Sentencing Act 2002 – manslaughter – stabbing – Waipuku v R [2013] NZCA 661 – R v Taueki [2005] 3 NZLR 372 (CA) – no non-parole period – remorse – insight – provocation
R v Chao Chen [2023] NZHC 1947.
Chao Chen was found guilty of the manslaughter of Lele He.
One evening, Chen, He and an associate attended a dinner. There, Chen allegedly described He as “stubborn”. He later called Chen around to his house; the pair got into an argument over the comment. Chen then stabbed He.
In their sentencing submissions, both Crown and defence counsel adopted the approach in Waipuka v R, which confirmed it might be appropriate to consider the sentence that would be applied if death had not ensued, having regard to the Court of Appeal decision of R v Taueki.
In terms of mitigating factors, the court accepted there was a degree of provocation. He had initiated the incident by ringing Chen and challenging him about the “stubborn” comment. According to evidence, He remained aggressive during the altercation, but the court considered provocation was available only to a limited degree.
The court accepted Chen had a very positive pre- sentence report, had no previous convictions, and was very remorseful. Subsequently, the court recognised that Chen had insight into his offending and its consequences.
Chen received an overall discount of 37% because of his earlier offer of a guilty plea to manslaughter, lack of previous convictions, remorse, his limited English and disconnection from family and culture.
Applicable principles: whether it would be manifestly unjust to impose the sentence of life imprisonment for murder – if not, and life imprisonment is imposed, what the minimum non parole period should be – what the level of provocation might be – the appropriateness of Waipuku v R [2013] NZCA 661 when sentencing Chen.
Held: Chen was sentenced to five years imprisonment with no minimum non-parole period.
Jasmine Jackson is an Auckland criminal defence barrister and a member of the ADLS Parole Law committee.
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