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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jeon v The Queen

Details

AGLC: Jeon v The Queen [2019] NZHC 3279
Case: [2019] NZHC 3279
Decision Date: 12 December 2019

CaseChat Overview and Summary

Kook-Hyun Jeon appeals a sentence of three years and eleven months’ imprisonment imposed by Judge Gibson at the Auckland District Court. Mr Jeon had pleaded guilty to multiple charges of violence against his former partner, including assault with intent to injure, injuring with reckless disregard, wilful damage, assault with a weapon, injuring with intent to injure, male assaults female, and threatening to kill. The appellant submits that the sentence was manifestly excessive, principally because the Judge erred in uplifting the starting point for the remaining offending by two years and in not providing any further discount for his previous good character and remorse.

The court considered the grounds of appeal, focusing on whether the two-year uplift was appropriate and whether any further discount should have been given for previous good character and remorse. The court concluded that the two-year uplift was justified, given the gravity and totality of Mr Jeon’s offending, which included extreme violence, premeditation, serious injury, vulnerability of the complainant, and acts of strangulation. The court found that the offending was comparable to the case of Latu v Police, which involved a significant uplift for similar offending. Furthermore, the court found no basis for a discrete discount for previous good character, as Mr Jeon’s prior convictions and failure to participate in rehabilitation programs did not warrant such a discount. Similarly, the court found no basis for a discrete discount for remorse, as Mr Jeon’s statements and attitudes demonstrated a lack of genuine remorse and victim blaming.

The appeal is dismissed. The sentence of three years and eleven months’ imprisonment is affirmed.

Orders