Craig v R - [2019] NZSC 103

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 59/2019
[2019] NZSC 103

BETWEEN	LEWIS ERU CRAIG Applicant
AND	THE QUEEN Respondent

Court:	Glazebrook, O’Regan and Ellen France JJ
Counsel:	C J Nicholls for Applicant A D H Colley for Respondent
Judgment:	26 September 2019

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Mr Craig applies for leave to appeal against a decision of the Court of Appeal dismissing his sentence appeal.[1]
[1]Troon v R [2019] NZCA 265 (Courtney, Lang and Whata JJ). Mr Lewis Eru Craig was one of three appellants, alongside Mr Jeffrey Troon and Mr Teri Te Waimarama Thompson.
Mr Craig and four fellow defendants initially faced 65 charges, including sexual violation by rape and unlawful sexual connection, as well as abduction with intent to have sexual connection. During the trial, because of concern for the complainant’s state of mind, the trial (and later sentencing) judge, Clark J, gave the Crown leave to amend those charges to charges of indecent assault. The defendants then pleaded guilty to the amended charges.
In Mr Craig’s case this means he pleaded guilty to one charge of indecent assault (placing his penis in the complainant’s mouth without her consent).[2] He was sentenced to imprisonment for a term of two years and seven months.[3] The starting point was three years,[4] reduced by one month for time spent on bail on restrictive conditions and by just over 10 percent for the guilty plea.

Sentencing remarks

[2]He had initially faced 15 charges.

[3]R v Thompson [2018] NZHC 2608 (Clark J) [Sentencing remarks] at [75].

[4]The Crown had suggested a staring point of two and a half years.

Clark J considered that the following aggravating factors were involved: that the defendants offended as part of a group, the disparity in ages between the complainant (17 years old) and the defendants (aged between 25 and 26 years old) and the harm to the victim as detailed in her victim impact statement.[5]
[5]At [39].
As to the appropriate discount for guilty pleas, Clark J accepted that the pleas had been entered promptly after the decision to reduce the charges had been made.[6] She also accepted that the victim had received a benefit from the defendants pleading guilty.[7] On the other hand, Clark J noted that the complainant had been required to give evidence and had been cross-examined over a three-and-a-half day period in which she remained steadfast in her evidence.[8] The pleas to the lesser charges also provided an obvious benefit to the defendants, the jury had been empanelled and the Court had already expended significant resources on the trial.[9]

Court of Appeal decision

[6]At [28].

[7]At [28].

[8]At [29] and [32].

[9]At [28] and [32].

Mr Craig and two of the other defendants appealed against the sentences imposed. The Court of Appeal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Craig v R

Details

AGLC: Craig v R [2019] NZSC 103
Case: [2019] NZSC 103
Decision Date: 26 September 2019

CaseChat Overview and Summary

Lewis Eru Craig sought leave to appeal against a decision of the Court of Appeal dismissing his appeal against sentence. Craig and two co-defendants had initially faced multiple charges, including sexual violation by rape and unlawful sexual connection, as well as abduction with intent to have sexual connection. However, these charges were later amended to charges of indecent assault. Craig pleaded guilty to one charge of indecent assault and was sentenced to imprisonment for a term of two years and seven months. The Court of Appeal rejected Craig's submissions that the starting point adopted by the sentencing judge was too low and that the sentence imposed was manifestly excessive. Craig now sought leave to appeal against the Court of Appeal decision. The Supreme Court was required to determine whether the criteria for leave to appeal had been met. The Supreme Court held that the criteria for leave were not met. The Court found that the interests of the victim were taken into account by the sentencing judge and the Court of Appeal. The Court also found that Craig had no reasonable expectation, when pleading guilty, that the sentencing judge would accept the starting point suggested by the Crown. The Court did not consider that Craig had shown any possibility of a miscarriage of justice. The application for leave to appeal was dismissed.

Orders