R. v. Zhang, 2000 CanLII 3485 (ON CA)

COURT OF APPEAL FOR ONTARIO

DATE: 20000510

DOCKET: C32268

MOLDAVER, FELDMAN and MacPHERSON JJ.A.

B E T W E E N : )

) Damien Frost

HER MAJESTY THE QUEEN ) for the appellant

)

Respondent )

)

• and - ) Robert Kelly

) for the respondent

HAI CHEN ZHANG )

)

Appellant ) Heard: May 4, 2000

)

On appeal from conviction by the Honourable Madam Justice

Corbett, with a jury, dated July 14, 1998 and from sentence

imposed September 25, 1998

BY THE COURT:

1After trial by judge and jury, the appellant was found

guilty of assault causing bodily harm and aggravated assault. He

was sentenced to a term of imprisonment totalling 12 years. He

appeals against conviction and sentence.

OVERVIEW

2On October 21, 1997, when the appellant’s wife returned home

from work, the appellant was enraged because he suspected that

she had been unfaithful to him. Prior to her return, he broke a

wooden mop handle in two and taped one end of it to make a grip.

When he wife entered the apartment, the appellant slapped her

twice in the face in front of their seven-year-old child. He

then sent the child to his room and proceeded to beat his wife

from head to toe using his fists, his feet and the wooden stick.

The beating lasted for over an hour, during which time the wife

admitted to having had a brief affair with a 73-year-old man

named Allen.

3The appellant instructed his wife to call Mr. Allen and

invite him over to the apartment. He also made her write out two

notes, the first promising that she would give him a divorce and

provide compensation in the amount of $100,000, the second that

she would kill Mr. Allen upon his arrival and then commit

suicide.

4When Mr. Allen arrived, the appellant was hiding behind the

front door armed with a meat cleaver. As soon as the door

opened, he took hold of Mr. Allen and began attacking him with

the weapon. At that point, his wife intervened and wrestled the

meat cleaver away from him, in the course of which, the appellant

received cuts to his ear and face. The appellant then retrieved

the weapon from his wife and renewed his attack on Mr. Allen.

Eventually, in an effort to escape, Mr. Allen fell down a wooden

staircase leading to the front entrance of the apartment

building. The appellant ran after him and as Mr. Allen lay

helpless on the floor, he proceeded to punch, kick and assault

him with the meat cleaver, causing life-threatening injuries.

5When the police arrived a short time later, they found Mr.

Allen lying in a pool of blood at the bottom of the staircase.

The appellant was upstairs in the apartment. His wife had

escaped through a back door and the 7-year-old child was found

hiding in a closet under some suitcases.

6As a result of the attack, both victims suffered extreme

injuries. The appellant’s wife received cuts to her head, hands

and leg and her entire body was bruised and swollen. Her jaw

bone was fractured from a punch to the face. The scarring on her

leg is permanent and the event has left her emotionally and

psychologically traumatised.

7Mr. Allen was rushed to St. Michael’s Hospital and given

emergency treatment. He was in surgery for five hours and

received 13 to 15 units of blood. He was hospitalized for nine

days and then transferred to the Riverdale Hospital where he

stayed for three months undergoing rehabilitative treatment.

8Mr. Allen suffered extensive lacerations to his head, face

and neck. His hands were badly injured and two of his fingers

had to be amputated. He lost eight teeth and now has to wear a

denture. A fracture to the tibea bone in his left leg has left

him unable to kneel and he suffers from drop foot which causes

him to walk with a limp. In addition to the physical injuries,

which according to the medical evidence were life-threatening,

Mr. Allen has been psychologically and emotionally traumatised

and his life will never be the same.

POSITION OF THE PARTIES AT TRIAL

9The appellant admitted to slapping his wife and striking her

with the mop handle about her legs and back after she returned

home. He maintained, however, that the injuries occasioning

bodily harm to her occurred after Mr. Allen’s arrival. At that

time, he testified that his wife obtained the meat cleaver and

she and Mr. Allen attacked him. Fearing for his life, he fought

back and sought to justify the ensuing injuries to his wife and

Mr. Allen on the basis of self-defence.

10The Crown, on the other hand, took the position that all of

the injuries to the appellant’s wife occurred prior to Mr.

Allen’s arrival and they were the product of a planned and

deliberate attack motivated by rage and jealousy. The Crown took

a similar position with respect to the injuries occasioned to Mr.

Allen.

11By its verdict, the jury clearly rejected the appellant’s

claim to self-defence and accepted the theory of the Crown.

CONVICTION APPEAL

12The appellant’s sole ground of appeal relates to a ruling

made by the trial judge permitting the appellant’s wife to give

evidence that she had been assaulted on an unspecified number of

occasions by the appellant during the course of their marriage.

As a result of the ruling, the complainant testified that she had

received bruises to her body from being beaten by her husband.

She also stated that after meeting Mr. Allen, she showed him the

bruises and he offered to assist by providing her with a divorce

lawyer. Her evidence in this respect was confirmed by Mr. Allen.

Notably, neither witness identified or described any specific

incidents of abuse, nor did they quantify or date the prior acts

of violence.

13In her charge, the trial judge told the jury that the

evidence of the prior assaults formed part of the narrative and

it could be used to assist the jury in assessing the state of

mind of the appellant’s wife and Mr. Allen on the evening in

question. She further instructed the jury that the evidence

could only be used in this fashion if they “believed” that the

prior assaults had occurred. Finally, she told the jury in the

clearest of terms that the appellant’s prior misconduct could not

be used to show that he was the type of person likely to commit

the offences with which he was charged. In this regard, she

stated:

… this evidence, if believed, must not be used

by you to conclude that Hai Zhang is the kind

of man to commit any other offences with which

he’s charged. You cannot and must not use that

evidence to conclude that Hai Zhang is a bad man

or a wife beater and is therefore guilty of any

other crimes with which he is charged. Our law

does not permit that kind of reasoning.

14The appellant submits that the trial judge erred in

admitting the impugned evidence on the ground that its

prejudicial effect outweighed its probative value. He further

submits that the trial judge misdirected the jury on the use that

could be made of this evidence and the standard of proof required

before the jury could act on it. In this regard, the appellant

contends that the jury should have been told that they could only

use the evidence if they were satisfied of its truth on a balance

of probabilities.

15We would not give effect to any of these submissions.

16In our view, the impugned evidence was admissible as part of

the narrative. It served to explain the nature of the marital

relationship and enabled the jury to evaluate the events on the

evening in question in their proper context. Moreover, the

evidence was probative of the appellant’s motive or animus and

hence, his state of mind at the time of the alleged offences. In

this respect, the evidence was relevant to the jury’s assessment

of the appellant’s claim that he acted in self-defence.

17As for the trial judge’s instruction on the use that could

be made of the evidence, we accept that she erred in telling the

jury that it could be used to assess the state of mind and

behaviour of the appellant’s wife and Mr. Allen on the evening in

question. That said, in our view, the error was harmless and

occasioned no prejudice to the appellant. If anything, it enured

to his benefit in the sense that the jury was not told that the

evidence could be used to show motive or animus on his part.

18To the extent the evidence was capable of occasioning

prejudice to the appellant, the trial judge’s strong limiting

instruction adequately addressed this concern.

19Finally, we see no merit in the submission that the trial

judge erred in instructing the jury that they could only act on

this evidence if they “believed” it to be true. In our view,

the use of the word “believed” in the circumstances was entirely

appropriate.

20Accordingly, the appeal from conviction is dismissed.

SENTENCE APPEAL

21As is apparent from her reasons for sentence, the trial

judge was of the view that the offence of aggravated assault on

Mr. Allen called for a sentence of ten years imprisonment and the

offence of assault causing bodily harm on the appellant’s wife

warranted a sentence of five years consecutive. She then took

into account the eleven months of pre-trial custody served by the

appellant, for which she was prepared to give him credit on a two

for one basis. Finally, she factored in the principle of

totality and in the end, she arrived at a twelve year sentence.

22In her thorough and comprehensive reasons, the trial judge

emphasized the gravity and seriousness of the crimes and she

recognized, correctly in our view, that this was a case where the

principles of denunciation and general and specific deterrence

were paramount. That said, we are of the view that she committed

two errors in principle which warrant our intervention.

23First, the trial judge characterized the offence of

aggravated assault as one of “stark horror.” With respect,

although we consider this to be a borderline case, our review of

the relevant authorities leads us to conclude that the offence

and the circumstances surrounding it did not warrant that label.

There can be no doubt, however, that this was one of the worst

cases of aggravated assault imaginable and as such, it called for

a severe sentence.

24Based on the authorities, it would appear that as a general

rule, sentences in the range of five to eight years have been

imposed in similar circumstances. Without in any way wishing to

detract from the broad discretion given to trial judges in the

realm of sentencing, we think that in the circumstances, the

figure of ten years arrived at by the trial judge fell outside

the appropriate range.

25The second error in principle involves the trial judge’s

failure to give adequate weight to the personal circumstances and

characteristics of the offender. Apart from the prior abusive

conduct towards his wife, which we consider to be a significant

aggravating feature, this was the appellant’s first offence and

the first occasion in which he had ever engaged in extreme

violence. He was 36 years old at the time of the sentencing and

by all accounts, he was a devoted father to the couple’s only

child. Indeed, after arriving in Canada from China where he had

practised medicine in the Chinese tradition, the appellant

remained at home to look after the child while his wife, who also

had medical training, enhanced her education and became a

qualified ultrasound technician.

26According to the appellant, life for him in Canada has been

difficult and we are told that after he completes his sentence,

he will be deported to China where he hopes to make a new life

for himself. The appellant is an intelligent man and with

appropriate counselling and treatment, it would appear that his

prospects for rehabilitation are promising.

27In all of the circumstances, leaving aside for the moment

the time spent in pre-trial custody, we think that a fit sentence

for the offence of aggravated assault would have been one of

eight years imprisonment. On the charge of assault causing

bodily harm, which we also consider to be one of the worst case

scenarios, we think a sentence of three years consecutive would

have been appropriate.

28Giving the appellant credit on a two to one basis for the

time spent in pre-trial custody, which we arbitrarily assign to

the offence of aggravated assault, we would vary the sentence

imposed at trial for that offence to one of six years. We would

also vary the sentence on the offence of assault causing bodily

harm to three years consecutive, thereby reducing the total

sentence from twelve to nine years. The s. 100 order (now s.

109. imposed by the trial judge shall remain in place.

29In the result, leave to appeal sentence is granted, the