R v ZHANG [2005] NZCA 120 (24 May 2005)

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R v ZHANG [2005] NZCA 120 (24 May 2005)

Last Updated: 1 June 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA56/05

THE QUEEN



v



JIN LONG ZHANG

Hearing: 24 May 2005

Court: Robertson, Williams and Salmon JJ

Counsel: A C Roberts for Appellant
M F Laracy for Crown

Judgment: 24 May 2005     

JUDGMENT OF THE COURT

A Leave to appeal granted.

B Sentence quashed and replaced with a sentence of four and a half years’ imprisonment.

REASONS

(Given by Robertson J)

Introduction

[1]	This is an application by the Solicitor-General for leave to appeal against an effective sentence of three and a half years’ imprisonment imposed upon Mr Zhang in the District Court at Auckland on 19 January 2005. The application is on the basis that the sentence imposed is wrong in principle in that the District Court Judge gave the respondent a discrete discount of 12 months, solely on account of the fact that, immediately upon the respondent finishing his sentence, he will be deported to China.
[2]	The Solicitor-General’s application was initially filed in error in the District Court. By the time that was drawn to attention and it was re-filed, the application for leave was marginally out of time. Mr Roberts responsibly did not seek to make anything of the point as it was common ground that his client knew that the Crown intended to mount a challenge.
[3]	Mr Zhang was charged with six counts arising out of an incident at Auckland on 25 February 2004. There was a charge of kidnapping (contrary to s 209 of the Crimes Act 1961), one of being disguised for the purposes of committing that offence (contrary to s 233 of the Crimes Act), using a pistol in the commission of that offence (contrary to s 198B of the Crimes Act), aggravated robbery (contrary to s 235 of the Crimes Act), aggravated assault (contrary to s 192 of the Crimes Act) and possession of an air pistol (contrary to s 45 of the Arms Act 1983).

The facts of the case

[4]	The sentencing Judge described the factual background as follows:

[2] The facts disclose that prior to the commission of this offence you acquired a Russian model imitation NP654 firearm and a pair of handcuffs, that firearm being capable of discharging ball-bearing pellets by the force of compressed gas. There was obviously a degree of planning in this because you sought out a venue at a local karaoke bar well known as a favourite spot for Asian students.
[3] On Tuesday 24 February you drove your Toyota car to a parking area opposite that bar in Newmarket keeping the front entrance of the bar under observation. At about 1.00am on the morning of the 25^th the victim left the bar with three friends and they went their separate ways. The victim got into her vehicle, you approached, holding the firearm in your hand. You were at the time disguised wearing what is described as a crude makeshift hood covering your head and face. You presented the firearm to the victim. She was obviously at this stage quite petrified.
[4] Apparently the victim’s friends observed these events and stopped to see what was happening. Upon this you instructed the victim to drive her car away. She complied with this fearing for her life no doubt. Her associates immediately contacted the police and began following the victim’s car in which you and the victim were then seated.
[5] You then gave the victim some instructions about where to go. You rifled through her handbag in an attempt to locate cash and continued driving around Auckland in an attempt to shake off the pursuing vehicle. At one stage you apparently pressed the firearm against the side of her head as she continued to drive.
[6] As the car, driven by the victim entered into Market Road, her vehicle was observed by the first police officer on the scene and at this stage the police car began to follow the car driven by the victim. You became aware that the police were in pursuit and at one stage after threatening her, striking her on the back of the head with the butt of the firearm.
[7] The police pursuit continued with the police activating their red and blue emergency lights in an attempt to stop the car. The victim continued to drive fast along Great South Road and Market Road and finally the police made a decision to attempt to stop the vehicle using a moving block manoeuvre. At this stage it appears you then became extremely aggressive. Ultimately the traffic block became effective and the victim’s vehicle was forced to stop. As a result of this you leapt from the car and fled. The police dog handler deployed his police dog and ultimately you were apprehended after a brief but violet struggle.

[5]	The Judge noted the maximum sentence in respect of the most serious counts was 14 years’ imprisonment and recorded that he had had regard to the oral submissions made and the written material available to him. He noted particularly:

[11] The penalty that is imposed must be one which denounces your conducts and acts as a deterrent both specifically and generally and normally one would have to impose a sentence which would be some protection of the community.

[6]	Having referred to various decisions of this Court, he then concluded:

[20] I propose to take a starting point in relation to the charges of robbery and kidnapping of six years’ imprisonment and I do that applying the totality principle and taking into account all of the circumstances of your offending. I am prepared of course to give you a discount for your plea of guilty and I propose to reduce that term of six years to one of four and a half years. I am as I have indicated going to take into account that you will never return to New Zealand and will be deported immediately upon the expiration of your sentence and in doing so I propose to reduce your sentence by a further 12 months making an effective sentence of three and a half years on the two counts of robbery and kidnapping to be served concurrently. On each of the other counts to which you have pleaded guilty I impose concurrent terms of 12 months’ imprisonment.

[7]	The Judge did not impose a minimum term of non-parole although the Crown submitted that there should be one.

Discussion

[8]	The appeal is advanced solely on the basis of the 12 months’ discount. There is no challenge to the starting point, to the allowance for mitigating factors (although the Crown submits that, bearing in mind the fact that the guilty pleas were entered ten months after the offence and almost three months after depositions it was generous) or the absence of a minimum non-parole period.
[9]	In respect, however, of the 12 months discount, the Crown submits:

Giving a discount for the prospect of deportation is contrary to established legal principle, and creates an unjustifiable inconsistency with "domestic" sentencings;
It undermines the need for general deterrence; and
It has led to a manifestly inadequate sentence in the particular case.

[10]	Having expressed his concern about the inevitability of deportation on completion of his sentence, the Judge said:

[18] I have discussed with Mr Roberts on an earlier occasion what effect that should have, if any, on any sentence the Court imposes. It could be said that it is an unnecessary imposition on the taxpayer to have you incarcerated for years when you will be deported at the expiration of your sentence and will no longer constitute any threat to this community. Obviously you will never be allowed to return to New Zealand. I have been able to find no authority which refers to this situation which is not unique in this Court and neither has Mr Roberts been able to assist me.
[19] I accept that it would be unfortunate if distinctions were drawn between persons like yourself and other New Zealanders who will remain permanent residents but I feel obliged to take that into account and it may be that by doing so this issue may be further considered and some guidance given to sentencing Courts.

[11]	Mr Zhang’s student permit expired in May 2004 and, in light of the seriousness of this offending, there is an inevitability about his deportation.
[12]	The issue of the inter-relationship between these two matters is considered in Hall on Sentencing:

Deportation is a consequence of criminal offending not a further penalty in itself: Steinborn v Minister of Immigration (DRT 9/01, 9 April 2002). The Tribunal cited the decision in Jun Lee v Minister of Immigration (DRT 8/89, 13 October 1998) where a differently constituted Tribunal said that it was well established that deportation, which generally is described as a penalty, is not a second punishment or double jeopardy for criminal offending. Deportation is the separate interest of the State to remove recent immigrants from New Zealand in the public interest.
Note that there is no longer an express statutory provision empowering the Court, when sentencing, to make a recommendation as to deportation. As the Deportation Review Tribunal observed in Gasaloga v Minister of Immigration (DRT 11/92, 30 November 1992): "All judicial participation has now disappeared with the revocation of the 1964 Act. Under the present 1987 legislation (s 91) deportation is now an entirely executive act, requiring only specified convictions as the foundation for its invocation by the Minister against holders of residence permits". (PA 55.4)

[13]	The proper approach was considered by this Court in R v Appitu CA31/98, 29 April 1998, and at page 3 the Court noted:

... the function of the Court in its criminal jurisdiction is to impose a sentence which is appropriate to the particular offending, which ordinarily should not be adjusted so as to interfere with those other processes which have their own bases and established regime.

[14]	There is also clear authority that the financial implications of maintaining a person who is not a New Zealander in prison is not an issue to be given prominence – R v Ahlquist [1989] 2 NZLR 177. There it was made clear that the Courts must maintain consistency of sentencing and not differentiate between convicted persons according to their country of origin, or the consequences which would flow following their release.
[15]	Ahlquist was a drug importation case, but the same approach is reflected in R v Gupta CA236/01, 25 February 2002, which involved sexual offending and in R v Zhang CA437/03, 3 June 2004, which was kidnapping and associated offending.
[16]	Mr Roberts realistically accepted that there was no authority which supported the discount approach. The appropriate sentence is a matter for the Courts, bearing in mind the totality of the relevant circumstances of both offence and offender. The issue of removal from New Zealand is for others and not a factor which can properly weigh in the sentencing process.

Conclusion

[17]	We accept that the Judge was in error in affording the respondent the 12 months reduction and the appeal must accordingly succeed.
[18]	There was a reference in the submissions on behalf of the respondent to an issue with regard to a sentence indication, but that matter has not been pursued and has not been weighed in our assessment of this case.
[19]	The Solicitor-General’s application for leave to appeal is granted. The sentence imposed in the District Court is quashed and substituted with a sentence of four and half years’ imprisonment effective from 19 January 2005.

Solicitors:
Crown Law Office, Wellington