Lee v Police
[2017] NZHC 2507
•13 October 2017
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2017-409-000113 [2017] NZHC 2507
BETWEEN HYUNG SOEK LEE
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 3 October 2017 Appearances:
P J Doody for the Appellant
S J Mallett for the RespondentJudgment:
13 October 2017
JUDGMENT OF NATION J
[1] In March 2017, Mr Lee was living at an address in Christchurch with two other young people. One was described as his ex-partner. The other was described in the summary of facts as her new partner. These flatmates were the victims of Mr Lee’s offending.
[2] Around 3.10 am on Sunday morning, Mr Lee returned to his home intoxicated. He became aware that his ex-partner was in bed with the other flatmate. Mr Lee entered the woman’s bedroom and jumped on the male flatmate. He punched him, grabbed him by the throat and began strangling him with two hands until it was difficult for him to breath. Mr Lee then bit the victim on the right side of his face around the cheek and ear, drawing blood, and gouged at his right eye. The assault moved from the bed on to the bedroom floor where Mr Lee continued to bite and scratch the male victim, biting him approximately 11 times in total, causing large
welts and drawing blood. The male victim was able to fight back and escape the
LEE v POLICE [2017] NZHC 2507 [13 October 2017]
bedroom. He ran and hid from Mr Lee in a different upstairs bedroom along a mezzanine floor. The female flatmate also left her bedroom and hid elsewhere in the house.
[3] Mr Lee left the bedroom where he had initially attacked the male victim, went downstairs and collected a large carving knife, approximately 30 centimetres long, from the kitchen. He then went upstairs carrying the carving knife, yelling “where is he”. He entered the female flatmate’s bedroom, kicking her bedroom door, causing it to disintegrate. He entered her bedroom and began stabbing the mattress with the carving knife.
[4] A short time later, he saw the male victim on the mezzanine floor. He moved towards him. The male victim, fearing for his life, jumped off the mezzanine floor, falling approximately three and a half metres and impaling himself on a glass ornamental vase, causing a number of deep lacerations to his buttock area. The male victim was then able to run from the house.
[5] Mr Lee ran downstairs and was confronted by the female victim. While still holding the carving knife, he pushed her several times, slamming her head into a wall.
[6] Mr Lee pleaded guilty to one charge of assault with intent to injure (maximum penalty three years’ imprisonment) and one charge of injuring with intent to injure (maximum penalty five years’ imprisonment).
[7] On 15 August 2017, Mr Lee was sentenced to imprisonment for two years and one month. He appeals against that sentence.
Principles on appeal
[8] Appeals against sentence are brought under s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. Specifically, this Court may only allow an appeal against sentence if it is satisfied that there has
been an error in the imposition of the sentence and that, in the event, a different sentence should be imposed.1
[9] If the sentence under appeal may be properly justified having regard to the relevant sentencing principles, it is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge. It is only if the sentence is “manifestly excessive” that the Court should interfere with the exercise of the Judge’s discretion. As Toogood J said (citing Ripia v R2) in Larkin v Ministry of Development:3
[26] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.
[10] The focus on most appeals is thus on the end sentence. In Tutakangahau v R, the Court of Appeal held that:4
…the focus is on the sentence imposed rather than the process by which the sentence is reached. That encapsulation of the position will no doubt represent the position in the vast majority of cases.
District Court sentencing
[11] The Judge noted six features of the offending identified as aggravating by the Court of Appeal in R v Taueki.5 He noted Mr Lee had no previous convictions in New Zealand and was on a student visa from Korea. He said the pre-sentence report suggested there was, at best, limited empathy and remorse and nothing exceptional that would justify an additional discount over what he would be given for pleading guilty.
[12] The Judge said he had considered all the sentencing purposes and principles but expressly referred to the need to hold Mr Lee accountable, to promote in him a sense of responsibility, to denounce what he had done and deter him and potentially
others from similar offending in the future. He referred to the gravity of the
1 Criminal Procedure Act 2011, ss 250(2) and 250(3).
2 Ripia v R [2011] NZCA 101 at [15].
3 Larkin v Ministry of Development [2015] NZHC 680.
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
5 R v Taueki [2005] 3 NZLR 372 (CA).
offending, the need for consistency with similar cases, the need to impose the least restrictive outcome and to reserve sentences of imprisonment for cases where they were really necessary under s 16 Sentencing Act. He said there were no mitigating features relating to the offending but had regard to Mr Lee’s youth. He treated Mr Lee’s lack of convictions as evidence of previous good character and had regard to the fact Mr Lee had been on an overnight curfew for several months.
[13] The Judge referred to the guideline judgment of Nuku v R.6 He adopted a starting point of three and a half years’ imprisonment, gave a discount for the other personal matters mentioned and the restrictive curfew of 20 per cent, to bring the starting point back to 33 months. There was then a discount for guilty pleas of a further eight months, almost 25 per cent, to bring the sentence back to 25 months.
Appellant’s submissions
[14] For Mr Lee, Mr Doody submitted that there had been an error in the sentence and a sentence of home detention was appropriate.
[15] While counsel accepted that the victims should have been safe in their own home, the offending occurred at the address which was also Mr Lee’s home. Counsel emphasised that there had been two parts to the attack and Mr Lee had only armed himself with the knife at the second stage of the incident, after the male victim had got the better of him and used his hands to choke Mr Lee to stop the biting. This had caused Mr Lee to briefly lose consciousness.
[16] Mr Doody submitted the Court of Appeal judgment in Kauvai v R, where the Court had approved a starting point of two years and 10 months for the offending, was for more serious offending than had occurred here.7 Counsel referred to two other High Court judgments which he submitted indicated a starting point of less
than three years and six months was appropriate.8
6 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
7 Kauvai v R [2017] NZCA 241.
8 Police v Filipo [2016] NZHC 2620; Rewa v New Zealand Police [2015] NZHC 2459.
[17] Counsel referred to the 20 per cent discount for previous good character, youth and restrictive bail but said that there should have been some further regard for the particular difficulties Mr Lee would face in being a foreigner serving a sentence of home detention or imprisonment in New Zealand with no family support available.
[18] Mr Doody submitted the limited empathy and remorse reported by the probation officer could have resulted from language difficulties Mr Lee faced when speaking to the probation officer without the benefit of an interpreter. He submitted there should not have been such an emphasis on deterrence and denunciation given this offending had occurred in the particular situation where the three people involved were flatting together and things had gone seriously wrong, and where Mr Lee had no support or coping mechanisms. Counsel also argued that imprisonment was not necessary when it was clear that, on completion of his sentence, Mr Lee would have to leave New Zealand and return to Korea.
Respondent’s submissions
[19] Mr Mallett, for the Crown, submitted that there was no error in the approach taken by the Judge and that the appeal should be dismissed. The Crown submitted that the offending was properly categorised in band three, which ranges from a starting point of two years to the statutory maximum. Mr Mallett submitted that this was serious offending, with a number of moderate injuries suffered by two victims. The violence did not cease until one of the victims jumped off the mezzanine floor and injured himself in running away.
[20] Contrary to Mr Lee’s submissions, the Crown submitted that the present offending was more serious than Kauvai because Mr Lee was armed with a 30 centimetre carving knife and bit one of the victims 11 times. He also attempted to strangle the victim. The Crown further submitted that the 20 per cent discount for Mr Lee’s personal mitigating factors and a further 25 per cent discount for his guilty pleas were generous. Mr Lee was only one month out from his 21st birthday at the time of his offending and was therefore at the cusp of where a discount could be
considered for youth.9 Even if this Court was to find the starting point to be at the upper end of the available range, the end sentence was appropriate in light of the discounts for personal mitigating factors and guilty pleas.
Discussion
[21] In Kauvai v R, the Court of Appeal considered the appropriate starting point against the available range, in accordance with R v Taueki and Nuku v R. The Court noted, “relatively limited assistance can be gained from references to various High Court decisions, which each turn on their own individual facts”.10
[22] As that is true with regard to appeals to the Court of Appeal, it must also be true of appeals to the High Court.
[23] I accept there were six aggravating features of the offending, as identified by the Judge:
(a) There was extreme violence. Mr Lee was out of control, frenzied. As the Judge said, it must have been terrifying for the victims. The offending was such that it was not surprising the male victim felt he had to jump three and a half metres to save his life;
(b) There were quite serious injuries;
(c) Mr Lee used a potentially lethal weapon during the incident;
(d) Much of the attack was directed specifically at the male victim’s head when Mr Lee repeatedly bit him about the face and neck;
(e) The offending occurred in the victims’ home where they should have
been able to expect to feel safe; and
(f) There were two victims.
9 Prasad v Police [2017] NZHC 509 at [35].
10 Kauvai v R, above n 7, at [13].
[24] In terms of Nuku and Taueki, band two, with a starting point of up to three years, would be appropriate where there were three such aggravating factors. Band three, with a starting point of two years up to the statutory maximum (here, five years), would apply where there were three or more of the aggravating factors set out in Taueki “and the combination of those features is particularly serious”.
[25] In Nuku, the Court of Appeal however emphasised that a sentencing Judge needs not only to identify aggravating factors but also to evaluate the seriousness of a particular factor. One very serious aggravating factor could have the effect of lifting the offending into a higher band. Equally, if a number of aggravating factors are present, but only in a mild form, that may result in the offending being placed in a lower band.
[26] The Court of Appeal also emphasised that the guidance in Nuku is not to be applied in a formulaic or mechanistic manner. When setting the sentence in a particular case, the sentencing Judge needs to stand back and undertake an overall assessment of the seriousness of the offending.
[27] I accept there was extreme violence, particularly so in the choking of the male victim, the biting of the cheek and the gouging at his eye. It is also significant that Mr Lee’s attack was so extreme that the male victim feared for his life, causing him to jump off the mezzanine floor, resulting in further significant injuries.
[28] The Judge was correct to describe the injuries as “quite serious” but the summary indicates the male victim was able to run from the house, even after being injured on jumping from the mezzanine floor. The female victim was said to have sustained a moderate laceration to her scalp from being slammed into the wall.
[29] It was an aggravating feature that there was an attack to the head but care had to be taken not to bring that into account twice. It was because of the bites to the face and neck that the Judge was correct to say there was extreme violence.
[30] A potentially lethal weapon, the knife, was wielded during the incident but, perhaps fortunately for both the victim and Mr Lee, it was not used to attack the
male victim because he escaped. It is, however, of some significance that, in a frenzied state when he was largely out of control, Mr Lee had sufficient self-restraint not to attack the female victim with the knife, displaying his anger by thrusting the knife into the mattress.
[31] The fact the offending occurred within the victims’ home was an aggravating feature but the seriousness of that is somewhat diminished in that the whole situation which caused Mr Lee to act irrationally and with such anger occurred in his home also.
[32] There were obviously two victims but, because they were victims in the same incident, it was important for the sentence to be appropriate for the totality of the offending.
[33] In Nuku, the appellant had entered the home of his former partner in the early hours of the morning, pulled her onto the floor from the bed, kicked her in the head, body and legs as she tried to shield her face with her arms, and kicked her at least four times to the head and face area when she was on the floor. The victim had hidden in the bathroom. He kicked in the door and broke the lock in the process. The Court of Appeal said a starting point for that offending of three years was appropriate. That was on the basis the offending fell “in the middle of the full sentencing range that is available”. In that case, the range was for a maximum of seven years because the charge was wounding with intent to injure rather than the injuring with intent charge for which Mr Lee was sentenced.
[34] In Hala v R, the Court of Appeal upheld a starting point of two years and 10 months’ imprisonment on an injuring with intent to injure charge.11 The offending related to an unprovoked assault in a bar on an 18 year old student. The assault involved the victim being punched three times in the face and being knocked to the ground. As he got up, he was again punched in the face, resulting in his jaw being fractured in two places, requiring repair and the insertion of metal plates. The Judge
had identified five aggravating factors: blows to the head, premeditation by
11 Hala v R [2013] NZCA 237.
continuing the assault, use of a boxing technique intended to cause harm, vulnerability of the victim who was not expecting the attack, and serious harm done.
[35] In Kauvai v R, the Court of Appeal upheld a starting point of two years and one month’ imprisonment on an assault with intent to injure charge.12 There, Mr Kauvai was lawfully at an address with the victim and two young women. He was heavily intoxicated. He began to make unwanted advances to one of the women. She kept telling him to stop touching her. The victim attempted to intervene. Mr Kauvai punched him in the face using a closed fist. The victim went to help one of the women. Mr Kauvai then threw the victim on the ground, began punching and kicking him multiple times. That victim received a fractured jaw bone. He required surgery and needed two metal plates in his jaw. The Judge identified, and the Court of Appeal accepted, the aggravating features of the offending included the extent of serious violence, the attack was prolonged and restarted, although the Judge assessed this factor was present to “a low to moderate extent”, serious injury was inflicted, there was a deliberate attack to the victim’s head and, with the initial punch, the victim was taken by surprise.
[36] The Court of Appeal considered the offending in Kauvai closely aligned with that in Hala.
[37] In Hall v R, the Court of Appeal said a starting point of two years and six months’ imprisonment was open to a District Court Judge where the offender was being sentenced on one charge each of injuring with intent to injure and assault with intent to injure.13 There, the offender had punched the victim in the face at a bar. The assault was unprovoked. He knocked off the victim’s glasses then proceeded to grab the victim by the shirt and punch him multiple times in the face. He and his associates tackled the victim to the ground and began kicking him about the body
and head, even when he was unconscious.
12 Kauvai v R, above n 7.
13 Hall v R [2015] NZCA 249.
[38] In Tiplady-Koroheke v R, a two year starting point was accepted by the Court of Appeal on three charges of assault with intent to injure.14 The offender became involved in an unprovoked group assault of six men in a street in Dunedin. The offender punched the first victim in the face, knocking him to the ground. He then stood over the victim and stomped on his upper body. When the victim got up and went to help one of his friends who was lying unconscious on the footpath, the offender punched him in the face and knocked him to the ground again. He then punched a second victim who was also trying to help his unconscious friend. As a result of a punch, the victim stumbled back and the offender kicked and punched him to the ground. While the victim was on the ground, the offender punched him in the face and then stomped with his right foot and then his left foot on the victim’s head. The offender then ran to the third victim, who had his back to him. He punched this person in the head, threw him to the ground and then stomped on the victim’s chest.
[39] As the Court of Appeal directed the sentencing judges must do, I stand back and make an overall assessment of the seriousness of the offending. In that regard, I consider it was significant that this offending occurred in two stages. The first stage was all around Mr Lee’s initial reaction to finding his former girlfriend in bed with another flatmate. There was serious violence in his initial reaction and it was prolonged in that Mr Lee continued with his attack after the male victim was on the floor. That attack ended when the male victim managed to over-power Mr Lee. Both victims then effectively fled from Mr Lee. The offending, however, continued with Mr Lee then collecting the knife and pursuing the victim causing him to fear for his life and taking action which resulted in further serious injury. Mr Lee also broke down the door to the female victim’s bedroom and slammed her head against a wall.
[40] Guided by the Court of Appeal judgments, which I have referred to, I consider the starting point adopted for the offending was too high. The starting point I would have adopted is three years. In all the circumstances, the difference is significant.
[41] I consider the discount of 20 per cent for Mr Lee’s personal mitigating factors
remains appropriate. At the time of the offending, he was just a few days short of 21.
14 Tiplady-Koroheke v R [2012] NZCA 477.
He was at a point where some but not significant discount for youth was appropriate. There also had to be some regard to the particular challenges he would have faced as an overseas student in New Zealand.
[42] I do not accept that he was dealt with unfairly through any inadequate recognition for remorse. Before sentence, there had apparently been some mention of the possibility of reparation but no definite proposals had been made in that regard. The pre-sentence report referred only to his offering to pay reparation for the broken door and his willingness to attend a restorative justice meeting to apologise to the victims. The opportunity for Mr Lee to demonstrate real remorse to his former flatmates was made more limited through their having left New Zealand to return to China but there was no suggestion that he had tried to find out where they were in China or to communicate with them in a way that would have demonstrated a real wish to atone for what he had done.
[43] The credit for the constraints on bail was generous given he was required to remain at a specified address only between 7.00 pm and 7.00 am daily.
[44] The discount of nearly 25 per cent for guilty pleas could have been less. Mr Lee first appeared on these charges on 6 March 2017. He pleaded guilty to amended charges on 6 June 2017. Those pleas were entered after charges of possession of an offensive weapon and wilful damage were withdrawn. Mr Lee, however, still acknowledged, with the summary of facts, that he committed those offences. A charge of wounding with intent to injure was reduced to injuring with intent to injure but the accepted facts indicated that the male victim had been wounded as a result of the bites to his face and neck which drew blood. An offender will not necessarily be entitled to the full discount of 25 per cent just because the guilty plea has been entered after negotiation and the withdrawal of a charge.15
[45] In this case, the total discount of 45 per cent on the starting point adequately recognised matters relating to Mr Lee personally and his guilty pleas for which he
should have been given credit.
15 Hessell v R [2010] NZSC 135; Oliver v R [2014] NZCA 285 at [12].
[46] On a starting point sentence of 36 months, with those discounts, the appropriate end sentence would be approximately 20 months. Because this is less than two years, I need to consider whether a sentence of home detention should have been imposed.
[47] In allowing Mr Lee bail pending the appeal, the sentencing Judge recorded that, if he had determined that a sentence of two years or less was appropriate, he would still have considered the incident was so serious that the purposes and principles of sentencing would have required a custodial sentence. The pre-sentence report recommended a sentence of imprisonment due to the serious nature of the offending.
[48] The pre-sentence report stated that Mr Lee was not suitable for any rehabilitative sentences given his limited English, a limitation which would impede his ability to participate fully in a programme for violence or alcohol problems. I accept that his language difficulties and relative youth would also mean that a sentence of imprisonment would be a particular ordeal for him, which the Court should take into account in considering whether a sentence of home detention would be appropriate.
[49] As was said in Iosefa v R, home detention is a punitive and serious sentence in its own right.16 It can serve the purposes of denunciation and deterrence.17 The seriousness of the offending has also been marked through the starting point which I have arrived at for this offending. In terms of the need for denunciation and deterrence, it is relevant that, once a sentence of home detention is completed, Mr Lee will have to leave New Zealand.
[50] In all the circumstances, I consider the least restrictive sentence that should have been imposed, while still addressing the purposes of the Sentencing Act 2002,
was a sentence of home detention, coupled with a sentence of community work.
16 Iosefa v R [2008] NZCA 453, CA472/2008.
17 Osmond v R [2010] NZCA 199.
Conclusion
[51] As a result, Mr Lee’s appeal is allowed. The sentence imposed in the District Court is quashed. In its place, Mr Lee is sentenced to home detention for 10 months. That sentence is to be served at 4/27 Brockworth Place, Riccarton, Christchurch. Mr Lee is also sentenced to 60 hours of community work. Mr Lee is to notify the Probation Officer prior to commencing, terminating or varying any employment or voluntary work, or undertaking any study. Mr Lee is not to possess, consume or use any alcohol or drugs not prescribed to him.
[52] Mr Lee is to report to the Christchurch High Court office by 5.00 pm Monday
16 October 2017 to be served home detention and community work orders. Once served with those orders, Mr Lee is to go directly to 4/27 Brockworth Place and remain there until the Department of Corrections can install the appropriate home detention monitoring.
Solicitors:
P J Doody, Barrister, Christchurch
Raymond Donnelly & Co., Christchurch.
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