WU v R [2022] NZCA 604

WU v R [2022] NZCA 604 [5 December 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA324/2022[2022] NZCA 604BETWEEN DONGLAN WUAppellantAND THE KINGRespondentHearing: 25 October 2022Court: Cooper P, Venning and Palmer JJCounsel: A Wei and C S Fredric for AppellantR M A McCoubrey for RespondentJudgment: 5 December 2022 at 9.30 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Venning J)[1] Ms Donglan Wu pleaded guilty to a charge of wounding with intent to causegrievous bodily harm.1 On 7 June 2022, Downs J sentenced Ms Wu to five years,three months' imprisonment.2 Ms Wu appeals against that sentence.1 Crimes Act 1961, s 188(1).2 R v Wu [2022] NZHC 1320.Background[2] We take the background from the Judge's sentencing notes:3[2] You and your former husband separated December 2020. You left thefamily home March 2021. Shortly thereafter, the victim, Ms C, moved intothe home as Mr Wu's new partner.[3] At some unspecified time, you threatened Mr Wu, saying you wouldmake him suffer and he would regret it. You had, in or about February 2020,threatened to kill your son and commit suicide. You said you wanted to makeheadlines.[4] In the early hours of 17 March 2021, you went to the home.You arrived at 3.10 am. Unsurprisingly, everyone was asleep. You movedtwo gas bottles from outside, entered the home, and placed them by Ms C'sbed. You opened the nozzle on each bottle, then left the room.[5] Ms C got up to use the bathroom. You attacked her with a knife.Its blade was approximately 12 centimetres long. You cut her left forearmcausing a five-centimetre injury. You cut her head—the laceration went to thebone. At some point, you plunged the knife into Ms C's neck. This caused asevere, gaping wound of approximately eight centimetres.[6] Others came to Ms C's aid. Police were swiftly called immediately.You declined to comment. You were charged the same day.[7] Ms C lost a lot of blood. Her injuries required surgery. She haspermanent scars on her arm and neck. She could not work for a month andhas undergone extensive rehabilitation. Ms C remains traumatised by whatyou did. Unsurprisingly, she lives in fear and anxiety.The High Court sentence[3] The Judge took a starting point of 10 years' imprisonment.4 He then alloweda 20 per cent deduction for the guilty plea, 15 per cent for the fact Ms Wu was afirst-time offender and had prospects of rehabilitation, five per cent for her personalcircumstances and five per cent for remorse.5 In addition, although counsel had notsought it, the Judge reduced the resultant adjusted sentence by a further three monthsto take account of Ms Wu's difficulties with English and the cultural impediments thatmight arise while she was in prison.6 That led to the end sentence of five years,three months' imprisonment.73 Footnote omitted.4 R v Wu, above n 2, at [13].5 At [15]–[19] and [22].6 At [24].7 At [27].The appeal[4] Mr Wei confirmed that Ms Wu's appeal against sentence is focused solely onthe reduction allowed for her guilty plea. Mr Wei said that, consistent with both theCrown and defence submissions at the time of sentencing, Ms Wu was entitled to areduction of 25 per cent for her guilty plea. If the appeal were to succeed on that basis,it would result in an end sentence of four years, nine months' imprisonment.[5] A reduction to four years, nine months would be extremely significant forMs Wu as it would mean that she would no longer be liable for deportation pursuantto s 161(1)(c) of the Immigration Act 2009. While Mr Wei accepted that the Courtshould not artificially structure a sentence to achieve a particular outcome,he submitted a sentence of five years or more would be disproportionately severe inMs Wu's particular circumstances.8[6] In fixing the discount for the guilty plea at 20 per cent, the Judge noted:[15] You were charged with this offence 17 March 2021. The Crown lateradded an attempted murder charge. On 23 March this year, you pleaded guiltyto the original offence. The Crown withdrew the attempted murder charge.Everyone says I should deduct 25 percent for this feature. This overlooks therules articulated by our highest court, the Supreme Court, in this area:(a) Your offending is a hair's breadth from attempted murder.You gained a benefit by the plea arrangement.9(b) Aside from the understandable concern about your mentalhealth, there could be no defence to this charge.(c) It took a year for you to plead guilty to the original offence.[16] I deduct 20 percent.10 This recognises that you encountereddifficulties with legal representation and that your mental health needed to beexplored. Still, this is generous given what I have explained.[7] Mr Wei submitted that the Judge erred by taking into account the fact it tookMs Wu a year to plead guilty. The delay was caused by the need to obtain thenecessary medical reports. Mr Wei noted that, although Ms Wu was only pronouncedfit to stand trial on 16 February 2022, she had made an offer of resolution on8 Referring to Sentencing Act 2002, s 8(h).9 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [62].10 At [60]–[65].9 February 2022.11 Once the offer was accepted by the Crown, Ms Wu promptlyentered a guilty plea at her next court appearance on 23 March 2022.[8] Next, Mr Wei argued that while the additional lead charge of attempted murderhad been withdrawn, that did not justify a reduction in the guilty plea discount.12In Rowles v R, the defendant only pleaded guilty after an attempted murder charge waswithdrawn but still received the full 25 per cent discount as he had communicated hiswillingness to plead to a lesser charge at an earlier stage.13[9] Finally, while Mr Wei accepted that the evidence in relation to the woundingcharge was overwhelming, in light of the comments of this Court in Ormsby v R,Rowles and Millar v R, he submitted that should not detract from Ms Wu's entitlementto the full 25 per cent discount.14The Crown's response[10] The Crown accepted that the Judge erred in one respect, namely by apparentlyconsidering Ms Wu's guilty plea was not entered at the earliest opportunity. However,Mr McCoubrey submitted that the Supreme Court's decision in Hessell v R explicitlyallowed for the Judge's first two propositions so that it was open to the Judgeto conclude 20 per cent was the appropriate discount for the guilty plea.15 Further,Mr McCoubrey noted that, in any event, the focus should be on the end sentence, and itcould not be said the end sentence of five years, three months was manifestlyexcessive.[11] Finally, Mr McCoubrey submitted it is well settled that the Courts should notusurp the function of immigration authorities in determining whether a person shouldbe deported or not, and it would be inappropriate for the Court to artificially tailor asentence to avoid a statutory immigration consequence.1611 Mr Wei supported this submission by referring to Tuau v R [2012] NZCA 146; and Hessell v R[2009] NZCA 450, [2010] 2 NZLR 298 at [34].12 The charge of attempted murder was added in the Crown Charge Notice of 15 June 2021. As aresult, the charge of wounding with intent became an alternative charge.13 Rowles v R [2016] NZCA 208.14 Ormsby v R [2014] NZCA 73; Rowles v R, above n 13; and Millar v R [2019] NZCA 570.15 Hessell v R, above n 9.16 Relying on Ji v R [2015] NZCA 308 at [49].Principles to apply to an appeal against sentence[12] To allow a sentence appeal, the Court must identify an error in the sentenceand must also be satisfied that a different sentence should be imposed.17[13] In Tutakangahau v R, this Court set out the principles to apply to an appealagainst sentence.18 Importantly, for present purposes, this Court confirmed that theconcepts of manifestly excessive or manifestly inadequate sentences werelongstanding and should continue to be used when considering whether, if there is anerror in the sentence, a different sentence should be imposed.19 Further, the focusremains on whether the sentence was within range rather than the process by which itwas reached.20Analysis[14] The Judge had referred to three factors from Hessell to support his conclusionthat the appropriate reduction for the guilty plea was 20 per cent.21[15] In terms of the third factor, the Crown has effectively conceded that once thefitness inquiry was triggered, it was appropriate or necessary to conclude that inquirybefore Ms Wu could be expected to plead guilty. So in this case Ms Wu could be saidto have pleaded guilty at the earliest opportunity.[16] We accept that the delays in the provision of the medical reports were not ofMs Wu's making. From an early stage, Ms Wu's mental health was identified as anissue. The Judge's notes from her first appearance on 17 March 2021 record"suicide risk — keep under observation". It took some time for formal reports as toher fitness to plea to be provided. The first psychiatric report of Dr Pillai was dated29 October 2021. He concluded Ms Wu did not have a mental impairment andthe Court would likely find her fit to stand trial. On 15 November 2021, Dr Pillaiissued a further report in which he confirmed he was of the opinion that a defence of17 Criminal Procedure Act 2011, s 250.18 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[39].19 At [32]–[35].20 At [36].21 R v Wu, above n 2, at [15]. We quoted the three factors at [6] above.insanity would not be available. Dr Goodwin confirmed those were his opinions aswell in a report dated 27 January 2022.[17] Returning to the first factor referred to by the Judge, we consider there wassome advantage to Ms Wu in the withdrawal of the attempted murder charge(which the Crown had subsequently laid as the lead charge). While both chargesprovide for a maximum of 14 years' imprisonment, the intention required to proveattempted murder, if established, could have supported a higher starting point. UnlikeRowles, which involved the Crown substituting the lesser offence as a result ofdiscussions, in this case Ms Wu faced the charge of wounding with intent fromthe outset.[18] Further, we agree with the Crown submission that the Judge was entitledto take into account as relevant in fixing the guilty plea discount that, absent mentalhealth issues, Ms Wu had no defence to the charge.[19] In Hessell, the Supreme Court preferred a more discretionary approach toguilty pleas than that taken by this Court, which had focused on the timing of theplea.22 The Supreme Court confirmed that all the circumstances in which the plea wasentered must be considered, not merely the timing.23 In doing so the Supreme Courtrejected the approach of this Court in treating the strength or weakness of theprosecution case as irrelevant for the purposes of the guilty plea discount.The Supreme Court said:24[59] These factors [(the certainty provided by focusing on the time the pleawas entered)] also persuaded the Court of Appeal that the strength or weaknessof the prosecution case should be treated as irrelevant when calculating theappropriate discount on the sliding scale. Requiring judges to consider thatcircumstance was said to be unnecessarily demanding on judicial resources.[60] This approach would mean that where a plea is entered promptly, evenin the face of a very strong prosecution case, the maximum discount must begiven. But that treats as irrelevant an important factor in evaluating the extentto which a plea involves acceptance of responsibility. The approach is likelyto lead to the criticism that unjustified windfall benefits are provided by thesystem to those who have little choice but to plead guilty. Importantly also,it would put pressure on an accused to plead guilty for reasons that are22 See Hessell v R, above n 9, at [1].23 At [51].24 Footnotes omitted.unprincipled. In some cases pressure of this kind could lead to a guilty pleabeing entered in haste, by someone who may not be guilty of the offencecharged and pleaded to.[62] Guilty pleas are often the result of understandings reached by accusedand prosecutors on the charges faced and facts admitted. To give the samepercentage credit invariably for an early guilty plea in sentencing withoutregard to the circumstances can amount to giving a double benefit.For example, if the Crown agrees to accept a plea to manslaughter and dropsa charge of murder in relation to offending, the acceptance of the plea can bea concession in itself. If the full credit for an early plea is then also given,the sentence may not properly reflect the offending. The only way in whichthe many variable circumstances of individual cases which are relevant to aguilty plea can properly be identified is by requiring their evaluation by thesentencing judge, and allowing that judge scope in light of the conclusion heor she reaches to give the most appropriate recognition of the guilty plea infixing the sentence.[20] Mr Wei referred to the commentary of Adams on Criminal Law and the casescited there of Ormsby, Rowles and Millar to support his submission that the credit fora guilty plea was not simply a function of the strength of the prosecution case.25In particular, in Millar, the Court opined that it would be wrong to treat the commentsof the Supreme Court in Hessell as standing for the proposition that the stronger theprosecution case, the lower the guilty plea discount should be.26[21] We agree that it is too stark a proposition to say that, in fixing the guilty pleadiscount, the stronger the prosecution case, the lower the guilty plea discount shouldbe. However, in fixing the appropriate discount, the Court is required to take intoaccount all the circumstances in which the guilty plea was entered.27 One of thosecircumstances will be the strength (or weakness) of the prosecution case. As theSupreme Court observed, to ignore the strength or weakness of the prosecution casewould be to "[treat] as irrelevant an important factor in evaluating the extent to whicha plea involves acceptance of responsibility".28 There may be cases such as Millarwhere, even in the face of a strong prosecution case, a reduction of 25 per cent might,in the particular circumstances, still be appropriate, but there is no "entitlement" to a25 Simon France (ed) Adams on Criminal Law — Sentencing (online ed, Thomson Reuters) at[SA9.18(7)], citing Ormsby v R, above n 14; Rowles v R, above n 13; and Millar v R, above n 14.26 Millar v R, above n 14, at [36].27 Hessell v R, above n 9, at [51], [62] and [65].28 At [60].25 per cent discount as Mr Wei argued for, solely based on an early plea and withouttaking account of all other relevant circumstances.[22] In a number of other decisions, this Court has accepted that the strength of theprosecution case is an important and relevant consideration in approving a discount ofless than 25 per cent for a guilty plea entered at an early stage.29[23] Ultimately, the effect of the strength of the prosecution case on the appropriatereduction for a guilty plea will be a matter of assessment in all the circumstances ofthe particular case. Here, it was open to the Judge to take the acknowledgedoverwhelming prosecution case against Ms Wu into account together with otherrelevant circumstances in fixing the reduction for the guilty plea at 20 per cent. Thosecircumstances included the fact Ms Wu had benefited from the withdrawal of the leadcharge of attempted murder, which would ordinarily have attracted a higher startingpoint than the charge to which she pleaded guilty.[24] Mr Wei also suggested that s 8(h) of the Sentencing Act 2002 could applyin that, if Ms Wu was deported, she would be separated from her son and prohibitedfrom re-entering New Zealand. He argued that would lead to a "disproportionatelysevere" sentence. However, it is the consequences of any deportation on Ms Wu thatwould be severe, rather than the sentence itself. The consequences Mr Wei identifiedwould flow from Ms Wu's deportation, which may or may not follow the impositionof the sentence. This Court has made it clear that it will not engage in speculationabout the consequences if an offender were deported, such as the impact of aforeign jail.30[25] Further, this Court in Zhang v R noted:31[168] Potential deportation of an offender is not a consideration insentence-setting. It is the function of the courts to impose sentencesappropriate to the particular offending. In performing that task, the distinctadministrative processes for removal under the Immigration Act 2009, which29 See for example Jefferies-Smith v R [2020] NZCA 315 at [45]–[46]; and Pokai v R [2014] NZCA356 at [70]–[72]. See also Mehrok v R [2021] NZCA 370 at [37]; Tuli v R [2013] NZCA 624at [17]; Hopkins v R [2012] NZCA 422 at [16]; Cai v R [2012] NZCA 293 at [19]; andZ (CA586/2012) v R [2012] NZCA 607 at [25].30 Machado-Pereira v R [2015] NZCA 423 at [13].31 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.may or may not apply to one offender or another, have no bearing.32 Likewise,this Court has also held that the prospect of deportation is not a proper groundfor refusing to impose a minimum period of imprisonment which wouldotherwise have been justified.33[26] Finally, while Ms Wu's sentence may render her liable for deportation, thereremain avenues available to her. She could invite the Minister of Immigrationto cancel or suspend her liability for deportation and/or she could apply to theImmigration and Protection Tribunal on humanitarian grounds.34Summary[27] This Court must allow the appeal if it is satisfied that there is an error in thesentence imposed and a different sentence should be imposed.35 The Crown hasconceded an error in this case. The real issue is whether a different sentence shouldbe imposed.[28] In determining whether a different sentence should be imposed, the ultimateissue is whether the end sentence is within range or whether it can be said to bemanifestly excessive.36 Given the circumstances of the offending, a starting point of11 years would have been available to the Judge. The overall discounts for theguilty plea and personal factors of 47.5 per cent (including the additional three monthsfor factors not sought by Ms Wu) cannot be criticised. The end sentence of five years,three months for the serious offending in this case, having regard to the circumstancesof Ms Wu, was well within range and cannot be described as manifestly excessive.Result[29] The appeal is dismissed.Solicitors:McVeagh Fleming, Auckland for AppellantCrown Solicitor, Auckland for Respondent32 R v Zhang CA56/05, 24 May 2005 at [11]–[16]; R v Sabuncuoglu [2008] NZCA 448 at [34];R v Ondra [2009] NZCA 489 at [7]–[12]; and Xie v R [2019] NZCA 218 at [25].33 Bi v R [2014] NZCA 10 at [6]; and Olua v R [2014] NZCA 105 at [67].34 Immigration Act 2009, ss 172 and 206(1)(c).35 Criminal Procedure Act, s 250.36 Tutakangahau v R, above n 18, at [26].