R v Lee CA217/06 [2006] NZCA 501 (28 November 2006)

Last Updated: 6 February 2014

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA217/06

THE QUEEN

v

_{JEFFREY LEE}

Hearing: 20 November 2006

Court: Glazebrook, John Hansen and Harrison JJ Counsel: A C Balme for Appellant

M A Corlett for Crown

Judgment: 28 November 2006 at 10am

_{JUDGMENT OF THE COURT}

_{The appeal is dismissed.}

REASONS OF THE COURT

_{(Given by John Hansen J)}

Introduction

[1] Following pleas of guilty the appellant was sentenced to an effective sentence of two years and six months imprisonment. On charges of assault with a weapon

R V LEE CA CA217/06 28 November 2006

and threatening to kill he was sentenced to fifteen months imprisonment. On a charge of burglary, three months imprisonment, cumulative. On the charge of arson, twelve months imprisonment, also cumulative. He appeals against those sentences.

Background facts

[2] For nine years the appellant had been in an intermittent relationship with the complainant. They have a five year old daughter. The appellant appears to suffer from an alcohol problem, and was increasingly verbally and physically abusive towards the complainant.

[3] Between 14 January and 14 February 2005 the complainant was at home. She was asleep on a mattress in the lounge with her daughter when the appellant arrived. He was heavily intoxicated and demanded sex from the complainant. When she refused he grabbed her arm, pulled her up off the mattress and slapped her once across the face. The appellant then went to the kitchen and returned with a large butcher’s knife. He straddled the complainant while she was lying on the mattress, sitting on her upper legs so she was unable to move. He waved the knife in front of her face, verbally abusing her, and telling her if she rang the police he would use the knife. The complainant was terrified and lay awake the rest of the night fearing for her and her daughter’s safety. After that incident she requested the appellant to leave and he went to stay with a brother in Palmerston North.

[4] The complainant shifted to a new address. On 1 March 2005 the appellant returned and stayed several days before being asked to leave again. He became verbally abusive, storming out and telling the complainant “I feel like killing you.” Between 6 and 9 March 2005, while the complainant was visiting relatives, the appellant broke into the complainant’s rented property. Once inside, the appellant arranged to sell several items of the complainant’s furniture to a local second hand dealer. These were uplifted on 9 March while the appellant was present. Between

9 and 12 March 2005 the appellant again returned to the complainant’s address and entered the property. Once inside he attempted to set fire to the house by setting and lighting a fire in the hallway outside the toilet and bathroom area. The fire failed to take hold, but damage amounting to $3,476.57 was caused.

The District Court sentence

[5] The Judge identified a number of aggravating factors, the most significant being the appellant’s long list of previous relevant convictions. He also noted the breach of trust and the fact there was an element of revenge motivating the appellant because the complainant would not continue the relationship. The only mitigating factor was the late guilty plea.

[6] The Judge noted the relevant sentencing purposes, including holding the appellant responsible for his actions, denunciation and deterrence. The relevant sentencing principles included an assessment of the gravity of the appellant’s culpability, the seriousness of the types of offence faced, consistency, and regard for the effect on the victim.

[7] The Judge treated the assault with a weapon and the threatening to kill as moderate to serious for its type. He took a starting point of 18 months imprisonment, and made an allowance of three months discount for the late guilty plea. He placed the burglary at the lower end, taking a starting point of four months imprisonment. He gave a one month allowance for the late guilty plea. He considered the arson as serious, and took a starting point of 15 months imprisonment. He made an allowance of three months for the late guilty plea. He determined that the sentences should be cumulative.

Submissions

[8] On behalf of the appellant Mr Balme submitted the Judge erred in two respects in arriving at the final sentence. The first was that the sentence imposed in respect to the charges of assault with a weapon and threatening to kill was manifestly excessive. The second was that the Judge did not correctly apply the totality principles, and simply arithmetically computed the final sentence. He said there was also a failure to recognise in the final sentence that reparation had been accepted and made payable by the appellant, although the possibility of payment seems remote.

[9] In relation to the first ground, Mr Balme further submitted that the appellant had no relevant recent history of similar offending. He accepted the offending was reprehensible and frightening for the victim, but submitted that no actual harm was caused. In the circumstances, he submitted such offending might involve a starting point of six to nine months’ imprisonment, with an appropriate discount for the guilty plea. He submitted a final sentence of six months imprisonment could be seen as reasonable to mark this offending.

[10] The Crown submitted that in the light of the aggravating features, the seriousness of the offences, and the fact that they were three discrete dates of offending the final sentence could only be viewed as lenient.

Discussion

[11] Notwithstanding that Mr Balme has said all that could be possibly said on behalf of the appellant we agree with the Crown submission that the sentence imposed must be viewed as lenient. Indeed, we consider it to have been below the available range, given the totality of the offending.

[12] The Judge rightly treated the assault with a weapon and threatening to kill as the lead offences. Respectively they carry maximum sentences of five and seven years imprisonment. This was a brutal and frightening attack on a blameless complainant by a heavily intoxicated man. Although we do not have a Victim Impact Statement, this offending must have inevitably scarred the complainant psychologically.

[13] The Judge treated the charge of burglary as being at the lower end. The sentence was well within the range available to the sentencing Judge, and he could easily have viewed the burglary more seriously. That is because the appellant claimed he sold the furniture because the complainant owed him money. It is clear from the initial trial that the appellant maintained it was some form of set off for money which his mother had paid for bond money for the rented property. But it is clear the appellant’s mother only made this available after the appellant had used the

original bond money to pay his debts. Again, with the arson, the starting point of

15 months imprisonment was clearly open to the learned District Court Judge.

[14] It is clear that there was a very late guilty plea in this case, and only a modest allowance was appropriate. The allowance made by the Judge could be viewed as generous.

[15] We are also satisfied that the Judge was right to treat the sentences cumulatively. The Judge’s approach accords with s 84 of the Sentencing Act 2002.

[16] The appellant is a recidivist offender who has been subject to the full range of sentencing options. Previous sentences of short terms of imprisonment have not provided deterrence or rehabilitation. There are significant aggravating factors, and when one considers the overall seriousness and culpability of the appellant the total sentence imposed was below the range available to the learned District Court Judge. We have considered whether we should increase the sentence. However, because Mr Lee had not been alerted to the possibility, and the Crown indicated that it did not wish to retreat from its earlier position and did not seek an increase, we leave the sentence unaltered.

Conclusion

[17] This is an appeal without merit. It is dismissed.

Solicitors

Crown Law Office, Wellington