IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-230
[2024] NZHC 1966
BETWEEN RICHARD JAMES LEE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 24 June 2024 Appearances:
J C Z Loh for Appellant
R H Vercoe for Respondent
Judgment:
17 July 2024
JUDGMENT OF MOORE J
This judgment was delivered by me on 17 July 2024 at 12.00 pm
…………………..
Registrar/Deputy Registrar
Solicitors:
Inder Lynch, Auckland
Kayes Fletcher Walker, Auckland
RICHARD JAMES LEE v NEW ZEALAND POLICE [2024] NZHC 1966 [17 July 2024]
Introduction
[1] The appellant, Richard Lee, pleaded guilty to one charge of theft by a person in a special relationship.1
[2] On 18 April 2024, he appeared before Judge N Tahana for sentence. He applied to be discharged without conviction pursuant to s 106 of the Sentencing Act 2002. The application was founded on the potential impact a conviction would have on his ability to continue to operate his vehicle inspection business as well as the likely impact on his mental health.
[3] The Judge declined the application.2 She said she was not satisfied that the consequences of conviction were real and appreciable or that any such consequences were out of all proportion to the gravity of the offending.
[4]Mr Lee now appeals that decision on the grounds that the Judge erred:
(a)in finding that the gravity of the offending was low to moderate, rather than low;
(b)in finding that the direct and indirect consequences of conviction were not out of all proportion to the gravity of the offending; and
(c)in not exercising her discretion to discharge the appellant without conviction.
[5] The Police, as respondent, submits that there is no discernible error in the Judge’s application of the test under ss 106 and 107 of the Sentencing Act. It says the appeal should be dismissed.
1 Crimes Act 1961, ss 220 and 223(a). Maximum penalty seven years’ imprisonment.
2 Police v Lee [2024] NZDC 10180 [Decision on appeal].
The facts of the offending
[6] Mr Lee pleaded guilty to an agreed summary of facts the salient aspects of which are reproduced below.
[7] Mr Lee is the owner of Independent Training Audit Services (ITAS). ITAS is a service provider for both the training and mentoring of new vehicle inspectors and mentoring new vehicle inspectors. It is an approved Inspection Organisation for Certificates of Fitness and Entry Level Inspections. It is also an approved trainer for heavy vehicle braking testing protocols and heavy vehicle inspectors. Of particular relevance to this appeal, is that ITAS was contracted by the New Zealand Police to conduct vehicle inspections on vehicles involved in serious crashes.
[8] On 5 August 2023, the victim, Mr C, was involved in and survived a serious, fatal, car crash. His vehicle was taken to a tow yard where it was inspected by Mr Lee the same day. During this inspection Mr Lee found Mr C’s iPhone on the back seat. He removed the iPhone and a…
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- [2024] NZHC 1966
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CaseChat Overview and Summary
The court examined the legal principles governing the discharge without conviction, noting that the decision to grant such a discharge was not a matter of discretion but rather a matter of fact requiring judicial assessment. The court also considered the impact of Mr Lee's previous conviction and his compromised judgment at the time of the offending. The court found that the Judge had appropriately considered these factors in her assessment of the gravity of the offending and did not err in her classification of the offending as low to moderate. The court further found that the Judge's assessment of the consequences of conviction, including the potential impact on Mr Lee's business and mental health, was reasonable and did not reach the threshold of being out of all proportion to the gravity of the offence.
In conclusion, the appeal was dismissed. The court held that the Judge had correctly applied the relevant legal principles and there was no material error in her decision.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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