LEE v R [2023] NZCA 147

LEE v R [2023] NZCA 147 [4 May 2023]NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) ORIDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA518/2022[2023] NZCA 147BETWEEN ANTHONY JOHNNY LEEAppellantAND THE KINGRespondentHearing: 22 March 2023Court: Clifford, Dunningham and Cull JJCounsel: G A Walsh for AppellantZ R Hamill for RespondentJudgment: 4 May 2023 at 11.00 amJUDGMENT OF THE COURTThe appeal against conviction and sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Dunningham J)[1] The appellant, Anthony Lee, was found guilty following a jury trial on thefollowing charges:(a) sexual violation by unlawful sexual connection;(b) sexual violation by rape;(c) kidnapping (two charges);(d) threatening to kill;(e) strangulation;(f) dangerous driving; and(g) male assaults female.[2] On 29 August 2022, he was sentenced by Judge Mabey KC in the District Courtto nine years' imprisonment along with six months' disqualification from driving.1[3] The appellant appeals against conviction contending there was a miscarriageof justice because:(a) after the evidence was heard, the Judge amended one of the kidnappingcharges unfairly and in a way that severely prejudiced the appellant;and(b) the summing up by the Judge was unbalanced against the appellant.[4] In respect of his sentence the appellant contends it was manifestly excessivebecause the Judge did not make an allowance for mitigating factors identified in areport prepared under s 27 Sentencing Act 2002 (the s 27 report).Appeal jurisdiction[5] Mr Lee's appeal is against both conviction and sentence. To succeed in hisconviction appeal he must show that a miscarriage of justice has occurred.2"Miscarriage of justice" is defined in s 232(4) of the Criminal Procedure Act 2011(CPA) and requires a two-step enquiry. First, the appellant must establish an error.1 R v Lee [2022] NZDC 16669.2 Criminal Procedure Act 2011 (CPA), s 232(2)(c).Second, he must establish there is a real risk the error may have affected the outcomeof the trial or rendered it unfair or a nullity.3[6] To succeed in his sentence appeal, the appellant must show there is an error inthe sentence and a different sentence should be imposed.4Factual background[7] Mr Lee was in a relationship with the complainant at the time of the offending.The charges arose out of incidents of violence towards the complainant on threeseparate occasions.[8] The first tranche of offending occurred in September 2019 when Mr Lee wentto the complainant's house to have sex with her. There had been some text messagessent earlier in the evening indicating the plan was mutual. However, she then sent thedefendant messages telling him she did not want him to come to her home.At approximately 12.45 am he drove to the complainant's address. She again told himshe did not want to have sex with him. He ignored her and he forcibly removed herpants and underwear and performed oral sex on her and then penetrated her with hispenis. When he left he threw a bottle through a window. In respect of that action, hepleaded guilty to a charge of intentional damage prior to trial. At 1.03 am, he sent thecomplainant a text stating "Enjoy calling the cops on me g" and included an emoji ofa fist with the middle finger raised.[9] The next offending occurred in October 2019. The complainant arranged ababysitter and agreed to go with Mr Lee in his car on the understanding he would takeher home afterwards. They stopped at two different service stations to buy cold drinks.She started to walk away from the car but he reassured her he would take her home soshe decided to get back in the car. They agreed Mr Lee would go to his home first topick up some clothes, but when they were in the car he told her that he would not takeher home. When she told him she did not have sufficient babysitter cover, he said"you're not going home, you're gunna stay out at mine, you're not going anywhere".3 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [23]–[24].4 CPA, s 250.At that point, the complainant opened the door of the car in order to jump out. Mr Leepulled her back in and locked the doors and continued to drive towards his homeaddress some 20 or so kilometres from her place. The complainant made severalattempts during the journey to jump out but, on each occasion, Mr Lee prevented herby pulling her back by her hair or her shirt and locking the doors and window. Whenthey got to Mr Lee's house he pulled her out of the van. She realised she could notwalk the distance to her home and requested to be taken home. There was anotherargument which resulted in Mr Lee locking her in his bedroom. He then broke herphone, grabbed her by the throat and threatened to kill her, and threw her onto the bed.[10] On the next day, they were both in the car. She was driving, intending to takeherself home and Mr Lee was in the back seat. He did not want her to return homeand he interfered with her driving, including by pulling the steering wheel and her hair.He also put his hands around her neck, squeezing and impeding her breathing.She was eventually able to pull over where she waved down a passing car and askedthe occupant to call the police.[11] The November offending occurred when Mr Lee was on bail. Mr Lee was inthe car with the complainant and one of her young children. He drove in an erraticmanner endangering both the occupants of the car and other road users. He ultimatelystopped in a rural area and assaulted the complainant while removing her from the car.The kidnapping charge[12] Mr Lee was charged with two charges of kidnapping for the October offending:one relating to the confinement in the car (the car kidnapping charge) and the other tothe detention in Mr Lee's bedroom. The car kidnapping charge alleged that Mr Lee"on or about the 26th day of October 2019 at Tahuna unlawfully took away[the complainant] without her consent with intent to cause her to be confined". Thiswording reflected the possibilities under s 209 of the Crimes Act 1961 which states:Everyone is liable to imprisonment for a term not exceeding 14 years whounlawfully takes away or detains a person without his or consent or with hisor her consent obtained by fraud or duress,–(b) with intent to cause him or her to be confined or imprisoned[.](emphasis added)[13] The Crown opened on the basis that this charge required the Crown to provethat Mr Lee took the complainant away in the car, that he did so intentionally andwithout her consent, that it was unlawful to do so, and the appellant knew that thecomplainant was not consenting to the taking away. The complainant's evidence wasthat on the night in question, when they stopped for the second time at a service station,she got back in the van because the appellant told her that he would take her home.She describes the appellant then telling her as they were driving that she was not goinghome at which point she repeatedly tried to get out of the vehicle. He grabbed her andpulled her back in, locking the doors and the windows.[14] The appellant says his case was advanced on the basis that there was no "takingaway" because he had made it clear at the service station stops that he was notreturning to her address at all, and the complainant got into his vehicle willingly andfully aware that he had no intention of travelling back to her address that night.[15] There was, therefore, a contest about what was said prior to the complainantgetting into the car. Defence counsel put to the complainant that the arguments theyhad in the car "were not about him taking you home. He never said he would take youhome?". To which the complainant replied "He did say he was gonna take me homeotherwise I wouldn't have gotten the car in the first place." The cross-examinationthen went on to what happened in the car, where it is common ground that thecomplainant tried to open the door and get out at times while the car was moving atspeed. That was confirmed in cross-examination of the complainant. When Mr Leewas cross-examined about the events in the car that evening, he agreed she tried tojump out and, when asked why, he said "I'm unsure. She didn't want to come to myhouse."The amendment of the charge[16] After the prosecutor's closing address, the Judge saw counsel and indicated heintended to amend the car kidnapping charge so that the form of kidnapping allegedwas "detention" rather than "taking away". The Judge expressed the view that it was"not a taking away scenario" and he would not let the Crown run its case on the basisthe complainant had been tricked into getting into the car as the Judge did not think itwas that "complicated". Instead, he considered the question at issue was whether therehad been "an unlawful detention in the car", with the Judge and Crown counselagreeing that was "the way the evidence has come out". The Judge and counsel turnedtheir minds to whether there was any prejudice as a result of the amendment, with theJudge saying "there is no harm done" and counsel for the defendant demurring.[17] Defence counsel then closed on the charge saying: the real issue is what happened on the way from the service station toTahuna? You've heard evidence and I say to you that Mr Lee has been quitecandid in this respect where he says that on that drive they continued arguing,that she did try and get out of the vehicle but what he said to you was he didpull her by her arm back in. She was sitting in the front passenger seat andthe reason he did that was so that she wouldn't fall out so there is that issuethere and I say to you that there was no detention in such a way that it wasunlawful. What he said was quite clear, that he simply pulled her back in,didn't want her to fall out when he's travelling at high speed trying to get homeand he said he was only a few minutes or not too far from home that night.[18] When summing up the Judge confirmed to the jury that he had made a formalamendment to the car kidnapping charge and had changed "unlawfully took away" to"unlawfully detained". He then said:The Crown need to prove a detention. The concept of taking away sometimesapplies to kidnapping but this is not what this is about. She was in the carvoluntarily but when it came time to get out her evidence is he would not letme and that can be a detention and if other things are established it can be akidnapping.The appellant's submissions[19] As Mr Walsh submits, amendment of a charge during trial is governed by s 136of the CPA. That provides:136 Procedure if charge amended during trial(1) Despite sections 21 and 133, during the trial a charge may be amendedto substitute one offence for another offence only if—(a) there appears to be a variance between the proof and thecharge; and(b) the amendment will make the charge fit with the proof.(2) A charge must be amended under subsection (1) if in the court'sopinion the defendant will not be or has not been misled or prejudicedin his or her defence by the amendment.(3) Subsection (4) applies if, in the court's opinion, the defendant hasbeen misled or prejudiced in his or her defence by any amendment ofa charge made during the trial under section 133.(4) If, in the court's opinion, the effect of the defendant having beenmisled or prejudiced might be removed by adjourning or postponingthe trial, the court may make the amendment and—(a) adjourn the trial; or(b) postpone the trial and discharge the jury.[20] The appellant argues, that, contrary to s 136(2), he was prejudiced in hisdefence as a result of the amendment.[21] He submits that his case on this charge was advanced on the basis that therewas no "taking away" as he had made it clear to the complainant that he was notreturning to her address and that the complainant got into his vehicle willingly andfully aware that he had no intention of travelling back to her place that night.Mr Walsh said that, as a result, cross-examination on what happened in the car was"not particularly lengthy or focused on this part of the narrative given that [the charge]was always cast as a 'taking away' scenario". Had it been cast as "unlawful detention"from the outset, more focus would have been given to this part of the narrative in termsof both cross-examination of the complainant and the evidence in chief of theappellant.Discussion[22] The critical issue here is whether the defence was prejudiced by theamendment. The defence may be prejudiced where counsel has prepared andpresented the case in accordance with a theory of the case which is no longerappropriate and counsel cannot recast the case to meet the amended charge.5 It is notprejudicial simply because the amendment better fits the evidence which emerged attrial and so makes the charge easier to prove.5 Stevens v R [2022] NZCA 275 at [16]; R v Hadfield [2007] NZCA 414 at [51]; and R v Johnston[1974] 2 NZLR 660 (CA) at 664.[23] Here, there is no suggestion that further questioning on what happened in thecar would have elicited further information favourable to the defence. Indeed,Mr Walsh did not identify what other questions would have been asked had the chargeexpressly related to detention in the car from the outset. The fact trial counsel did notseek to recall the witness to ask further questions is also reflective of the fact that whathappened in the car was already covered in the evidence and no additional evidenceneeded to be called. In any event, what happened in the car needed to be covered inevidence, because even on the taking away scenario, the complainant was seenvoluntarily entering the car at both service stations, and evidence of her attempt toescape from the car while it was being driven was necessary to show she had beentricked into entering the car. Without that evidence the Crown would not have beenable to prove the car kidnapping charge even under the "taking away" scenario.Furthermore, as Ms Hamill points out, any charge of kidnapping involving a takingaway will include a detention. As the authors of Adams on Criminal Law say:6While unlawfully "taking away" a person necessarily involves an unlawfuldetention, unlawfully "detaining" a person need not involve any taking awayat the outset[.][24] We also accept, as Ms Hamill says, that the Judge appeared to have approachedthe act of "taking away" as being limited to a scenario where the complainant had beenforced into the car, when the act of "taking away" could equally apply to whathappened in the car when he was compelling her to go where she did not want to go.However, whether or not the amendment was required, the fact is no additionalevidence was required as a result of the amendment. Indeed, the Crown had alreadyclosed when the amendment was made, and the defence did not suggest there wasfurther evidence it would have called if the charge had been framed that way from theoutset. It seems the defendant would still have relied on the evidence that he neverindicated he would take her home, and he only prevented her from leaving the car forher own safety.[25] For these reasons, we are satisfied there was no prejudice to the appellantarising from the amendment of the charge and this ground of appeal fails.6 Simon France (ed) Adams on Criminal Law (online ed, Thomson Reuters) at [CA209.03] citingR v Tremblay (1997) 117 CCC (3d) 86 (QCCA) at 95; R v Hernandez 2012 SCC 40,[2012] 2 SCR 411. See also Davis v R [2006] NSWCCA 392 at [56].The summing up[26] The second ground of appeal is that the Judge's summing up was not fair andbalanced, as the Crown case was given far greater emphasis than the defence case.For example, Mr Walsh says the summary of the Crown case for charges one andtwo occupied four paragraphs, with the defence case being summarised in oneparagraph. For charges four, five and six, he says there was an extended summary ofthe Crown case, with page references to the complainant's interview while, incomparison, there was only fleeting reference to the defence case.[27] Overall, he submits the summing up did not meet the test articulated inR v Keremete, requiring a summing up to be "balanced in its treatment of opposingcontentions with respect to [the fundamental] facts, and leave the jury in no doubt thatthe facts are for them and not for the judge".7Discussion[28] The obligation on a Judge when summing up is not to give exactly the sameamount of time to each party's case but simply to ensure it is balanced in its treatmentof opposing contentions. Whether that has been achieved is not to be assessed by anarithmetical calculation of how much time is spent on each case and the Judge has awide discretion as to the level of detail he or she goes into.8[29] Here, looked at objectively, we are satisfied the summing up fairly set out thecompeting contentions as to the facts. While it is correct that the summary of theCrown case as to the first charges of sexual violation occupied more time than thedefence case, that is largely because time was taken to refer to the texts exchangedprior to the alleged sexual assaults which the Crown said showed that any consent hadbeen withdrawn. The defence case was that, on a true construction, those same textscomprised invitations for sex, or at least they would raise a reasonable doubt on theelements of consent.7 R v Keremete CA247/03, 23 October 2003 at [18].8 At [21].[30] There are then further threads of the defence position set out in the next twoparagraphs of the summing up, including the defendant's contention that thecomplainant is lying and she continued to have sexual contact with him after that date.There is no suggestion that key defence contentions have been omitted.[31] Similarly, in respect of charges four, five and six, the Judge fairly summarisesthe competing positions. For example, on charge four, the Judge refers to the transcriptof the complainant's interview and paraphrases what she says as follows:I wasn't allowed to get out of the car. On the slow corners I tried to get out.He just kept locking them and locking them and each time I would unlock,open, then he'd grab me by the hair or my shirt and pull me back in.[32] Equally though, the Judge summarises Mr Lee's position as she is lying and"I didn't restrain her or stop her getting out. What I was trying to do was save herhurting herself by getting out when I was doing 100 k."[33] When the Judge discusses charge five, the detention in the bedroom, he againrefers to a page in the transcript where the complainant describes Mr Lee locking thedoor and pushing her to one side every time she went to the door. The summary ofthe defence case is brief because it simply states that Mr Lee's position "is exactly thesame. It is all a fabrication. It did not happen."[34] In respect of charge six, the threatening to kill charge, the Judge's summary issuccinct in respect of both parties. He refers to the passage in the complainant'sevidence where she says he said he would kill her. He then says the defence positionis that this is "just another lie on top of a lie". There was no need for the Judge to saymore about the competing contentions.[35] The Judge also reminds the jury that even if they did not accept Mr Lee'saccount, they were still required to decide whether they could be sure of thecomplainant's account. That was summarised as follows:At the end of the day when you work through the charges and you assess theopposing positions between Crown and defence and work through thestructure and the progressive nature of the question trail you will always bebasing your determination "on are we sure?" Are we sure on this question,are we sure on this question, are we sure at the end of the day, on the charge?You will ultimately make your determination based on what you make of thewitnesses. Does the defence evidence raise a doubt? Do you accept it andeven if you reject it, does the complainant's evidence take you to the point ofbeing sure? Do you accept the complainant's evidence or do you have adoubt?[36] The Judge also makes it clear that the jury had the sole responsibility fordeciding all questions of fact and gave a full paragraph explaining that responsibilityon standard terms.[37] In short, we are satisfied the Judge's summing up, seen as a whole, fairlysummarised the competing cases, without expressing a preference for either, and leftthe jury in no doubt the facts were for them. No miscarriage of justice arises on thisground either.The sentence appeal[38] When sentencing Mr Lee, the Judge adopted a starting point of seven years'imprisonment on the lead charges of sexual violation and applied a three year uplift toreflect the remaining charges.9 The Judge then acknowledged the appellant's activeparticipation in the Man Up programme and the fact he did not reoffend in any wayover a lengthy period on bail.10 The Judge afforded a 10 per cent discount for Mr Lee'srehabilitative prospects, notwithstanding his continued denial of the offending.11[39] In terms of the s 27 report, the Judge did not consider it raised factors whichreduced Mr Lee's culpability. He recorded:12You had a good education, and certainly no worse than many others. Youhave had a supportive mother, although you say your father was a harddisciplinarian. You have had no gang input, as many young people do, youused cannabis when you were younger, and have used methamphetamine.[40] The Judge did go on to say that there was one aspect of the s 27 report"that may possibly have had some impact", which is the sexual abuse he suffered froma teenage male, commencing when he was around eight years old.13 However, the9 R v Lee, above n 1, at [11]–[12].10 At [13] and [17].11 At [17].12 At [19].13 At [21].Judge held that there was, overall, "no cogent basis to conclude there is the causativelink that the Courts require" between that incident and the current offending.14 In theend, the Judge said:15You are not unintelligent, you are quite capable of making choices, you havework, you have friends. I cannot see anything in the report that would impedethe choices that you made on this occasion in September, and then what youdid in the subsequent months.Accordingly, he could see no reduced moral culpability and gave no discount for thematters raised in the s 27 report.The appellant's submissions[41] The appellant takes issue with the Judge saying that he had read "many a sads 27 report which inevitably invokes a sympathetic response" but he could not say thesame for the appellant.16 Mr Walsh submits there is no utility in comparing oneoffender to another in terms of background and upbringing. He cites Carr v R, wherethis Court stated:17Nor is it appropriate to reason that because other people with disadvantagedbackgrounds do not offend, legitimate references to deprivation affecting thelife of an individual offender can be put to one side.[42] In any event, Mr Walsh argues there were matters raised in the appellant'sbackground that were relevant, including his early exposure to physical violencemeted out by his father against his mother and himself, the impact of his parents'separation, and the appellant's use of alcohol and drugs which began in his teenageyears, along with the sexual abuse which occurred when he was a child. Mr Walshsubmits the report contained a credible account of matters which might be consideredto have impaired his choice and diminished his moral culpability, so as to establish acausative connection to the offending. He submits a discount of 15 per cent shouldhave been afforded for these factors.14 At [21].15 At [22].16 At [19].17 Carr v R [2020] NZCA 357 at [66].Discussion[43] We do not accept that the Judge fell into error in the way described in Carr.The Judge did not reason that because other people had come through disadvantagedbackgrounds and not offended, Mr Lee should be denied a discount for such factors.Rather, the Judge simply noted that Mr Lee's background was not obviouslydisadvantaged. He had a good education, a supportive mother and a lack of gangaffiliation.[44] The Judge had regard to Mr Lee's reported experience of being sexuallyoffended against as a child, and acknowledged that any link between that and his sexrelated conviction "need not be direct or linear, it can be broad, and requires judicialevaluation of whether or not the matters raised impact choice and thus reduce moralculpability".18 In this case, the Judge considered that link could not be drawn becauseMr Lee's offending was done against protests with a sense of arrogance andentitlement. The Judge said there was nothing in the s 27 report which would impedeMr Lee's decision to offend.19[45] While offending is often attributed to a lack of family support, here, unusually,the s 27 report writer attributes Mr Lee's self-entitled thoughts and behaviours, to hismother's strong support of him, saying she had a "bad tendency to enable and validateAnthony's behaviours". While the report also suggests his father's use of violenceagainst him and his mother before he left the family was the reason for Mr Lee'sviolent behaviour, there is no evidence the report writer asked Mr Lee's mother toconfirm the experience of violence. It is also not clear that there is a causativeconnection between the two, given there is no evidence of Mr Lee being violent beforethe current relationship.[46] While there is evidence of methamphetamine use, the suggestion this was anaddiction lacks substance. His mother insisted he did not use drugs and he reportedthat he "stopped using it after a few months". Furthermore, there is no evidence thatthe particular offending was linked to methamphetamine addiction.18 At [21].19 At [22].[47] Overall, while there were some negative aspects to Mr Lee's background andupbringing, we accept that this was a case where the trial Judge could reasonably saythere was no causative connection to the offending and no discrete discount needed tobe afforded.[48] In any event, the discount given for rehabilitative potential was generous,particularly when Mr Lee denied the offending. Overall, we are not satisfied thesentence was manifestly excessive.Result[49] The appeal against conviction and sentence is dismissed.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent