GUAN v R [2004] NZCA 164 (29 July 2004)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA63/04THE QUEEN

v

TIAN PEI GUAN

Hearing: 27 July 2004

Coram: William Young J John Hansen J Doogue J

Appearances: L B Cordwell for Appellant
E M Thomas for Crown

Judgment: 29 July 2004

JUDGMENT OF THE COURT DELIVERED BY DOOGUE J

Introduction

[1] Tian Pei Guan appeals against a sentence of five years and three months imprisonment imposed in respect of each of two offences of kidnapping. Judge Rota imposed the sentence in the District Court on 4 February 2004 following pleas of guilty by the appellant. The appeal is brought on the basis that the sentence is manifestly excessive. It is submitted the Judge placed too little weight on three factors, namely the assistance the appellant was and is prepared to provide the Police, the appellant not being the primary offender, and the genuine remorse expressed by the appellant.

Background

[2] The appellant, aged 32, has lived in New Zealand since 1992. He is a first offender. Another man owed him $1,000. On the day prior to the offending, the appellant contacted the debtor seeking payment of the outstanding debt. The debtor proposed that the appellant help him carry out a plan of kidnapping to obtain the money owed to the appellant and perhaps more.
[3] A third man persuaded the first victim to go to the apartment of the debtor. The appellant was present with the debtor. Shortly after entering the apartment, the victim was assaulted by the debtor and the appellant. He was hit on the head with a metal object numerous times by the debtor before he was handcuffed and restrained. He was bleeding profusely from an open wound to the back of his head. He was bound with pieces of twine to a bed. The debtor and the appellant took $1,000 from his wallet.
[4] Later, the first male victim was forced to call the second female victim. She was the male victim’s girl friend. The third man transported the female victim from her address to the debtor’s apartment. Once she was inside the apartment, a gun was held to her head and she was taken to the bedroom where the male victim was being held. She was bound to a chair by handcuffs and her feet were tied to the chair.
[5] Both victims had masking tape placed around their mouths. During the course of the confinement of the victims for more than 36 hours the handgun in the possession of the debtor and the appellant was constantly presented at the victims and threats were made to kill them.
[6] The male victim was forced to contact a friend who, upon request, obtained $6,000. Arrangements were made for the female victim to uplift this sum. This was the result of her being threatened with the gun if she did not comply with the demands of her. She was accompanied by either the debtor or the appellant to obtain the $6,000.
[7] Arrangements were then made for the female victim to obtain a further sum of money. On this occasion she was able to escape and communicate with the Police.
[8] Once the female victim escaped the debtor and the appellant endeavoured to dispose of bloody bedclothes and towels within the apartment.
[9] The Police went to the apartment and located the male victim. He was distressed and had several injuries, including a 2 cm laceration, a 2½ cm laceration, and a 1 x 1 cm wound that had started to heal, on the back of his head. He had severe swelling to his left wrist and numerous areas of bruising to various parts of his body. He had two broken fingers on his left hand.
[10] When spoken to by the Police, both the debtor and the appellant admitted their actions with an explanation that they needed the money. The debtor is four years younger than the appellant. He is also of Chinese background. Like the appellant, he has no previous convictions.
[11] The debtor and the third man pleaded guilty to the same offences on 5 March and 25 February respectively. They are to be sentenced on 20 August 2004.

Sentencing remarks

[12] The Judge noted that the appellant was to be treated as a first offender. He briefly referred to the facts. He recorded that they were serious crimes, particularly as there not only had been a prevalence of this kind of activity in the country generally but particularly in the community from which the appellant comes. The Judge took as a starting point for his sentence eight years imprisonment, noting that, as there was more than one victim, a nine year starting point could have been entertained. He reached that conclusion by reference to R v Song CA218/02, 29 November 2002, where this Court noted that a starting point of eight years would have been appropriate for somewhat similar but less severe circumstances than the present if one victim was involved.
[13] The Judge referred to the aggravating features as including the repeated violence throughout the time of the detention, the threats to kill, the use of the gun, the persistent demands for money and the requests to organise the delivery of money, the time that the complainants were held in custody, the condition in which they were held, the premeditation, and the physical and emotional effects upon the victims. He made an allowance of nine months for those aggravating features.
[14] The Judge identified the mitigating factors as including the early guilty plea and recognised the fact that it was consistent with remorse. He did, however, refer to the difficulty of assessing the genuineness of the remorse. He also took into account the appellant’s co-operation with the Police and his openness in confessing. From the starting point of eight years he gave a two and a half year allowance for the early guilty plea and an additional allowance of one year for the other mitigating factors. He then added the nine months allowance for the aggravating circumstances. The result was the sentence of five years and three months imprisonment under appeal.

Appellant’s submissions

[15] It is submitted for the appellant that the Judge failed to give adequate weight to the appellant’s agreement to give evidence in court against the debtor. It is further submitted that the Judge failed to adequately consider the consequences of any such assistance. It is submitted there was a real perceived risk to the appellant and his family in respect of the assistance he has given and promised.
[16] The second matter stressed for the appellant is that the Judge is said to have failed to sufficiently distinguish between the roles of the debtor and the appellant when sentencing the appellant. It is submitted that the appellant was not charged with injuring with intent to injure or the commission of a crime with the firearm. It is submitted that this is consistent with the fact that the appellant did not take part in the abductions, any of the injuring or threats with the gun. It is said it is also consistent with his denials of any involvement in those matters as recorded in the pre-sentence report. It is submitted that there was therefore substance in the submissions for the appellant at sentencing that he took a lesser role and that he was, to some extent, coerced into the offending, although duress was not suggested. It is submitted that the appellant was not the ringleader and that allowance should have been made for that.
[17] Thirdly, it is submitted for the appellant that the Judge failed to take into account the appellant’s genuine remorse at sentencing. It is submitted that, despite the sentencing Judge’s scepticism about the genuineness of that remorse, it is supported by a number of factors, including a statement in the pre-sentence report that the appellant clearly regretted his offending, a letter written by the appellant to the sentencing court evidencing his genuine feelings of contrition, repentance and remorse, his assistance and co-operation with the Police, his letters of apology to the two victims, and his distress at the effect of his conduct on his young family.

Submissions for the Crown

[18] For the Crown, it was submitted that, regardless of how the matter is approached, the discount given by the Judge for the mitigating factors was sufficient and that the ultimate sentence cannot be said to be manifestly excessive.
[19] It is accepted that providing assistance in the form offered by the appellant in this case is a factor that would ordinarily warrant the granting of a discount on sentence by way of mitigation, but the nature of the discount is necessarily dependent upon a number of factors, including the nature and value of the assistance, the situation in which it is given, and the consequences. Here, it is submitted that, while the appellant was prepared to give assistance, that arose after the offending had been detected and the offenders identified and apprehended without any assistance from the appellant. In addition, as the debtor and the third man, as well as the appellant, pleaded guilty to the offending, no question of actually giving evidence arises. An agreement to give evidence is worth something but rather less than if it had been given. There is no suggestion of any adverse consequence to the appellant by virtue of his willingness to give assistance. In addition, it is stressed that the Judge did recognise and give credit for the assistance given to the Police.
[20] It was also accepted for the Crown that, in certain circumstances, an offender having a lesser and secondary involvement in the commission of an offence can be entitled to some discount. However, it is submitted that when the offending has occurred as a result of the carrying out of a joint enterprise, in respect of which the appellant had to have been a willing and knowing party, the room for allowing any discount will be less. It is submitted that actual involvement is a matter more of culpability than mitigation. It is further submitted that the chain of events, which resulted in the offending, was initiated by the appellant wishing to recover a debt. The appellant agreed to carry out the kidnapping. He was not forced into it. He must have known that some degree of force and threatening behaviour was going to be adopted. The very nature of the enterprise required more than one offender. It was very definitely a joint enterprise. In any event, it is submitted for the Crown that the sentencing Judge could be said to have given some credit for any lesser role in taking a lesser starting point than might otherwise have been the case when there were the two victims.
[21] On the issue of remorse, it was submitted for the Crown that in this particular case the Judge was entitled to comment that the genuineness of the remorse was not capable of being tested. The pre-sentence report did not refer to any acknowledgement of genuine remorse. In any event, the Judge gave the appellant a substantial allowance for the remorse inherent in the guilty plea having regard to the discount for that plea. Such remorse was also taken into account to the extent that the appellant’s assistance to the Police and his openness in making confessions gave rise to a further discount.
[22] It is submitted for the respondent that the only real question on this appeal is whether it can be said that the ultimate sentence of five years and three months imprisonment is manifestly excessive. It is submitted that that cannot be said, having regard to the circumstances of the offending and the aggravating features involved and the very substantial discount given by the Judge for the mitigating factors.

Discussion

[23] The appellant has not satisfied us that the sentence imposed was manifestly excessive. We regard it as well within the sentencing discretion of the sentencing Judge. There were two victims, each of whom were detained for over 36 hours. Sufficient violence was meted out to the male victim to make it clear that the appellant and the debtor was prepared to make good their threats of violence. The appellant took no steps to distance himself from the offending, which was clearly a joint enterprise, even if the debtor was the one who had suggested it. The third man who had lured the victims to the debtor’s apartment was not present throughout the whole period of the offending as he had left New Zealand on the first full day that the victims were being detained. The appellant’s role in the offending was therefore essential. He plainly saw advantage to himself in participating.
[24] It is impossible in cases such as this to precisely evaluate exactly what discount should be allowed for each of several mitigating factors. The essential feature of the Judge’s sentencing was that his starting point of eight years imprisonment was unchallengeably within the range open to him and he gave a very generous discount of three and a half years for the mitigating circumstances before him. It was not suggested that the allowance made by him of nine months for the aggravating features of the offending is excessive. In those circumstances, it is difficult to see upon what basis it can be suggested the sentence is excessive, let alone manifestly excessive. The Judge acknowledged and made allowance for the appellant’s remorse and the assistance to the Police. The Judge was entitled to make his own evaluation of the appellant’s remorse in the way that he did. He was entitled to give a modest allowance for the assistance to the Police in the circumstances of the case where it did not lead to any particular advantage to the community. Even accepting everything said for the appellant in respect of these areas we are not led to any different conclusion.
[25] We would add that if the Judge had taken a starting point of nine years imprisonment, which he would have been fully entitled to do, and reduced it after weighing the aggravating and mitigating circumstances by a third we doubt that we would have had any basis to interfere.
[26] We would make it clear that nothing in these remarks is intended to impact directly on the sentencing of the debtor and the third man. This appeal focuses solely on the position of the appellant and the sentence imposed upon him. In particular we have no means of accurately evaluating the respective involvement of the three men in the offending or the aggravating or mitigating circumstances relevant to the other two men.

Result

[27] For the reasons given, the appeal is dismissed.

Solicitors:
Crown Solicitor, Tauranga