Lee v R CA 35/00 - [2004] NZCA 308

IN THE COURT OF APPEAL OF NEW ZEALAND

CA35/00

THE QUEEN

v

HYAN LEE

Hearing: 6 December 2004
Court: William Young, O’Regan and Randerson JJ Counsel: A Shaw for Appellant (Granted leave to withdraw)
J A Farish for Crown

Judgment: 13 December 2004

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by O’Regan J)

Introduction

[1] Ms Lee pleaded guilty to four charges of theft, four charges of obtaining by false pretences and 11 charges of using a document in the District Court at
Auckland. Her husband and co-offender, Yoon Song, also pleaded guilty to these

R V H LEE CA CA35/00 13 December 2004

charges. Both Ms Lee and Mr Song were sentenced by Judge Rushton to a term of imprisonment of 18 months on 25 November 1999.

[2] Ms Lee appealed to this Court against that sentence. Under the system then in place for dealing with appeals, Ms Lee was refused legal aid. She did not provide written submissions and did not seek leave to be present, and her appeal was dismissed on an ex-parte basis on 6 April 2000. Ms Lee was one of the appellants to the Privy Council in the case now reported as R v Taito [2003] 3 NZLR 577. In accordance with the decision of the Privy Council in that case [at 25], her appeal to the Privy Council was allowed and her appeal against sentence was remitted to this Court for hearing.

Withdrawal of counsel

[3] At the commencement of the present hearing, Counsel for Ms Lee, Mr Shaw, sought leave to withdraw. This application had been foreshadowed by a memorandum filed in advance of the hearing. Mr Shaw said that he had not heard from Ms Lee for some years, and that his inquiries had revealed that she left New Zealand in late 2001 and returned permanently to Korea. He therefore had no instructions to pursue the appeal on her behalf in this Court. We granted leave to withdraw. However, we determined that it was necessary for us to hear the appeal as there was no notice of withdrawal or abandonment of the appeal before the Court, and a hearing of the appeal was required under the decision of the Privy Council.

[4] Before withdrawing, Mr Shaw drew our attention to a matter which he said supported the appeal: namely that there were grounds for assessing the culpability of Ms Lee at a lower level than that of Mr Song. He said that he raised this argument in order to assist us, in his capacity as an officer of the Court. He said the Crown had an obligation to bring that matter to our attention because Ms Lee was effectively unrepresented and the Crown had a duty to inform the Court of matters which supported the appeal of an unrepresented appellant. He cited two decisions of the European Court of Human Rights, Maxwell v United Kingdom (1995) 19 EHRR 97 and Boner v United Kingdom (1995) 19 EHRR…

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.

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Details

Case: [2004] NZCA 308
Decision Date: 13 December 2004

CaseChat Overview and Summary

In the case of Hyan Lee v R CA 35/00, the appellant, Hyan Lee, challenged the sentence imposed by the District Court at Auckland for various offences of theft, obtaining by false pretences, and using a document. Lee, along with her co-offender and husband, Yoon Song, had pleaded guilty to the charges and were sentenced to 18 months imprisonment. The Court of Appeal of New Zealand was tasked with determining the validity of the appeal against the sentence and whether any errors were made in the original sentencing decision.

The primary legal issue the Court of Appeal had to address was whether the District Court Judge had erred in imposing the 18-month imprisonment sentence and in declining to suspend the sentence or grant home detention. The Court had to consider the premeditation and seriousness of the offences, the financial situation of the offenders, and the availability of reparation among other factors. Additionally, the Court examined whether the sentence was within the range of penalties considered appropriate by previous Court of Appeal decisions and whether the Judge had properly considered the relevant sentencing factors.

The Court of Appeal found that the District Court Judge had appropriately considered the range of Court of Appeal decisions, the nature and extent of the offending, and the lack of possibility for reparation. The Court was satisfied that the sentence was well within the range available to the sentencing Judge and that there were no errors in principle or approach. The Court noted the significant aggravating factors, such as the premeditation of the offences, the financial difficulties of the offenders, the lack of remorse, and the continued denial of culpability by both Lee and Song. The Court also agreed with the Judge's decision not to suspend the sentence or grant home detention, considering the seriousness and premeditated nature of the offending. Consequently, the appeal was dismissed.

The Court of Appeal's decision upheld the 18-month imprisonment sentence imposed on Hyan Lee by the District Court. The Court found that the sentence was appropriate given the circumstances and that the District Court Judge had properly exercised her sentencing discretion. The appeal was dismissed, and the original sentence was affirmed.

Orders