Lee v Police [2013] NZHC 121 (8 February 2013)

Last Updated: 18 February 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-440 [2013] NZHC 121

BETWEEN STEVEN ROBERT JOHN LEE Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 5 February 2013

Counsel: SW Walker for Appellant

KV Mills for Respondent

Judgment: 8 February 2013

_{JUDGMENT OF RODNEY HANSEN J}

This judgment was delivered by me on 8 February 2013 at 2.00 p.m., pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ...............................

Solicitors: Public Defence Service (Manukau) for Applicant

(Email: [e-mail] )

Meredith Connell, P O Box 2213, Auckland 1140 for Respondent

(Email: [e-mail] )

STEVEN ROBERT JOHN LEE V NEW ZEALAND POLICE HC AK CRI-2012-404-440 [8 February 2013]

Introduction

[1] Mr Lee pleaded guilty in the Manukau District Court to a charge of using a telephone for the purpose of maliciously transmitting communications with the intention of offending the recipient, contrary to s 112(2)(a) of the Telecommunications Act 2001. He was convicted and discharged. He appeals out of time against the refusal of Judge DJ Harvey to discharge him without conviction.

[2] The delay of seven days in filing the notice of appeal has been satisfactorily explained. There is no opposition to an extension of time and leave to appeal is granted accordingly.

Facts

[3] Mr Lee was employed as a truck driver for McFall Fuel Limited at the end of November 2011. McFall Fuel is a subsidiary of British Petroleum. Mr Lee’s job required access to the Wiri Oil Terminal which stores fuel sourced from Marsden Point Refinery. It handles some 40 per cent of New Zealand’s fuel supply.

[4] In January 2012, Mr Lee decided to resign from the company. He and

McFall Fuel were unable to agree on payment of his final wages.

[5] On 7 February 2012, Mr Lee telephoned McFall Fuel’s head office and left a message on the office answerphone. After complaining about not being paid what he believed to be his entitlement, Mr Lee said:

... now Jan needs to reverse that because there’s going to be some trouble coz if you cunts are going to keep fucking with me with regards to money, whether it be income or money that you don’t fucken, that I don’t get, I will make McFall’s fucken pay because I am not mentally right right now, right? You know that, but if you want to keep pushing me and pushing me and pushing me I might go and light a fire at the Wiri Oil terminal. Are you fucking listening to me? I will go and light a fire at the Wiri Oil terminal. Fucken dare me. I will.”

[6] The threat was taken very seriously given the importance of the terminal to the country. It led to management carrying out a risk assessment and increasing the

level of security at the terminal from 7 February 2012 until Mr Lee was arrested on

17 February. The cost of the increased security was $7,148.10.

Application for discharge

[7] The application for a discharge without conviction in the District Court was supported by an affidavit by Mr Lee. He is a 40-year-old man. He has been a truck driver for much of his working life. He said that when he began working for McFall Fuel, he was living with his partner of three years and their young son. Their relationship was put under strain by the shift work he was required to do at McFall Fuel. He separated from his partner and was living in temporary accommodation. Because of the stress of his personal situation, he felt he was not in the right frame of mind to keep working. He said that at the time of the phone call to McFall Fuel’s head office he was in a poor financial situation. He described his comments as “stupid”. He had no intention of following his threats through. He said, “My life had temporarily fallen apart and I was not in right mind (sic)”.

[8] Mr Lee went on to say that he had a very good work record and good connections within the trucking industry. He had obtained new employment but, as his work is in the nature of contracting, he could expect to be required to start a new job after six months or a year. He said this would be a difficult thing to do within the industry. He said:

My main concern is that this charge is linked to my industry and is likely to cause me issues in the future. I feel like I have paid already for this comment and I really do wish to put this whole episode behind me.

Judge’s decision

[9] Judge Harvey said that threats to blow things up must be taken seriously because people cannot make an assessment about whether or not it is an idle threat; they have to accept it at face value and do something about it. On that basis, the offending is in “a very grave category”.

[10] The Judge noted that Mr Lee originally faced a charge under the Crimes Act and had spent five months in custody on remand. However, he said that was not something he could take into account in assessing whether the consequences of a conviction would be disproportionate to the gravity of the offending. He acknowledged that Mr Lee may be required to explain the circumstances of the offending to potential employers but wondered whether his concerns in that regard were as serious as he had made them out to be. He concluded that the consequences of a conviction did not outweigh the seriousness of the offending but, having regard to the five months he had spent in custody, imposed no further penalty.

Appeal

[11] Mr Walker submitted that the Judge erred in his assessment both of the gravity of the offence and the consequences of a conviction, leading to an erroneous conclusion that the consequences of conviction would not be disproportionate to the gravity of the offending.

Gravity of the offending

[12] In deciding whether or not to exercise the discretion under s 106 of the Sentencing Act 2002 to discharge without conviction, a Judge is required under s 107 to consider three factors:

(a) The gravity of the offence;

(b) The direct and indirect consequences of conviction; and

(c) Whether those consequences are out of all proportion to the gravity of the offence.[1]

[13] It is established that all aggravating and mitigating factors relating to the offending and the offender are relevant although there have been different views

expressed as to the point at which personal, aggravating and mitigating factors should be taken into account. This was most recently discussed by the Court of Appeal in Z v R[2] which took the view that it is preferable to consider all the aggravating and mitigating factors relating to the offending and the offender when considering the gravity of the offence.[3]

[14] Mr Walker argued that Judge Harvey placed insufficient weight on the personal stresses Mr Lee was experiencing at the time of the offending. He compared the Judge’s approach to that taken in Jordan v NZ Police[4] where a 54-year- old businessman was discharged without conviction on a number of burglary charges. Mr Jordan was suffering from a significant mental illness which Asher J identified as the root cause of the offending.[5]

[15] Judge Harvey acknowledged the “considerable amount of stress” Mr Lee was under at the time of the offending and accepted that in making the decision to stand down from his job, Mr Lee had “until that point” been “doing everything right”. The part which his personal circumstances played in his offending could not, however, be compared to the contribution of the appellant’s mental illness in Jordan. He suffered from a major depressive disorder attested to by a psychiatric report leading to a diminished understanding at the time of the offending. The aberrant nature of his criminal behaviour was underlined by an absence of previous convictions. In contrast, Mr Lee has a number of previous convictions, relevantly two of them for arson, albeit dating back to 1991.

[16] The second factor which Mr Walker submitted the Judge should have taken into account was the time Mr Lee had spent in custody. He pointed out that effectively Mr Lee had completed a 10 month term of imprisonment by the time he was sentenced. He said that should have been taken into account in assessing the

_{gravity of the offence as a personal circumstance of the offender.}

[17] The time an offender has spent in custody on remand will invariably be taken into account when a sentence of imprisonment is not imposed, as indeed it was by Judge Harvey in this case. In that sense, it is a mitigating factor. But it is not one that can be given great weight in an assessment of the gravity of the offending. It has no bearing on an evaluation of the seriousness of the offence itself or of the offender’s culpability.

[18] There is a related mitigating factor that was not mentioned by the Judge. That is Mr Lee’s guilty plea. It was not entered until the Crimes Act charge was withdrawn and the charge under the Telecommunications Act laid. I accept Mr Walker’s submission that the plea should be regarded as having been entered at the earliest reasonable opportunity. However, Judge Harvey gave full weight to Mr Lee’s expressions of remorse and accepted that he had taken full responsibility for his actions. While not directly considering his plea of guilty, it seems to me that Judge Harvey fairly and realistically evaluated the gravity of the offending.

Consequences of conviction

[19] Mr Walker submitted that the Judge underestimated the consequences of a conviction. He argued that, as the charge was linked to the industry in which Mr Lee had worked for many years, and the time he spent in custody known in the industry, a conviction could be looked at very seriously by prospective employers. A different impression would be conveyed if a conviction were not entered.

[20] Judge Harvey plainly doubted that the consequences of a conviction would be as serious as Mr Lee feared. I can see no reason to differ from his assessment. The conviction is for a relatively minor offence, carrying a maximum sentence of three months. It has little direct relevance to Mr Lee’s fitness to work as a truck driver. He has other convictions which have much greater potential to prejudice his employment prospects. No doubt what he did will adversely affect his standing in the industry but, in my view, the entry of a conviction will not add materially to that. The apparent ease with which Mr Lee obtained employment following his release from prison tends to confirm this.

Evaluation

[21] Giving full weight to the arguments made by Mr Walker and the possibility that the Judge may not have given Mr Lee full credit for all extenuating circumstances I am, nevertheless, satisfied that the final decision was correct. The consequences of a conviction would not be out of all proportion to the gravity of the offence.

Result

[22] The appeal is dismissed.

---

[1] R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8]. See also Z v R [2012] NZCA 599 at [8].
[2] _{Z v R at [21]– [28].}
[3] _{Ibid, at [27].}
[4] _{Jordan v NZ Police HC Auckland CRI-2009-404-207.}
[5] Ibid, at [28].