R v Lin [2013] NZHC 2837 (29 October 2013)

Last Updated: 12 November 2013

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-092-6038 [2013] NZHC 2837

THE QUEEN

v

SHU-PING LIN

Hearing: 29 October 2013

Appearances: B H Dickey for Crown

R M Mansfield for Defendant

Sentence: 29 October 2013

_{SENTENCE OF COOPER J}

Solicitors:

Meredith Connell, Crown Solicitors, Auckland

_{R M Mansfield, Auckland}

R v LIN [2013] NZHC 2837 [29 October 2013]

[1] Mr Lin, you were convicted at your trial on one count of sexual violation by rape and on a second count of wounding with intent to cause grievous bodily harm. The person you raped was a young woman with whom you had been in a relationship. The person who you wounded was her new partner. These offences carry with them maximum penalties of 20 and 14 years’ imprisonment respectively.

The facts

[2] I will sentence you on the basis of the following facts. You and the complainant on the rape charge had previously been in a relationship which had ended by early 2012 when she had returned to New Zealand and you remained in China. It appears that you failed to accept that the relationship was over and pending your return to New Zealand you had persistently called her and sent her messages, at times using abusive and threatening language.

[3] You returned to New Zealand on 2 May 2012 and after picking up a car headed to the complainant’s home. You gained entry to the house by use of a ladder and climbing through an upstairs bedroom window. You gave evidence at the trial that you had a key to the property. The complainant denied giving you a key. I am unsure whether or not you had a key. What is clear is that you chose to enter the house through the upstairs bedroom window, probably with the intent of surprising her. You then confronted her aggressively and forced her into the ensuite bathroom of her bedroom, where you raped her as she lay on the floor between the shower and the toilet. In a struggle which took place and in which her resistance was overcome, you injured her by causing bruising injuries to her neck, arm and leg. There were abrasions on her forehead and upper lip. There were ulcers on the inner side of her lower lip consistent with you having placed your finger in her mouth to prevent her crying out during your attack on her.

[4] I note that the jury acquitted you on two other counts alleging that you had sexually violated the complainant by unlawful sexual connection in the course of your assault on her. This was probably because they were not satisfied that the alleged acts occurred to the required standard of beyond a reasonable doubt. However, the implications of the conviction on the rape count are plain. I note too

that you were acquitted on a count alleging that you had entered the property, without authority and with intent to commit a crime therein. On the view I take this would have been because the jury was not satisfied beyond a reasonable doubt that when you entered you intended to commit a crime in the house.

[5] However, it is also my view that an aggravating aspect of this offending is the fact that there was a home invasion. Whether or not you had a key, you chose not to use it and you also entered the house at a time when you knew from communications that you had received from the complainant, that you would not be welcome there. This adds to the gravity of the rape offending and I will sentence you accordingly.

[6] The second offence occurred downstairs in the house after the rape. When the female complainant was able to escape she made her way downstairs and that coincided with the arrival back home from work of her boyfriend, Mr Gong. I accept his evidence at the trial that the female complainant had met him outside the house, and that he could tell that she was very upset, as well as observing an injury to her face. Mr Gong came into the house, confronted you and demanded that you leave.

[7] I am also satisfied that you refused to do so and a fight developed. In the initial stages Mr Gong armed himself with a vacuum cleaner pipe to defend himself against you. You were evidently brandishing a wine bottle and as the situation developed you went into the kitchen and tried to break the bottle on the kitchen bench so as to make it a more effective weapon. However, you then picked up a large kitchen knife, which was either in a drawer or on the kitchen bench. You used the knife in a stabbing or thrusting motion directed at Mr Gong and in the course of this attack injured him by wounds to the head, which were recorded in photographs taken shortly afterwards and produced in evidence. Mr Gong took the defensive action of grabbing the knife blade with his bare hand and eventually, with the assistance of the female complainant, succeeded in disarming you.

[8] Shortly earlier, the police had been called and you remained under Mr Gong’s

observations and that of another occupant of the house. You were then arrested.

[9] In the course of the assault Mr Gong sustained a cut to his left temple approximately three centimetres in length, a cut to the top of his ear, an approximately one centimetre long cut on the palm-side of his index finger, a cut on the back of his middle finger and a deeper laceration to the pad of his left ring finger. He also sustained a wound to his right hand, but the evidence as to the nature of that wound is unclear.

The victim impact statements

[10] I have received and read victim impact statements in relation to the offending. The female complainant describes herself as having been living a life of fear since this incident, and refers to frequent nightmares about what happened on the night. She says she finds it hard to sleep on occasions and experiences fear when she hears strange noises. She says that she bought a dog, feeling the need for protection from you and to give a warning of any intruders. She says that when she see your friends in the Chinese community in Auckland, that reminds her of the events that occurred on the night. She also feels ashamed of what happened to her and refers to cultural difficulties that that causes for women of your race.

[11] Mr Gong refers to scarring which remains on one of his hands and impairment to the functioning of his fingers. He refers to the ongoing stress and sleeplessness which he experienced following the incident and worries about his safety, and that of the female complainant. He also refers to avoiding events involving the Chinese community because of not wanting to come into contact with your family and friends.

Pre-sentence report

[12] I have received a pre-sentence report which states that you emigrated from China ten years ago to pursue a better life for your family and that you are married with three children. A tea and herb importing business that you had has fallen into debt which caused you to feel depressed. You told the author of the report that your female victim was responsible for your indebtedness because her demands for money were so great. You also told the author of the report that your conviction was a result of lies told by the witnesses and you maintained the defence that you ran at

the trial, that the sexual intercourse was consensual, and that you had only been trying to defend yourself in the fight that took place with Mr Gong. I do note that you have no relevant previous convictions.

[13] The report refers to a lack of remorse and the violent nature of your offending and recommends that you attend prison based programmes to address violence and sex offending.

Submissions

[14] I have heard submissions this morning from Mr Mansfield on your behalf who has also provided me with written submissions. Mr Dickey for the Crown, has appeared this morning, but indicated that he is intent to rely on his written submissions.

[15] Counsel are not far apart on the appropriate starting point for the rape offending. Mr Dickey has submitted that the starting point should be in the range of seven to eight years on the basis that I might consider that there were aggravating features involving planning and premeditation, home invasion and violence and injury to the victim. Insofar as the wounding offence is concerned, Mr Dickey emphasises the use of the weapon and the wound injuries suffered to Mr Gong’s head. He submits that this was a dangerous attack and that you persisted during Mr Gong’s attempts to defend himself. He submits that an appropriate starting point would be three to four years for that offending and that taking into account the totality of the offending, an effective final sentence of imprisonment of about nine years would be appropriate.

[16] Mr Mansfield submitted that the appropriate starting point for the rape was one of seven years’ imprisonment. He conceded that there were some aggravating features present, but argued they were present to a moderate degree only. The level of violence was, he submitted, moderate; the offending did not involve an extended abduction nor did it involve a victim who was especially vulnerable. He submitted that there was little or no premeditation, and relied on the acquittal on the burglary count to submit that this was not a case of home invasion.

[17] Insofar as the wounding is concerned, Mr Mansfield submitted that there was a fight between you and Mr Gong in which both of you employed weapons and that in which both of you sustained injuries. In your case, the submission was evidently based on the circular markings on your chest, depicted in photographs taken by the police, which may have been consistent with thrusting movements by Mr Gong with the vacuum cleaner handle. Insofar as the use of the knife is concerned, Mr Mansfield noted that you had not brought a weapon with you to the property and the use of the knife was entirely spontaneous and opportunistic. He submitted that there was an element of provocation and submitted that a starting point of three years’ imprisonment would be appropriate.

[18] He also referred to mitigating factors which need to be considered, including your previous good character, staunch support from family and friends, low risk of re-offending and hardship that you would experience serving a prison sentence in New Zealand with very limited ability to speak English. Mr Mansfield submitted that a discount of these factors of up to 12 months would be appropriate.

[19] Mr Mansfield has provided me with letters that you have written dated

23 September, as well as letters from your father, your wife, and a number of friends and persons associated with the Bhuddist community. Your own letter suggests that contrary to what is said in the pre-sentence report, you are now experiencing a degree of remorse and you also show some insight into the relationship you had with the female complainant stating that you became “mesmerised” by her and had felt used and betrayed when the relationship appeared to be over. The difficulty I have is that your expressions of remorse are accompanied by protestations that you did not threaten her when I am satisfied from the text messages that were referred to in evidence that that is precisely what you did. However, I note that you have apologised to her and to Mr Gong for what happened, and also indicated now in your letter that you accept the jury’s verdict.

[20] You are very lucky that your wife remains supportive and is prepared to speak well of you as she has in her letter of 10 September 2013. Your father also speaks well of you and the services that you have performed for him in his recent illness. Unfortunately, in both cases their letters lose some of their force because of

the way in which both have seen fit to attack the victim. I hope you and your family understand that I have to sentence you on the basis of what the jury determined occurred.

[21] I can say that it is clear to me that you have not previously acted in a way so as to bring yourself before the Courts on serious offending such as this. You appear to have some appreciation of why you are here and what you have done and that at least is progress. And the letters from your family amply justify Mr Mansfield’s submission that you have strong support from family and friends. That should give you some comfort and hope for the future.

[22] In the end Mr Mansfield arrived at an effective term of imprisonment of seven years, some two years less than the outcome the Crown considers appropriate.

Evaluation

[23] I deal first with the rape. Mr Lin, in sentencing you on that count I am required to take into account relevant provisions of the Sentencing Act and a guideline judgment issued by the Court of Appeal in a case called R v AM.¹ I need to hold you accountable for the harm done to your victim and the community, to promote a sense of responsibility for, and an acknowledgement of that harm by you, to denounce your conduct and deter you and others from committing the same or

similar offences.

[24] I need also to take into account the gravity of the offending, and consistency with appropriate sentencing levels, as well as, of course, the effect on the victim. I am also required to impose the least restrictive outcome appropriate in all the circumstances.

[25] In considering the appropriate starting point, I would place this case in band 1 of the sentencing bands identified by R v AM, but nearer the upper end of that band.

[26] The acquittal on the burglary count makes it inappropriate to factor in any element for planning and premeditation. However, there was a degree of violence

¹ R v AM [2010] NZCA 114; [2010] 2 NZLR 750.

associated with the rape and I am also satisfied that this was a case of home invasion. Whether or not you had a key, you did not use it. Rather, you chose to enter the house by means of the ladder and the upstairs window and your sudden presence there would have been traumatic and shocking for the victim given the recent history of your relationship and her firmly expressed intent that it should come to an end. In all the circumstances I am satisfied that you must have known your presence there would have been most unwelcome to her.

[27] There was a degree of physical harm to the victim which I have already described and there is apparently ongoing emotional harm. These considerations lead me to the view that an appropriate starting point for the rape is one of seven and a half years’ imprisonment.

[28] I turn then to consider your personal circumstances. You are now 43 years of age and Mr Mansfield properly drew my attention to your previous good character, support from family and friends. Mr Mansfield submitted you pose a low risk of re- offending and referred to the hardship that you will experience serving a prison sentence in New Zealand given your very limited ability to speak English. I agree with him on those matters. Until your letter of 23 September 2013 which Mr Mansfield has provided to the Court, there was no indication of remorse and indeed, your stance was, as reported in the pre-sentence report, that you had been wrongly convicted. It is not clear to me now that you genuinely accept that you raped the victim despite what you say in your letter. However, there is no doubt your previous good character and in all the circumstances, I think it appropriate to reduce the sentence that would otherwise have been imposed by a period of12 months to reflect these various considerations. This would result in an effective final term of imprisonment of six years and six months.

[29] Turning next to the wounding, I consider an appropriate starting point is a sentence of three years and six months. The main aggravating features are the facts that you employed a large kitchen knife in your attack on Mr Gong, and he suffered a number of wound injuries to his head. He also sustained injuries to his hands and in my view, he did so when he was trying to defend himself against you. I am not persuaded that there was any real element of self-defence, and I am not satisfied that

the very indistinct marks on your body were the result of offensive action on Mr Gong’s part. While I am satisfied that the case falls within band 1 of the bands identified in the relevant Court of Appeal guideline judgment² it cannot be placed at the lowest end of that band. The use of weapons and the attack on the head justify a starting point of three and a half years. Your personal circumstances have already been taken into account in respect of the rape offence and having been counted once need not be counted again.

[30] It is next necessary to consider whether cumulative or concurrent sentences should be imposed. Mr Dickey in his written submissions submitted that this was an appropriate case for cumulative sentences because the offences are quite different in nature and caused harm to different complainants. Mr Mansfield did not express a view either way. I consider cumulative sentences are appropriate. The offences for which you are being sentenced were connected, arising consecutively on the same night and at the same address. However, the Sentencing Act indicates that cumulative sentences will generally be appropriate where the offences are different

in kind, whether or not they are a connected series.³ I am also required to ensure that

the overall gravity of the offending is taken into account,⁴ and that the individual sentences reflect the seriousness of each offence.⁵ The combination of these requirements leads me to the view that cumulative sentences are appropriate in this case.

[31] The alternative approach would be to take the rape as the lead offence, and weight the sentence on that count so that it reflected the overall gravity of the offending. That approach however, in a case such as this would be to artificially increase the sentence for the rape, and artificially reduce the sentence for the wounding offence.

[32] Having decided that cumulative sentences are appropriate, the next step is to consider the totality of the offending. Without some modification to have regard to

_{the totality of the offending, cumulative sentences here would result in an overall}

² _{R v Taueki [2005] 3 NZLR 375 (CA).}

³ _{Sentencing Act 2002, s 84(1).}

⁴ _{Section 85(2).}

⁵ Section 85(1).

sentence of ten years. I think that would be out of proportion to the gravity of the overall offending. In the end, I consider an effective sentence of nine years would be appropriate having regard to totality considerations.

[33] I will therefore impose a sentence of six years and six months on the rape and two years six months on the wounding charge, reducing the latter for totality considerations. Those sentences will be cumulative. That approach, I think, best reflects what is required by both ss 84 and 85 of the Act.

[34] I note finally that the Crown did not seek imposition of a minimum term and

I agree that is not required in the circumstances of this case.

Result

[35] Mr Lin, please stand. I now sentence you to cumulative terms of imprisonment of:

(a) six years and six months on the rape count; and

(b) two years six months on the count of wounding with intent to cause grievous bodily harm.

[36] Those are cumulative sentences. The result is an effective combined term of nine years.