XIE v R [2019] NZCA 218

XIE v R [2019] NZCA 218 [13 June 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA371/2018[2019] NZCA 218BETWEEN QI XIEAppellantAND THE QUEENRespondentHearing: 28 May 2019Court: French, Miller and Lang JJCounsel: P H B Hall QC for AppellantR K Thomson for RespondentJudgment: 13 June 2019 at 9.30 amJUDGMENT OF THE COURTA The application for leave to bring the appeal out of time is granted.B The application for leave to admit a psychologist's report as evidence isdeclined.C The application for leave to admit Mr Shi's affidavit as evidence is declined.D The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Lang J)[1] Ms Xie was found guilty by a jury on a charge of wounding her husband withintent to cause grievous bodily harm.1 On 2 May 2018, Judge Garland sentenced herto four years' imprisonment.2[2] Ms Xie appeals against sentence on the basis that the Judge adopted a startingpoint that was too high and failed to give Ms Xie sufficient credit for mitigating factorspersonal to her. She contends this resulted in an end sentence that was manifestlyexcessive.[3] Ms Xie originally appealed against her conviction and sentence, butthe conviction appeal was subsequently abandoned. The appeal was also filed21 working days out of time. There was no opposition by the Crown to the applicationfor 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 late2010. He was then living in New Zealand but travelled to China several times eachyear. Ms Xie came to New Zealand in February 2013 and married her husband inAugust that year.[5] During the latter part of 2016 difficulties arose in the marriage after Ms Xie'shusband admitted he was in a relationship with another woman. He promised not tosee that person again.[6] On the afternoon of 20 January 2017 Ms Xie and her husband were in a caféin Fairlie. Whilst in the café Ms Xie observed her husband viewing photographs ofthe woman on his cellphone. Ms Xie immediately became angry and seizedthe cellphone. She threw it away and then left the café. She went to the vehicle inwhich they had arrived at the café and broke one of the side mirrors of the vehicle.[7] Ms Xie's husband immediately left the café and tried to placate her.Members of the public in the vicinity of the incident were sufficiently concerned at1 Crimes Act 1961, s 188(1).2 R v Xie [2018] NZDC 8516.what they saw occurring to call the police. The police arrived and found Ms Xie andher husband sitting in their vehicle. They reassured the police that the situation wasunder 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 hadoccurred at the café because other persons were in the vehicle. At some stage afterthey arrived home, however, Ms Xie got a knife from the kitchen and hid it undera cushion on a sofa in the lounge of their address. She and her husband then went intothe lounge and began discussing the issue that had arisen earlier that day. During thisdiscussion Ms Xie produced the knife from under the cushion. An altercation thenoccurred in which Ms Xie inflicted several knife wounds on her husband. Theseincluded a three-centimetre laceration to his upper back, a 1.5 centimetre laceration tohis 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 throwit away. He then called an ambulance. He was taken to hospital where he requiredsurgery to treat the wound to his right elbow.[10] Ms Xie's husband told an ambulance officer and a police officer who attendedthe scene that Ms Xie had caused the wounds. Ms Xie told the police that she hadseen texts on her husband's phone that had been sent to him by another female. Shesaid she had grabbed the knife and attempted to harm herself. She said her husbandhad endeavoured to stop her from harming herself and that she had accidentallystabbed him with the knife during the resulting struggle.[11] Ms Xie's husband went to the police a few days after he was discharged fromhospital. He made a formal statement to the police supporting the version of eventsMs 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'shusband also gave evidence for the Crown along the same lines. After he gave thisevidence the trial Judge made a determination under s 94 of the Evidence Act 2006that he was a hostile witness.3 The prosecutor then cross-examined him regarding thestatements he had made to the police and ambulance officer immediately after theincident. Ms Xie's husband had made no mention at that time of the wounds beinginflicted 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 thewounds 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 ofBand One or the bottom end of Band Two identified by this Court in R v Taueki.5Starting 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 bya lethal weapon in the form of a sharp knife with a pointed ten-centimetre-long blade.6This 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 theknife under the sofa cushion before the attack occurred.7 The offending had alsocaused significant injury to the victim, although his wounds had healed followingsurgical intervention.8 The Judge ascribed this to good fortune rather than goodmanagement 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 kindreferred to by the Court of Appeal in Wairau v R. I agree that there was noinstantaneous loss of control by you but given the events that led up to youroffending, especially bearing in mind the personal sacrifices that you made tocome to live in New Zealand with the victim and to marry him, coupled withthe expectation of the family, given their cultural values, it was not unexpected3 R v Xie [2018] NZDC 12000.4 R v Xie, above n 2, at [9].5 R v Taueki [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)].that the revelation that unfolded in the Fairlie café would have caused youextreme 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 offive years' imprisonment.9 The Judge then applied a discount of 10 per cent, orsix months, to reflect the fact that Ms Xie had never previously committed a criminaloffence.10 The Judge reduced the sentence by a further six months because Ms Xie islikely to find the sentence of imprisonment more difficult to serve as a foreign nationalwhose family resides in China.11 This resulted in the end sentence of four years'imprisonment.12The starting point[18] Mr Hall QC contends the starting point of five years' imprisonment failed togive sufficient weight to the provocative conduct of Ms Xie's husband. AlthoughMr Hall acknowledges the Judge referred to that factor, he points out thatthe 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 toohigh given the level of provocation offered by Ms Xie's husband during the incidentthat occurred in Fairlie on the day of the offending.[19] We agree with the Judge's assessment of the aggravating features of Ms Xie'soffending. We also consider the following passages from Taueki, both of whichthe Judge cited in his sentencing remarks, assist in determining the appropriate startingpoint having regard to the aggravating factors the Judge identified:13A domestic assault by an offender on his or her spouse or partner (or formerspouse or partner) which is impulsive, does not involve the use of a weaponand does not cause lasting injuries, but where the victim is properly classifiedas 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 (butagain no lasting injuries) a higher starting point could be expected, perhapsfive years or more.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)].A domestic attack on the partner or former partner of the attacker which ispremeditated and involves the inflicting of serious and lasting injury wouldrequire a starting point in band 2. The appropriate point in that band wouldrequire evaluation of the seriousness of those factors. Where the attackinvolves 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 broughtto the scene and premeditation. It also caused significant injury that fortunately hadno lasting effects. As a result, it sits at the top of Band One or the lower end ofBand Two. We therefore consider a starting point of more than five years'imprisonment was warranted. A starting point between five years six months' andsix years' imprisonment would therefore have been within the available range.[21] The conduct of the victim may be a mitigating factor that reduces the startingpoint.14 In the present case, however, any provocation offered by Ms Xie's husbandneeded to be balanced against the fact that it was offered several hours before theincident giving rise to the charge. We accept that the effects of provocation may extendover a period of time, but the lapse in time between the provocative conduct and theoffending in the present case significantly diminishes the reduction available to reflectthe provocative act. The level of violence used in response to the provocative act wasalso clearly disproportionate. We therefore consider that any reduction to reflect theprovocative conduct would not have resulted in a starting point of less than five years'imprisonment.Mitigating factorsLow risk of re-offending[22] Mr Hall submits the Judge ought to have given Ms Xie credit for the fact thatthe pre-sentence report assessed her as being at low risk of re-offending. Mr Hall alsoseeks leave to adduce a report prepared by a psychologist in May 2019. The reportwas prepared in support of an appeal Ms Xie has lodged to the Immigration Protection14 Sentencing Act 2002, s 9(2)(c).Tribunal against a deportation liability notice she has received as a result of the presentoffending.[23] We decline to admit the report because it was prepared for a purpose other thansentencing and still depends on a version of events that reflects in some respects thedefence Ms Xie ran unsuccessfully at trial. Although she acknowledged to thepsychologist that she intentionally stabbed her husband, Ms Xie continues to maintainthat this occurred in the context of an initial intention by her to use the knife to harmherself. We do not consider that to be an appropriate basis on which to proceed whendealing with the issue of sentence. The report is therefore of little assistance in thepresent context.[24] The fact that an offender may be at low risk of reoffending is not generallyrecognised as a mitigating factor unless it is accompanied by other mitigating factorssuch as rehabilitative efforts undertaken by the offender prior to sentence. That is notthe situation here. We therefore do not consider the Judge was required to providea discount for this factor.Deportation[25] Mr Hall also submitted the Judge ought to have given Ms Xie a discount toreflect the fact that she is likely to be deported after serving her sentence. We do notaccept this submission for two reasons. First, there is no certainty that Ms Xie will bedeported given the fact that she has appealed against the deportation liability notice.Secondly, although deportation is a consequence of the offending it is now wellestablished that this is not relevant to the sentencing exercise.15 This ground of appealfails as a result.Remorse[26] The Judge observed that he was unable to reduce the sentence to reflect anycontrition or remorse shown by Ms Xie for her offending.16 Mr Hall seeks to rely on15 Cai v R [2012] NZCA 293 at [28]; R v Zhang CA56/05, 24 May 2005 at [11]–[16]; R vSabuncuoglu [2008] NZCA 448 at [34]; and R v Ondra [2009] NZCA 489 at [7]–[11].16 R v Xie, above n 2, at [18].an affidavit filed by Ms Xie's husband after sentencing in which the husband says hehas forgiven Ms Xie and that she feels remorse for her offending. We decline to admitthis affidavit which is essentially asking us to re-sentence Ms Xie on a different basisto that presented in the District Court. It is also noteworthy that Ms Xie has not chosento place any evidence of remorse on the record herself. In our view, the Judge wascorrect 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 isdeclined.[29] The application for leave to admit Mr Shi's affidavit as evidence is declined.[30] The appeal against sentence is dismissed.Solicitors:Davidson Legal, Christchurch for AppellantCrown Law, Wellington for Respondent