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 Jasper Avenue.

Mr [redacted] pulled his phone out and Mr [Lee] got into the driver’s seat of the vehicle. Mr [redacted] took the opportunity to grab his laptop from the backseat of the vehicle.

Mr Lee said to Mr [redacted] that he might know him and accused Mr [redacted] of texting his girlfriend. Mr [redacted] offered to get $1,000 from a nearby ATM and walked toward Dominion Road to retrieve the money. Mr Lee said “I think you ca get $1200”. Mr [redacted] told Mr Lee to come with him but Mr Lee refused, saying there were “heaps of cameras”.

Mr Lee stood outside the car watching briefly as Mr [redacted] walked towards an ATM, before getting back into the vehicle and driving away toward Mons Avenue without the money.

The Audi vehicle was located on 4 April 2023 by Police. Fingerprint lifts were taken from the interior driver’s door handle and matched the fingerprints of Mr Lee.

Mr [redacted] confirmed the Audi’s engine was significantly damaged and his property located inside was still outstanding. This included a pounamu necklace, Huawei air pods, his driver’s licence, gym gear and several bags.

On 8 May 2023 a search warrant was executed at Mr Lee’s address. Police located two bags, a Nike bag and a camouflage cross-body bag, which Mr [redacted] confirmed belonged to him. The other property taken from Mr [redacted]’s vehicle remains outstanding.

District Court decision

[5]    When sentencing Mr Lee the judge took into account a s 27 report, the Department of Corrections’ report, and a letter of remorse from Mr Lee. None of this material was before the judge when she gave her sentence indication.6 She also referred to a Victim Impact Statement, and the fact that Mr Lee had attended a pre- restorative justice conference (although no restorative justice conference took place).

[6]    The judge accepted that Mr Lee has had disadvantages in life beyond his control.7 She noted the repeated traumas in his life, his longstanding dependency, and that he has been institutionalised from a young age. Importantly, the judge accepted

6 At [11].

7 At [17].

that Mr Lee’s personal background meant his lifestyle has involved continuous criminal activity, and that it is difficult for him to break that cycle, particularly with his dependency.8

[7]In relation to these relevant mitigating factors Judge Jelas held:

[23]      I have said there is now new information, particularly the content of the s 27 report that requires me to reflect on that 20 per cent credit [for a guilty plea] and I accept the level of credit should be increased. However, the offending before the Court the aggravated robbery is serious offending and all the factors that I have before me show that you are risk to public safety. Whilst some additional credit will be given it will be kept at a lower threshold and because of the need to balance public safety in the sentencing process.

[24]      I do not intend to give a credit for your remorse letter. That is not to detract from its content or the sentiments within. I accept everything you say, however a letter of itself in cases of serious offending is insufficient in all the circumstances, in my view, to warrant discreet standalone credit.

[25]      From the 42 months starting point that I refer to in my sentence indication, which as I have acknowledged was actually wrong (and it should have been higher of 45 months) increased credit will be given which will bring down the end sentence to 31 months’ imprisonment.

[8]    The 2.5 month discount on the 42 month starting point amounts to a discount of six per cent. In accordance with her earlier indication, her Honour did not impose an uplift for Mr Lee’s significant previous offending.

Personal Circumstances

[9]    Mr Lee is 39 years old and has 144 previous convictions. They include 18 charges for burglary, one for assault with a blunt instrument, two for doing a dangerous act with intent to do grievous bodily harm, three for common assault and 12 breaches of community-based orders or sentences.

[10]   Mr Lee also has a poor history of compliance with court-imposed conditions. The offending in this case was committed whilst Mr Lee was on bail from a previous sentence of 9 months and 14 days’ imprisonment for threatening to kill or do grievous bodily harm. Mr Lee has accumulated five convictions for offences committed whilst on bail in the past two years.

8      At [19],

PAC report

[11]   Mr Lee’s PAC report considers him to be at high risk of reoffending and committing an offence resulting in a custodial sentence within the next five years. It assesses his risk of harming others as moderate. It notes that it has been more than six years since Mr Lee last committed an offence involving physical violence.

Section 27 report

[12]   In summary, the detailed s 27 report identifies the disadvantages of Mr Lee’s background to include:

(a)A sense of abandonment.

(b)Growing up in the care of Child, Youth and Family, having been handed over by his mother at the age of one. Mr Lee grew up in state care, interspersed with short periods at home with his mother. He says he suffered physical abuse at the hands of other children and staff.

(c)Witnessing and suffering family violence.

(d)Suffering physical abuse.

(e)Witnessing drug abuse from a young age, leading to early drug and alcohol addiction and drug dealing (as a result of which he was excluded from school aged 13).

(f)Gang membership.

[13]   Mr Lee acknowledges that he has spent most of his life in prison and says he wants to make a change. He wants to be a better role model for his children and overcome his addiction.

[14]   Mr Lee has never participated in a rehabilitative programme, save what the report describes as an “attempt” at attending a Drug Treatment Programme (DTP) whilst in prison.  He says that he found the group environment in the programme

difficult and was exited as a result. The report notes that there are several possible programmes for Mr Lee to participate in should he receive a term of imprisonment: the Special Treatment Unit for Violent Offenders, the Medium Intensity Rehabilitation Programme, or the Short Rehabilitation Programme. The latter two are also available in the community. He can also be offered the DTP.

Victim impact statement

[15]   The victim says that the robbery has impacted him financially and he has had to pay $500 towards his insurance excess. A pounamu necklace that was stolen was never recovered. He says that the need to get his car repaired, make rental arrangements and make police statements has been a source of stress. He says that he is more guarded in public now and feels more “tense”. Finally, he says that the robbery was distressing for his partner to hear about.

Relevant legal principles

[16]   The Court must allow an appeal if it is satisfied that there was an error in the sentence imposed and that a different sentence should be imposed.9 Otherwise the Court must dismiss the appeal.10 The Court’s focus is on the end sentence. If the process by which a sentencing judge arrives at the end sentence was flawed but the sentence can nonetheless be properly justified by accepted sentencing principles, then the appeal court will not intervene.11

Appellant’s submissions

[17]   Counsel for the appellant says that insufficient weight was given to personal mitigating factors. In particular, he says that the judge should have applied a discount of 20 per cent for the s 27 report. Counsel relies in particular on Solicitor-General v Heta and Aramoana v R.12 Mr Tait says that the Court in Heta upheld discounts resulting from matters raised in the s 27 report of 5 to 10 per cent for personal trauma and 5 to 10 per cent to reflect a capacity to rehabilitate and systemic Māori deprivation.

9      Criminal Procedure Act 2011, s 250(2).

10     Criminal Procedure Act 2011, s 250(3).

11     Tutakangahau v R [2014] NZCA 279 at [33] and [36].

12     Solicitor-General v Heta [2018] NZHC 2453; and Aramoana v R [2021] NZCA 558.

Counsel refers to the Court’s statement in Aramoana refuting the proposition that only small discounts can be applied for cultural factors where the offending is serious.13 He further refers to Minogue v R14 and Kreegher v R15, where discounts of 5 per cent for the offenders’ severely disadvantaged backgrounds were considered inadequate and uplifted to 15 per cent and 10 per cent respectively.

[18]   Counsel also submits that the judge erred in declining to apply a discount for the letter of remorse. He relies on the Supreme Court’s decision in Hessell v R16 and the Supreme Court’s statement that where genuine remorse is shown by an offender, “sentencing credit should properly be given separately from that for the plea”.17 He also refers to McRae v R, where the Court acknowledged, in applying a 20 per cent discount for personal factors, the insight the appellant had demonstrated in his letter of remorse.

Respondent’s submissions

[19]   Ms Lee for the Crown says that the discounts applied by Judge Jelas were appropriate. Ms Lee submits that the reduced discount applied by the judge for matters raised by the s 27 report is consistent with the Supreme Court’s approach in Berkland v R, particularly the Supreme Court’s statement that the “causative contribution of background may also be displaced in whole or in part where the offending is particularly serious”.18 Counsel points out that Mr Lee had accumulated a number of convictions for serious violence and property offending, and was assessed as having a high risk of reoffending. Ms Lee submits that, in light of this, the judge applied an appropriate discount for Mr Lee’s background.

[20]   Ms Lee further submits that the judge’s decision not to apply a discount for the remorse letter was appropriate. She says that the letter is not one of remorse but rather seeks to “exculpate” Mr Lee. She says that Mr Lee has not undertaken any rehabilitation or returned all of the stolen property.

13     Aramoana at [10].

14     Minogue v R [2020] NZCA 515.

15     Kreegher v R [2020] NZCA 22.

16     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

17 At [64].

18     Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [111].

Discussion

[21]   I accept it was open to Judge Jelas to have applied a discount of greater than six per cent to reflect the matter referred to in Mr Lee’s s 27 report. However, it would also have been open to the judge to apply an uplift in respect of his previous convictions. But she did not. All in all, I accept the Crown’s submission that the judge did err in the way in which she balanced the relevant s 27 factors with the seriousness of the offending and the need to protect the community.

[22]   Similarly, I accept it would have been open to the judge to allow some further discount in relation to the remorse letter; but I do not consider she erred not to do so. The letter largely reinforces the s 27 report. There is some merit in Crown counsel’s submission that it largely seeks to exculpate.

[23]   In any event, standing back I do not consider that the end sentence of 31 months’ imprisonment for Mr Lee’s offending committed whilst on bail was manifestly excessive. In my view that sentence was well within the available range. If anything, it was at the lower end of that range.

Result

[24]The appeal is dismissed.

Robinson J