Lee v Police - [2019] NZHC 1172

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-097

[2019] NZHC 1172

BETWEEN
PETER HARVEY LEE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 27 May 2019

Appearances:

J I C Schlebusch for the Appellant

L J Fraser and T L Tuiburelevu for the Respondent

Judgment:

27 May 2019

ORAL JUDGMENT OF PALMER J

Solicitors: Crown Solicitor, Auckland Counsel: J Schlebusch, Whangaparoa

LEE v POLICE [2019] NZHC 1172 [27 May 2019]

What happened?

[1] On 18 March 2018, Mr Peter Lee entered his partner’s house, where he resides, carrying a knife and they argued about the use of her cellphone. He threw the knife in the wall. She went to a separate bedroom. He smashed the front door. The next day, they argued over their relationship. Mr Lee threw a plate and cup at the wall, smashing them. She locked herself in the bedroom. He kicked the door down and dragged her to the floor by her ponytail saying “this is what it’s like to get abused”. She received bruises and lost a large chunk of hair. She signalled to a neighbour to call the Police.

[2] One evening in early June 2018, Mr Lee forced entry into a Habitat for Humanity store in Panmure, Auckland. He smashed glass cabinets causing damage of around $800 and took jewellery of an unknown value. In July 2018, he stole a vehicle in Highland Park. He was arrested on 19 July 2018, while driving it in Auckland. He was granted Police bail but failed to attend when required. That may have been because, around that time, he was burgling three baches, belonging to his former neighbours at Waihi Beach. He caused around $1,500 in damage to one bach and took electrical goods and other household items from the other two, valued for reparation purposes at around $20,000. An owner spotted him in the kitchen of one bach before he ran away.

[3] Mr Lee pleaded guilty to four charges of burglary, of the three baches and the Habitat for Humanity store, male assaults female, wilful damage of the bedroom door, unlawfully getting into a motor vehicle and breach of bail. In January 2019, in the Auckland District Court, Judge B A Gibson noted he would be justified in sentencing Mr Lee cumulatively for the family violence offending (which counsel today both acknowledge) but he later stated that, “of course” the sentences would be concurrent.1 He fixed a starting point of four years’ imprisonment, for the burglaries, breach of bail and motor vehicle offences.2 He uplifted the starting point by six months for the male assaults female and wilful damage offences on a totality basis although, standing on their own, he would have looked at a nine to 10 month starting point for those offences.

1 New Zealand Police v Lee [2019] NZDC 209 at [2] and [12].
2 At [8]. An addendum added by the judge on the afternoon of the sentencing suggested the…

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 [2019] NZHC 1172
Case: [2019] NZHC 1172
Decision Date: 27 May 2019

CaseChat Overview and Summary

In Lee v Police, Mr. Peter Lee appealed his sentence after being convicted of multiple charges, including burglary, assault, wilful damage, unlawful entry into a motor vehicle, and breach of bail. The sentencing judge in the Auckland District Court had imposed a total sentence of three years and two months' imprisonment, which Mr. Lee deemed excessive. The High Court was tasked with determining whether there was a material error in the sentence warranting a different sentence to be imposed. The key legal issue was whether the starting point for the sentence was correctly determined and if the cumulative sentencing for the family violence charges was appropriate.

The High Court found that while the starting point for the burglary, bail, and motor vehicle charges was set too high at four years, a reasonable starting point would have been three years and six months. The court also found that the family violence charges could have been imposed cumulatively, as they were different in nature and time. The court concluded that despite these errors, the overall sentence of three years and two months was within the range available to the sentencing judge and was not manifestly excessive. Therefore, the appeal was dismissed.

In summary, the High Court found that although there were errors in the sentencing process, they did not warrant a different sentence to be imposed. The appeal was dismissed, and the original sentence of three years and two months' imprisonment was upheld.

Orders