Lee v R CA 35/00 [2004] NZCA 308 (13 December 2004)

Court of Appeal of New Zealand

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Lee v R CA 35/00 [2004] NZCA 308 (13 December 2004)

Last Updated: 19 July 2010

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA35/00

THE QUEEN

v

_{HYAN LEE}

Hearing: 6 December 2004

Court: William Young, O’Regan and Randerson JJ Counsel: A Shaw for Appellant (Granted leave to withdraw)

J A Farish for Crown

Judgment: 13 December 2004

_{JUDGMENT OF THE COURT}

_{The appeal is dismissed.}

REASONS

_{(Given by O’Regan J)}

Introduction

[1] Ms Lee pleaded guilty to four charges of theft, four charges of obtaining by false pretences and 11 charges of using a document in the District Court at

_{Auckland. Her husband and co-offender, Yoon Song, also pleaded guilty to these}

R V H LEE CA CA35/00 13 December 2004

charges. Both Ms Lee and Mr Song were sentenced by Judge Rushton to a term of imprisonment of 18 months on 25 November 1999.

[2] Ms Lee appealed to this Court against that sentence. Under the system then in place for dealing with appeals, Ms Lee was refused legal aid. She did not provide written submissions and did not seek leave to be present, and her appeal was dismissed on an ex-parte basis on 6 April 2000. Ms Lee was one of the appellants to the Privy Council in the case now reported as R v Taito [2003] 3 NZLR 577. In accordance with the decision of the Privy Council in that case [at 25], her appeal to the Privy Council was allowed and her appeal against sentence was remitted to this Court for hearing.

Withdrawal of counsel

[3] At the commencement of the present hearing, Counsel for Ms Lee, Mr Shaw, sought leave to withdraw. This application had been foreshadowed by a memorandum filed in advance of the hearing. Mr Shaw said that he had not heard from Ms Lee for some years, and that his inquiries had revealed that she left New Zealand in late 2001 and returned permanently to Korea. He therefore had no instructions to pursue the appeal on her behalf in this Court. We granted leave to withdraw. However, we determined that it was necessary for us to hear the appeal as there was no notice of withdrawal or abandonment of the appeal before the Court, and a hearing of the appeal was required under the decision of the Privy Council.

[4] Before withdrawing, Mr Shaw drew our attention to a matter which he said supported the appeal: namely that there were grounds for assessing the culpability of Ms Lee at a lower level than that of Mr Song. He said that he raised this argument in order to assist us, in his capacity as an officer of the Court. He said the Crown had an obligation to bring that matter to our attention because Ms Lee was effectively unrepresented and the Crown had a duty to inform the Court of matters which supported the appeal of an unrepresented appellant. He cited two decisions of the European Court of Human Rights, Maxwell v United Kingdom [1994] ECHR 38; (1995) 19 EHRR 97 and Boner v United Kingdom [1994] ECHR 36; (1995) 19 EHRR 246 in support of that proposition. In our view, the Judge was correct in her assessment that both Ms Lee and Mr Song

knowingly participated in the offending, and were equally culpable, so we do not accept Mr Shaw’s submission that Ms Lee’s offending was at a lower level than that of Mr Song. Accordingly, we do not need to address Mr Shaw’s proposition that the Crown should have raised this point for consideration.

District Court decision

[5] Judge Rushton set out in her sentencing notes a summary of the offending by Ms Lee and Mr Song. The offending involved purchasing goods on hire purchase after making false representations and then selling those goods, unlawfully converting property subject to hire purchase agreements and selling it, and inducing payments for goods on the representation that they owned them, when in fact they were subject to hire purchase agreements. The reparation report provided to the Court indicated that reparation of over $60,000 was sought. Ms Lee disputed the amount, and indicated that, as she had been made bankrupt, she was unable to pay any reparation.

[6] The Judge recorded that Ms Lee had told the probation officer that she and her husband were very comfortable financially at the time the offending took place, with a profitable business. The Judge noted that this was patently untrue and incompatible with their financial situation and the history of the various transactions. The Judge also rejected the statement made to the probation officer that all items had been bought by way of hire purchase acting on an accountant’s advice and that Ms Lee had not been aware she was acting illegally. She noted that Ms Lee was apparently a trained solicitor, had lived in the United States for 22 years, and was an American citizen.

[7] The Judge considered a number of decisions of this Court, including R v Boyes CA498/93 22 August 1994, R v Coker CA246/90 15 November 1990, R v Allen CA199/91 23 March 1993 and R v Morris CA107/80 6 August 1980. She noted that in Morris, a sentence of two years imprisonment was upheld in this Court after a guilty plea to 15 counts of using a document with intent to defraud, one count of theft as a servant and three of obtaining by false pretences, where about $60,000

was involved. In that case the prisoner did not gain financially from the transactions, had no previous convictions and had pleaded guilty.

[8] The Judge took into account the following factors:

(a) The offences were premeditated and calculated;

(b) Mr Song and Ms Lee were in a parlous financial position and both were well aware of this at the time of the offending;

(c) They had been warned by the various financial institutions of their situation;

(d) They sold the property improperly and they knew it.

[9] She determined that, taking into account the range of the decisions of this Court which had been referred to her, the amount involved, the fact there was no possibility of reparation, the degree of premeditation, the fact that Mr Song and Ms Lee had no previous convictions, their guilty pleas, the fact that both were still minimising their culpability and that neither made any efforts to resolve their affairs through the Official Assignee, a term of imprisonment was the only appropriate sentence. She imposed a term of 18 months on both. She considered whether the sentence should be suspended, giving particular reference to the fact that Ms Lee was, at the time, seven months pregnant. She determined that there were no special reasons to suspend the sentences and declined to do so. She also considered whether home detention should be granted but, in view of the serious and premeditated offending, she determined that it was not appropriate that home detention be granted early in the sentence.

Crown submissions

[10] Counsel for the Crown, Ms Farish, said that the sentence was well within the range available to the sentencing Judge. She said it was consistent with the Court of Appeal decisions referred to by Judge Rushton, and in particular with the decision in

Morris where the offending was very similar to the present case and a sentence of two years imprisonment was upheld on appeal. She said that there were significant aggravating features, including the fact that no reparation was available, lack of remorse and the continued denial in relation to the extent of the offending.

Discussion

[11] We are satisfied that the decision in this case was well within the range available to the sentencing Judge. We can see no error of principle or approach, and we are satisfied that the sentence was not excessive for the offending, let alone manifestly excessive. We are satisfied that there was no error in the Judge’s decision to decline to suspend the term of imprisonment or in her assessment that it was not an appropriate case for the grant of leave to apply for home detention.

Decision

[12] We therefore dismiss the appeal.

Solicitors:

Crown Law Office, Wellington