Sun v R [2014] NZCA 278 (27 June 2014)

Last Updated: 4 July 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA778/2013 [2014] NZCA 278
BETWEEN	SHENG SUN Appellant
AND	THE QUEEN Respondent

Hearing:	11 June 2014
Court:	Randerson, Keane and MacKenzie JJ
Counsel:	C B Wilkinson-Smith for Appellant J M Jelas for Respondent
Judgment:	27 June 2014 at 9:30 am

JUDGMENT OF THE COURT

1. The application for an extension of time is granted.
2. The appeal is allowed.

100. The sentence of six years imprisonment is quashed and a sentence of four years and nine months imprisonment is substituted.

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REASONS OF THE COURT

(Given by MacKenzie J)

[1] The appellant appeals against a sentence of six years imprisonment imposed by Judge C Ryan in the Auckland District Court after jury trial on one count of wounding with intent to cause grievous bodily harm and one count of male assaults female.^[1]
[2] The appellant and the victim of the male assaults female charge, Ms W, had been in a brief and volatile relationship. They had not long been separated when on 22 February 2011 she sent repeated text messages to the appellant requesting that he come to a restaurant where she and the victim of the wounding count, Mr D, happened to be. After the appellant arrived at the restaurant, tempers flared between him and Ms W and a fight developed. It was not clear to the Judge who slapped who first, but the Judge indicated that the jury’s verdict on the male assaults female count showed that self defence was rejected. Mr D stepped between them to break up the fight and told the appellant to leave her alone. A physical altercation took place between the appellant and Mr D, whom the Judge described as protecting Ms W. The Judge described what happened next:

[14] ... He was the rival for the hand of Ms [W] about whom you still had feelings. You wanted him out of the way.

[15] It is possible he may have had the bottle in his hand when he stood up. What exactly happened will never be known. However, the evidence indicates you exploded into anger. You seized the bottle. With a weapon, you had an advantage over the slightly bigger Mr [D] and over whatever strength he might have had. The two of you fell to the ground. Mr [D] ended up under you. He did not have a weapon in his hand. He was not in a position to do much to you, because you were above him.

[16] You repeatedly struck him with a broken bottle which may have broken on impact with him. You kept on doing so until significant and long-term injuries were caused. It is a matter of good luck rather than good management that much more serious injuries were not caused and that you were not in the High Court facing a murder charge. That is not to diminish the injuries, they are significant.

[3] In fixing a starting point, the Judge referred to the repeated striking of the victim with a broken bottle, which inflicted significant wounds, when he was on the floor in a vulnerable position without a weapon. She identified as aggravating features extreme violence, serious injury, use of weapons and an attack to the head. She accepted that the appellant was provoked by Ms W’s words and actions, but said there was no provocation by Mr D, and the appellant was not so overborne by the element of provocation arising from the history of the relationship between him and Ms W that he was justified in attacking Mr D as he did. She accepted that there was a physical altercation between the appellant and Mr D, so that some pushing, shoving or hitting back could be seen as self-defence, but she said that the grabbing of the bottle and continued striking of Mr D was extreme and excessive. She placed the offending at the very upper limit of category 2 or into category 3 of R v Taueki.^[2] She fixed a starting point of seven and a half years.
[4] From that she deducted 10 per cent for the appellant’s outstanding references, his position as a hardworking businessman of integrity and the fact that he had no previous convictions. She allowed a further 10 per cent for the appellant’s restrictive bail conditions, the effect on his young child and his current partner, and the impact of having to serve a sentence in prison in a culture very different from his own. That led to an end sentence of six years imprisonment. She imposed a concurrent sentence of three months for the male assaults female charge.
[5] Mr Wilkinson-Smith’s primary submission for the appellant is that the starting point of seven and a half years was excessive. He submits that a starting point of six years would be consistent with other sentencing authorities for similar conduct. Counsel for the respondent submits that the starting point was within range, albeit at the higher end for offending which involves three seriously aggravating R v Taueki factors, namely extreme violence, serious injury, and the combination of use of a weapon and attacking the head.
[6] Counsel for the appellant refers to a number of comparable authorities. In Flavell v R, the appellant was at a service station when an altercation developed.^[3] The appellant broke a beer bottle and stabbed the victim, who received cuts to his back which required stapling. The victim went to his car to get a knife, then returned to the fray to retaliate. He was hit on the head by a baseball bat. A starting point of six years imprisonment was reduced on appeal to this Court to five years. In Boote v R the appellant and the victim had become involved in a scuffle in a bar.^[4] The appellant picked up a full bottle of beer and struck the victim in the face. The bottle smashed on impact and the resulting injuries required multiple stitches to the victim’s face. A starting point of four and a half years imprisonment was upheld by this Court. In Lamb v Police the appellant had taken exception to remarks by the victim, who had been walking along the street by a bench on which the appellant was seated.^[5] The appellant texted an associate and followed the victim. When the associate arrived the appellant smashed a bottle in the victim’s face, causing the victim to the hospitalised for a week, and the loss of an eye. A starting point of six years imprisonment was described by the High Court as very high and possibly slightly beyond the available range, but the end sentence was upheld. In Mareangaru v Police the appellant had come out from a house and joined a group street attack.^[6] She smashed a bottle and used the jagged end to stab the female victim in the face multiple times, causing serious facial scarring and damage to her eyes. On appeal to the High Court, the offending was described as falling within band 2 of R v Taueki, and a starting point of six and a half years was upheld.
[7] Mr Wilkinson-Smith submits that the appropriate starting point is six years imprisonment. He places particular reliance on Lamb v Police and Maraengaru v Police to justify that starting point. ^[7]
[8] Ms Jelas for the respondent submits that the starting point adopted was high, but the sentencing Judge, as the trial Judge, was well placed to assess the seriousness of the assault and its effect on the victim. She submits that the starting point was within range, albeit at the higher end for offending involving three seriously aggravating R v Taueki factors.^[8]
[9] In assessing the seriousness of the offending, the examples given in R v Taueki, of domestic assaults are a useful guide. An impulsive assault, involving the use of a weapon but no lasting injuries, where the victim is properly classified as vulnerable, is noted as an example of offending falling within band 1, leading to a starting point of perhaps five years or more.^[9] A premeditated domestic attack involving the inflicting of serious and lasting injury, involving the use of a weapon, particularly where it is brought to the scene, is given as an example, where the starting point could be expected to be at the higher end of band 2.^[10]
[10] In this case, the attack was not premeditated. It was at least in part provoked by Ms W, in requesting the appellant to come to the restaurant and taunting him when he arrived. The injuries to Mr D were quite serious, but we would not classify the violence on the part of the appellant as extreme. The bottle which was used as a weapon was not taken to the scene, and it was not deliberately broken before it was used. In the light of these features, and having regard to the examples in R v Taueki to which we have referred, we consider that a starting point below the midpoint of band 2 is appropriate. We accept Mr Wilkinson-Smith’s submission that a starting point of six years is appropriate.
[11] From that starting point, there must be a discount for personal mitigating factors. The Judge allowed a total of 20 per cent for the mitigating factors which we have described at [4] above, and no issue is taken with the extent of those discounts. We consider that a total discount of 20 per cent of the starting point which we have identified is appropriate. Rounded to 15 months, that gives an end sentence of four years and nine months imprisonment. The concurrent sentence of three months imprisonment for the charge of male assaults female stands.
[12] That end sentence makes it unnecessary for us to address the submission made by Mr Wilkinson-Smith about the implications of the Immigration Act 2009. The appellant is apparently liable for deportation under s 161(1)(c) of that Act. That subsection will have no application, as it applies only where the end sentence is five years or more.
[13] This appeal was filed out of time. We grant an extension of time to hear the appeal and allow the appeal. The sentence of six years imprisonment is quashed and a sentence of four years and nine months imprisonment is substituted.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Sun DC Auckland CRI-2011-004-3291, 17 December 2012.

^[2] R v Taueki [2005] 3 NZLR 372 (CA).

^[3] Flavell v R [2011] NZCA 361.

^[4] Boote v R [2014] NZCA 125.

^[5] Lamb v Police HC Christchurch CRI-2008-409-223, 19 February 2009.

^[6] Mareangaru v Police HC Invercargill CRI-2007-425-21, 3 July 2007.

^[7] Lamb v Police, above n 5 and Maraeangaru v Police, above n 6.

^[8] R v Taueki, above n 2.

^[9] At [37](b).

^[10] At [39](c).