search warrant was executed at the appellants’ home shortly afterwards, the bulk of the ransom was recovered, the balance having been spent by the appellants. Both made full confessions on apprehension.
Certain aspects of their accounts – particularly as to who was the instigator and the part each played – were challenged at sentencing and as a result Morris J heard evidence on the topic.
Mr Wei said that it was he who decided on the first burglary. The pair were unarmed. They went seeking cash but having found none left the window unlocked in the hope they would be more successful on their planned return three days later.
On the second occasion he acknowledged both were armed with knives and that he took the lead but claimed kidnapping the son was not discussed before they left the house after gaining entry and discussed the matter next door. He acknowledged tying up the mother, assaulting her two or three times and stabbing her, he said accidentally. He said both undertook those actions.
Acknowledging the police version of the couple’s movements with the son, he claimed that it was after the kidnapping that they bought a card for his girlfriend’s cellphone in order to be able to communicate with the parents.
Mr Liu said that Mr Wei suggested the first burglary and he acquiesced because of debt. He, too, claimed that after entering the house on the second occasion they departed and agreed in the neighbouring property to kidnap the boy. That, he said, was “Mr Wei’s idea. I agreed”.
On re-entering, he said he was he who sat on the mother with a knife in his mouth. He denied it was he who inflicted the injuries on her.
He claimed it was Mr Wei who selected the abandoned house and dictated their movements after the kidnapping, his role being confined to caring for the child.
A detective senior sergeant gave evidence as to the level of the appellants’ pre-planning and sophistication of the offending as shown by the date of their purchase of the cellphone card – though a suggestion it had been purchased some six months before the offending may have been explained by an error in the telephone company’s records – the use of binoculars to keep watch, the rope and tape being in their vehicle, leaving the window open, the time of entry, the targeting of the mother and child, the use of the knives, the deliberate selection of places for the boy’s detention which were difficult for the police to observe without detection, and their destruction and concealment of the ransom packaging.
Remarks on sentencing
The Judge commenced his remarks on sentencing by noting the increase in the maximum sentences for the kidnapping and aggravated burglary to 19 and 10 years respectively occasioned by their involving home invasion. He took the view that the appellants had been untruthful in their evidence, noted aggravating features including the presence of the knives, disguises, the binding assaults and injuries to the mother with a knife to her throat, the binding taping and assaults on the son and his detention for about two days, the threats and the amount of the ransom before concluding the “kidnapping was a joint and united enterprise in which you both played full parts”. He then noted the severe psychological effect on the mother and son as disclosed in the victim impact and other reports. He acknowledged the appellants’ guilty pleas but said that they had “very little option” and their actions suggested a “degree of professionalism”. He discounted the submission of mitigating factors in sentencing by reason of the fact that no firearms were used, the boy had been treated with a certain amount of compassion and the appellants’ previous good records. The Judge concluded that it was a planned affair involving a degree of sophistication.
After noting the lack of any sentencing tariff for kidnapping because of the wide differences in circumstances, the Judge then concluded that this “kidnapping is in the upper levels of the most serious category of its kind” and fixed the starting-point at 16 years imprisonment for Mr Wei and 14 years for Mr Liu, discounting each of those by four years for the pleas of guilty. On the aggravated burglary counts, he fixed a starting point of 5 years imprisonment for both but reduced that by two years in each case for the pleas. Similarly, on the burglary count, the Judge took the view that the circumstances justified a sentence of 1-2 years imprisonment and imposed one year’s imprisonment on each.
In considering whether the sentencing should be cumulative or concurrent, the Judge correctly directed his attention to whether all the offences were so connected in time and subject as effectively to constitute a single event, initially took the view that such was open to him, but then went on to record what he viewed as a submission from appellants’ counsel for him to deal with the three charges separately. It must at once be noted that at the hearing before us counsel - who had appeared before the sentencing Judge - whilst acknowledging they had made separate submissions concerning each of the offences, disavowed any suggestion they invited the sentencing Judge to deal with the offences cumulatively.
On this topic, we note the Judge held that a number of the aggravating features were common to the two principal offences and that it was important to avoid double-counting.
Beyond those comments, however, the remarks on sentencing contain no extensive reasons for the Judge’s decision to make all the sentences cumulative.
Submissions and authorities
The Judge was right to note that circumstances of kidnapping charges vary so markedly that no clear sentencing tariff is discernible. However, he and we have been assisted by counsel’s references to a number of authorities which have a certain comparability with the present case.
In R v McFelin [1985] 2 NZLR 750 a brother and sister in their twenties and thirties, from a good background and with an association with the victim’s family, burgled a house armed and camouflaged, tied up the parents and kidnapped a 14‑year-old girl. A ransom was demanded. The girl escaped. Following trial, sentences of 12 and 7½ years imprisonment were imposed. Appeals against those sentences were dismissed, this Court making the observation that the shorter sentence on the sister may have been too low.
In R v Orrell and Cree (CA 58 and 80/87, 9 July 1987) two armed offenders abducted a woman from her home after threatening her and detained her in a tent in the bush for more than two days whilst blindfolded. A ransom of $1 million was demanded. After guilty pleas, sentences of 9 years imprisonment were said by this Court not to be out of line with McFelin though this Court observed that (p 3) “our only doubt is whether 9 years here was enough” and that the 12 years upheld in McFelin (ibid) “does not necessarily mark the upper limit of what would be appropriate in practice for this kind of crime.”
Then, in R v Neilson and Rolander (1993) 10 CRNZ 161 three masked men broke into a home, attacked the occupants, bound them, put one in the boot of a car and took money from the house. In this Court on a Solicitor-General’s appeal sentences of 7½ and 6½ years on both kidnapping and aggravated robbery were increased to 9½ and 8½ years with the Court observing that (at 164) the minimum starting point should have been at least 10 years and might have been higher.
The earlier of the two cases on which counsel for the appellants in their helpful submissions principally relied was Han-Yang Lin v Police (A.112/01 31 August 2001, Morris J) where, on appeal, a sentence of 3 years 9 months on a charge of kidnapping was reduced to 3 years because, unknown to the District Court Judge who had initially sentenced the appellant, he had been assisting the authorities. The offence involved a heavy gambler who kidnapped a young woman flatmate to try to obtain a large ransom. She was released. He pleaded guilty at an early stage.
While appellants’ counsel relied strongly on the decision in Han-Yang Lin, it must be borne in mind that it was not a Crown appeal against an inadequate sentence and involved factors such as assistance to the authorities which are absent from this case. Further, the District Court’s sentence imposed an upper limit on the High Court’s assessment of the appropriate sentence.
The final sentencing decision on which counsel relied was R v Traynor (CRN 2032009078-81/3587 DC Wellington, 24 May 2002, Thompson DCJ). In that case Mr Traynor had formulated a plan to kidnap a high profile person some years before. He bought and modified a dwelling to house the victim. He conducted surveillance on the mother, daughter and other members of the family. He bought a car, fitted stolen registration plates to it and hired storage near the proposed kidnap site. He kidnapped the original target’s baby daughter, when disguised and armed with a loaded cut-down rifle. Three days later he demanded $3m with a threat to the child’s life. Eight days after the kidnapping he was apprehended in the modified home. The child was safe and well.
The sentencing Judge regarded the defencelessness of the child, use of a loaded firearm and the lengthy and meticulous planning as aggravating features. The only mitigating factors were Mr Traynor’s caring for the child and his frankness with the police, though the Judge noted the inevitability of conviction.
After starting at 14 years imprisonment, the maximum for the kidnapping, the Judge imposed a sentence of 11 years imprisonment on that charge having regard to the mitigating factors, with concurrent sentences of 8 years on using a firearm for committing a crime and 5½ years on each of threatening to kill and rendering incapable of resistance. No appeal has been brought either by the Police or Mr Traynor against that sentence.
In light of those authorities - particularly the two last – and the circumstances of this matter, Mr Cagney, counsel for Mr Wei, submitted the appropriate sentence for his client was 10-12 years and Mr Young, for Mr Liu, submitted his client should have received 7-9 years. Both submitted none of the sentences should have been cumulative.
For the Crown, Mr Raftery drew attention to the fact that the appellants’ case was one of the first of kidnapping to come before the Court following enactment of the home invasion legislation. This justified an increase in term by comparison with sentences imposed in earlier cases. He drew attention to the aggravating factors, the necessity for emphasis on deterrence in cases such as these and stressed the injuries to the mother as being distinct from the circumstances of the kidnapping. That last, Mr Raftery submitted, justified a separate and cumulative sentence on the aggravated burglary. Overall, Mr Raftery submitted the sentences were within range and although it may have been open to the Judge to order that all the sentences be served concurrently, cumulative sentences were justifiable in the circumstances.
Discussion
We must, at the outset, acknowledge some difficulty as to the double-counting which we see in the sentences imposed on the kidnapping and aggravated burglary charges as far as the Judge’s starting point is concerned.
Those difficulties arise from the fact that the Judge’s starting point of 16 years and 14 years for Messrs Wei and Liu respectively on the kidnapping charges, could only be justified, as he recognised, because both the kidnapping and aggravated burglaries involved home invasion. Accordingly the maximum sentences which might be imposed on each of those charges was increased from 14 years to 19 years imprisonment. But it must therefore follow that a home invasion component had already been factored into the starting-point for the sentence on the kidnapping. To impose a cumulative sentence on the aggravated burglary therefore incorporates in significant part the same factor which already had been utilised to set a starting point on the kidnapping higher than might otherwise have been justified
This is not to overlook Mr Raftery’s submission that the stabbing of the mother represents a serious aspect of the aggravated burglary independent and distinct from the attack on her which formed part of the kidnapping. But, while that, in our view, should be properly reflected both in the length of the sentence on the aggravated burglary and whether it should be cumulative, it does not wholly overcome the concern just expressed: if the home invasion factor supports a higher than usual starting point for the kidnapping, to avoid double-counting it is essential that any cumulative sentence on the aggravated burglary is uninfluenced by the home invasion factor in the kidnapping sentence.
Seen in that light, in our view the imposing of three years imprisonment on the aggravated burglary and making that cumulative on the sentence imposed on the kidnapping to the extent both sentences arise out of the facts relating to the kidnapping alone, involves a significant element of double-counting the home invasion factor.
As to the starting point, despite counsel’s submissions we are not persuaded that the Judge erred in the starting point for the kidnapping counts which he selected. Whilst they may have been somewhat in excess of the starting point chosen in the various authorities to which we have referred, sentences for kidnapping offences have tended to firm over recent years as such offences have become somewhat more prevalent. Invasion of homes always was (and still remains: Sentencing Act 2002 s9(1)(b)) a significant aggravating feature in sentencing, even though it was only during the currency of the home invasion legislation that that factor was coupled with increased maximum terms against which sentencing decisions were required to be made. None of the decisions of this Court earlier discussed involved “home invasion” as that phrase was defined by the Crimes Act 1961 s17A(1) between 1999 and 2002. While the District Court decision in Han-Yang Lin might have involved “home invasion” within s17A(1) (3), it was not dealt with on that basis and Traynor did not involve home invasion. Seen in light of the authorities and the circumstances of the matter, the latter could perhaps be seen as towards the lower end of the scale of possible punishment.
Neither appellant disputed the allowance made by the Judge for the guilty pleas nor his assessment of such other mitigating factors as there were. We agree that the discount for those factors was appropriate.
Turning to whether the sentences should have been imposed cumulatively, our view, having reflected on counsel’s submissions, is that whilst it may have been open to the Judge to have regarded the circumstances as arising out of a single event, having heard evidence on the disputed facts, the decision to impose the sentences cumulatively was one open to him. It is accordingly one with which this Court is not disposed to interfere. Mr Raftery was correct to draw our attention to the fact that the attack on the mother and the knife wounds she suffered were additional factors which should properly be seen as separate from aspects of the attack as were bound up in the kidnapping, such as the demanding of the telephone number. Those separate factors themselves justified a cumulative sentence on the aggravated burglary charge.
We are not unmindful of the fact that had these appellants been sentenced about four weeks later, the codifying provisions of the Sentencing Act 2002 ss84 and 85 would have applied and would have required express consideration of whether the counts on which these appellants were being sentenced were different in kind, were a connected series of offences and whether the total period of imprisonment was out of proportion to the gravity of the offending. In the circumstances it is unnecessary for us to consider those questions in light of those sections but we observe that the view taken by the sentencing Judge was plainly that all three charges were of a similar kind and were connected. Accordingly the result might not have differed irrespective of the sentencing date.
In the result, our view is that the only adjustment required to the sentences imposed on these appellants it is to amend the sentence imposed on the aggravated burglary to remove the element of double-counting.
In all the circumstances, we think it right to reduce the sentence on the aggravated burglary count against each appellant from 3 years to 1 year but to leave the other sentences undisturbed.
Result
The appeals of both appellants are allowed by substituting a sentence of one year’s imprisonment on the aggravated burglary count against each appellant. The appeals are otherwise dismissed.
The sentences imposed on Messrs Wei and Liu will therefore be 12 years and 10 years imprisonment on the kidnapping charges and one year’s imprisonment imposed cumulatively on each of the aggravated burglary and burglary charges, thus sentencing them to a total of 14 and 12 years imprisonment respectively.
Solicitors:
Meredith Connell, Auckland.
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