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:
[1] After 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
[2] On 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.
[3] The 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.
[4] When 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.
[5] When 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.
[6] As 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.
[7] Mr. 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.
[8] Mr. 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
[9] The 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.
[10] The 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.
[11] By its verdict, the jury clearly rejected the appellant’s
claim to self-defence and accepted the theory of the Crown.
CONVICTION APPEAL
[12] The 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.
[13] In 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.
[14] The 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.
[15] We would not give effect to any of these submissions.
[16] In 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.
[17] As 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.
[18] To the extent the evidence was capable of occasioning
prejudice to the appellant, the trial judge’s strong limiting
instruction adequately addressed this concern.
[19] Finally, 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.
[20] Accordingly, the appeal from conviction is dismissed.
SENTENCE APPEAL
[21] As 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.
[22] In 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.
[23] First, 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.
[24] Based 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.
[25] The 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.
[26] According 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.
[27] In 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.
[28] Giving 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.
- imposed by the trial judge shall remain in place.
[29] In the result, leave to appeal sentence is granted, the
appeal is allowed and the sentence is varied accordingly.
“M.J. Moldaver J.A.”
“K. Feldman J.A.”
“J.C. MacPherson J.A.”
Released: May 10, 2000