R v Sang-Yum [2016] NZHC 2329 (30 September 2016)

Last Updated: 11 November 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-092-7210 [2016] NZHC 2329

THE QUEEN

v

TREVOR SANG-YUM AND MARTIN SANG-YUM

Hearing:	30 September 2016
Appearances:	B R Smith and R M Gibbs for the Crown I Koya for Mr T Sang-Yum M Hislop for Mr M Sang-Yum
Sentencing:	30 September 2016

_{SENTENCING NOTES OF WOODHOUSE J}

Solicitors / Counsel:

Mr B R Smith and Ms R M Gibbs, Kayes Fletcher Walker, Office of the Crown Solicitor, Manukau

Mr I Koya, Barrister, Auckland

Mr M Hislop, Barrister, Auckland

R v SANG-YUM [2016] NZHC 2329 [30 September 2016]

[1] Mr Martin Sang-Yum and Mr Trevor Sang-Yum, you may remain seated while I explain, not just to you but to the public, the sentence I am going to impose. It will take some time.

Martin Sang-Yum: offences

[2] Martin Sang-Yum, you appear for sentence having pleaded guilty to eight charges under the Crimes Act. These are: (1) causing grievous bodily harm with reckless disregard; (2) assault with a weapon; (3) common assault; (4) intentionally damaging property; (5) unlawfully taking a motor vehicle; (6) two charges of theft; and (7) breach of Police bail.

[3] All of the offences occurred on 14 June 2015, apart from the breach of bail. The offences on 14 June occurred when you were with your cousin, Trevor Sang- Yum, who is also to be sentenced for offences committed on that occasion and one other offence.

[4] The offences of causing grievous bodily harm, intentional damage and unlawfully taking a car all have maximum penalties of 7 years imprisonment and the assault with a weapon has a maximum penalty of 5 years imprisonment.

Trevor Sang-Yum: offences

[5] Trevor Sang-Yum, you appear for sentence for theft committed on 27 May

2015, and for six offences when you were with your cousin on 14 June 2015. Your offences on 14 June are: (1) assault with a weapon; (2) three charges of common assault – by kicking, by punching the victim in a headlock, and by punching him in the face; (3) unlawfully taking a motor vehicle; and (4) one charge of theft.

Facts relating to the 14 June offences

[6] I will outline the facts relating to the offences the two of you committed on

14 June 2015.

[7] On the afternoon of Sunday, 14 June the two of you were in a Subaru car on a road in Manurewa. The victim was also driving on the road at the same time in a BMW. To begin with, he was behind your car. According to Martin Sang-Yum’s statement to the probation officer, at one point the victim flashed the lights of his car when behind you, and then went past, at which point Trevor Sang-Yum put his head out the window and started swearing at the driver. I should say that I acknowledge that that is not in the summary of facts and not a factor that I am going to hold against you. But it is part of the background.

[8] You started tailgating the BMW. The victim tried a number of things to stop this without success. He eventually turned down another street and did a u-turn hoping that you would pass him. You followed him, crossed into his lane and then stopped in front of his car blocking it.

[9] Martin Sang-Yum, you got out of the Subaru and approached the driver’s door of the BMW. The victim got out of his car. There was a discussion which appears to have been reasonable at that point. He assured you that he did not want any trouble.

[10] While this conversation was occurring you, Trevor Sang-Yum, went to the boot of the Subaru and got a tyre iron and came towards the other two. The victim, seeing this, repeated that he did not want any trouble.

[11] Trevor Sang-Yum, you came around the open driver’s door and kicked the victim in the body. The victim then tried to get into the driver’s seat of his car. He was pulled from the car and punched in the head and stomach. He was then struck in the head with the tyre iron. The two of you and the victim then moved away from the car, with the victim being punched and struck with the tyre iron a number of times about the head and body. He was also put into a headlock. The victim could not tell which of you was punching him, hitting him with the tyre iron, or putting him into a headlock. That really is not of consequence in terms of the gravity of your offences at this point. Eventually the three of you broke apart.

[12] After you broke apart you, Martin Sang-Yum, got into the BMW. The victim started to run towards his car. Trevor Sang-Yum, you ran up to him and punched him once to the side of his face. At this point the victim was more or less in front of his own car. Martin Sang-Yum, you started the car and began driving towards him in spite of the fact that there was a clear risk that you would hit him and cause him serious harm. The victim shouted “come on mate, don’t run over me” and began running. You continued driving towards him, hit him with the car, and then the car went through a wooden fence and crashed into a concrete block porch. You then reversed the BMW and drove away, followed by Trevor Sang-Yum in the Subaru. You met up and searched the BMW. The two of you stole the victim’s mobile phone and you, Martin Sang-Yum, stole his jacket.

The victim’s injuries

[13] You left the victim on the side of the road after he had been hit by a car. Bystanders called an ambulance for the victim. Although he was still conscious he was very obviously injured and bleeding. In addition to injuries from the assaults other than the assault with the car – and that is my inference – the victim suffered a massive injury to his right leg which required amputation. And I may not have been very clear there. It is plainly the impact from the car that broke his leg. The injuries to his leg were such that amputation might have been required above the knee, but through surgical skill it was possible to amputate below the knee to give more mobility than would have been the case.

[14] The victim did not want to provide a victim impact statement. His views had been expressed in a statement to Police in opposition to applications for bail. As will be obvious, the victim’s life has been very badly affected – permanently – as the result of the loss of his leg. In addition, he has lost his job and he feels he has an uncertain future. He lives in constant pain and faces rehabilitation and medication, possibly for the rest of his life.

Sentence for Martin Sang-Yum

[15] Martin Sang-Yum, I will now deal directly with you in relation to your sentence.

Starting point

[16] The first step is to fix a starting point for the most serious offence. In your case it is the violent assault on the victim using the car – causing grievous bodily harm with reckless disregard. The starting point assesses the seriousness of the offence before considering personal factors which might increase or decrease the starting point.

[17] I have received submissions from Mr Hislop on your behalf, and from the Crown, addressing relevant matters in relation to the starting point and referring to other cases where sentences have been imposed for broadly similar offending although not necessarily for the same offence. I do not intend to discuss the detail of the submissions or any of the cases and will simply note the cases in a footnote in the transcript of what I am now saying.¹

[18] Mr Hislop acknowledged that aggravating features of the offence using the car are extreme violence, use of a weapon – that is, the car – and serious injury. The Crown submitted that there was also a degree of pre-meditation and vulnerability of the victim at the point that you committed this offence. To the extent that there was any pre-meditation, it was not significant. But I agree that your victim had certainly become particularly vulnerable by the time you drove the car.

[19] The Crown submitted that the starting point, against a maximum penalty of 7 years imprisonment, should be between 5 years 6 months and 6 years imprisonment. Mr Hislop in his written submissions submitted that the starting point should be 5 years imprisonment but he acknowledged, given the seriousness of the offence and

_{the maximum penalty, that it could possibly go to 6 years.}

¹ Forbes v Police HC Whangarei CRI-2005-488-000017, 26 July 2005; R v Goyen CA285/05, 1

May 2006; R v Heremaia [2012] NZHC 3361; R v Wilson [2015] NZHC 900.

[20] Taking account of the relevant purposes and principles of sentencing, the facts of this offence, the submissions of both counsel and the cases referred to, I consider the starting point should be 6 years imprisonment.

[21] I then need to take account of the other offences. The Crown submitted that there should be a further sentence of 12 months imprisonment as a separate sentence

– what is called a cumulative sentence – for the assault with a weapon. The Crown submitted that there should be a cumulative sentence because the assault with the weapon and the associated assaults are different in kind from the offence of causing grievous bodily harm with the car. I am not persuaded by that submission. But there must be an increase in the starting point to take account of other offences.

[22] Mr Hislop submitted that the increase should be no more than 6 months imprisonment. I do not agree with that submission. The other assaults you committed, and participated in with your cousin, before you got into the victim’s car and drove into him, were serious assaults in themselves. You then drove away, in the victim’s car, leaving him very badly injured on the side of the road. Account must also be taken of the further offences of taking the car and of theft.

[23] Allowing for what is called totality, I consider that the starting point should be increased by 12 months for the other offences, which increases the sentence to 7 years imprisonment.

Personal circumstances

[24] I now need to assess a reduction, or any increase, for your personal circumstances.

[25] You are aged 24. You have three previous offences. These are breach of community work and an excess breath alcohol offence in 2013 and driving when your licence was suspended in 2011. Those offences have no relevance for the sentencing today. I have nevertheless stated what they are because I consider that you can in substance be treated as a first offender. This is not only because those earlier offences, in context, are minor, but – more importantly – because those are

your only previous offences in spite of what appears to have been a somewhat difficult upbringing – and I am not going to go into the detail – from a reasonably young age and other difficulties referred to in the psychiatrists’ reports that you are not responsible for.

[26] There have been two psychiatric reports relating to you, and in one of them you describe being kicked out on the street when you were reasonably young. But you kept out of any real trouble until now. And this is so notwithstanding an assessment by one of the psychiatrists that you have an IQ of 78, which in essence indicates borderline cognitive ability. On the other hand, Mr Yang-Sum, there is nothing in the reports to indicate that you should be assessed as having a lower level of culpability for the offences. Nor do the reports indicate that a term of imprisonment would be more severe for you than the same term of imprisonment for a person with a higher level of intelligence.

[27] The second report, from Dr Pillai, discussed your dependence on, and it may be addiction to, alcohol and methamphetamine. You have suggested that this may have contributed to your offending. It does not in any way mitigate the offending. But you have also indicated to Dr Pillai that you recognise the problem and you are prepared to try and do something about it. Under the Sentencing Act you deserve some credit for recognising this, and you can get assistance in prison if you are willing to take it.

[28] I am also prepared to accept that you are remorseful for what you did. In my judgment this is tied in with your recognition that you do have a serious problem with substance abuse and that you will be responsive to treatment. There are some indications of a positive nature in Dr Pillai’s recent report.

[29] Having regard to the personal factors I have referred to, I consider that the sentence should be reduced by 9 months to 6 years 3 months.

[30] You are entitled to a further reduction for your guilty pleas. Mr Hislop and the Crown agree that the reduction should be the maximum of 25%. I also agree. That brings the end sentence for the most serious offence to 4 years 8 months

imprisonment. And that will be the full length of your sentence. I will formally impose the sentences after discussing the sentence for Trevor Sang-Yum.

Sentence for Trevor Sang-Yum

Starting point

[31] Trevor Sang-Yum, I will deal first with the sentence for your offences with your cousin on 14 June. The most serious was the assault with a weapon – the assault with the tyre iron that you got out of the boot of your car. The maximum penalty is 5 years imprisonment.

[32] Mr Koya on your behalf did not make any direct submission on a starting point in his written submissions. In his oral submissions he acknowledged that the starting point might perhaps be at around 2 years and 4 months.

[33] He submitted that, taking account of the facts of the offence, but allowing for personal mitigating factors and time spent in custody or on EM bail, you should receive a non-custodial sentence. And he submitted that it should be home detention. I do not agree that a non-custodial sentence is appropriate. And for reasons I will come, it could not be imposed in any event.

[34] The Crown submits that the starting point should be between 2 years 4 months and 2 years 8 months imprisonment. I emphasise that that is for all of the assaults and not just for the assault with a weapon.

[35] The aggravating features of your assaults – by you alone in some cases, and in conjunction with your cousin in others – are the following. The aggression actually started when you took the tyre iron out of the boot. There was a degree of pre-meditation or calculation in this by you. You got a weapon and, from what then happened, you got a weapon with the plain intention of using it. The victim was struck a number of times about the head and body with the tyre iron in addition to receiving punches to the head and body. There was serious violence involved in this.

And it was violence committed by the two of you acting together which made it worse. Attacks to the head with a weapon are serious aggravating factors.

[36] Taking account of the circumstances of the offences and the submissions, and cases referred to,² I consider the starting point for the four assaults, taken together, should be 2 years 8 months imprisonment. This is to be increased by 4 months for the other offences on 14 June.

[37] There is the separate offence of theft which occurred just over two weeks earlier. You and three associates went to a store in Manukau and stole five computer keyboards and accessories with a total value of just over $1,200. The maximum penalty for that offence is 7 years imprisonment.

[38] There will be a cumulative sentence of 3 months imprisonment for this offence. This takes account of the personal factors, which I will come to, and totality.

Personal mitigating factors

[39] I come to personal mitigating factors – and there are no personal aggravating factors. You are aged 23. You have a conviction for common assault, committed in

2015, which resulted in a sentence of 100 hours community work. You were then convicted on three occasions over a reasonably short period for breach of the community work sentence, with one of the convictions being representative. In your case you cannot be treated as a first offender, but I do not intend to increase the sentence because of the previous conviction for an assault.

[40] You have written a letter expressing remorse. I am prepared to accept it as genuine – and I really hope it is. You also appear to recognise that you need to make changes in your lifestyle and your attitudes and to undertake programmes to assist. For these things you are entitled to credit of 3 months, reducing the sentence to 2

_{years 9 months imprisonment.}

² Hurinui v R [2014] NZCA 290; Funaki v Police [2013] NZHC 2218.

[41] You are finally entitled to a reduction for guilty pleas. The Crown agrees that this should be the maximum in your case, as well, of 25%. The end sentence, therefore, is a sentence of 2 years and 1 month imprisonment for the offences on 14

June. And there will be the cumulative sentence of 3 months for the theft.

Formal sentence

[42] The two of you should now stand and I will impose the formal sentences.

Martin Sang-Yum

[43] Martin Sang-Yum:

(a) For causing grievous bodily harm, you are sentenced to imprisonment for 4 years 8 months.

(b) For the assault with a weapon, imprisonment for 2 years and 1 month. (c) For common assault, 6 months imprisonment.

(d) For intentional damage, 2 years imprisonment.

(e) For unlawfully taking the car, 1 year imprisonment. (f) For the two thefts, each 3 months imprisonment.

(g) For the breach of bail, you are convicted and discharged.

[44] The result is that the total sentence is 4 years and 8 months imprisonment

Trevor Sang-Yum

[45] Trevor Sang-Yum:

(a) For the assault with a weapon, you are sentenced to imprisonment for

2 years and 1 month.

(b) For the three common assaults, you are sentenced to 6 months imprisonment for each.

(c) For taking the car, you are sentenced to imprisonment for 1 year. (d) For theft from the car, the sentence is 3 months imprisonment.

[46] All of those sentences are concurrent, so the total is 2 years and 1 month.

[47] For the offence of theft on 27 May 2015, there is a cumulative sentence of 3 months imprisonment.

_{[48] You should now stand down.}

Woodhouse J