Wu v The the King
[2022] NZCA 604
•5 December 2022 at 9.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA324/2022 [2022] NZCA 604 |
| BETWEEN | DONGLAN WU |
| AND | THE KING |
| Hearing: | 25 October 2022 |
Court: | Cooper P, Venning and Palmer JJ |
Counsel: | A Wei and C S Fredric for Appellant |
Judgment: | 5 December 2022 at 9.30 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Venning J)
Ms Donglan Wu pleaded guilty to a charge of wounding with intent to cause grievous bodily harm.[1] On 7 June 2022, Downs J sentenced Ms Wu to five years, three months’ imprisonment.[2] Ms Wu appeals against that sentence.
Background
[1]Crimes Act 1961, s 188(1).
[2]R v Wu [2022] NZHC 1320.
We take the background from the Judge’s sentencing notes:[3]
[2] You and your former husband separated December 2020. You left the family home March 2021. Shortly thereafter, the victim, Ms C, moved into the home as Mr Wu’s new partner.
[3] At some unspecified time, you threatened Mr Wu, saying you would make him suffer and he would regret it. You had, in or about February 2020, threatened to kill your son and commit suicide. You said you wanted to make headlines.
[4] In the early hours of 17 March 2021, you went to the home. You arrived at 3.10 am. Unsurprisingly, everyone was asleep. You moved two gas bottles from outside, entered the home, and placed them by Ms C’s bed. You opened the nozzle on each bottle, then left the room.
[5] Ms C got up to use the bathroom. You attacked her with a knife. Its blade was approximately 12 centimetres long. You cut her left forearm causing a five-centimetre injury. You cut her head—the laceration went to the bone. At some point, you plunged the knife into Ms C’s neck. This caused a severe, gaping wound of approximately eight centimetres.
[6] Others came to Ms C’s aid. Police were swiftly called immediately. You declined to comment. You were charged the same day.
[7] Ms C lost a lot of blood. Her injuries required surgery. She has permanent scars on her arm and neck. She could not work for a month and has undergone extensive rehabilitation. Ms C remains traumatised by what you did. Unsurprisingly, she lives in fear and anxiety.
The High Court sentence
[3]Footnote omitted.
The Judge took a starting point of 10 years’ imprisonment.[4] He then allowed a 20 per cent deduction for the guilty plea, 15 per cent for the fact Ms Wu was a first‑time offender and had prospects of rehabilitation, five per cent for her personal circumstances and five per cent for remorse.[5] In addition, although counsel had not sought it, the Judge reduced the resultant adjusted sentence by a further three months to take account of Ms Wu’s difficulties with English and the cultural impediments that might arise while she was in prison.[6] That led to the end sentence of five years, three months’ imprisonment.[7]
The appeal
[4]R v Wu, above n 2, at [13].
[5]At [15]–[19] and [22].
[6]At [24].
[7]At [27].
Mr Wei confirmed that Ms Wu’s appeal against sentence is focused solely on the reduction allowed for her guilty plea. Mr Wei said that, consistent with both the Crown and defence submissions at the time of sentencing, Ms Wu was entitled to a reduction of 25 per cent for her guilty plea. If the appeal were to succeed on that basis, it would result in an end sentence of four years, nine months’ imprisonment.
A reduction to four years, nine months would be extremely significant for Ms Wu as it would mean that she would no longer be liable for deportation pursuant to s 161(1)(c) of the Immigration Act 2009. While Mr Wei accepted that the Court should not artificially structure a sentence to achieve a particular outcome, he submitted a sentence of five years or more would be disproportionately severe in Ms Wu’s particular circumstances.[8]
[8]Referring to Sentencing Act 2002, s 8(h).
In fixing the discount for the guilty plea at 20 per cent, the Judge noted:
[15] You were charged with this offence 17 March 2021. The Crown later added an attempted murder charge. On 23 March this year, you pleaded guilty to the original offence. The Crown withdrew the attempted murder charge. Everyone says I should deduct 25 percent for this feature. This overlooks the rules articulated by our highest court, the Supreme Court, in this area:
(a)Your offending is a hair’s breadth from attempted murder. You gained a benefit by the plea arrangement.[9]
(b)Aside from the understandable concern about your mental health, there could be no defence to this charge.
(c)It took a year for you to plead guilty to the original offence.
[16] I deduct 20 percent.[10] This recognises that you encountered difficulties with legal representation and that your mental health needed to be explored. Still, this is generous given what I have explained.
[9]Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [62].
[10]At [60]–[65].
Mr Wei submitted that the Judge erred by taking into account the fact it took Ms Wu a year to plead guilty. The delay was caused by the need to obtain the necessary medical reports. Mr Wei noted that, although Ms Wu was only pronounced fit to stand trial on 16 February 2022, she had made an offer of resolution on 9 February 2022.[11] Once the offer was accepted by the Crown, Ms Wu promptly entered a guilty plea at her next court appearance on 23 March 2022.
[11]Mr Wei supported this submission by referring to Tuau v R [2012] NZCA 146; and Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298 at [34].
Next, Mr Wei argued that while the additional lead charge of attempted murder had been withdrawn, that did not justify a reduction in the guilty plea discount.[12] In Rowles v R, the defendant only pleaded guilty after an attempted murder charge was withdrawn but still received the full 25 per cent discount as he had communicated his willingness to plead to a lesser charge at an earlier stage.[13]
[12]The charge of attempted murder was added in the Crown Charge Notice of 15 June 2021. As a result, the charge of wounding with intent became an alternative charge.
[13]Rowles v R [2016] NZCA 208.
Finally, while Mr Wei accepted that the evidence in relation to the wounding charge was overwhelming, in light of the comments of this Court in Ormsby v R, Rowles and Millar v R, he submitted that should not detract from Ms Wu’s entitlement to the full 25 per cent discount.[14]
The Crown’s response
[14]Ormsby v R [2014] NZCA 73; Rowles v R, above n 13; and Millar v R [2019] NZCA 570.
The Crown accepted that the Judge erred in one respect, namely by apparently considering Ms Wu’s guilty plea was not entered at the earliest opportunity. However, Mr McCoubrey submitted that the Supreme Court’s decision in Hessell v R explicitly allowed for the Judge’s first two propositions so that it was open to the Judge to conclude 20 per cent was the appropriate discount for the guilty plea.[15] Further, Mr McCoubrey noted that, in any event, the focus should be on the end sentence, and it could not be said the end sentence of five years, three months was manifestly excessive.
[15]Hessell v R, above n 9.
Finally, Mr McCoubrey submitted it is well settled that the Courts should not usurp the function of immigration authorities in determining whether a person should be deported or not, and it would be inappropriate for the Court to artificially tailor a sentence to avoid a statutory immigration consequence.[16]
Principles to apply to an appeal against sentence
[16]Relying on Ji v R [2015] NZCA 308 at [49].
To allow a sentence appeal, the Court must identify an error in the sentence and must also be satisfied that a different sentence should be imposed.[17]
[17]Criminal Procedure Act 2011, s 250.
In Tutakangahau v R, this Court set out the principles to apply to an appeal against sentence.[18] Importantly, for present purposes, this Court confirmed that the concepts of manifestly excessive or manifestly inadequate sentences were longstanding and should continue to be used when considering whether, if there is an error in the sentence, a different sentence should be imposed.[19] Further, the focus remains on whether the sentence was within range rather than the process by which it was reached.[20]
Analysis
[18]Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[39].
[19]At [32]–[35].
[20]At [36].
The Judge had referred to three factors from Hessell to support his conclusion that the appropriate reduction for the guilty plea was 20 per cent.[21]
[21]R v Wu, above n 2, at [15]. We quoted the three factors at [6] above.
In terms of the third factor, the Crown has effectively conceded that once the fitness inquiry was triggered, it was appropriate or necessary to conclude that inquiry before Ms Wu could be expected to plead guilty. So in this case Ms Wu could be said to have pleaded guilty at the earliest opportunity.
We accept that the delays in the provision of the medical reports were not of Ms Wu’s making. From an early stage, Ms Wu’s mental health was identified as an issue. The Judge’s notes from her first appearance on 17 March 2021 record “suicide risk — keep under observation”. It took some time for formal reports as to her fitness to plea to be provided. The first psychiatric report of Dr Pillai was dated 29 October 2021. He concluded Ms Wu did not have a mental impairment and the Court would likely find her fit to stand trial. On 15 November 2021, Dr Pillai issued a further report in which he confirmed he was of the opinion that a defence of insanity would not be available. Dr Goodwin confirmed those were his opinions as well in a report dated 27 January 2022.
Returning to the first factor referred to by the Judge, we consider there was some advantage to Ms Wu in the withdrawal of the attempted murder charge (which the Crown had subsequently laid as the lead charge). While both charges provide for a maximum of 14 years’ imprisonment, the intention required to prove attempted murder, if established, could have supported a higher starting point. Unlike Rowles, which involved the Crown substituting the lesser offence as a result of discussions, in this case Ms Wu faced the charge of wounding with intent from the outset.
Further, we agree with the Crown submission that the Judge was entitled to take into account as relevant in fixing the guilty plea discount that, absent mental health issues, Ms Wu had no defence to the charge.
In Hessell, the Supreme Court preferred a more discretionary approach to guilty pleas than that taken by this Court, which had focused on the timing of the plea.[22] The Supreme Court confirmed that all the circumstances in which the plea was entered must be considered, not merely the timing.[23] In doing so the Supreme Court rejected the approach of this Court in treating the strength or weakness of the prosecution case as irrelevant for the purposes of the guilty plea discount. The Supreme Court said:[24]
[59] These factors [(the certainty provided by focusing on the time the plea was entered)] also persuaded the Court of Appeal that the strength or weakness of the prosecution case should be treated as irrelevant when calculating the appropriate discount on the sliding scale. Requiring judges to consider that circumstance was said to be unnecessarily demanding on judicial resources.
[60] This approach would mean that where a plea is entered promptly, even in the face of a very strong prosecution case, the maximum discount must be given. But that treats as irrelevant an important factor in evaluating the extent to which a plea involves acceptance of responsibility. The approach is likely to lead to the criticism that unjustified windfall benefits are provided by the system to those who have little choice but to plead guilty. Importantly also, it would put pressure on an accused to plead guilty for reasons that are unprincipled. In some cases pressure of this kind could lead to a guilty plea being entered in haste, by someone who may not be guilty of the offence charged and pleaded to.
…
[62] Guilty pleas are often the result of understandings reached by accused and prosecutors on the charges faced and facts admitted. To give the same percentage credit invariably for an early guilty plea in sentencing without regard to the circumstances can amount to giving a double benefit. For example, if the Crown agrees to accept a plea to manslaughter and drops a charge of murder in relation to offending, the acceptance of the plea can be a concession in itself. If the full credit for an early plea is then also given, the sentence may not properly reflect the offending. The only way in which the many variable circumstances of individual cases which are relevant to a guilty plea can properly be identified is by requiring their evaluation by the sentencing judge, and allowing that judge scope in light of the conclusion he or she reaches to give the most appropriate recognition of the guilty plea in fixing the sentence.
[22]See Hessell v R, above n 9, at [1].
[23]At [51].
[24]Footnotes omitted.
Mr Wei referred to the commentary of Adams on Criminal Law and the cases cited there of Ormsby, Rowles and Millar to support his submission that the credit for a guilty plea was not simply a function of the strength of the prosecution case.[25] In particular, in Millar, the Court opined that it would be wrong to treat the comments of the Supreme Court in Hessell as standing for the proposition that the stronger the prosecution case, the lower the guilty plea discount should be.[26]
[25]Simon France (ed) Adams on Criminal Law — Sentencing (online ed, Thomson Reuters) at [SA9.18(7)], citing Ormsby v R, above n 14; Rowles v R, above n 13; and Millar v R, above n 14.
[26]Millar v R, above n 14, at [36].
We agree that it is too stark a proposition to say that, in fixing the guilty plea discount, the stronger the prosecution case, the lower the guilty plea discount should be. However, in fixing the appropriate discount, the Court is required to take into account all the circumstances in which the guilty plea was entered.[27] One of those circumstances will be the strength (or weakness) of the prosecution case. As the Supreme Court observed, to ignore the strength or weakness of the prosecution case would be to “[treat] as irrelevant an important factor in evaluating the extent to which a plea involves acceptance of responsibility”.[28] There may be cases such as Millar where, even in the face of a strong prosecution case, a reduction of 25 per cent might, in the particular circumstances, still be appropriate, but there is no “entitlement” to a 25 per cent discount as Mr Wei argued for, solely based on an early plea and without taking account of all other relevant circumstances.
[27]Hessell v R, above n 9, at [51], [62] and [65].
[28]At [60].
In a number of other decisions, this Court has accepted that the strength of the prosecution case is an important and relevant consideration in approving a discount of less than 25 per cent for a guilty plea entered at an early stage.[29]
[29]See for example Jefferies-Smith v R [2020] NZCA 315 at [45]–[46]; and Pokai v R [2014] NZCA 356 at [70]–[72]. See also Mehrok v R [2021] NZCA 370 at [37]; Tuli v R [2013] NZCA 624 at [17]; Hopkins v R [2012] NZCA 422 at [16]; Cai v R [2012] NZCA 293 at [19]; and Z (CA586/2012) v R [2012] NZCA 607 at [25].
Ultimately, the effect of the strength of the prosecution case on the appropriate reduction for a guilty plea will be a matter of assessment in all the circumstances of the particular case. Here, it was open to the Judge to take the acknowledged overwhelming prosecution case against Ms Wu into account together with other relevant circumstances in fixing the reduction for the guilty plea at 20 per cent. Those circumstances included the fact Ms Wu had benefited from the withdrawal of the lead charge of attempted murder, which would ordinarily have attracted a higher starting point than the charge to which she pleaded guilty.
Mr Wei also suggested that s 8(h) of the Sentencing Act 2002 could apply in that, if Ms Wu was deported, she would be separated from her son and prohibited from re‑entering New Zealand. He argued that would lead to a “disproportionately severe” sentence. However, it is the consequences of any deportation on Ms Wu that would be severe, rather than the sentence itself. The consequences Mr Wei identified would flow from Ms Wu’s deportation, which may or may not follow the imposition of the sentence. This Court has made it clear that it will not engage in speculation about the consequences if an offender were deported, such as the impact of a foreign jail.[30]
[30]Machado-Pereira v R [2015] NZCA 423 at [13].
Further, this Court in Zhang v R noted:[31]
[168] Potential deportation of an offender is not a consideration in sentence‑setting. It is the function of the courts to impose sentences appropriate to the particular offending. In performing that task, the distinct administrative processes for removal under the Immigration Act 2009, which may or may not apply to one offender or another, have no bearing.[32] Likewise, this Court has also held that the prospect of deportation is not a proper ground for refusing to impose a minimum period of imprisonment which would otherwise have been justified.[33]
[31]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
[32]R v Zhang CA56/05, 24 May 2005 at [11]–[16]; R v Sabuncuoglu [2008] NZCA 448 at [34]; R v Ondra [2009] NZCA 489 at [7]–[12]; and Xie v R [2019] NZCA 218 at [25].
[33]Bi v R [2014] NZCA 10 at [6]; and Olua v R [2014] NZCA 105 at [67].
Finally, while Ms Wu’s sentence may render her liable for deportation, there remain avenues available to her. She could invite the Minister of Immigration to cancel or suspend her liability for deportation and/or she could apply to the Immigration and Protection Tribunal on humanitarian grounds.[34]
Summary
[34]Immigration Act 2009, ss 172 and 206(1)(c).
This Court must allow the appeal if it is satisfied that there is an error in the sentence imposed and a different sentence should be imposed.[35] The Crown has conceded an error in this case. The real issue is whether a different sentence should be imposed.
[35]Criminal Procedure Act, s 250.
In determining whether a different sentence should be imposed, the ultimate issue is whether the end sentence is within range or whether it can be said to be manifestly excessive.[36] Given the circumstances of the offending, a starting point of 11 years would have been available to the Judge. The overall discounts for the guilty plea and personal factors of 47.5 per cent (including the additional three months for factors not sought by Ms Wu) cannot be criticised. The end sentence of five years, three months for the serious offending in this case, having regard to the circumstances of Ms Wu, was well within range and cannot be described as manifestly excessive.
Result
[36] Tutakangahau v R, above n 19, at [26].
The appeal is dismissed.
Solicitors:
McVeagh Fleming, Auckland for Appellant
Crown Solicitor, Auckland for Respondent
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