IN THE DISTRICT COURT AT AUCKLAND CRI [2017] NZDC THE QUEEN JAE MOOK MOON HYUNG BOK LEE

Transcription

1 IN THE DISTRICT COURT AT AUCKLAND CRI [2017] NZDC THE QUEEN v JAE MOOK MOON HYUNG BOK LEE Hearing: 2 August 2017 Appearances: F Culliney for the Crown P Hamlin for the Defendant Moon L Johnson for the Defendant Lee Judgment: 2 August 2017 NOTES OF JUDGE D J SHARP ON SENTENCING [1] What I am going to try to do is to do this in short bursts so that Mr Moon and Mr Lee can understand exactly what it is that I am saying. I acknowledge the presence of the wife of Mr Lee and other people that are supporting both Mr Lee and Mr Moon, your supporters have not done anything wrong but they are affected by your sentence. The thing that you may get from this is that they are here supporting you and you have got people who will assist you in terms of your rehabilitation. [2] I have to sentence you in accordance with the jury s verdicts in respect of charges of kidnapping, common assault and aggravated robbery. Those are serious charges and there have been comments from the Higher Courts in respect of R v JAE MOOK MOON [2017] NZDC [2 August 2017]

2 kidnapping charges, that they are to be regarded seriously and ordinarily are to be met with sentences of imprisonment because of that seriousness. [3] When I sentence you I am required to take into account the principles and purposes of sentencing. In this case, I have to denounce the conduct which appeared here, which means I have to express the disapproval that there is for doing the things which you did. In this particular case, you may have had a basis for concern about transactions and things that happened in relation to the company but there are proper and appropriate means of dealing with that. Mr Lee, you were not paid all the money that you had worked for. Now that is something that was wrong and you were entitled to your money but there are legitimate and appropriate means of getting the money. To take the steps that were taken here, I denounce as being wrong and I think you understand and accept that this conduct was completely wrong. [4] I have to deter other people from behaving in this way which means people have to know that if they do this kind of thing, they will face serious penalties. Those are requirements on me and I have to take them seriously. I have to sentence you in a way that is broadly consistent with other people who have been convicted of similar types of offending. I have to take into account the prospects of rehabilitation and I must impose the least restrictive outcome that is consistent with the principles and purposes of sentencing. [5] There are three charges here and two of them are more serious than the common assault charge. So I have to select the charge which reflects what happened because that will be the leading sentence and the one on which the other sentences come in less than. In this case the kidnapping is the lead charge and that will be the one on which I base the sentence and the starting point for the sentence. [6] I heard the trial, the facts of the trial as they came out were that there was a meeting with the victim at a hotel in the city and he was taken to the Auckland Domain. There, his phone was taken from him. There was some violence exercised and from there he was taken to the Serco factory, a factory which you had worked in Mr Lee. From there he was further taken back to his apartment. These things can be seen in part on the CCTV footage of the lift and the impression which is gained from that

3 footage is that this was a concerted effort to stand over the victim and to use your greater physical size, strength and the fact that there were two of you, to make him do what you wanted. When you took him into his flat, there were items of his that you took and took away and the password to his laptop which was an indication of your desire to exercise some control over the business aspects which you had concern about. That is something that was added to by the key to the apartment which you took and then when the police went back after the complaint they found you in his home, consistent with what he had said about the type of intimidation that you had applied and had been applied with the theft of his goods and the general way that the behaviour was carried out during the course of the unlawful detention. [7] I have to consider from those facts what the aggravating and mitigating features of the offending were. There was violence used but I acknowledge that you were found not guilty in respect of the assault with intent to injure charge. Notwithstanding that, the jury accepted violence and there were signs of violence on the victim such as the bruising and the damage to his tooth. These are indications that a significant level of violence was present. I find that you did apply actual violence to the victim. [8] You acted together and this all had to be something which was planned, you had a particular agenda and the search that was conducted of the apartment was consistent with you wanting to pursue the agenda that you had. As I have said, people attending to their own idea of justice is something to be strictly discouraged. There is also the fact that the detention in this case was something in the order of between six and 10 hours. The value of the property that was taken was around $2500 and the acts that were carried out, carried over into the home of the victim. [9] There are no cases that provide a tariff in respect of kidnapping offending. The Crown have provided a number of authorities which I have read, R v Kimber 1, R v Tan 2, R v McKenzie 3, R v Martin & Martin 4 and R v Wyatt 5. These cases provide a range of penalties that have been provided in various factual circumstances. As is 1 R v Kimber [2005] BCL R v Tan CRI , CRI R v McKenzie 4 R v Martin & Anor 5 R v Wyatt [2009] NZCA 464

4 usually the case, none of them are precisely the same as this case. The two cases which have featured most in the submissions of both the Crown and the defence are R v McKenzie and R v Martin and Martin. [10] In R v McKenzie, the case involved two brothers whose 14 year old sister was said to be being in a sexual relationship with another person. The brothers took that person, detained him, stole his car, made use of his credit cards, drove him to a remote location, threw the car keys into the sea. Lang J, saw the offending as serious but he reached a point where a starting point in terms of sentence of two and a half years was imposed. When he considered the other factors that were involved, the age of one of the McKenzie brothers, their early guilty pleas, their attendance at restorative justice and their apologies being accepted by the victim of the offending, he reached a point where a sentence other than a custodial sentence could be imposed. [11] In clear and helpful submissions from both counsel for Mr Moon and Mr Lee, the similarities between that case and the present circumstance have been highlighted. The defence maintain that this case should lead me into a finding that a starting point of two and a half years is appropriate. The Crown on the other hand refer to R v Martin and Martin which was a case involving one brother who pled guilty on the eve of the trial and the other who maintained his innocence, notwithstanding the jury s verdict. In Martin the charges proven included threats of use of weapons such as a bar and threats to kill in addition to the kidnapping but the kidnapping has characteristics of a commercial nature including compulsion to provide property and shareholdings in a company that give rise to some similarities with the objectives that can be seen here. It is not possible to distil an absolute principle that applies in terms of sentencing because these cases have particular circumstances. [12] When I consider what the appropriate starting point should be in this case, I do not consider that the case of R v McKenzie can provide enough similarity and enough support, given the nature of the factual circumstances. I do not believe that this case is on all fours R v Martin and Martin either because that seems to me to have involved more serious types of threats than were present on the jury s findings here. I do come to the point where I consider that a sentence of four and a half years is a starting point must be applied in this case.

5 [13] I arrive at this starting point having looked at the aggravating features, I also have considered whether there is any potential mitigation in relation to the offending. Here I do not see anything that can truly be said to be mitigating. [14] That position alters when I turn to consider you both, Mr Lee and Mr Moon. You do not have the ability to gain credit for a guilty plea and I had initially thought when I was considering the provision of advice to Courts reports and the other materials that there could be little in the way of personal mitigation. What your counsel has provided to me and the submissions which I have received have changed my position regarding this. Firstly, I recognise that in both of your cases there are aspects to do with your personal circumstances. They are not exactly the same but they are things that goes to both of your credit and that I should take into account and in each case, in relation to your family circumstances and the difficulties your language creates I will reduce the sentence by three months. [15] Secondly, relates to something to do with yourselves. I had seen in the pre-sentence report the lack really of anything to go to positive rehabilitation. The certificates which you have provided and the submissions which I have received are to your credit and everything that you can do to help, to strengthen the support network you have with your families, not only will they go to help you not get back in this position, but they will help you before the Parole Board. So I reduce the sentence by a further three months. [16] I have to consider remorse and as you have heard me say to your counsel, there is always less ability to receive the submissions about remorse from people who contest a trial but I have seen the letters that you have written and I know that you made yourself available for restorative justice and you have also made offers of financial payments to the victim. For those things I allow credit. I am not going to award the emotional harm reparation that you offer because the nature of the case took me to the view that I am far from certain as to where the financial merits might lie and so I do not require you to pay money to a cause that I am not sure of but I give you credit for the offer and I give you credit for your willingness to face the victim of your offending. For that I also reduce the sentence in both cases.

6 [17] I make no uplift for the convictions that you have and I do that because you both in my view should have the same sentence. That brings me to a point where the end sentence is one of three years and nine months. I regret that any type of noncustodial sentence is therefore unavailable. I regret that for the way that you present now had that emerged earlier, you would have provided you with additional credit at sentence. You now acknowledge what you did was serious and your acknowledgement of that is to your credit but that seriousness is what drives your sentences. That is all for today, thank you. [18] I just need to add one thing and that is the sentence on the kidnapping is the three years and nine months. On the aggravated robbery, it is two years at the same time and on the common assault, it is nine months, all served at the same time. D J Sharp District Court Judge