LIAI v R [2023] NZCA 326

LIAI v R [2023] NZCA 326 [26 July 2023]NOTE: PUBLICATION OF NAME, ADDRESS OR IDENTIFYINGPARTICULARS (EXCEPT OCCUPATION) OF COMPLAINANTPROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA504/2019[2023] NZCA 326BETWEEN DARNELL WILSON LIAIAppellantAND THE KINGRespondentCourt: French and Collins JJCounsel: M J Phelps for ApplicantP D Marshall and T C Didsbury for RespondentJudgment:(On the papers)26 July 2023 at 4 pmJUDGMENT OF THE COURTThe application for recall of this Court's judgment delivered on 18 May 2020 isdeclined.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] On 18 May 2020, this Court issued a judgment dismissing a sentence appealbrought by Mr Liai (the 2020 judgment).1 He had been sentenced to a term of1 Liai v R [2020] NZCA 167 [Appeal judgment].imprisonment of 11 years and 10 months for violent and sexual offending.2 At thetime, the provisions of the Sentencing Act 2002 commonly known as the three strikesregime were still in force.3 Mr Liai was a second-strike offender for the purposes ofthose provisions which on their face required the sentencing Judge to order Mr Liai toserve the full term of his sentence without parole.4[2] Mr Liai now seeks to recall the 2020 judgment relying on the subsequentdecisions of Fitzgerald v R5 and Matara v R.6[3] In Fitzgerald, the Supreme Court was concerned with the provision in the threestrikes regime which required that a third strike offender should receive the maximumpenalty for the offence. The Court held that the maximum penalty should not beimposed if that sentence would breach s 9 of the New Zealand Bill of Rights Act 1990(Bill of Rights Act).7 Section 9 affirms the right not to be subjected to torture or tocruel, degrading, or disproportionately severe treatment or punishment.[4] Significantly for present purposes, Fitzgerald was subsequently applied by thisCourt in Matara to second strike offending, this Court holding that a non-parole ordershould not be made if that too would result in a sentence that breached s 9.8[5] Mr Liai's recall application is opposed by the Crown.[6] In a direction dated 21 April 2023, French J ordered that the application forrecall be determined on the papers. Following that direction, the parties filed detailedsubmissions.2 R v Liai [2018] NZDC 9414 [Meat cleaver incident sentencing notes]; and R v Liai [2019] NZDC18145 [Sexual offending sentencing notes].3 Sentencing Act 2002, ss 86A–86I. The three strikes regime was repealed from 16 August 2022by the Three Strikes Legislation Repeal Act 2022. However, the repeal does not apply to sentencesimposed while the regime was still in force: see Sentencing Act, sch 1AA cl 13, inserted by ThreeStrikes Legislation Repeal Act, s 10.4 Sentencing Act, s 86C.5 Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551.6 Matara v R [2021] NZCA 692, (2021) 12 HRNZ 944.7 Fitzgerald v R, above n 5, at [3], [139] per Winkelmann CJ, [219] per O'Regan and Arnold JJ, and[250] per Glazebrook J.8 Matara v R, above n 6, at [4].[7] In addition to filing an application for recall in this Court, Mr Liai has alsofiled an application in the Supreme Court for leave to appeal the 2020 judgment outof time. That application has been adjourned pending the determination of the recallapplication.The relevant offendingAggravated burglary — 2014[8] In 2014, Mr Liai, then aged 27, committed an aggravated burglary. He chaseda woman through her home with an axe, threatened to kill her and her dog, and usedthe axe to smash a hole at head height in the door behind which she was hiding. Healso stole her phone and gratuitously damaged her property.[9] He was sentenced to a term of imprisonment of four years and 10 months andwas also given a first strike warning.9Meat cleaver incident — August 2017[10] In 2017, Mr Liai was released from prison on parole. He was 30 years of age.On 26 August 2017, while still on parole, he entered a residential property brandishinga meat cleaver. He was seen by the two occupants — a father and daughter — andwhen the father came outside, Mr Liai ran towards him. A fight ensued, during thecourse of which Mr Liai struck the man with the meat cleaver, hitting him on the sideof his jaw cutting open his face. The daughter then attempted to wrest the meat cleaveraway from Mr Liai. During the struggle, she suffered deep lacerations to her left handcausing nerve damage.[11] Once disarmed, Mr Liai then fled the scene.Sexual offending — September 2017[12] Approximately three weeks later, on 19 September 2017, before he had beenapprehended for the meat cleaver incident, Mr Liai committed further serious9 R v Liai [2015] NZDC 3780 at [14]; and R v Liai DC Napier CRI-2014-020-2276, 6 March 2015(Three strikes minute).offending, this time against a sex worker. She had got into his car for the purposes ofproviding paid sexual services, but after noticing that Mr Liai and his passengerappeared to be wearing what looked like gang colours, she became uncomfortable andasked to be taken back to the place where they had picked her up and to be let out ofthe car. Mr Liai ignored that request and instead drove to a dark and secluded carpark.[13] At the carpark Mr Liai's associate got out of the car and appeared to the victimto be acting as a lookout. She again asked to leave and be taken back, making it veryclear that she did not want to engage in any sexual activity with Mr Liai. He intimatedthat he was armed with a gun, told her to be quiet or he would put her in the boot ofthe car, and also said that other gang members were coming to rape her. The associatewas on his phone and the victim believed he must be calling the others.[14] Mr Liai then forced the victim to give him oral sex, grabbing her by the hairand pulling her head down to his penis. She started to cry and attempted to resist butMr Liai overcame the resistance with force. He then put on a condom, climbed on topof her and raped her.[15] The victim managed to escape. She ran to a property bordering the carparkscreaming, climbed a fence and was rescued by some people who called the police.The victim was so traumatised and fearful that she locked herself in the bathroom ofher rescuers, even being reluctant to go with the police when they arrived. Asubsequent victim impact report two years later indicated that the offending had had aprofound and lasting effect and that a long recovery was anticipated.[16] Mr Liai was charged with various offences arising out of this incident. Hedefended them but a jury found him guilty of abduction for the purposes of sexualconnection, sexual violation by unlawful sexual connection and sexual violation byrape.[17] For the purposes of sentencing the Judge found that the detention was of 40 to45 minutes duration.1010 Sexual offending sentencing notes, above n 2, at [28].[18] The sentencing for the sexual offending did not take place untilSeptember 2019, by which time Mr Liai had already been sentenced for the meatcleaver incident. The latter sentencing took place in May 2018.Sentencing for the August 2017 meat cleaver incident[19] Following a sentencing indication, Mr Liai pleaded guilty to one charge ofwounding with intent to cause grievous bodily harm and one charge of wounding withreckless disregard. According to what Mr Liai told the pre-sentence report writer, hewas intoxicated at the time of the offending, having consumed a bottle of spirits.[20] The sentencing Judge, Judge Wharepouri, sentenced him to four years andeight months' imprisonment and further directed that because Mr Liai had already hadthe benefit of a first strike warning, the sentence was to be served without parole orearly release.11[21] In arriving at an end sentence of four years and eight months' imprisonmentthe Judge declined to apply any uplift on account of Mr Liai's criminal historyincluding the 2014 conviction for aggravated robbery, but also rejected a submissionthat a discount was warranted on account of professed remorse.12Sentencing for the September 2017 sexual offending[22] At the time of this sentencing, Mr Liai was of course serving his prisonsentence of four years and eight months for the meat cleaver incident. That raised theissue of whether any sentence for the sexual offending should be concurrent orcumulative with the earlier sentence.[23] The sentencing Judge, Judge Earwaker, took the view that because the sexualoffending was separate and distinct from the meat cleaver incident, a cumulativesentence was warranted.13 After adjusting for totality and allowing a discount of11 Meat cleaver incident sentencing notes, above n 2, at [17] and [22].12 At [16]–[17].13 Sexual offending sentencing notes, above n 2, at [40].10 months for personal mitigating factors, the Judge concluded that the appropriatesentence for the sexual offending was a prison term of seven years and two months.14[24] The Judge was not persuaded it would be manifestly unjust for that sentenceto be served without parole and therefore no further reduction to the sentence wasjustified.15[25] The cumulative effect of the two sentences was thus an overall sentence of11 years and 10 months' imprisonment.[26] As for the personal mitigating factors held to warrant the 10-month discount,these were primarily derived from a report written by a clinical psychologist andneuropsychologist, Dr Visser. Her report revealed that Mr Liai had had a difficultchildhood in which he was exposed to alcoholism and domestic violence. The earlyexposure to extensive substance abuse had seen Mr Liai abuse methamphetamine andalcohol throughout his life.[27] Dr Visser also identified what she described as an undiagnosed attachmentdisorder which was characterised by difficulty in relationships and issues of trustwhich Mr Liai dealt with through substance abuse. The report concluded that Mr Liaihad begun to develop some insight into his issues and was motivated to change.The appeal to this Court[28] The appeal to this Court was against the sentence imposed for the sexualoffending.[29] The grounds of the appeal related to the Judge's starting point (nine and a halfyears' imprisonment), the size of the discounts for totality and personal mitigatingfactors, and the "double counting" of the abduction. There was no challenge to thenon-parole order.14 At [41] and [53].15 At [42] citing Barnes v R [2018] NZCA 42, [2018] 3 NZLR 49, where the Court held that if itwould be manifestly unjust for a sentence to be served without parole, a sentencer could takeaccount of that by reducing the length of the sentence itself.[30] This Court considered the various arguments raised. It noted that at first sightthe cumulative sentence might appear harsh but concluded there was no error, and thatappellate intervention was not justified.16[31] In his application for recall, Mr Liai does not criticise the 2020 judgment northe District Court sentencing decisions. Rather he seeks to advance a new argumentbased on Matara that the non-parole orders imposed on the second strike sentencesshould be quashed because they resulted in a sentence so severe that it breached thefundamental right under s 9 of the Bill of Rights Act.AnalysisThe scope of the recall jurisdiction[32] It is well established that this Court has jurisdiction to recall a judgment if oneof three circumstances exists:17(a) since the hearing there has been an amendment to a relevant statute orregulation or a new judicial decision of relevance and high authority;(b) at the hearing the parties failed to direct the Court's attention to alegislative provision or authoritative decision of plain relevance; or(c) for some very special reason, justice requires the judgment be recalled.[33] In applying for a recall, Mr Liai contends his case falls within the third "specialreason" category. As his counsel Mr Phelps points out, the Supreme Court has recentlyheld in Jolley v R that the special reason test is intended to be a simple and flexibletest which recognises that exercise of the recall jurisdiction is an exceptional step butone that is available to ensure the court remains able to respond to the wide variety ofcircumstances in which recall may be necessary in order to avoid injustice.1816 Appeal judgment, above n 1, at [28]–[29].17 Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633, endorsed by the Supreme Courtin Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 122, [2010] 1NZLR 76 at [2]; and Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286 at [22], [25] and [29].18 Jolley v R [2022] NZSC 150, [2022] 1 NZLR 595 at [14]–[15], citing Uhrle v R, above n 17, at[29].[34] In Cheung v R, this Court recently observed that the recall jurisdiction is mostunlikely to be available to reopen a sentence appeal due to a subsequent change insentencing law or practice.19 That was said to be because of the importance of theprinciple of finality, the ramifications for the administration of justice and the fact thata change of law will not ordinarily occasion a substantial injustice.20[35] That said, we accept that in the context of the three strikes regime, there is nowa line of authority which shows that if Mr Liai were able to demonstrate that thesentence he is currently serving is inconsistent with his right under s 9 of theBill of Rights Act, then that would qualify as an operative reason for recall and re-sentencing. Although most of the other cases involve the granting of extensions oftime for first appeals rather than recalls, that cannot, in our view, be a proper groundfor distinguishing this case. It would obviously be unjust to hold that simply becauseMr Liai happened to have exercised his appeal rights before Fitzgerald, he should bein a different legal position for that reason alone.[36] The crucial question, as we see it, is therefore whether Mr Liai's sentence iscapable of meeting the test for a breach of s 9 and therefore whether the 2020 judgmentwarrants a recall.The test for breach of the s 9 right[37] It is well established that s 9 sets a high threshold and that it will only be inrare cases that a sentence will be held to have breached the right.21 Thus in Fitzgerald,a distinction was drawn between sentences that are severe, excessive ordisproportionate and sentences that are so grossly disproportionate they shock thenational conscience.22 Only the latter category of sentences was said to breach theright.2319 Cheung v R [2021] NZCA 175, [2021] 3 NZLR 259 at [34].20 At [35]–[37].21 Fitzgerald v R, above n 5, at [79] per Winkelmann CJ, [161], [219] and [231] per O'Regan andArnold JJ, and [240] and [245] per Glazebrook J; and Taunoa v Attorney-General [2007] NSZC70, [2008] 1 NZLR 429 at [91] per Elias CJ, [174]–[176] per Blanchard J, [288]–[289] per TippingJ, and [339] per McGrath J.22 Fitzgerald v R, above n 5, at [203] and [219] per O'Regan and Arnold JJ.23 At [203] and [219] per O'Regan and Arnold JJ.[38] In Phillips v R, this Court noted that distinguishing a sentence in the firstcategory from a sentence in the second category was a difficult exercise.24 It identifiedthree factors which it said would be likely to play a significant role in determiningwhether a sentence imposed under the three strikes regime breached s 9.25 The firsttwo related to differences between the sentence that was imposed and the sentence thatwould otherwise have been imposed were it not for the mandatory provisions of thethree strikes regime. The third factor was the nature of the offending, which it wassaid requires an assessment of whether or not the offender is "plainly an inadvertentand unforeseen casualty of the three strikes regime".26[39] As the Crown acknowledges, later decisions have also directed attention to thepersonal circumstances of the offender including in particular their mental health.Thus, in Matara, weight was given to the offender's mental illness and psychosis atthe time of the offending.27 Similarly in Sheers v R, weight was placed on theimplications of the offender's foetal alcohol spectrum disorder.28Applying the test to Mr Liai's case[40] Following Phillips, a first consideration is the difference between the sentencethat was imposed and the one that would have been imposed but for the three strikesregime.29 Because Mr Liai was a second strike offender and not a third-strike offender,the three strikes regime did not impact on the overall length of the cumulativesentence. The focus for the purposes of the recall is thus the difference between theeffect of a non-parole order and the length of the minimum period of imprisonment (ifany) that would have been imposed under ordinary or usual sentencing principlesapplicable under s 86 of the Sentencing Act. Section 86 empowers the court to imposea minimum period of imprisonment if the ordinary non-parole period (one third of thesentence) would not be sufficient to satisfy the sentencing principles of publicprotection, denunciation, accountability and deterrence.24 Phillips v R [2021] NZCA 651, [2022] 2 NZLR 661 at [22].25 At [28].26 At [28(c)].27 Matara v R, above n 6, at [67].28 Sheers v R [2022] NZCA 618 at [25]–[28].29 Phillips v R, above n 24, at [28(b)].[41] In our view, there can be no question that in the circumstances of this case,involving as it did very serious offending committed by an adult while on parole withrelatively limited personal mitigating factors, that a minimum period of imprisonmentwould have been the appropriate response. As to the length of that period, we considera period in the order of 50 per cent to 60 per cent of the sentence would have beenavailable. That is to say, had it not been for the three strikes regime, Mr Liai wouldlikely have been eligible for parole after serving approximately five years and 11months to seven years and one month of his sentence.[42] It follows that because of the three strikes regime, he may end up servingbetween approximately four years and nine months to five years, 11 months longerthan he would otherwise have done under ordinary sentencing principles. In terms ofa multiplier, that equates to 1.67–2 times longer. This calculation assumes of coursethat he would be released when first eligible for parole.[43] We acknowledge that this represents a significant disparity. However, in allbar one of the other cases which have found a breach of s 9, the multiplier, and hencethe disparity, has been greater. The one exception is the case of Crowley-Lewis v Rwhere the multiplier was approximately 2.30 In that case, the Court held that removingthe opportunity for parole was disproportionate and engaged the principles ofFitzgerald and Matara.31 However, a critical distinguishing factor between that caseand this one is that the conduct which led to the first strike warning in Crowley-Lewiscould have been appropriately charged as a less serious offence which would not haveattracted any warning.32[44] Turning next to the nature of the offending,33 as noted we consider Mr Liai'soffending while on parole to be very serious. In both incidents, Mr Liai subjected thevictims to what must have been a terrifying ordeal and caused real harm. His firststrike offence (the aggravated burglary in 2014) must also have been terrifying for thevictim and can be fairly described as serious. Further, as previously mentioned, thereare relatively limited mitigating personal factors. In particular, unlike other cases,30 Crowley-Lewis v R [2022] NZCA 235.31 At [33].32 At [33].33 Phillips v R, above n 24, at [28(c)].including Matara, there is no suggestion of any causative mental health issues or anysuggestion that Mr Liai did not understand the warning he was given at the aggravatedrobbery sentencing or that he was incapable of acting on it.[45] Standing back and looking at all the circumstances, while the non-parole orderwas harsh, we are not persuaded that it is capable of meeting the test of being so grosslydisproportionate that it would shock the national conscience and therefore breach s 9of the Bill of Rights Act. On any assessment, Mr Liai is far from being an inadvertentand unforeseen casualty of the three strikes regime.[46] It follows in our view that there is no substantial injustice warranting recall ofthe 2020 judgment under the "special reason" category. The application for recall isaccordingly declined.Result[47] The application for recall of this Court's judgment delivered on 18 May 2020is declined.Solicitors:Crown Law Office, Wellington for Respondent