Jeon v The Queen

[2019] NZHC 3279

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-000407

[2019] NZHC 3279

BETWEEN

KOOK-HYUN JEON

Appellant

AND

THE QUEEN

Respondent

Hearing:

9 December 2019

Appearances:

J Yi for the Appellant

J V Barry for the Crown

Judgment:

12 December 2019

JUDGMENT OF POWELL J

This judgment was delivered by me on 12 December 2019 at 3.30 pm Registrar/Deputy Registrar

Date:

JEON v R [2019] NZHC 3279 [12 December 2019]

[1]    Kook-Hyun Jeon, appeals against a sentence of three years and eleven months’ imprisonment imposed by Judge Gibson at the Auckland District Court.1 Mr Jeon had pleaded guilty to a large number of violence related offending against his former partner, namely one charge of assault with intent to injure;2 one charge of injuring with reckless disregard;3 one charge of wilful damage;4 three charges of assault with a weapon;5 one charge of injuring with intent to injure;6 one charge of male assaults female;7 and one charge of threatening to kill.8

[2]    Mr Jeon appeals his sentence on the grounds it was manifestly excessive. Specifically, Mr Jeon contends that the sentencing Judge erred in law by:

(a)uplifting the starting point for the lead offending by two years to account for the remaining offending; and

(b)by not providing any discrete discount for Mr Jeon’s previous good character and remorse.

[3]    It is well established that an appeal of this type must be allowed if the Judge is satisfied that there is an error in the sentence imposed on conviction and that a different sentence should be imposed.9 In any other case, the appeal must be dismissed.10 The measure of error is the sentence be “manifestly excessive”, a principle “well engrained” in the Court’s approach to sentence appeals.11 That is to be determined by reference to the final sentence, not the route adopted to reach it.12 How the sentence was structured is not material.13

1      R v Jeon [2019] NZDC 16316.

2      Crimes Act 1961, s 193: maximum penalty of three years’ imprisonment.

3      Section 189(2): maximum penalty of five years’ imprisonment.

4      Summary Offences Act 1981, s 11: maximum penalty of three months’ imprisonment or a fine not exceeding $2,000.

5      Crimes Act 1961, s 202C(1)(b): maximum penalty of five years’ imprisonment.

6      Section 189(2): maximum penalty of five years’ imprisonment.

7      Section 194(b): maximum penalty of two years’ imprisonment.

8      Section 306: maximum penalty of seven years’ imprisonment.

9      Criminal Procedure Act 2011, s 250(2).

10     Section 250(3).

11     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27], [33] and [35].

12     Ripia v R [2011] NZCA 101 at [15].

13     Mita v R [2012] NZCA 137.

The Offending

[4]    Mr Jeon and the victim were in a relationship. In early June 2017 the victim had moved from Wellington to Auckland so that the couple could marry and live together. The offending commenced shortly after and continued until August 2017, a period of approximately three months.

Assault with intent to injure

[5]    In early June 2017, Mr Jeon returned home intoxicated. He approached the victim, grabbed her and threw her to the floor. He smashed household items around to intimidate her, before kicking her lower body and dragging her by her hair into the lounge. When the assault ended, Mr Jeon took her cell phone and deleted all the victim’s contacts saying that it was for her “own good” and that it was to enable them to “move on with their lives together”.

Injuring with reckless disregard

[6]    On 28 June 2017, the eve of their wedding, while the parties were at home together they had an argument during which Mr Jeon pushed the victim, causing her to fall on her face. This resulted in the victim suffering bruising and a chipped tooth. The wedding did not proceed due to her injuries.

Wilful damage

[7]    On 7 July 2017, while in a car with Mr Jeon, the victim was playing on her cellphone. Annoyed that she was not paying sufficient attention to him, Mr Jeon grabbed the phone from her and crushed it.

Assault with a weapon (1)

[8]    Later on 7 July 2017, after arriving home, Mr Jeon got a pair of scissors and separated them, creating two knife-like blades. He said to the victim that she was going to pay for what she had done and that he was going to “destroy her permanently”.

[9]    Mr Jeon then told her he wanted to play a game and asked her to stab him first. When she refused, he slapped her in the face and grabbed her by the hair. He threatened to cut her throat with one of the blades. When she attempted to escape, he grabbed her by the hair and took her into the kitchen, asking her which knife she wanted to be killed with. He took a knife and pressed it to her skin saying that she was going to be dead or disabled for the rest of her life because she had displeased him.

Injuring with intent to injure

[10]   On 24 July 2017, Mr Jeon told the victim he wanted to apologise to her and that he would make her dinner. The victim was not feeling well however and went to bed. A short time later she woke to find Mr Jeon on top of her with his hands around her neck, strangling her. As a result, she lost consciousness. Mr Jeon phoned an ambulance and the victim was taken to hospital. Mr Jeon lied about the cause of the victim passing out, and told the paramedics the victim was stressed out and had fainted.

Assault with a weapon (2)

[11]   On 6 August 2017, Mr Jeon was drinking. When the victim suggested that he reduce his consumption he lunged at her, grabbed her and wrapped an extension cord around her neck, tightening it, releasing before she lost consciousness. When the victim attempted to leave he took her clothes off and forced her to kneel in front of him. He had a knife to her throat while he threatened to destroy her passport, identification documents and bank cards.

Assault with a weapon (3)

[12]   On 15 August 2017, the victim had been trying to end the relationship. She arranged to meet Mr Jeon to get the keys for the apartment. Mr Jeon, intoxicated and holding a bottle, told her that he wanted them to reconcile. When the victim refused he grabbed her and started to shake her violently. When the victim attempted to call

the police, Mr Jeon stated “you or me will be dead by the time the cops get here; you should get hurt because you made me mad.”

Male assaults female

[13]   On 18 August 2017, a few hours after a police safety order (“PSO”) was issued against Mr Jeon in respect of the victim, he returned to the shared apartment and started drinking heavily. He tried to get the victim (who was now pregnant) to consume alcohol with him. When she refused, he verbally abused her and shook her.

Threatening to kill

[14]   On 20 August 2017, Mr Jeon contacted the victim and told her that he was going to kill her and the baby.

The sentence imposed

[15]   Judge Gibson considered the injuring with intent to injure to be the lead offending, being the 24 July strangulation of the victim that began while she was sleeping and ultimately rendered her unconscious. Judge Gibson adopted a starting point of three years’ imprisonment for the lead charge. The Judge held Mr Jeon’s offending contained five of the Taueki14 aggravating factors, namely extreme violence, premeditation (albeit limited), serious injury, vulnerability of the complainant and acts of strangulation. The Judge therefore held that the offending fell within band three of the Nuku15 guidelines. From this, with particular reference  to  Latu  v  Police,16 Judge Gibson considered an uplift of two years was required for all of the other offending. This brought the global starting point to one of five years’ imprisonment.

[16]   From that starting point, Judge Gibson applied  a five-month discount  for   Mr Jeon’s time spent on electronically monitored (“EM”) bail and a further 15 per cent for his guilty pleas. This resulted in the end sentence of three years and 11 months’ imprisonment.

14     R v Taueki [2005] 3 NZLR 372 (CA).

15     Nuku v R [2012] NZCA 584.

16     Latu v Police [2017] NZHC 363.

The case for Mr Jeon

[17]   Mr Jeon takes no issue with the starting point reached by Judge Gibson on the lead offence, nor with the discounts given for the time spent on EM bail and the guilty pleas. Instead Mr Yi submits, on behalf of Mr Jeon, that the uplift of two years for the other charges was excessive and that an uplift of one year’s imprisonment would have been appropriate taking into account the overall totality of the offending.

[18]   In making this submission, Mr Yi submits Judge Gibson erred in relying on Latu, submitting that a better comparator was the case of Carson v R.17 In that case the appellant unsuccessfully appealed his end sentence of three years’ imprisonment for violent offending against his former partner. Woodhouse J, on appeal, confirmed the starting point of two years’ imprisonment and a one-year uplift for the further offending.

[19]   With regard to the second ground of appeal Mr Yi submitted that in addition to the discounts given for time spent on EM bail and guilty pleas, Judge Gibson ought to have allowed a further discrete discount in the vicinity of three months to reflect previous good character and remorse.

Issue one – uplift for remaining charges

[20]   Having considered the matters raised by Mr Jeon, I consider the two year uplift was appropriate.

[21]   First, I am not satisfied that Carson was an appropriate comparator. In particular, the offending in Carson while serious was nowhere near the same level as in this case.18 Specifically, in Carson only one charge attracted a five-year maximum period of imprisonment, as opposed to five charges in Mr Jeon’s case. Likewise, although the offending in Carson occurred over a longer period (13 months as opposed to three months in the present case) it involved fewer aggravating factors which were present to a significant degree in the present offending. This was reflected by the fact

17 Carson v R HC Rotorua CRI-2011-463-23, 8 June 2011.

18 The offending in Carson involved threats to harm the victim; physical abuse to the  victim; including punching, kicking and slapping; pulling a scarf around her neck; and pouring contents of bottles over her head.

that in Carson the starting point fell within band two of the then guideline judgment Harris,19 being a starting point of up to two years’ imprisonment, in contrast to band three of Nuku, applicable in the present case, being a starting point of two years’ imprisonment up to the statutory maximum.

[22]   In contrast the decision in Latu applied by Judge Gibson involved remarkably similar offending to the present case (albeit with two occasions of strangulation rendering the victim unconscious). Many of the aggravating factors identified in Latu were present in Mr Jeon’s offending including strangulation rendering the victim unconscious, use of a weapon (in both instances scissors to the throat), threats to kill and serious violence. Mr Latu’s offending however occurred over the course of one day as opposed to three months in the present case.

[23]   In Latu the sentencing Judge adopted a starting point of four years’ imprisonment for the same lead offence of injuring with intent to injure. From there the Judge uplifted the starting point by 12 months to reflect the totality of the offending, reaching a starting point of five years’ imprisonment. The five-year starting point was upheld on appeal.

[24]   In this case all of the charges to which Mr Jeon pleaded guilty represented serious offending, and in the circumstances, like Latu required a significant uplift to reflect the totality of that offending.

[25]   Standing back, I consider the uplift of two years, resulting in an end sentence of five years’ imprisonment for Mr Jeon’s offending was available to the Judge. I do not consider it to be manifestly excessive.

Issue two – whether further discounts should have been given

[26]   The Sentencing Act 2002 recognises that previous good character is a mitigating factor. Section 9(2) states that in sentencing an offender the court must take into account various mitigating factors to the extent applicable in the case. They include “any evidence of the offender’s previous good character”.20

19     R v Harris [2008] NZCA 528.

20     Sentencing Act 2002, s 9(2)(g).

[27]   The Court of Appeal has consistently noted that there are two factors underpinning any discount for previous good character; recognising a fall from grace as punishment in itself and recognising the greater potential for rehabilitation where community involvement and good character bear witness to a reduced probability of reoffending.21

[28]   It is relevant to consider however the extent to which good character is based only on the absence of convictions or also includes positive contributions to society.22 It has been well established that while a clean record is, in itself, evidence of “previous good character” and worthy of some recognition, in the absence of a positive contribution to the community, any credit will be limited and is very much a “matter of impression”.23

[29]   Mr Jeon does not have any previous violence convictions. His only previous convictions are for operating a vehicle with unnecessary exhibition of speed in 2008 and driving with excess breath alcohol in 2013. Judge Gibson considered this may be relevant to his offending, given alcohol use seemed to be an underlying cause of the present offending.24 In any event these earlier offences are sufficiently serious enough so as to mean that no discount for previous good character is appropriate. There was otherwise no evidence before the sentencing Judge that Mr Jeon has previously contributed to the community to justify a discount, nor is there any such evidence on appeal.

[30]   Mr Jeon did however provide evidence of rehabilitation at sentencing in support of the submission that a discrete discount for good character was warranted. The evidence shows that Mr Jeon participated in a programme provided by the Asian Family Services at the Problem Gambling Foundation of New Zealand for education on risk taking behaviour and problem gambling harm. It is difficult to see how this type of programme could be said to address the underlying causes of Mr Jeon’s offending, namely violence and alcohol use. Although Mr Jeon also attended four one-hour sessions in a Living Without Violence programme, his participation

21     R v Findlay [2007] NZCA 553 and R v Davidson [2011] NZCA 356.

22     Manawaiti v R [2013] NZCA 88 at [19].

23     R v Hockley [2009] NZCA 74 at [30] and [32].

24     R v Jeon [2019] NZDC 16316 at [8].

apparently ceased in March 2019 before being completed as the Provision of Advice to the Court (“PAC”) report notes that Mr Jeon had “not completed any programmes or treatment to address these [violence and alcohol] factors”. Instead with reference to the PAC report Judge Gibson noted the threat Mr Jeon posed due to his minimisation of the offending and his apparent failure to deal with its causes:25

Mr Jeon is assessed as posing a high risk of harm, in particular to those in a close personal relationship with him. He is assessed as posing a high risk of re-offending, in particular to those who are in an intimate relationship with. This assessment is evidenced by the repeated harm that was inflicted on the victim during the six months they were in a relationship and the rapid escalation and frequency over this short time and in the absence of any treatment for his offence needs.

[31]   Taken together I am satisfied that there is no basis for any discrete discount for previous good character.

[32]   There is likewise no basis for any discrete discount for remorse. It is well established that a Court must be satisfied that in order to obtain a discrete discount for remorse over and above that implicit in the guilty plea discount, the offender is genuinely remorseful, to be determined by a proper and robust evaluation of the circumstances.26 In this case, in addition to attendance at the courses mentioned above, all Mr Jeon can point to is a letter of remorse that was placed before the sentencing Judge. Even viewed collectively I do not accept these demonstrate genuine remorse on the part of Mr Jeon. First, and as Judge Gibson noted, while the letter does state that Mr Jeon is remorseful for the offending, it fails to mention the victim directly. Instead it appears that Mr Jeon is more concerned about his own family and predicament, also reflected in the PAC report which noted that “he feels he has bought shame to them as a result of this”.

[33]   More fundamentally, the lack of any expressed concern for the victim as a result of his actions is to be contrasted with his comments to the probation officer recorded in the PAC report, which, far from providing evidence of genuine remorse, demonstrate a disturbing degree of “victim blaming” on the part of Mr Jeon. Specifically, Mr Jeon was recorded stating that the victim:

25 At [10].

26     Hessel v R [2009] NZCA 450 at [64].

(a)although born in Korea, she was raised in America and “behaved more like an American girl, not a traditional Korean girl” and did not behave as he believed a “Korean girl should”; and

(b)that she made too many decisions on her own.

[34]   In addition to such attitudes which not only do not display remorse, and which are both utterly unacceptable in our society and can provide no excuse, the PAC report went on to record Mr Jeon refused to acknowledge his role in the lead strangulation offence, notwithstanding his guilty plea.

[35]   In these circumstances as with the previous good character it is clear no form of discrete discount is warranted for remorse.

Decision

[36]The appeal is dismissed.

Powell J