THE QUEEN v WUN YIN CHOW [2002] NZCA 16 (14 February 2002)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 347/01

THE QUEEN

V

WUN YIN CHOW

Hearing:	14 February 2002
Coram:	Richardson P Gault J McGrath J
Appearances:	D J Boldt for Crown I M Antunovic for Respondent
Judgment:	14 February 2002

judgment of the court delivered by RICHARDSON P

[1] This is an application by the Solicitor-General for leave to appeal a sentence of 3½ years imprisonment imposed in the District Court on the respondent, Mr Wun Yin Chow, following his plea of guilty to a charge under s198(2) of the Crimes Act 1961.The charge was that with reckless disregard for the safety of others he put in place at restaurant premises in Allen Street, Wellington, an injurious substance, namely two buckets of petrol. He was also charged with burglary of the premises.

[2] Around 1 am on 4 December 2000 the respondent forced a window of a new restaurant.He placed two buckets, each containing 10 litres of petrol, inside the restaurant and removed the lids.He left the scene.

[3] The owner had just finished extensively restoring the building and fitting out the restaurant.He and his staff had worked up to midnight to be ready for the opening the next day.He went home.Two of the staff went across the road to a neighbouring bar.They noticed the respondent taking the buckets into the restaurant.After he left they removed the buckets and called the police.

[4] The respondent returned to the general vicinity, but not to the restaurant itself, and was apprehended by the police.He offered no explanation for his actions until he spoke to the probation officer shortly before sentencing on 2 October 2001.He explained that he had acted at the suggestion of a person he would not name, with whom he had had dinner and who had given him whisky and heroin in return.After putting the buckets in place he returned to that person's home, was told he had not completed what he should have done - presumably because he had not started a fire - and as already mentioned, he did return to the general vicinity and was apprehended there.The Police found matches in his vehicle.

[5] The offending seriously affected the restaurant owner and his business. The opening had to be delayed because of the strong smell of petrol that permeated the building.The restaurant struggled from the start, which the owner attributed to the incident.As well as losing momentum from the delay in opening, he said in his victim impact statement that he believed a number of people had been deterred by the incident from doing business with him.Staff had been laid off and the business had lost approximately $100,000.

[6] Clearly, the respondent's offending created a situation of immediate danger.As the District Court Judge said at sentencing:

It is fortunate for all that your activities were spotted so quickly.The evidence of Mr Nightingale, a Fire Safety Officer with considerable experience in investigating the causes of fire, is that if that hadn't happened, extensive property damage and personal injuries, even fatalities, were likely.This is because petrol has a very low flash point;it gives off vapour capable of being ignited at about minus 17 degrees.On ignition there would have been an explosion followed by a very rapid and hot fire.As a result it is possible that the structural stability of the surrounding buildings and the floor above the restaurant would have been affected.Even without an immediate source of ignition, it seems that, given time, an explosion and fire was inevitable if the petrol had been left there.

[7] The respondent, aged 49, was examined twice in connection with his offending, once by Dr Crawshaw to determine his fitness to plead and once by Dr Worrall prior to sentence.These reports supplemented other psychiatric assessments completed during earlier prison sentences.The respondent was not under a disability within the meaning of s108 of the Criminal Justice Act, and does not suffer from a mental disorder within the meaning of the Mental Health Act 1992, though he is intellectually limited and suffers from Post Traumatic Stress Disorder as a result of lengthy imprisonment in China prior to his emigration to New Zealand over 20 years ago.While his mother and other family members have been living in New Zealand, he has, it seems, assimilated poorly into New Zealand society.He speaks no English and has been employed only sporadically, and has difficulty with alcohol and, apparently, with drugs.After describing the symptoms of the respondent's Post Traumatic Stress Disorder, Dr Worrall observed that the respondent appeared to have little insight into his offending or concern that his actions could have harmed people.Dr Worrall concluded that "without intensive therapeutic commitment there is a strong possibility that [the respondent] will continue to be involved in serious criminal behaviour, which could lead to injury".

[8] The details of the respondent's earlier offending in New Zealand were and are relevant in assessing the appropriate sentence for this offending.There were three earlier instances of serious offending involving threatening behaviour.In 1991 the respondent was sentenced to 5½ years imprisonment on charges of injuring with intent to injure and wounding with intent to cause grievous bodily harm.Those sentences related to two incidents in August 1989 and September 1990.In the first, he and an associate accosted a restaurant worker and attacked him, claiming that he owed money for a gambling debt.In the second, he and two associates demanded money from a restaurant owner and, when he refused to pay, attacked him and then attacked his brother-in-law when he came to his aid.The respondent stabbed the brother-in-law in the chestNext, in 1997 he was convicted on two counts of demanding moneys with menace.He tried to extort sums of $1,500 and $1,000 from the complainant, making serious threats to the complainant's health and property, including a threat to use petrol to burn down the complainant's house.In upholding the sentence of 4½ years imprisonment in that case, where, as this court noted, there was an element of commercial blackmail, the court said:

There is nothing in Mr Chow's personal circumstances to detract from the Judge's assessment of the appropriate penalty.We accept that because of his background, cultural, language difficulties, and impaired intelligence that imprisonment may be relatively hard on Mr Chow.This must be accepted, however, particularly when a primary objective of the severe sentence in this case is deterrence.We also appreciate that Mr Chow's family now stand behind him in an effort to support him.Perhaps that support has come too late.It cannot now deflect the Court from confirming that a lengthy sentence of imprisonment is appropriate.

[9] The sentencing Judge saw the second offence in this case, namely committing a dangerous act with reckless disregard for the safety of others, as the more serious of the two charges.It carried a maximum sentence of 7 years imprisonment.The Judge had not found a precedent case providing particular assistance as to appropriate sentencing parameters, but noted that in R v Wright (CA105/81, judgment 1 December 1981), which involved the placing of a stick of gelignite in a milk bottle to warn off the occupant of a house who had been co-operating with the police in relation to drug offences, this court had reduced a sentence of the maximum 7 years to one of 5 years.

[10] In Wright, the appellant had detonated a slow burning fuse but the gelignite bottle had been placed some distance away from the house, not inside the house, as the sentencing Judge had surmised.In the present case, and given the respondent's repeated offending and failure to disclose the instigators of the offending, the Judge considered 4 to 5 years to be an appropriate starting point.The Judge observed that a deterrent sentence was necessary, but indicated that she sought to balance this against the respondent's need to receive appropriate treatment to address his various problems.After taking account of the respondent's guilty plea and personal circumstances, the Judge imposed a final sentence of 3½ years.

[11] The charge under s198(2) is directed at potential harm rather than the causing of actual harm.In his submissions, Mr Antunovic for the respondent properly and responsibly accepts that by the respondent's offending serious potential harm was caused to human life and property.We are satisfied that, given the time of night, the quantity of petrol employed, where it was placed, and the very substantial risk to safety of fire-fighters and others in the vicinity that was immediately created and then averted fortuitously only because the respondent happened to be spotted entering the building, the starting point for this offending looked at on its own has to be towards the upper limit of 4 to 5 years.

[12] For the Solicitor-General Mr Boldt submitted that while it is impossible to avoid sympathy for the respondent's tragic personal history, he has shown himself to be a persistent and very dangerous offender, the protection of the public must now be the overriding consideration when considering the appropriate term of imprisonment, and that on an appropriate application of the principles discussed in R v Ward [1976] 1 NZLR 588 and subsequent authorities, the final sentence of 3½ years must be seen as manifestly inadequate.He submitted that it could be inferred that the respondent intended to light a fire when he returned to the vicinity, adding to the gravity of his conduct.Referring to the consideration the Judge gave to the respondent's guilty plea and his present circumstances, Mr Boldt emphasised that the respondent's personal circumstances have been before every court that has considered his offending since 1991, and it is submitted that he has shown himself to be such a danger to the community that only limited reduction is now warranted in respect of it. Aside from this, only his plea of guilty can genuinely be said to mitigate the respondent's culpability.Even the guilty plea must be weighed against the inevitability of conviction, the respondent's onging refusal to name his principal and his continued absence of remorse or insight into the seriousness of his offending.

[13] Mr Antunovic for the respondent accepted that protection of the public is a very important factor in sentencing and sentencing policy permits the sentencing court to give weight to the preventive purpose of punishment to protect the public from persistent offenders when that protection is necessary. But, he submitted, even acknowledging that the Ward principle may have relevance in this case, the sentence of 3½ years imprisonment imposed cannot be said to be manifestly inadequate.The respondent pleaded guilty at the earliest opportunity.The count laid under s198(2) was included in the indictment on the eve of trial and the Crown did not pursue the original count of attempted arson.The respondent's instructions had always been that he did not have any intention to actually set the petrol alight.Mr Antunovic submitted that it is clear from the material before the court, particularly the psychiatric reports, that through no fault of his own the respondent has very serious problems which no doubt have primarily influenced his offending.He has served numerous lengthy prison sentences in New Zealand and has never received any psychiatric treatment.In Mr Antunovic's submission the respondent is vulnerable and easily led and had been used by a powerful influence to commit the present offences.The sooner the respondent is released into the community the better opportunity there will be to obtain the recommended psychiatric help.He tendered supportive letters from the respondent's mother and Forensic Services emphasising humanitarian reasons for allowing his early return to community and family.

[14] As we have already concluded (para [11] above), and for the reasons given there, we consider that the appropriate starting point for this very serious offending, looked at on its own, must be towards the upper end of 4 to 5 years.In that regard we accept Mr Antunovic's submission that on the material before the court it would not be proper or reasonable to assume that either initially or when he returned to the vicinity the respondent intended to actually set the petrol alight.

[15] The next question is whether other relevant sentencing considerations justified reducing that starting point down to 3½ years imprisonment.We are not persuaded that the Judge erred in giving some substantial weight to the guilty plea and to the respondent's personal circumstances.However, we are driven to conclude that she did not give appropriate weight to the relevance and significance of the offending history which she noted briefly in her sentencing judgment and then referred to in reaching her starting point of 4 to 5 years (para [10] above).

[16] Our criminal legislation does not provide a special regime relating to habitual offenders, but it is well settled that, in addition to the deterrence and denunciatory purposes of punishment, weight may properly be given to preventive purposes of punishment in an appropriately principled way.The leading statement is that of Myers CJ in R v Casey [1931] NZLR 594, 597:

The Court should always be careful to see that a sentence of a prisoner who has been previously convicted is not increased merely because of those previous convictions. If a sentence were increased merely on that ground it would result in the prisoner being, in effect, sentenced again for an offence which he has already expiated. We agree that the sentence passed ought to bear some relation to the intrinsic nature of the offence and gravity of the crime. But it by no means follows that the previous convictions must be ignored. It is necessary to take them into consideration, because the character of the offender frequently affects the question of the nature and gravity of the crime, and a prisoner's previous convictions are involved in the question of his character. Further, the previous convictions of a prisoner may indicate a predilection to commit the particular type of offence of which he is convicted, in which case it is the duty of the Court, for the protection of the public, to take them into consideration and lengthen the period of confinement accordingly.

And referring to the second category, McCarthy P in R v Ward at p591 said:

We recognise that this balancing is not easy. No rigid lines are really possible. Moreover, the protection of the public against those likely to offend repeatedly can all too easily be seen as an additional punishment for past offences. For these reasons the law has sought to preserve the preventive aspect being given too such importance. The controlling principle which it has developed to prevent it taking charge in a dominant way is that a reasonable relationship to the penalty justified by the gravity of the offence must be maintained. The desirability of prevention must be balanced against that gravity.

[17] Mr Boldt submitted that the history of the respondent's offending satisfied both categories in Casey and in respect of the latter that the common elements of intimidatory behaviour and either actual violence or threat of personal violence in the earlier offending and the reckless disregard for the safety of others, with the intention that the restaurant be damaged and the restaurateur terrorised in the present offending, were sufficient to meet the "broadly similar" predilection threshold (see also R v Andrian (1996) 13 CRNZ 449 and R v Kohinga (CA 319/96, judgment 23 October 1996).

[18] There are obvious differences between the present offending and the earlier three sets of offending in this case but we consider the better way to approach the earlier offending is in terms of the first category referred to in Casey.In short, the earlier offending is clearly relevant in assessing the character of the offender and in that way as affecting the nature and gravity of the crime.On our assessment of that earlier offending and its relevance to sentencing in this case, we consider that it balances out the allowance the Judge made for the guilty plea and other personal circumstances.

[19] For the reasons given, leave to appeal is allowed.The sentence of 3½ years imprisonment is quashed and in lieu a sentence of 4 years imprisonment is imposed.In imposing that sentence we follow the usual practice on Solicitor-General appeals of increasing the sentence to the lower level of the appropriate range of sentences.

Solicitors

Crown Law Office, Wellington

I M Antunovic, Wellington, for respondent