Lee v The King - [2024] NZHC 884

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-87

[2024] NZHC 884

BETWEEN
JASON TERRENCE LEE

Appellant

AND

THE KING

Respondent

Hearing: 15 April 2024

Appearances:

J Hudson for S Tait for the Appellant J Lee for the Crown

Judgment:

22 April 2024

JUDGMENT OF ROBINSON J

[Appeal against sentence]

This judgment was delivered by me on 22 April 2024 at 4:00 pm.

Registrar/ Deputy Registrar

Solicitors/Counsel: S Tait, Manukau MC, Auckland

LEE v R [2024] NZHC 884 [22 April 2024]

Introduction

[1] On 15 September 2023 Judge J M Jelas indicated to Mr Lee that if he pleaded guilty to the charge of aggravated robbery1 he faced at the time, she would impose a sentence of 33 and a half months’ imprisonment. Mr Lee accepted that indication and pleaded guilty.

[2] On 14 February 2024 Judge Jelas sentenced Mr Lee to 31 months imprisonment.2 In doing so, the judge pointed out that she had made a mathematical error in her indication, and that the indicated sentence should have been 36 months’ imprisonment.3 However, the judge noted that her error was in Mr Lee’s favour and proceeded on the basis that he have the benefit of it.4

[3] Mr Lee now appeals the sentence. He says the judge applied insufficient discounts for matters raised in the s 27 report, and for remorse. He complains that these errors led to an end sentence that rendered him ineligible for home detention, and is manifestly excessive.

Mr Lee’s offending

[4]The summary of facts to which Mr Lee pleaded guilty is as follows:5

Introduction

Mr [redacted] 2015 Audi A4 sedan, registration [redacted], is valued at approximately $27,000.

Circumstances

At approximately 3:15pm on 3 April 2023, Mr [redacted] was parked and stationary in his Audi vehicle registration [redacted], on the corner of Jasper Avenue and Dominion Road, Auckland.

Mr [redacted] sat in the driver’s seat of his vehicle speaking to a friend over the phone.

1 Crimes Act 1961, s 235. Maximum penalty of 14 years’ imprisonment.
2 R v Jason Terrence Lee [2024] NZDC 4161 [14 February 2024].
3 At [3]. In her indication the judge adopted a starting point of three years and six months imprisonment and applied a three month uplift for being on bail at the time of the offence. The judge aggregated this to 42 months rather than 45. The judge then applied a 20 per cent discount for the guilty plea, leading to the indication of 33.5 months imprisonment rather than 36 months.
4 At [3].
5 At [6].

Mr Lee entered the Audi vehicle through the front passenger’s door, armed with a tomahawk in his hand. Mr Lee was holding tomahawk as if he may use it.

Fearing for his safety Mr [redacted] got out of his vehicle and said “what the fuck”, to which Mr Lee replied, “it’s my Audi now”. Mr Lee then also got out of the vehicle and began to follow Mr [redacted] down…

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 The King

Details

AGLC: Lee v The King [2024] NZHC 884
Case: [2024] NZHC 884
Decision Date: 22 April 2024

CaseChat Overview and Summary

The appeal by Jason Terrence Lee against his 31-month imprisonment sentence for aggravated robbery was heard and dismissed by Robinson J. Lee argued that the District Court judge applied insufficient discounts for the mitigating factors raised in his s 27 report and for his remorse letter. He contended that these errors led to a sentence rendering him ineligible for home detention and were manifestly excessive. The offending involved Lee entering a parked Audi vehicle armed with a tomahawk, demanding money from the owner, and driving away with the vehicle and the owner's belongings. The judge in the District Court considered the s 27 report, Department of Corrections’ report, and the letter of remorse but did not apply the discounts Lee sought. The judge acknowledged the serious nature of the offending and the risk Lee posed to public safety, applying a six per cent discount on the 42-month starting point. The Crown argued that the judge appropriately balanced the mitigating factors with the seriousness of the offending and the need for public protection. The Court found that while it was open to the judge to apply a greater discount for the s 27 report, the sentence was not manifestly excessive and was within the available range. The appeal was dismissed.

This case underscores the importance of balancing mitigating factors with the gravity of the offence and public safety considerations in sentencing. The Court's decision highlights that while some discretion exists in applying discounts, the overall sentence must remain justifiable within accepted sentencing principles.

Orders