Lee v Police - [2024] NZHC 1966

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…

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 Lee v Police

Details

AGLC: Lee v Police [2024] NZHC 1966
Case: [2024] NZHC 1966
Decision Date: 17 July 2024

CaseChat Overview and Summary

The case of Lee v Police involved an appeal by Richard James Lee against the decision of the District Court to refuse his application for a discharge without conviction for a charge of theft by a person in a special relationship. The District Court had declined the application on the basis that the consequences of conviction were not out of all proportion to the gravity of the offending. Mr Lee argued that the Judge had erred in several respects, including her assessment of the gravity of the offending, the consequences of conviction, and in not exercising her discretion to discharge him without conviction.

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