Liev v R - [2019] NZCA 242

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA625/2017
[2019] NZCA 242

BETWEEN	SENG LEK LIEV Appellant
AND	THE QUEEN Respondent

Hearing:	20 May 2019
Court:	Stevens, Duffy and Dobson JJ
Counsel:	N P Chisnall for Appellant M J Lillico for Respondent
Judgment:	21 June 2019 at 10 am

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

This is an appeal against conviction and sentence. The appellant, Mr Liev, was convicted of charges of kidnapping and manslaughter. He was sentenced to 12 years and four months’ imprisonment, with a minimum period of imprisonment of six years and two months.[1] On appeal, Mr Liev complains that the trial Judge’s directions to the jury were insufficient and that the sentence was manifestly excessive.
[1]R v Liev [2017] NZHC 2253 at [87].
In summary Mr Liev advances his conviction appeal on the basis that the trial Judge, Palmer J, erred in his directions to the jury about reasonable foreseeability in the context of the manslaughter charge under s 160(2)(d) of the Crimes Act 1961. Mr Liev challenges his sentence on the grounds that the starting point was too high and the Judge’s approach resulted in unfair disparity between the appellant and his co‑offenders.

Factual background

The deceased, Ms Prutsiriporn, was taken from her home on 29 February 2016. At trial the reasons for the kidnapping were unclear. Mr Liev had arranged for his co‑defendants (some of whom were associated with the Head Hunter gang) to carry out the kidnapping.
Ms Prutsiriporn was herself involved in the drug world and had numerous convictions for drug-related offending. She and Mr Liev were once close friends but their relationship broke down after both were arrested for possession of drugs in 2015. Mr Liev arranged that she would be coaxed out of her house under the pretence of a proposed drug deal. At around 9.30 pm, she got into the back seat of a car, at which point threats of violence were made against her and her family. She was then placed in another car.
The trial Judge found that she was over the next 20 hours or so detained and was in dire fear for her life, and that during that time she was transported to various parts of Auckland.[2] At one point she was detained in a garage.
[2]At [13]–[15].
Some time before 7.00 pm on 1 March, she was bound and placed in the boot of a Toyota Mark X which was being driven by one of Mr Liev’s co‑defendants, Mr Sao.[3] The vehicle was driven around parts of South Auckland with Ms Prutsiriporn in the boot. In the car boot, Ms Prutsiriporn found a knife and a chef’s steel. At 6.58 pm on Huia Road, Mangere, when the car was approaching an intersection with traffic lights, the boot came open and Ms Prutsiriporn, still bound, came out of it with the chef’s…

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 Liev v R

Details

AGLC: Liev v R [2019] NZCA 242
Case: [2019] NZCA 242
Decision Date: 21 June 2019 at 10 am

CaseChat Overview and Summary

Seng Lek Liev, the appellant, sought to appeal both his conviction and sentence. He was convicted of kidnapping and manslaughter and was sentenced to 12 years and 4 months imprisonment, with a minimum of 6 years and 2 months. Liev argued that the trial judge's directions to the jury on reasonable foreseeability were insufficient and that the sentence was excessive. The appeal was dismissed by the Court of Appeal of New Zealand.

The appeal against conviction centred on the trial judge's directions to the jury on reasonable foreseeability in the context of the manslaughter charge. Liev argued that the judge should have directed the jury to consider whether the deceased's actions were proportionate to the threat she was facing. The Court of Appeal found that the summing-up was sufficiently focused on the kind of actions the deceased might take in response to the circumstances she was in and that the judge had directed the jury to answer the question of whether a reasonable person could have foreseen the deceased attempting to escape from the boot of the car.

The appeal against sentence focused on the starting point for the kidnapping charge and the disparity between the appellant's sentence and that of his co-offenders. The Court of Appeal found that the general seriousness of the offending warranted a starting point of 10 years and that the case was comparable to R v Hall. The Court also found that there was no unjustified disparity between the sentences of the appellant and his co-offenders.

In conclusion, the appeal against conviction and sentence was dismissed by the Court of Appeal of New Zealand. The Court found that the trial judge's directions to the jury on reasonable foreseeability were sufficient and that the sentence was appropriate.

Orders