THE QUEEN v WOO JIN BAE [1999] NZCA 234 (19 October 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 289/99

THE QUEEN

V

WOO JIN BAE

Hearing:	19 October 1999 (at Auckland)
Coram:	Richardson P Doogue J Robertson J
Appearances:	J H Mather for the Appellant C B Cato for the Respondent
Judgment:	19 October 1999

judgment of the court DELIVERED BY ROBERTSON J

[1] The appellant pleaded guilty to one charge of aggravated burglary and two charges of aggravated robbery and was sentenced to an effective term of 3 years imprisonment in the District Court at Auckland on 30 March 1999.

[2] The appeal was filed late but there is no opposition to our hearing the matter.Mr Bae appeals against that sentence on the basis of disparity between it and a sentence imposed on a co-offender who was sentenced to 2 years imprisonment, suspended for 2 years and ordered to undertake 6 months periodic detention.The co-offender was also fined a total of $3,000 to be paid equally between the two victims.

[3] The appeal again underlines the problems which so often emerge when co-offenders are sentenced by different Judges.

[4] The relevant test for disparity was enunciated by this Court in R v Lawson [1982] 2 NZLR 219 in the following terms :

But the test is objective, not subjective.It is not merely whether the offender thinks that he has been unfairly treated but whether there is a real justification for that grievance;whether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice.

[5] The summary of facts upon which these two men each pleaded guilty was in the following terms :

On 8 May 1998, the defendant BAE contacted his co-defendant FLETCHER and met with him at FLETCHER's home.They went out that night and during the evening, at the instigation of the defendant BAE, made plans to gain access to the complainant's address in East Coast Road, Browns Bay.

The defendant BAE knew the Asian occupants of the address and it was planned that the defendant FLETCHER would ring the address with a fictitious story so that the young people in the address would leave the house.

The defendant FLETCHER would then go into the address with a folding knife and packing tape, tie up and blindfold the elderly occupant.The defendant BAE would then come in and threaten her before stealing money from the address.

At about 3.00 pm on Saturday, 9 May 1998, dressed up in good clothes and jacket the defendant FLETCHER went to the address while the defendant BAE waited along the road.He gained access to the address by telling the 64 year old occupant, Samiae LEE, that he was there to check her granddaughter's visa.He was subsequently let into the address.

Once inside the 15 year old grandson, Kuen Koo LEE, came upstairs.He was asked to get his sister's passport.He left the room, at which stage the defendant FLETCHER pulled out the knife, told the elderly complainant to sit down and proceeded to bind her eyes and mouth with the packing tape.

At this stage the grandson returned to the room.The defendant FLETCHER then put the knife to the grandson's neck and told him to sit down.He also told the victim not to do anything or he would cut him.

As a result of police enquiries both defendants were located and interviewed.

The defendant BAE admitted his involvement saying that he instigated the plan and provided the defendant FLETCHER with the packing tape and knife, as well as the phone number for the address.He said he had told FLETCHER that he, (BAE), was part of a Korean gang and that all the defendant FLETCHER had to do was to tie up and control the elderly complainant, who they thought would be alone in the house, and then the Korean gang would come and make her sign the house over to the gang.The defendant BAE said that there was no gang and that he had intended entering the house after the defendant FLETCHER had tied her up and blindfolded her and that he was going to steal cash.He said while waiting before entering the house he started to get scared and then the defendant FLETCHER came running out.The defendant BAE said the intention with the knife was not to harm anyone but to use it to threaten the old lady if need be.

In explanation the defendant BAE said he planned the whole incident because he wanted to be like a Korean gang.

The defendant FLETCHER admitted the facts as outlined saying he thought that once he had tied up the elderly victim the gang was going to come in and get her to sign the house over.He did not realise there was not a gang involved and didn't know the defendant BAE was intending to steal money from the house.

In explanation the defendant FLETCHER said he did it because he didn't think anyone would get hurt and he was going to be paid $1000.

The defendant BAE is an 18 year old unemployed Korean.He has permanent residency.He has not previously appeared.

The defendant FLETCHER is 17 years old and is employed as a Service Station Attendant.He has not previously appeared.

[6] On 10 September 1998 the co-accused Campbell Fletcher pleaded guilty pursuant to the provisions of s 153 of the Crimes Act.It was a relatively early plea of guilty.

[7] The present appellant challenged the admissibility of a confessional statement he had made.The Court ruled against him a few days before his trial was to begin.The trial was delayed while there was an appeal to this Court which was unsuccessful.

[8] At what was described by the sentencing Judge as a relatively late stage, Mr Bae pleaded guilty to the three charges.

[9] Consideration of the summary of facts must lead one inevitably to the conclusion that the sentence of 3 years imprisonment without reference to that imposed upon Mr Fletcher, could only be seen as merciful.We say that notwithstanding the fact that the appellant was only 18 at the time of the offending for this was a carefully contrived and sophisticated attempt to frighten a family into handing over or having taken from them money or other assets.

[10] It involved the use of a knife and clearly came within the terms of s 5 of the Criminal Justice Act.

[11] The sentencing Judge properly had regard to the starting point discussed in R v Moananui [1983] NZCA 66; [1983] NZLR 537 and the more recent discussion in Solicitor-General v Lam [1997] 15 CRNZ 18.Without expressing it as such the Court must have reached a view that a starting point in the vicinity of 3½ to 4 years was called for before allowing for a plea of guilty. In all the circumstances in our judgment that was a lenient response to a serious invasion into a home even by an 18 year old.

[12] It is now contended that unjustifiable disparity arises by comparison with the position of Mr Fletcher.

[13] It has long been recognised that the existence of too short a sentence on a co-offender will not justify a sentence being reduced to a level that would be inappropriate or unduly lenient (R v Rameka[1973] 2 NZLR 592).

[14] We cannot but conclude that that is the position in the present case.

[15] Even allowing for the fact that Mr Fletcher was 17, there was an early plea of guilty, he had agreed to co-operate with the prosecution in respect of the charges against the present appellant, he had no previous convictions and was considered to be naïve and having been manipulated by Mr Bae, a term of 2 years imprisonment appears to have been out of line with sentencing in this Court even before considering whether suspension could in the special circumstances be justified.

[16] The undoubtedly aggravating factors about the incident include the fact that there was an aggravated burglary of a dwelling house in which a knife was used to coerce an elderly woman.She had her eyes and mouth taped.There was a threat with the knife to the neck of the 15 year old.There was clear planning and determination by these two youngsters in the commission of the offence.

[17] The Judge in sentencing Mr Bae found (as on the available material he was entitled to) that Mr Bae was the architect of the criminal enterprise. Mr Bae knew that violence and intimidation were part and parcel of the enterprise which was organised and he was prepared to use such tactics for personal profit.

[18] We accept Mr Cato's submission that this was a plan which was predatory and cynical of the concerns of migrants of his own race in which he manipulated his co-accused.The fact that the offenders lost their nerve part-way through does not lessen their culpability or responsibility for what occurred.The effect upon the victims was catastrophic.

[19] The Judge who sentenced Mr Bae was fully cognisant of what had happened to Mr Fletcher, but reached the view that Mr Bae could not be treated in the same way.He was of the view there was a strong need for deterrence although he recognised the difficulties for a resident alien being imprisoned in this country.

[20] He reached the view that 3 years was the minimum which could be imposed and therefore suspension could not arise.We accept that the final outcome is difficult to reconcile with the sentence imposed upon the co-offender who was the person who actually entered the house.While acknowledging that there was no appeal by the prosecution against what appears to be an inadequate sentence imposed on Mr Fletcher we are persuaded that to reduce what is already a lenient sentence on Mr Bae because of that, would worsen the situation.

[21] If a reasonably minded independent observer was to look at all the circumstances they could only conclude that all that had gone wrong with the administration of justice was the overly merciful sentence imposed upon Mr Fletcher.No reasonable observer could consider that there had been any unfair treatment of Mr Bae or any justifiable basis for a sense of grievance.His offending required a sentence of at least 3 years imprisonment.Despite the careful submissions of Mr Mather, it would be wrong for the Court to reduce that term.

[22] Leave to appeal is granted but the appeal is dismissed.

Solicitors

Crown Solicitor, Auckland