R v Eng

[2024] NZHC 890

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2022-085-002285

[2024] NZHC 890

THE KING

v

HELEN ENG

Hearing:	16 December 2024
Counsel:	G Burston and M Story for Crown L A Caris for Defendant
Judgment:	16 December 2024

SENTENCING REMARKS OF GRAU J

[1]    Ms Eng you appear for sentencing today on a single representative charge of receiving items over $1,000, on the basis that you were reckless about whether the property had been stolen.1 You pleaded guilty to the charge on the morning your trial was due to start. You are asking the Court to discharge you without conviction and permanently suppress your name. The Crown opposes a discharge, and opposes name suppression. The Crown says you should be sentenced to community detention and community work, which is the sentence that a couple of the co-offenders received last week.

1      Crimes Act 1961, ss 246, 247(a), and 66(1), maximum penalty of seven years’ imprisonment.

R v ENG (SENTENCING) [2024] NZHC 890 [16 December 2024]

The offending

[2]    Your charge comes from a Police operation in 2022 targeting a very large-scale receiving operation which was run by your husband, Mr Soon, assisted by a number of associates.

[3]    Mr Soon has been sentenced to three years and 10 months’ imprisonment for his leading role in what was a very significant criminal enterprise that had many victims in the Wellington community, and where the total amount of stolen property the Police recovered was not far short of $3 million. You are the final offender to be sentenced in respect of this operation.

[4]    The summary of facts that you have accepted by pleading guilty, records that Mr Soon (who had access to company and personal accounts and lines of credit that were granted to you), purchased an unprecedented amount of stolen property. The Police operation started by capturing Mr Soon’s text messaging and surveillance of his activities. It ended with search warrants at a number of residential properties that you both owned, that your company, Synergy Investments Ltd owned (which you were the sole director and shareholder of), at your central city business address, and at 16 storage units in five locations that were hired between January and September 2022 for Mr Soon to store the stolen property in. Some of these storage units were rented in your name, although it appears, without your knowledge.

[5]    I make it clear that there was no stolen property found at your city business address. But there was a large amount of stolen property stored at your home that you shared with Mr Soon and at which you also had tenants who were involved in the offending. Your charge only relates to the stolen property recovered there.

[6]    The summary tells me that Police recovered around 851 items from every part of the house, including bedrooms that were rented to other people, two of whom were co-offenders, and in the bedroom that you and Mr Soon shared. In your bedroom, there were a number of designer handbags that appeared to be unused, two Macpac jackets that had been stolen from a store in Petone, and six bottles of wine that had been taken in a burglary at Dockside Bar and Restaurant in early March 2022. The replacement value of the property found at your home was $594,328.30. The summary

records it took three days for a team of up to 10 police officers to catalogue and seize this volume of property from your address.

[7]    The Crown has pointed to your involvement in your husband’s receiving operation as being underpinned by a number of facts:

(a)That you were an occupant and owner of the address where almost

$600,000 of stolen property was recovered, including from your bedroom.

(b)Mr Soon’s use of joint finances to purchase the stolen property, including by finance applied for, and granted to you as a loan signatory. There was a loan of approximately $378,000 in July 2022 granted to you, with the loan application stating it was for cosmetic repairs to your rental portfolio, including architect fees. Some of this loan money was apparently used for legitimate purposes, but the rest was used to advance the receiving operation.

(c)Communications between Mr Soon and other people that the Crown says show you benefitted from this operation, including:

(i)messages between Mr Soon and an associate about wine, whether you liked it, and whether they should get more;

(ii)a message from Mr Perera to Mr Soon in which he says that he gave you $600 from a nail gun that he sold today;

(iii)Mr Soon messaging another co-offender to say you had told him not to stockpile things. You were not going to get any more bank loans;

(d)There are also intercepted communications between you and Mr Soon:2

2      Mr  Soon’s phone  was  subject  to  a surveillance device warrant  between  19  September  and  5 October 2022.

(i)Mr Soon is telling you about buying scaffolding valued at

$10,000 for about $1,000. That was stolen scaffolding;

(ii)you told Mr Soon off about handbags left in the bedroom and told him that he needed to sell the stuff and bring the money back, and that he was taking money to buy things. It is clear you wanted them sold;

(iii)there was also a discussion about selling a bicycle for $3,000 in Auckland with you enquiring about a commission on that sale;

(iv)an intercepted call where Mr Soon has been explaining about purchasing things, profit margins, storage expenses and people selling things on his behalf.

[8]    You denied any knowledge of the offending, saying that was your husband’s business and he paid the bills.

[9]    I have seen a victim impact statement from one person whose bike was stolen and damaged by Mr Soon’s associate. She was very inconvenienced and it made her vigilant. I have also seen the report from a restorative justice meeting that you had with another victim of the offending, another person whose bike was stolen. This was the same person who had a positive meeting with one of the co-offenders, Mr Dutt. Unfortunately the meeting with you was not a success. He did not consider you were sincere. You offered him a couple of hundred dollars to say sorry, but he did not accept it.

Affidavit evidence

[10]   I have read the affidavit you have filed which says that, since you moved to New Zealand in 2005 with Mr Soon, you have worked very hard, seven days a week, operating day spa facilities, and that the profits generated from those businesses were used by you and your husband to purchase a number of properties in Wellington. With Mr Soon developing properties, renting others to tenants, and managing the tenancies, you say you would sign formal documents that you needed to, and it was common to

see building items, tools and whiteware stored at your home. You also said Mr Soon managed the finances and accounts, you trusted him, and you were too busy to check exactly what he was doing.

[11]   You have said you became aware in 2022 that Mr Soon was stockpiling a lot of stuff and telling you he purchased it for a good price and it would be good to use at your properties in the future. You say you started to worry about how much he was spending. He was bringing home designer handbags he said he got in lieu of rent. He brought home red wine and you enjoyed that, but thought it was a bit unusual. And you said it became apparent he was suffering medical issues and he was later diagnosed with some brain damage. You assumed that impacted his behaviour.

Pre-sentence report

[12]   I have also read a pre-sentence report. You told the report writer you did not agree with the summary of facts and you had no idea what your husband was doing. But when you became aware, you advised him to stop, that resulted in arguments, and he did not listen. You were eventually aware of his actions and you did not notify the Police. You told the report writer you believed you would go to prison if you did not plead guilty, because of the media attention.

[13]   The report writer considered that you appeared to be somewhat isolated, relying on your husband to make decisions, and that your connections in New Zealand were primarily your husband and your church community who had been supporting you. I have seen a letter from your church setting out that you have volunteered 62- and-a-half hours of your time as an usher and in the kitchen.

[14]   The pre-sentence report assesses your risk of reoffending as low. It recommends a sentence of community detention. It does not consider you need a rehabilitative sentence, and it does not recommend community work because of the impact that would have on your employment.

Discharge without conviction

[15]   As I have said, you are seeking a discharge without conviction. The test for a discharge is well settled.3

[16]   First, the Court determines the gravity of the offending by considering all of the aggravating and mitigating features of the offence and of the offender.

[17]   Then the Court needs to identify the direct and indirect consequences of conviction. There must be a real and appreciable risk that the identified consequences will occur—the nature, seriousness and degree of likelihood of the identified consequences is material.4

[18]   The third step is to evaluate whether these consequences are out of all proportion to the gravity of the offending. If the Court decides they are out of all proportion, then the Court must still consider whether to grant a discharge without conviction.5

Gravity of the offending

[19]Turning first to the gravity of the offending.

[20]   There is no guideline decision for the charge of receiving because circumstances can vary so widely. In assessing culpability, the Court considers the value of the stolen goods, the duration of the offending, the number of charges, whether the offending has a commercial element, and the closeness of the relationship between the person who stole the goods and the receiver.6 The starting points for the co-offenders in this case have ranged between 22 months’ imprisonment and six-and- a-half years’ imprisonment.7

3      Prasad v R [2018] NZCA 537.

4      R v Hughes, [2008] NZCA 546, [2009] 3 NZLR 222, at [82].

5      [D] v R [2024] NZCA 297 at [9].

6      R v Tua [2014] NZHC 3049, at [15].

7      R v Soon [2024] NZHC 3393, R v Youkhana [2024] NZHC 3248, R v Toki (Sentencing) [2024] NZHC 3783, R v Perera (Sentencing) [2024] NZHC 3779, R v Dutt (Sentencing) [2024] NZHC 3793.

[21]   The submissions that Ms Caris has filed on your behalf (and has spoken to today), suggest that the Court needs to take care in assessing your culpability independently from your husband and the other co-offenders. It is said for you that your husband embroiled himself in illegal activities alongside managing and developing your properties and businesses, and was using your name without your knowledge. It is said it would have been reasonable for you initially to assume that items brought to your address would not have been stolen, and that you were also unsupportive of Mr Soon’s activities in stockpiling items intending to resell them.

[22]   While accepting that the estimated value of the stolen property at your home was high, Ms Caris says that the Court needs to be cautious in assessing how much you knew, especially because most of it was in the garage, and it would not have been obviously apparent to you. Nor would the items stored in Mr Perera’s and Mr Dutt’s rooms. You accept you should have realised more about this property, that the charge you have pleaded guilty to is one of being reckless. It is not accepted that you benefitted at all from this offending. To the contrary, your finances and business have been severely affected.  It is said for you that, at best, you have passively allowed  Mr Soon to carry on his illegal activities when you should have been aware. It is also said there is not much you could have done—it would have made little difference to what happened.

[23]   Ms Caris also points to your prompt guilty plea after the charge was amended, the withdrawal of other charges and amendments to the summary of facts.

[24]   You have little to no risk of reoffending and no rehabilitative needs. You have done voluntary community work, and you have participated in restorative justice. It is also submitted that you are remorseful and have suffered significant distress as a result of these criminal proceedings. Notwithstanding the high volume and value of the stolen items recovered at your house, your offending is at the lower end of the spectrum.

[25]   The Crown on the other hand says that the starting point for sentence here is at the level of two-and-a-half to three years. Your role is distinct from other co-offenders, although you did not have a day-to-day function in this operation, you did assist in it

by permitting property to be stored at your home, the financing to purchase stolen property was also of assistance, and you encouraged Mr Soon to on-sell stolen property.

[26]   The Crown says that you were set to benefit from $500,000/$600,000 of property stored at your house and the only reason you did not is because the Police eventually stopped the operation. The Crown also points to property that was sold before the search warrant. The Crown says your role in this operation went beyond just your occupancy of the house.

[27]   The Crown agrees that you should receive a credit for pleading guilty but also says it was late. You had already rejected the Crown’s offer of a plea arrangement. You had never previously indicated you would plead guilty to an amended charge on the basis of being reckless. The Crown also accepts your lack of previous convictions, good character and pro-social life are deserving of credit. But, the Crown says that you continue to deny aspects of a summary of facts you had pleaded guilty to, especially in denying knowledge of what your husband was doing in the face of clear communications between you that demonstrate otherwise. Nor was restorative justice successful. Despite that, and volunteering at your church after you were charged, you lack insight, accountability and acknowledgement of the harm that this offending has caused. The Crown says that taking all those matters into account, the gravity of the offending is still moderately serious; it is not at the “lower end”.

[28]   I agree with the Crown’s assessment of your offending Ms Eng, and I agree that your level of culpability should attract a starting point for sentence of two-and-a- half years’ imprisonment. There was over half a million dollars of stolen property at your address. Your guilty plea to the charge (that you eventually pleaded guilty to) must be an acceptance that you were aware of the extent of the property stored at your address, and you were reckless about where it came from.

[29]   You did benefit from some sales of stolen property and you would have benefitted further if the operation had not been brought to a halt. And I have to say that the level of disagreement with the summary of facts you pleaded guilty to makes it very hard to discern any insight or remorse beyond regret for your predicament.

[30]   It is difficult to accept your version of events. In my view, it is an effort to distance yourself from your husband’s offending when you were at the centre of things at your home, which was chock-full of stolen property. I cannot accept property that took three days for up to 10 police officers to remove was something that you could not have known about. But that said, you were not directly involved in the operation; you did not rent the storage facilities, but were you very reckless given the significant amount of property that was at your address.

[31]   You have pleaded guilty (but very late), although I accept that there was some amendment to matters at the time you pleaded guilty. You have volunteered at your church. I had some doubts about that when you had also said you worked full-time from 10am to 9pm seven days a week. But today Ms Caris, after speaking to you, has said you would go to church in the morning and then return to work afterwards, and it was not every week.

[32]   The restorative justice was not successful. The victim you spoke to did not accept your apology. It seems to me he also thought that you were distancing yourself from involvement in this offending. The pre-sentence report says you are at a low risk of reoffending. I would agree with that when I would expect these somewhat extraordinary circumstances are most unlikely to arise again.

[33]I assess the gravity of your offending as moderately serious.

Consequences of conviction

[34]Turning now to the consequences of conviction.

[35]   A number of consequences have been put forward. It is said for you Ms Eng that at the age of 55 with no previous convictions of any nature, the entry of a conviction itself would be a material consequence; that it would cause you shame among your family and your Malaysian/Chinese culture; that there would be a negative effect on your employment and the ongoing viability of your career in the beauty therapy industry.

[36]   It is said that if you cannot maintain self-employment, you may have to seek employment and that would be hindered by a conviction for dishonesty. There is an associated risk of the impact on your family who you financially support now.

[37]   Also put forward is the impact on your ability to travel internationally. As well, that the entry of a conviction, and a corresponding impact on your employment prospects, is likely to have a negative impact on your mental health.

Are the consequences of conviction out of all proportion to the gravity of the offending?

[38]   I accept that you will feel some shame, some low feelings, if a conviction is entered. But that is the ordinary consequence for a person who has been convicted of criminal offending. Your family and your community may think less of you, but equally, they may also support you and have sympathy for you, when your role in this offending is much less serious than your husband’s, and has only arisen from a consequence of his offending.

[39]   The risks that are put forward to your employment, your career, your travel, are all very speculative. There is no bar on your ability to travel home to Malaysia. You do not have any current plans to travel elsewhere. Your affidavit said you were concerned about the reputation of your day spa business, but it has been confirmed today that is already closed. You are still able to work. There is no evidence beyond your self-report about your ability to secure finance in the future. However, I note that you have said a number of properties you and Mr Soon owned had to be sold, some in mortgagee sales. Those are matters that will cause you issues in obtaining finance in the future, that far eclipse a single conviction for receiving based on recklessness.

[40]   As to your mental health, I think I have already mentioned that. Most people feel distress and shame when they are convicted, but there is no medical evidence beyond that.

[41]   Accordingly, I find that the consequences of conviction either separately or added up together, are not out of all proportion to the moderately serious gravity of the offending, and I decline to discharge you without conviction Ms Eng.

Sentence

[42]   As I have said, I agree with the Crown’s assessment of the culpability here and I take a starting point of two years and six months’ imprisonment.

[43]   In my view, you are entitled to credit for pleading guilty, of 20 per cent. I consider that is fairly generous for a plea on the morning of trial, but it did follow amendment of the charge and the summary of facts. That takes six months off the starting point.

[44]   You are also due a credit for lack of previous convictions and previous good character. I am prepared to make a reduction of 10 per cent for that factor. I do not think any more is appropriate when the offending was not an isolated incident but was ongoing for at least several months. That takes another three months off the starting point.

[45]   The sentence reduces to 21 months’ imprisonment which is at a level where the Court can look at alternatives to imprisonment. Because you a first-time offender, you are employed, and you have a low risk of reoffending, a community-based sentence is appropriate.

[46]   I am going to commute the sentence to six months of community detention. I have decided not to impose community work on top of that. There is a good case to be made for it, particularly since Mr Dutt and Mr Perera were ordered to do some community work, but, in my view, given the hours you work, it would create significant difficulties for you to maintain your work and continue to participate in your church community. And given that you do not appear to have a lot of other support in the community, in my view, it is preferable to give you the opportunity to participate in your church as much as you can.

[47]   The Community Detention will have a curfew of 10pm to 9am every day and the curfew will start today.

Name suppression

[48]Turning to name suppression.

[49]   The approach to name suppression under s 200 of the Criminal Procedure Act 2011 is well settled. There is a two-step enquiry.8 The first step is to consider whether one of the outcomes in s 200(2) has been established. Here, the application is advanced on the grounds of extreme hardship caused by publication. That outcome is a prerequisite to the Court having jurisdiction to suppress an applicant’s identity. It is only if that threshold ground has been established that the Court can move onto the second step.9 That second step involves a discretionary assessment,10 which weighs the competing interests of the applicant and the public, taking into account matters such as whether the applicant has been convicted, the seriousness of the offending, and the public interest in knowing the character of the offender.11

[50]   The Court must take particular account of the public interest in open justice.12 That is a matter that the Supreme Court has recently reaffirmed.13

[51]   It is said for you Ms Eng that publication would cause further damage to your employment and business position, and bring attention back on you because the media would convey now that you had pleaded guilty—you do not have the presumption of innocence any more. It is also said that the nuances of the charge you have pleaded guilty to will likely be lost on members of the public who will not understand that your actions are not the same as your husband’s. The potential collapse of employment, loss of your home, impact on your family in Malaysia, and difficulty in obtaining new employment, as well as increasing your mental distress and raising the prospect of racial abuse, are all matters that are put forward.

[52]   My view is that the application falls far short of establishing that publication of your name would be likely to cause you extreme hardship.

8      Robertson v Police [2015] NZCA 7 at [39]; recently reaffirmed in M (SC 13/2023) v R [2024] NZSC 29, [2024] 1 NZLR 83.

9 At [40].

10 At [39].

11 At [41].

12     NZME Publishing Ltd v Brider [2023] NZCA 590 at [16].

13     M (SC 13/2023) v R, above n 8, at [44].

[53]   The principle of open justice is the starting point and publication is the norm. This is a case where you have been convicted after pleading guilty. The offending is moderately serious. There is a high public interest in the Wellington community in the offending, both by you and in this operation as a whole.

[54]   The information that I have seen cannot establish the very high level of hardship that is required. I only have your self-report about the impact on your employment. You are still operating as a beauty therapist and you are able to continue to do so. It remains a fact that your business was never connected with this offending. There is also no evidence beyond your self-report that you have been the subject of any level of abuse. There is a letter from a friend of yours (who is also a psychotherapist) who suggests that name suppression would be important for your state of mind. She says you are fragile but you are not clinically depressed. That information falls well short of raising concerns of a nature that would amount to extreme hardship.

[55]   There is also the fact that your name has already been published Ms Eng. I have looked for cases where name suppression has been later granted to a person after conviction, when their name was previously published. I have only found two decisions. One concerned a case of very low-level offending where offenders were discharged without conviction on appeal. But in that case, there was a wealth of evidence of an ongoing social media campaign of abuse, which included social media reporting of the offending in a way that did not reflect the reality of it.14 In this case, there has been reporting by mainstream media which has been appropriate and balanced, and I would expect that level of balance and fairness will continue.

[56]   The second case that I was able to locate involved a person whose name had been published before they were a suspect in a homicide and they had made statements to the media. But after the person’s arrest, there was a social media response described as vindictive, and there were significant implications for fair trial rights.15

14     DV v R [2021] NZCA 700.

15     R v [A] [2024] NZHC 2572.

[57]Your case does not raise any issues of the same nature.

[58]For those reasons, the application for name suppression is declined.

Grau J

Solicitors:
Crown Solicitor, Wellington