ZHANG v R [2004] NZCA 83 (3 June 2004)

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ZHANG v R [2004] NZCA 83 (3 June 2004)

Last Updated: 30 June 2004

IN THE COURT OF APPEAL OF NEW ZEALAND

CA437/03

THE QUEEN

v

YIYU ZHANG

Hearing: 26 May 2004

Coram: Hammond J
Laurenson J
Doogue J

Appearances: T Sutcliffe for Appellant
K Raftery for Crown

Judgment: 3 June 2004

JUDGMENT OF THE COURT DELIVERED BY LAURENSON J

Introduction

[1] The appellant has appealed against a sentence of 101/2 years imprisonment imposed by Judge MacLean on 28 October 2003 following a jury trial in the District Court at Hamilton.
[2] The sentence was in respect of 39 charges which had arisen out of four separate incidents in which the appellant had been involved with others in terrorising seven different foreign students studying in New Zealand. In summary, the charges were :

Incident Date Victims Charges

1 24.3.02 3 Demanding with menaces (5)
Kidnapping (3)
Robbery (4)
Aggravated robbery (4)
Theft (1)

2 22.3.02 1 Assault with intent to injure (1)
Threatening to kill (1)
Demanding with menaces (1)
Assault with weapon (1)

3 27.3.02- 1 Demanding with menaces (1)

24.4.02 Kidnapping (1)

Assault with weapon (1)

Injuring with intent to injure (1)
Threatening to kill (1)
Aggravated robbery (1)
Compelling execution of
documents by force (1)
Robbery (1)

4 10.9.02 2 Kidnapping (2)
Discharging a firearm (1)
Assault with weapon (1)
Assault with intent to injure (1)
Compelling execution of
document by force (1)
Indecent assault (1)
Aggravated robbery (3)

The last two incidents involved the used of firearms.

Background

[3] The appellant is a 24 year old Chinese national who had come to New Zealand to study. He was the instigator of the four incidents which as already said, can be described as terrorising the victims. On each occasion he was assisted by one or more other persons. Some of these were persons who by reasons of their physical presence and possible association with local gangs, ensured that the victims complied with the appellant’s demands. Two of the co-offenders were Chinese nationals resident in New Zealand.
[4] The offending in each case was serious and the detrimental effect on the victims severe.
[5] The appellant and three of his associates were tried jointly. He was convicted on 16 July 2003 after pleading guilty during the trial. One co-offender, Toimata, was convicted on ten counts arising out of two incidents. Another, Ma, was convicted on one count. The last, Chen, was convicted on eight counts arising out of the first incident.
[6] The Judge when considering sentence in the appellant’s case was faced with a difficult and complex sentencing exercise. Apart from the large number of charges and the need to preserve parity with the sentencing of the co-offenders, there were two matters which caused particular difficulty. The first was the fact that the appellant’s parents had provided some $65,000 by way of reparation to the victims. The second was the appellant’s plea of guilty during the course of the trial followed by his agreement to then give evidence on behalf of the Crown.

The sentence

[7] Faced with these difficulties the Judge commenced by assessing an appropriate starting point for the total offending disclosed in each of the four incidents as follows :

1^st incident 10 years
2^nd " 4 years
3^rd " 10 plus years
4^th " 10 plus years

[8] The Judge decided, however, despite the fact the offending related to four separate incidents spread over a period of some six months, that it was inappropriate to impose a number of cumulative sentences because an accumulation of the individual starting points would produce a total sentence which would be quite unrealistic when compared to sentences previously imposed in comparable cases. He therefore took a global approach to the totality of the offending and decided an appropriate starting point on this basis was 14 years imprisonment.
[9] The Judge considered the mitigating factors, namely the reparation offers made to the complainants by the appellant’s family and the appellant’s guilty plea. In addition to the reparation which had been offered, the appellant’s parents also made offers of assistance to the complainants resident in China. The Judge commented that the appellant’s parents had gone out of their way to attempt to make meaningful offers of reparation and to help the victims adjust to the trauma of what has happened. The Judge also took note of an address by the appellant’s mother made pursuant to s27 of the Sentencing Act 2002. Given the benefit of the reparation to the complainants, the Judge allowed a discount of two and a half years in respect to this factor. Appellant’s counsel, Mr Sutcliffe, acknowledged that this was an appropriate allowance.
[10] The Judge further acknowledged that the appellant had pleaded guilty, albeit during the course of his trial, and had given evidence for the Crown. The Judge noted that his evidence appeared to have been somewhat of a double-edged sword for the Crown and had not, in the Crown’s submission, affected the outcome of the trial. The Judge considered that, to an extent, the guilty pleas and the offer of reparation were simply aspects of the same thing: an acceptance of responsibility. Given the late stage at which it was entered, the guilty plea had not prevented the complainants suffering the trauma of giving evidence. Accordingly, a small discount was appropriate to cover both these factors. A further year was allowed, bringing the sentence to 101/2 years imprisonment. This sentence was achieved by imposing a sentence of 101/2 years imprisonment on the most serious offences, to be served concurrently. Lesser sentences were imposed on the other charges, also to be served concurrently.
[11] The Judge rejected a Crown submission that this was an appropriate case for a minimum term of imprisonment. He did so because he considered that even the worst of the individual offences did not fall outside the range of ordinary offending.

Appellant’s submissions

[12] Mr Sutcliffe, for the appellant, attacked the sentence imposed on three grounds. First, Mr Sutcliffe submitted that the 14 year starting point adopted by the Judge was excessive. 14 years is the nominal maximum penalty for kidnapping and aggravated robbery. A starting point at the maximum penalty should be reserved, in Mr Sutcliffe’s submission, for offending that falls within the worst possible class. As grave as the appellant’s offending was, it was submitted that it fell somewhat short of the most serious examples of this type of offending.
[13] Secondly, Mr Sutcliffe submitted that there was a disparity between the sentences imposed on the appellant’s co-accused, particularly Toimata who was convicted on ten counts relating to the first and third incidents and sentenced to seven years imprisonment on 28 October 2003. The Judge adopted a starting point of ten years, and gave a three year discount to reflect the youth of the offender (who was 19 years old). Mr Sutcliffe accepted that there was a real justification for the disparity: the appellant committed further offences and was regarded by the Judge as the ringleader of the offending. However, it was submitted that the level of disparity, three and a half years or half Tomata’s sentence, would cause the reasonable observer to believe that something had gone wrong with the administration of justice: R v Lawson [1982] 2 NZLR 219. Either the starting point adopted for the appellant was too high, or insufficient regard was paid to mitigating factors.
[14] Thirdly, Mr Sutcliffe noted that Toimata was given a 30% discount for his age when no other mitigating factors were present. Toimata had not pleaded guilty, he had made no attempt at making reparation and he had previous convictions. Mr Sutcliffe accepted so far as the appellant was concerned, that in the circumstances a two and a half year deduction was a sufficient allowance for the reparations made, but submitted that, particularly in light of Toimata’s sentence, too little regard was paid to the appellant’s guilty plea, giving of evidence, youth and lack of previous convictions. Mr Sutcliffe accepted that any reduction of sentence for the guilty plea was diminished by the lateness of that plea. However, it was submitted that this was still appreciated by the victims. Mr Sutcliffe also submitted that more substantial reductions for guilty pleas should be allowed where long sentences are contemplated: R v Strickland (1989) 4 CRNZ 632. Moreover, by pleading guilty and giving evidence, it was submitted, the appellant took certain risks and gave up certain privileges, particularly in relation to his interaction with the rest of the prison population, as was recognised by this Court in R v S (CA236/00, 30 October 2000). Mr Sutcliffe finally submitted that a long custodial sentence would be particularly harsh on the appellant given that he will be effectively isolated from his family. It is submitted that this should have been taken into account under s8(h) of the Sentencing Act 2002.

Respondent’s submission

[15] In relation to the starting point adopted by the Judge of 14 years, Mr Raftery noted that the appellant was not being sentenced for a single offence. It cannot, therefore, be said, that the Judge adopted the maximum penalty for the offence. The theoretical maximum penalty for the total offending, even if the offending within each of the four incidents was sentenced concurrently, would be 45 years imprisonment. Mr Raftery submitted that the approach adopted by the Judge was entirely consistent with s85 of the Sentencing Act 2002.
[16] The most helpful authority, Mr Raftery submitted, is R v Sylvester (CA 583/95, 20 May 1996). In that case a sentence of ten years imprisonment was upheld in respect of charges of aggravated robbery, kidnapping, using a document with intent to defraud and aggravated assault. All charges related to a single incident, in which the victim was kidnapped at knifepoint, driven to an ATM and forced to withdraw funds and then taken to his house where certain items were stolen. Police became involved and the offenders assaulted two officers in trying to avoid arrest. The appellants pleaded guilty. It is submitted that the present case involves offending on a significantly more serious scale than Sylvester. A starting point of 14 years cannot therefore be regarded as being manifestly excessive.
[17] Further, Mr Raftery submitted that a reasonable minded observer in possession of the information available to the Court would not consider that the sentences imposed tended to bring the administration of justice into disrepute. He submitted that substantial differences existed between the appellant and Toimata. Toimata was acquitted of a number of charges to which the appellant pleaded guilty; he was involved in only two of the four incidents; was simply the "heavy muscle" used to back up the appellant’s plans; and was only 19 as compared with the appellant’s 22 years of age at the time of the offending.
[18] Turning to the issue of the appropriate discount for reparation, Mr Raftery submitted that the discount given of two and a half years was a real and appropriate discount. Any further discount would risk creating the perception that wealth can be used to avoid proper sentences being passed. As for the assistance given to the prosecution, it is submitted that the appellant’s evidence gave no real assistance to the Crown. Indeed, given that the evidence of the appellant, in the Judge’s view, might explain why there were acquittals of co-accused on some counts that seems difficult to rationalise, Mr Raftery submitted that the appellant was unlikely to suffer reprisals. Mr Raftery submitted that a one year discount for the appellant’s guilty plea and evidence was sufficient given these circumstances. He submitted, in relation to the discount given for the guilty plea, R v Strickland is distinguishable. The appellant in that case pleaded guilty at an early stage before any of his victims were required to give evidence. Moreover, the appellant had voluntarily confessed to other offending which was at that time not known about, resulting in additional charges. In this case, the appellant pleaded guilty at the last possible opportunity, and after his victims had given evidence. The State was accordingly not spared any expense. The Crown case was a particularly strong one. It is also submitted that the probation report did not indicate that the appellant showed contrition.
[19] Mr Raftery submitted there is no logical reason why any allowance should be made for the appellant’s age. It is submitted that, at 22, the appellant was an adult. The offending, of which the appellant was the instigator, comprised adult crimes involving calculated actions carried out for personal gain. In relation to the appellant’s lack of previous convictions, Mr Raftery submitted that under the Sentencing Act 2002, this is the absence of an aggravating factor (s9(1)(j)) rather than a mitigating factor unless it can be regarded as evidence of previous good character under s9(2)(g). Mr Raftery submitted that the appellant could not rely on previous good character in this case, having lived in New Zealand for only approximately one year before the first offending.
[20] Finally, Mr Raftery submitted that the appellant’s submission that his sentence should be reduced because imprisonment in his case is a more severe penalty is inconsistent with this Court’s statements in R v Birney (CA 200/96, 18 February 1997), and R v Ahlquist [1989] 2 NZLR 177, 179 that :

... the Court must maintain consistency of sentencing and not differentiate between convicted persons according to their country of origin.

Discussion

[21] We are quite satisfied that the Judge’s decision to view the totality of the offending comprised in all four incidents as a basis for sentencing, was appropriate in this case. It would have been possible to structure the end result by a series of cumulative sentences and indeed this may well have accorded with the guidance provided by s83(2) of the Sentencing Act 2002. In the final analysis, however, the result achieved by the imposition of concurrent sentences cannot be regarded as being wrong in principle and more importantly, it did achieve a fair and realistic result. Viewed in this light we do not consider it is open to the appellant to argue that the starting point of 14 years should be considered in isolation namely as being the maximum penalty applicable to single incidences of the most serious offences included in the overall offending.
[22] Similarly we consider that the differences referred to in the Crown’s submissions in relation to Toimata’s sentence provide an ample basis to justify the difference between the two sentences. The most significant difference is the fact that it is clear that, quite apart from being actually involved in all four incidents, the appellant was in each case, the instigator and, thereafter, the director of what happened.
[23] We also consider that the reduction of one year in respect to the plea of guilty and the assistance subsequently provided to the Crown is fair and realistic in the circumstances. The plea itself provided no relief for the complainants who had already given evidence. So far as any benefit to the State was concerned, the Judge clearly regarded this as being debatable. If, as a result, the appellant did place himself in some jeopardy then the election to give evidence was his decision. In these circumstances, again, we consider the reduction to be both fair and realistic.
[24] The absence of any reduction to take into account the appellant’s age is not a factor which we consider calls for any redress. He was 22 years of age at the time of the offending. The nature of this was callous and manipulative. These were the actions of a mature person.
[25] The fact that the appellant will be separated from his family in China whilst in prison is certainly a factor which will increase the severity of the sentence so far as this particular appellant is concerned. This being the case it was submitted on behalf of the appellant that the Judge should have paid greater regard to the requirement under s8(h) of the Sentencing Act, namely, to take into account any particular circumstances of the offender that mean that a sentence that would otherwise be appropriate would, in the particular circumstances be disproportionately severe. Given, however, the nature of this offending, namely the terrorising of foreign students resident in New Zealand which is seemingly becoming all too frequent, we do not consider this factor should have been brought into account when considering any further reduction. Indeed, as was submitted by the Crown, there are good policy reasons for ensuring that foreign offenders are sentenced in the same way in New Zealand, not least of which is deterrence. This factor was also referred to by the Judge.
[26] The final ground relied on in support of a further reduction in sentence was the appellant’s lack of previous convictions in contrast to Toimata who had previous convictions for burglary and robbery accompanied by threats and in respect of which he had been imprisoned for nine months. It was submitted in this regard that the absence of any previous convictions in the appellant’s case was a matter which should be taken into account as a mitigating factor as required by s9(2)(g) namely, evidence of the offender’s previous good character. It was also mentioned in this regard that the appellant’s mother had provided evidence of his previous good character prior to coming to New Zealand about one year before the offending occurred. The Judge did not make any reference to this factor. We do not find this surprising. This was not the more common case of a first offender being sentenced for a single offence. Any concession to be gained by reason of a previously unblemished record should have been and was dispelled by the prolonged and premeditated nature of the offending in this case.

Decision

[27] The appeal is dismissed.

Solicitors:
Till Henderson King, Hamilton
Crown Solicitor, Auckland

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[1]	The appellant has appealed against a sentence of 101/2 years imprisonment imposed by Judge MacLean on 28 October 2003 following a jury trial in the District Court at Hamilton.
[2]	The sentence was in respect of 39 charges which had arisen out of four separate incidents in which the appellant had been involved with others in terrorising seven different foreign students studying in New Zealand. In summary, the charges were :

[3]	The appellant is a 24 year old Chinese national who had come to New Zealand to study. He was the instigator of the four incidents which as already said, can be described as terrorising the victims. On each occasion he was assisted by one or more other persons. Some of these were persons who by reasons of their physical presence and possible association with local gangs, ensured that the victims complied with the appellant’s demands. Two of the co-offenders were Chinese nationals resident in New Zealand.
[4]	The offending in each case was serious and the detrimental effect on the victims severe.
[5]	The appellant and three of his associates were tried jointly. He was convicted on 16 July 2003 after pleading guilty during the trial. One co-offender, Toimata, was convicted on ten counts arising out of two incidents. Another, Ma, was convicted on one count. The last, Chen, was convicted on eight counts arising out of the first incident.
[6]	The Judge when considering sentence in the appellant’s case was faced with a difficult and complex sentencing exercise. Apart from the large number of charges and the need to preserve parity with the sentencing of the co-offenders, there were two matters which caused particular difficulty. The first was the fact that the appellant’s parents had provided some $65,000 by way of reparation to the victims. The second was the appellant’s plea of guilty during the course of the trial followed by his agreement to then give evidence on behalf of the Crown.

[8]	The Judge decided, however, despite the fact the offending related to four separate incidents spread over a period of some six months, that it was inappropriate to impose a number of cumulative sentences because an accumulation of the individual starting points would produce a total sentence which would be quite unrealistic when compared to sentences previously imposed in comparable cases. He therefore took a global approach to the totality of the offending and decided an appropriate starting point on this basis was 14 years imprisonment.
[9]	The Judge considered the mitigating factors, namely the reparation offers made to the complainants by the appellant’s family and the appellant’s guilty plea. In addition to the reparation which had been offered, the appellant’s parents also made offers of assistance to the complainants resident in China. The Judge commented that the appellant’s parents had gone out of their way to attempt to make meaningful offers of reparation and to help the victims adjust to the trauma of what has happened. The Judge also took note of an address by the appellant’s mother made pursuant to s27 of the Sentencing Act 2002. Given the benefit of the reparation to the complainants, the Judge allowed a discount of two and a half years in respect to this factor. Appellant’s counsel, Mr Sutcliffe, acknowledged that this was an appropriate allowance.
[10]	The Judge further acknowledged that the appellant had pleaded guilty, albeit during the course of his trial, and had given evidence for the Crown. The Judge noted that his evidence appeared to have been somewhat of a double-edged sword for the Crown and had not, in the Crown’s submission, affected the outcome of the trial. The Judge considered that, to an extent, the guilty pleas and the offer of reparation were simply aspects of the same thing: an acceptance of responsibility. Given the late stage at which it was entered, the guilty plea had not prevented the complainants suffering the trauma of giving evidence. Accordingly, a small discount was appropriate to cover both these factors. A further year was allowed, bringing the sentence to 101/2 years imprisonment. This sentence was achieved by imposing a sentence of 101/2 years imprisonment on the most serious offences, to be served concurrently. Lesser sentences were imposed on the other charges, also to be served concurrently.
[11]	The Judge rejected a Crown submission that this was an appropriate case for a minimum term of imprisonment. He did so because he considered that even the worst of the individual offences did not fall outside the range of ordinary offending.

[12]	Mr Sutcliffe, for the appellant, attacked the sentence imposed on three grounds. First, Mr Sutcliffe submitted that the 14 year starting point adopted by the Judge was excessive. 14 years is the nominal maximum penalty for kidnapping and aggravated robbery. A starting point at the maximum penalty should be reserved, in Mr Sutcliffe’s submission, for offending that falls within the worst possible class. As grave as the appellant’s offending was, it was submitted that it fell somewhat short of the most serious examples of this type of offending.
[13]	Secondly, Mr Sutcliffe submitted that there was a disparity between the sentences imposed on the appellant’s co-accused, particularly Toimata who was convicted on ten counts relating to the first and third incidents and sentenced to seven years imprisonment on 28 October 2003. The Judge adopted a starting point of ten years, and gave a three year discount to reflect the youth of the offender (who was 19 years old). Mr Sutcliffe accepted that there was a real justification for the disparity: the appellant committed further offences and was regarded by the Judge as the ringleader of the offending. However, it was submitted that the level of disparity, three and a half years or half Tomata’s sentence, would cause the reasonable observer to believe that something had gone wrong with the administration of justice: R v Lawson [1982] 2 NZLR 219. Either the starting point adopted for the appellant was too high, or insufficient regard was paid to mitigating factors.
[14]	Thirdly, Mr Sutcliffe noted that Toimata was given a 30% discount for his age when no other mitigating factors were present. Toimata had not pleaded guilty, he had made no attempt at making reparation and he had previous convictions. Mr Sutcliffe accepted so far as the appellant was concerned, that in the circumstances a two and a half year deduction was a sufficient allowance for the reparations made, but submitted that, particularly in light of Toimata’s sentence, too little regard was paid to the appellant’s guilty plea, giving of evidence, youth and lack of previous convictions. Mr Sutcliffe accepted that any reduction of sentence for the guilty plea was diminished by the lateness of that plea. However, it was submitted that this was still appreciated by the victims. Mr Sutcliffe also submitted that more substantial reductions for guilty pleas should be allowed where long sentences are contemplated: R v Strickland (1989) 4 CRNZ 632. Moreover, by pleading guilty and giving evidence, it was submitted, the appellant took certain risks and gave up certain privileges, particularly in relation to his interaction with the rest of the prison population, as was recognised by this Court in R v S (CA236/00, 30 October 2000). Mr Sutcliffe finally submitted that a long custodial sentence would be particularly harsh on the appellant given that he will be effectively isolated from his family. It is submitted that this should have been taken into account under s8(h) of the Sentencing Act 2002.

[15]	In relation to the starting point adopted by the Judge of 14 years, Mr Raftery noted that the appellant was not being sentenced for a single offence. It cannot, therefore, be said, that the Judge adopted the maximum penalty for the offence. The theoretical maximum penalty for the total offending, even if the offending within each of the four incidents was sentenced concurrently, would be 45 years imprisonment. Mr Raftery submitted that the approach adopted by the Judge was entirely consistent with s85 of the Sentencing Act 2002.
[16]	The most helpful authority, Mr Raftery submitted, is R v Sylvester (CA 583/95, 20 May 1996). In that case a sentence of ten years imprisonment was upheld in respect of charges of aggravated robbery, kidnapping, using a document with intent to defraud and aggravated assault. All charges related to a single incident, in which the victim was kidnapped at knifepoint, driven to an ATM and forced to withdraw funds and then taken to his house where certain items were stolen. Police became involved and the offenders assaulted two officers in trying to avoid arrest. The appellants pleaded guilty. It is submitted that the present case involves offending on a significantly more serious scale than Sylvester. A starting point of 14 years cannot therefore be regarded as being manifestly excessive.
[17]	Further, Mr Raftery submitted that a reasonable minded observer in possession of the information available to the Court would not consider that the sentences imposed tended to bring the administration of justice into disrepute. He submitted that substantial differences existed between the appellant and Toimata. Toimata was acquitted of a number of charges to which the appellant pleaded guilty; he was involved in only two of the four incidents; was simply the "heavy muscle" used to back up the appellant’s plans; and was only 19 as compared with the appellant’s 22 years of age at the time of the offending.
[18]	Turning to the issue of the appropriate discount for reparation, Mr Raftery submitted that the discount given of two and a half years was a real and appropriate discount. Any further discount would risk creating the perception that wealth can be used to avoid proper sentences being passed. As for the assistance given to the prosecution, it is submitted that the appellant’s evidence gave no real assistance to the Crown. Indeed, given that the evidence of the appellant, in the Judge’s view, might explain why there were acquittals of co-accused on some counts that seems difficult to rationalise, Mr Raftery submitted that the appellant was unlikely to suffer reprisals. Mr Raftery submitted that a one year discount for the appellant’s guilty plea and evidence was sufficient given these circumstances. He submitted, in relation to the discount given for the guilty plea, R v Strickland is distinguishable. The appellant in that case pleaded guilty at an early stage before any of his victims were required to give evidence. Moreover, the appellant had voluntarily confessed to other offending which was at that time not known about, resulting in additional charges. In this case, the appellant pleaded guilty at the last possible opportunity, and after his victims had given evidence. The State was accordingly not spared any expense. The Crown case was a particularly strong one. It is also submitted that the probation report did not indicate that the appellant showed contrition.
[19]	Mr Raftery submitted there is no logical reason why any allowance should be made for the appellant’s age. It is submitted that, at 22, the appellant was an adult. The offending, of which the appellant was the instigator, comprised adult crimes involving calculated actions carried out for personal gain. In relation to the appellant’s lack of previous convictions, Mr Raftery submitted that under the Sentencing Act 2002, this is the absence of an aggravating factor (s9(1)(j)) rather than a mitigating factor unless it can be regarded as evidence of previous good character under s9(2)(g). Mr Raftery submitted that the appellant could not rely on previous good character in this case, having lived in New Zealand for only approximately one year before the first offending.
[20]	Finally, Mr Raftery submitted that the appellant’s submission that his sentence should be reduced because imprisonment in his case is a more severe penalty is inconsistent with this Court’s statements in R v Birney (CA 200/96, 18 February 1997), and R v Ahlquist [1989] 2 NZLR 177, 179 that :

[21]	We are quite satisfied that the Judge’s decision to view the totality of the offending comprised in all four incidents as a basis for sentencing, was appropriate in this case. It would have been possible to structure the end result by a series of cumulative sentences and indeed this may well have accorded with the guidance provided by s83(2) of the Sentencing Act 2002. In the final analysis, however, the result achieved by the imposition of concurrent sentences cannot be regarded as being wrong in principle and more importantly, it did achieve a fair and realistic result. Viewed in this light we do not consider it is open to the appellant to argue that the starting point of 14 years should be considered in isolation namely as being the maximum penalty applicable to single incidences of the most serious offences included in the overall offending.
[22]	Similarly we consider that the differences referred to in the Crown’s submissions in relation to Toimata’s sentence provide an ample basis to justify the difference between the two sentences. The most significant difference is the fact that it is clear that, quite apart from being actually involved in all four incidents, the appellant was in each case, the instigator and, thereafter, the director of what happened.
[23]	We also consider that the reduction of one year in respect to the plea of guilty and the assistance subsequently provided to the Crown is fair and realistic in the circumstances. The plea itself provided no relief for the complainants who had already given evidence. So far as any benefit to the State was concerned, the Judge clearly regarded this as being debatable. If, as a result, the appellant did place himself in some jeopardy then the election to give evidence was his decision. In these circumstances, again, we consider the reduction to be both fair and realistic.
[24]	The absence of any reduction to take into account the appellant’s age is not a factor which we consider calls for any redress. He was 22 years of age at the time of the offending. The nature of this was callous and manipulative. These were the actions of a mature person.
[25]	The fact that the appellant will be separated from his family in China whilst in prison is certainly a factor which will increase the severity of the sentence so far as this particular appellant is concerned. This being the case it was submitted on behalf of the appellant that the Judge should have paid greater regard to the requirement under s8(h) of the Sentencing Act, namely, to take into account any particular circumstances of the offender that mean that a sentence that would otherwise be appropriate would, in the particular circumstances be disproportionately severe. Given, however, the nature of this offending, namely the terrorising of foreign students resident in New Zealand which is seemingly becoming all too frequent, we do not consider this factor should have been brought into account when considering any further reduction. Indeed, as was submitted by the Crown, there are good policy reasons for ensuring that foreign offenders are sentenced in the same way in New Zealand, not least of which is deterrence. This factor was also referred to by the Judge.
[26]	The final ground relied on in support of a further reduction in sentence was the appellant’s lack of previous convictions in contrast to Toimata who had previous convictions for burglary and robbery accompanied by threats and in respect of which he had been imprisoned for nine months. It was submitted in this regard that the absence of any previous convictions in the appellant’s case was a matter which should be taken into account as a mitigating factor as required by s9(2)(g) namely, evidence of the offender’s previous good character. It was also mentioned in this regard that the appellant’s mother had provided evidence of his previous good character prior to coming to New Zealand about one year before the offending occurred. The Judge did not make any reference to this factor. We do not find this surprising. This was not the more common case of a first offender being sentenced for a single offence. Any concession to be gained by reason of a previously unblemished record should have been and was dispelled by the prolonged and premeditated nature of the offending in this case.