The Queen v Lui [2008] NZCA 378 (19 September 2008)

Court of Appeal of New Zealand

[Index] [Search] [Download] [Help]

---

The Queen v Lui [2008] NZCA 378 (19 September 2008)

Last Updated: 29 September 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA252/2008

[2008] NZCA 378

THE QUEEN

v

YUK LUNG LUI

Hearing: 17 September 2008

Court: Robertson, Wild and Cooper JJ

Counsel: P L Borich and C H Bennett for Appellant
A Markham for Crown

Judgment: 19 September 2008 at 2.30 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1] The appellant pleaded guilty in the Auckland District Court to one charge of abduction for the purpose of sexual intercourse, one charge of attempted sexual violation and one charge of aggravated injury. Under s 90 of the Sentencing Act 2002, the District Court declined jurisdiction to sentence the appellant and committed him to the High Court for sentencing. On 15 April 2008 Stevens J imposed a sentence of preventive detention with the statutory minimum non-parole period of five years.
[2] Mr Lui appeals against his sentence on the ground that a finite sentence ought to have been imposed. At sentencing, Stevens J indicated that a sentence of eight years’ imprisonment would have been required if there was a finite sentence.

Background

[3] The factual background, which is not challenged, was described by Stevens J as follows:

[3] On 29 May 2006, you met with the victim [...], at the Northcote Shopping Centre as a result of an advertisement you had placed in a local newspaper. Unbeknown to the victim, you had booked a room at the Greenlane East International Motel in Ellerslie for the day. To lure the victim into coming with you to the motel, you used the deception of telling the victim that you had a job to do at the motel, which involved installing kitchens. That was your profession at the time. Initially the victim stayed in the car on arrival at the motel. However, some time later she entered the motel unit where you were waiting.

[4] Without warning, you then forced her into the main bedroom in the unit where you overpowered her after a short struggle. You then produced a Stanley knife and threatened the victim, saying that you would kill her if she did not comply with your demands. Another struggle ensued in which you were cut on the hand and face with the knife. You then overpowered the victim again and forced her onto the bed where you bound her hands behind her back with cable ties that you had brought into the room. You then used cling film, which you had also brought into the room beforehand, to strengthen the bonds before you stripped away the victim’s lower clothing. You then proceeded to bind the victim’s ankles with the cable ties and cling film.

[5] Next, you attempted to sexually violate the victim. However, you did not succeed. You then bound the victim’s ankles to her hands in a “hog tie” fashion and proceeded to shower while your captive was on the bed. After showering you went through the victim’s handbag and stole her cellphone and ASB eftpos card. You threatened the victim once more with the knife that, if she did not disclose her PIN numbers, you would kill her. She was terrified. You then place further binds on the victim including wrapping cling film and masking tape around the victim’s face. The victim was held captive for approximately five hours before you left the motel unit.

[6] The victim eventually managed to escape from the unit and summonsed help from neighbours. As a result of the ordeal, the victim suffered a large black eye, cuts to her hands, bruising to her wrists, ankles and neck where the ties were placed.

[4] The compass of the appeal is narrow. It is contended that the Stevens J erred in principle in failing to give sufficient weight to s 87(4)(e) of the Sentencing Act and in not properly considering the Court’s ability to impose a minimum period of imprisonment upon a determinate sentence, pursuant to s 86.
[5] Section 87(2)(c) of the Sentencing Act provides:

87 Sentence of Preventive Detention

...

(2) This section applies if:

...

(c) the court is satisfied that the person is likely to commit another qualifying sexual or violent offence if the person is released at the sentence expiry date (as specified in subpart 3 of Part 1 of the Parole Act 2002) of any sentence, other than a sentence under this section, that the court is able to impose.

[6] Section 87(4)(e) provides:

(4) When considering whether to impose a sentence of preventive detention, the court must take into account—

...

(e) the principle that a lengthy determinate sentence is preferable if this provides adequate protection for society.

[7] This appeal involves a challenge to the exercise of a discretion. What the Judge did must therefore be demonstrably wrong.
[8] The proper approach to sentences of preventive detention was discussed by this Court in R v C [2003] 1 NZLR 30, in which it was said at [5]:

... In s 87(1) Parliament has clearly spelt out the purpose of preventive detention. It is to protect the community from those who pose a significant and ongoing risk to the safety of its members. The purpose of preventive detention, as described in s 87(1), is not materially different from the purpose of the sentence as described by this Court in R v Leitch [1998] 1 NZLR 420 at 428. Protection of society has always been a dimension of sentencing at common law. In the case of the sentence of preventive detention it is the dimension which Parliament has indicated is to predominate ...

Under s 87(2) there are three preconditions to the imposition of a sentence of preventive detention. In short, the three qualifiers are: (i) the commission of a qualifying offence; (ii) when aged 18 or older; and (iii) the likelihood of the commission of another qualifying offence upon release. Their establishment does not mandate such a sentence. Its imposition remains a matter of discretion (the High Court “may” impose such a sentence: s 87(3)). The statutory discretion again reflects the approach which was confirmed in Leitch at p 429. The sentence of preventive detention is not a sentence of last resort, albeit its imposition must be carefully considered. The greater flexibility of the new regime, whereby parole eligibility can and often will occur earlier than at the previous ten-year mark, reinforces the Leitch approach.

[9] As the Crown submitted both in the High Court and before us, the key issue is whether a determinate sentence is required because the offender poses a significant ongoing risk to the safety of the community. Preventive detention provides the ongoing protection of life parole (which can be enforced by the sanction of recall), which does not accompany a determinate sentence: R v JJH CA258/06 9 March 2007.

The appeal

[10] Mr Borich contended that a sentence of eight years’ imprisonment with a minimum non-parole period of five years would have had the same effect and consequences as the sentence of preventive detention with a minimum non-parole period of five years.
[11] That is not necessarily the case. The protective qualities of preventive detention lie not merely in the minimum non-parole period, but in the regime of life parole which includes the sanction of possible recall to prison for the duration of the offender’s life.
[12] Counsel accepted that there were three major components to be assessed by a Judge in reaching a determination as to whether preventive detention was appropriate. First, evidence from experts. Secondly, the facts of the particular offence, and thirdly, the circumstances of the individual, including their background history.
[13] The appeal is mounted on the basis that there was not a proper engagement with the statutory regime of s 87.

The experts’ reports

[14] Reports were available from a psychiatrist (Dr Russell Wyness) and a senior psychologist (Mr Ian Wootton).
[15] They concluded that Mr Lui did not suffer from any functional psychiatric illness or mental disorder, but rather displayed impulsivity and recklessness, which characteristics are associated with anti-social personality disorders.
[16] The reports indicated that, in Mr Lui’s account of the current offending, there were “a number of distortions in his perception” and “a profound lack of insight”, as well as no remorse or empathy. He portrayed himself as a victim, rather than an aggressor, in what had occurred.
[17] Dr Wyness did not offer a specific prediction, but noted seven “risk-increasing factors” and only one “risk-reducing factor”. He was concerned about the appellant’s future risk, particularly in light of the escalation in his offending, the degree of premeditation and the lack of remorse and insight. He considered that Mr Lui may benefit from a non-violence programme and/or alcohol and drug counselling, but noted:

(a) there was no indication of a willingness to undertake treatment;

(b) there was no indication that alcohol or cannabis played any part in the offending which had been pre-meditated; and
(c) a nine-month sentence of supervision had failed to prevent reoffending.
[18] Mr Wootton’s assessments were not dissimilar and he concluded that Mr Lui presented with a medium to high risk of further offending and that such offending would probably involve impulsive violence and/or sexual acts towards women, particularly when he was under a high level of stress.

Mr Lui’s criminal offending history

[19] In Hong Kong in 1995, Mr Lui was convicted on a charge of assault occasioning actual bodily harm. A fine was imposed.
[20] In 1999, in New Zealand, he was sentenced to community service on charges of dangerous driving and possession of an offensive weapon. A kidnapping charge was laid, but not pursued. It was clear that there had been an episode which was “threatening” and “frightening” and which demonstrated a propensity for violence “on the appellant’s part”.
[21] In 2001, Mr Lui was sentenced to supervision for male assaulting female and a charge of careless driving causing injury.
[22] In May 2003 the appellant was extradited to Hong Kong to face trial on charges of robbery and theft which had been committed in 1997. Upon conviction he was sentenced, on 27 June 2003, to three years and eight months’ imprisonment. This offending, on several different occasions, had involved accosting women waiting at public bus stops and robbing them at knife-point. On two occasions, victims were forced to divulge their PIN numbers and substantial sums of money were withdrawn from their bank accounts.
[23] Mr Lui returned to New Zealand on 24 April 2006. On 17 May 2006 he was sentenced to community work in respect of an outstanding charge of breach of the supervision order imposed in 2001.
[24] The present offending occurred on 29 May 2006. This was about a month after he came back to New Zealand (and while he was subject to a sentence of community work), and less than six months after his release from prison in Hong Kong, from the sentence of three years and eight months’ imprisonment.

Circumstances of the offending

[25] As noted above at [3], this was particularly serious offending. There was a number of concerning features about the lengths to which this man was prepared to go to achieve his ends. This was carefully pre-meditated offending and the appellant was persistent in his attack on his young victim.

Assessment

[26] There was little indication from the appellant of insight or commitment to change.
[27] Bearing in mind this man’s history, the expert reports available and the circumstances of the particular offences, it cannot be said that the decision to impose the long-term protective regime of preventive detention was not properly available to the sentencing judge.
[28] On our assessment of the matter, any other sentence would have been inadequate to reflect the total circumstances of this offending and to be responsive to the requirements of the Sentencing Act.
[29] The appeal is accordingly dismissed.

Solicitors:
Rice Craig, Auckland, for Appellant
Crown Law Office, Wellington