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QI XIE v/s The Queen


Company & Directors' Information:- I-QUEEN PRIVATE LIMITED [Active] CIN = U74999KL2017PTC048635

    CA No. 371 of 2018

    Decided On, 13 June 2019

    At, Court of Appeal of New Zealand

    By, THE HONOURABLE MR. JUSTICE FRENCH
    By, THE HONOURABLE MR. JUSTICE MILLER & THE HONOURABLE MR. JUSTICE LANG

    For the Appellants: P.H.B. Hall, QC. For the Respondent: R.K. Thomson, Advocate.



Judgment Text

REASONS OF THE COURT

(Given by Lang J)

[1] Ms Xie was found guilty by a jury on a charge of wounding her husband with intent to cause grievous bodily harm.[1] On 2 May 2018, Judge Garland sentenced her to four years’ imprisonment.[2]

[2] Ms Xie appeals against sentence on the basis that the Judge adopted a starting point that was too high and failed to give Ms Xie sufficient credit for mitigating factors personal to her. She contends this resulted in an end sentence that was manifestly excessive.

[3] Ms Xie originally appealed against her conviction and sentence, but the conviction appeal was subsequently abandoned. The appeal was also filed 21 working days out of time. There was no opposition by the Crown to the application for an extension of time and accordingly the application is granted.

Background

[4] Ms Xie grew up in China. She met her future husband in Shanghai in late 2010. He was then living in New Zealand but travelled to China several times each year. Ms Xie came to New Zealand in February 2013 and married her husband in August that year.

[5] During the latter part of 2016 difficulties arose in the marriage after Ms Xie’s husband admitted he was in a relationship with another woman. He promised not to see that person again.

[6] On the afternoon of 20 January 2017 Ms Xie and her husband were in a caf in Fairlie. Whilst in the caf Ms Xie observed her husband viewing photographs of the woman on his cellphone. Ms Xie immediately became angry and seized the cellphone. She threw it away and then left the caf. She went to the vehicle in which they had arrived at the caf and broke one of the side mirrors of the vehicle.

[7] Ms Xie’s husband immediately left the caf and tried to placate her. Members of the public in the vicinity of the incident were sufficiently concerned at what they saw occurring to call the police. The police arrived and found Ms Xie and her husband sitting in their vehicle. They reassured the police that the situation was under control and the police left the scene.

[8] Ms Xie and her husband then drove back to their home in Christchurch, arriving there at about 7 pm. During the journey they did not discuss what had occurred at the caf because other persons were in the vehicle. At some stage after they arrived home, however, Ms Xie got a knife from the kitchen and hid it under a cushion on a sofa in the lounge of their address. She and her husband then went into the lounge and began discussing the issue that had arisen earlier that day. During this discussion Ms Xie produced the knife from under the cushion. An altercation then occurred in which Ms Xie inflicted several knife wounds on her husband. These included a three-centimetre laceration to his upper back, a 1.5 centimetre laceration to his right elbow and a 0.5 centimetre wound to his lower right thigh.

[9] Ms Xie’s husband was able to remove the knife from Ms Xie’s grasp and throw it away. He then called an ambulance. He was taken to hospital where he required surgery to treat the wound to his right elbow.

[10] Ms Xie’s husband told an ambulance officer and a police officer who attended the scene that Ms Xie had caused the wounds. Ms Xie told the police that she had seen texts on her husband’s phone that had been sent to him by another female. She said she had grabbed the knife and attempted to harm herself. She said her husband had endeavoured to stop her from harming herself and that she had accidentally stabbed him with the knife during the resulting struggle.

[11] Ms Xie’s husband went to the police a few days after he was discharged from hospital. He made a formal statement to the police supporting the version of events Ms Xie had given on the evening of the incident.

[12] At trial, Ms Xie ran a defence based on the same version of events. Ms Xie’s husband also gave evidence for the Crown along the same lines. After he gave this evidence the trial Judge made a determination under s 94 of the Evidence Act 2006 that he was a hostile witness.[3] The prosecutor then cross-examined him regarding the statements he had made to the police and ambulance officer immediately after the incident. Ms Xie’s husband had made no mention at that time of the wounds being inflicted as he attempted to stop Ms Xie from harming herself with the knife.

[13] The guilty verdict demonstrates the jury’s rejection of Ms Xie’s claim that the wounds had been caused accidentally.

The sentence

[14] The Crown submitted a starting point of between five and six years’ imprisonment was appropriate.[4] It placed the offending towards the top end of Band One or the bottom end of Band Two identified by this Court in R v Taueki.[5] Starting points for offending within these bands will range between three to six years’ imprisonment and five to 10 years’ imprisonment respectively.

[15] The Judge considered the offending involved very serious violence inflicted by a lethal weapon in the form of a sharp knife with a pointed ten-centimetre-long blade.[6] This meant the likelihood of causing very serious injury to the victim was high. In addition, it involved a degree of premeditation because Ms Xie had concealed the knife under the sofa cushion before the attack occurred.[7] The offending had also caused significant injury to the victim, although his wounds had healed following surgical intervention.[8] The Judge ascribed this to good fortune rather than good management on Ms Xie’s part.

[16] Dealing with the issue of provocation by the victim, the Judge observed:

[16] The Crown submits that this is not an exceptional case of the kind referred to by the Court of Appeal in Wairau v R. I agree that there was no instantaneous loss of control by you but given the events that led up to your offending, especially bearing in mind the personal sacrifices that you made to come to live in New Zealand with the victim and to marry him, coupled with the expectation of the family, given their cultural values, it was not unexpected that the revelation that unfolded in the Fairlie caf would have caused you extreme emotional distress. That may in turn have led to a loss of self-control.

[17] Taking these factors into account, the Judge selected a starting point of five years’ imprisonment.[9] The Judge then applied a discount of 10 per cent, or six months, to reflect the fact that Ms Xie had never previously committed a criminal offence.[10] The Judge reduced the sentence by a further six months because Ms Xie is likely to find the sentence of imprisonment more difficult to serve as a foreign national whose family resides in China.[11] This resulted in the end sentence of four years’ imprisonment.[12]

The starting point

[18] Mr Hall QC contends the starting point of five years’ imprisonment failed to give sufficient weight to the provocative conduct of Ms Xie’s husband. Although Mr Hall acknowledges the Judge referred to that factor, he points out that the sentencing remarks do not articulate the level of discount applied to reflect it. He submits, however, that the final starting point of five years’ imprisonment was too high given the level of provocation offered by Ms Xie’s husband during the incident that occurred in Fairlie on the day of the offending.

[19] We agree with the Judge’s assessment of the aggravating features of Ms Xie’s offending. We also consider the following passages from Taueki, both of which the Judge cited in his sentencing remarks, assist in determining the appropriate starting point having regard to the aggravating factors the Judge identified:[13]

A domestic assault by an offender on his or her spouse or partner (or former spouse or partner) which is impulsive, does not involve the use of a weapon and does not cause lasting injuries, but where the victim is properly classified as vulnerable, may require a starting point in the region of four years. Where there is a degree of premeditation or there is the use of a weapon (but again no lasting injuries) a higher starting point could be expected, perhaps five years or more.

...

A domestic attack on the partner or former partner of the attacker which is premeditated and involves the inflicting of serious and lasting injury would require a starting point in band 2. The appropriate point in that band would require evaluation of the seriousness of those factors. Where the attack involves the use of a weapon, particularly where it is brought to the scene, the starting point could be expected to be at a higher end of band 2.

(Emphasis added)

[20] Ms Xie’s offending involved both the use of a weapon that had been brought to the scene and premeditation. It also caused significant injury that fortunately had no lasting effects. As a result, it sits at the top of Band One or the lower end of Band Two. We therefore consider a starting point of more than five years’ imprisonment was warranted. A starting point between five years six months’ and six years’ imprisonment would therefore have been within the available range.

[21] The conduct of the victim may be a mitigating factor that reduces the starting point.[14] In the present case, however, any provocation offered by Ms Xie’s husband needed to be balanced against the fact that it was offered several hours before the incident giving rise to the charge. We accept that the effects of provocation may extend over a period of time, but the lapse in time between the provocative conduct and the offending in the present case significantly diminishes the reduction available to reflect the provocative act. The level of violence used in response to the provocative act was also clearly disproportionate. We therefore consider that any reduction to reflect the provocative conduct would not have resulted in a starting point of less than five years’ imprisonment.

Mitigating factors

Low risk of re-offending

[22] Mr Hall submits the Judge ought to have given Ms Xie credit for the fact that the pre-sentence report assessed her as being at low risk of re-offending. Mr Hall also seeks leave to adduce a report prepared by a psychologist in May 2019. The report was prepared in support of an appeal Ms Xie has lodged to the Immigration Protection Tribunal against a deportation liability notice she has received as a result of the present offending.

[23] We decline to admit the report because it was prepared for a purpose other than sentencing and still depends on a version of events that reflects in some respects the defence Ms Xie ran unsuccessfully at trial. Although she acknowledged to the psychologist that she intentionally stabbed her husband, Ms Xie continues to maintain that this occurred in the context of an initial intention by her to use the knife to harm herself. We do not consider that to be an appropriate basis on which to proceed when dealing with the issue of sentence. The report is therefore of little assistance in the present context.

[24] The fact that an offender may be at low risk of reoffending is not generally recognised as a mitigating factor unless it is accompanied by other mitigating factors such as rehabilitative efforts undertaken by the offender prior to sentence. That is not the situation here. We therefore do not consider the Judge was required to provide a discount for this factor.

Deportation

[25] Mr Hall also submitted the Judge ought to have given Ms Xie a discount to reflect the fact that she is likely to be deported after serving her sentence. We do not accept this submission for two reasons. First, there is no certainty that Ms Xie will be deported given the fact that she has appealed against the deportation liability notice. Secondly, although deportation is a consequence of the offending it is now well established that this is not relevant to the sentencing exercise.[15] This ground of appeal fails as a result.

Remorse

[26] The Judge observed that he was unable to reduce the sentence to reflect any contrition or remorse shown by Ms Xie for her offending.[16] Mr Hall seeks to rely on an affidavit filed by Ms Xie’s husband after sentencing in which the husband says he has forgiven Ms Xie and that she feels remorse for her offending. We decline to admit this affidavit which is essentially asking us to re-sentence Ms Xie on a different basis to that presented in the District Court.

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It is also noteworthy that Ms Xie has not chosen to place any evidence of remorse on the record herself. In our view, the Judge was correct not to apply a discount on account of remorse. Result [27] The application for leave to bring the appeal out of time is granted. [28] The application for leave to admit a psychologist’s report as evidence is declined. [29] The application for leave to admit Mr Shi’s affidavit as evidence is declined. [30] The appeal against sentence is dismissed. ----------------------------------------------------------- [1] Crimes Act 1961, s 188(1). [2] R v Xie [2018] NZDC 8516. [3] R v Xie [2018] NZDC 12000. [4] R v Xie, above n 2, at [9]. [5] R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA). [6] R v Xie, above n 2, at [14(a) and (d)]. [7] At [14(b)]. [8] At [14(c)]. [9] R v Xie, above n 2, at [17]. [10] At [18]. [11] At [18]. [12] At [19]. [13] R v Taueki, above n 5, at [37(b)] and [39(c)]. [14] Sentencing Act 2002, s 9(2)(c). [15] Cai v R [2012] NZCA 293 at [28]; R v Zhang CA56/05, 24 May 2005 at [11]–[16]; R v Sabuncuoglu [2008] NZCA 448 at [34]; and R v Ondra [2009] NZCA 489 at [7]–[11]. [16] R v Xie, above n 2, at [18].
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