Lawson v The King
[2023] NZHC 3097
•3 November 2023
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE
CRI-2023-416-001
[2023] NZHC 3097
BETWEEN CHRISTOPHER LAWRENCE LAWSON
Appellant
AND
THE KING
Respondent
Hearing: 1 November 2023 Appearances:
E J Forster for Appellant
M J R Blaschke for Respondent
Judgment:
3 November 2023
JUDGMENT OF LA HOOD J
(appeal against sentence)
Introduction
[1] On 10 December 2021, following a Judge-alone trial before Judge W P Cathcart in the Gisborne District Court,1 Christopher Lawson was convicted of two charges of assault on person in family relationship,2 and seven counts of sexual violation by unlawful sexual connection.3 Mr Lawson appeals against the sentence of eight years’ imprisonment imposed on those charges.4
[2] Mr Lawson, angry at his former partner for trespassing him from her home and blocking him on social media, entered her home by stealth in the middle of the night,
1 R v Lawson [2021] NZDC 23530 [Reasons for Verdicts].
2 Crimes Act 1961, s 194A: maximum penalty two years’ imprisonment.
3 Sections 128(1)(b) and 128B: maximum penalty 20 years’ imprisonment.
4 R v Lawson [2022] NZDC 10772 [Sentencing Notes] delivered on 10 June 2022. An appeal against conviction has been abandoned.
LAWSON v R [2023] NZHC 3097 [3 November 2023]
woke her up by placing his hands around her throat and said he could do what he wanted to her because the pandemic meant everyone was going to die anyway. He proceeded to carry out his threat by subjecting the victim to a prolonged, serious sexual assault involving him performing oral sex on her, making her perform oral sex on him, digitally penetrating her vaginally and anally, and rubbing against and thrusting at her genital area with his flaccid penis because he had a medical condition that made penetration impossible. He attempted to disable the internet and phone line, placed a knife close to the victim and used force where necessary to make the victim comply with his demands.
[3] Mr Lawson appeals his sentence on the basis that the starting point of nine and half years’ imprisonment was manifestly excessive because the Judge should not have followed the guidance in R v AM that penile penetration of the mouth falls into the rape band categories.5 In support of this, he points to the short duration of the penetration on both occasions, his inability to get an erection and his unreasonable belief the victim consented to the second violation.
[4] For the reasons set out below, I am not persuaded there was any error in the Judge’s approach. I consider the penile penetrations of the mouth were the type of serious violation of the victim's sexual autonomy that required them to be treated as falling within the rape bands. I agree with the respondent that the starting point of nine and half years’ imprisonment and end sentence of eight years’ imprisonment were within the available range.
Factual basis for sentencing
[5] In summary, Judge Cathcart found that the Crown had established the following facts beyond reasonable doubt.
[6] The offending took place on 24 March 2020. Mr Lawson, currently aged 56, knew the victim from when the pair were younger. They had reconnected some years before 2020 and developed a romantic relationship. The relationship ended in early
5 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.
2020. On 7 March 2020, police were called to the victim’s address and a trespass notice was served on Mr Lawson.
[7] At about 3 am on 24 March 2020, Mr Lawson entered the victim’s home by stealth. She had fallen asleep on the couch and woke to find Mr Lawson holding her throat in both hands. Upon entry, he attempted to disable the phone line and internet, placed a knife close to where the victim was sleeping and moved the victim’s phone away from her side. Mr Lawson was angry with the victim for calling the police on 7 March and the service of a trespass notice on him. He said he would do what he wanted to the victim given the onset of the pandemic meant that everybody was soon going to die anyway.
[8] Mr Lawson followed through on his threat, using force to get the victim to do as he wanted. This included hitting and slapping the victim on the head, making demands and directing her movements. He digitally penetrated the victim’s vagina and anus, put his mouth onto her genitalia and forced his tongue down her throat. He attempted to penetrate the victim’s vagina with his penis by repeatedly getting on top of her, rubbing himself against her genital area and thrusting or pressing against her from behind. However, his erectile dysfunction from a medical condition made penetration impossible. Mr Lawson also inserted his penis into the victim’s mouth as she was using the toilet.
[9] This continued in cycles for approximately an hour inside the house, in the bathroom and on the deck, stopping only when the victim tricked Mr Lawson into going outside onto the deck (by feigning willingness to participate in sexual acts). When an opportunity arose, the victim ran inside and attempted to lock the door to prevent Mr Lawson coming back inside. The victim then screamed for her grandchild (who was asleep in the house) causing Mr Lawson to leave the scene. The victim then called the police.
[10]The particulars of the convictions are:
(a)Two assault on a person in a family relationship charges: grabbing the victim’s neck, and hitting the victim in the head and face.
(b)Seven sexual violation charges: digitally penetrating the victim’s vagina inside the house; digitally penetrating the victim’s anus inside the house; oral connection between his mouth and the victim’s vagina inside the house; oral connection between his penis and the victim’s mouth in the bathroom; digitally penetrating the victim’s vagina on the deck; digitally penetrating the victim’s anus on the deck; and oral connection between his penis and the victim’s mouth on the deck.
[11] Mr Lawson has a substantial criminal history. He has been imprisoned for short periods, most recently in 2007. He has convictions for family violence, including a number of assault convictions, wilful damage and contravening a protection order. While part of the criminal history is historic, it has continued without much interruption from 1982 until 2012. These were his first convictions for sexual offending.
Pre-sentence reports
[12] The Provision of Advice to Courts report recommended imprisonment as the appropriate sentencing choice for Mr Lawson, given the nature and seriousness of the charges with his attitude identified as the main offending-related factor.
[13] A Court ordered psychological report identifies Mr Lawson as subscribing to the “sovereign citizen” ideology. To the report writer, Mr Lawson maintained that he did not commit the offences. He maintained that the victim consented to the sexual activity and that the District Court Judge was biased against him. Mr Lawson is reported as fearing for his life in prison and is generally unsatisfied with prison conditions.
[14] The report describes Mr Lawson’s background and upbringing. Mr Lawson described having been physically abused as a child by his whāngai father, who in turn had anger and alcohol abuse problems. He also witnessed family violence in the home. The effects of poverty marked Mr Lawson’s childhood with there not being enough food for everyone on occasion and Mr Lawson needing to be sent to extended whānau sometimes. Mr Lawson also reported suffering abuse as a child, including while in state care at Epuni Boys Home, and that his birth mother had significant alcohol and
drug abuse issues. Mr Lawson grew up having to relocate a number of times, which is identified as a possible influencing factor on his ability to form secure and healthy attachments with his care providers.
[15] Early adulthood also brought problems for Mr Lawson, with him reporting being bullied as well as being a bully at school. Mr Lawson left school without gaining academic qualifications. He gained employment for a short period in his youth but has since been a beneficiary.
[16] Mr Lawson described four of his five romantic relationships as involving and ending because of his violence towards his partners. He says this was not the case for his fifth partner, who is the victim in the present charges.
[17] The report writer recommends Mr Lawson undergo a sexual offender treatment programme, a cannabis treatment programme and further assessment and treatment of his Post Traumatic Stress Disorder (PTSD).
District Court’s decision
[18] Judge Cathcart considered the aggravating factors of the offending included the home invasion element of the offending in the early hours of the morning, the resulting vulnerability of the victim who was asleep in the sanctity of her home, Mr Lawson’s knowledge he was not welcome at the house due to the trespass notice and the victim having blocked him on social media. Further aggravating features included the chilling remarks Mr Lawson made about how he would get away with his offending because everyone was going to die, the planning and premeditation involved, and the significant duration of the almost continuous offending. The Judge also acknowledged the serious impact of the offending on the victim. Overall, the Judge considered the offending presented a very serious case.
[19] The key question, according to the Judge, was where the case fell in the guideline bands in R v AM.6 The Judge considered the offending was rape band two offending. In setting the starting point, the Judge noted that while Mr Lawson had
6 R v AM, above n 5.
some degree of belief in consent, it was a grossly and “patently unreasonable belief”.7 That led to a very modest reduction in the starting point. A global starting point of nine and a half years’ imprisonment was adopted.
[20] In terms of mitigating factors, the Judge acknowledged Mr Lawson’s serious health condition (cancer). The Judge noted that Hawke’s Bay Regional Prison would be able to accommodate Mr Lawson’s medical needs but that a sentence of imprisonment would be more onerous for him, as compared to someone without the same condition. The Judge then took into account Mr Lawson’s troubled upbringing, including experiencing serious abuse and having an unstable childhood. Finally, the Judge considered the time Mr Lawson had spent on bail under a curfew—amounting to two years—warranted a reduction. The Judge reduced Mr Lawson’s sentence by 18 months for all the mitigating factors identified (a reduction of approximately 16 per cent), arriving at an end sentence of eight years’ imprisonment.
Submissions
For the appellant
[21] Mr Forster, for the appellant, submitted that the starting point of nine and a half years was too high. The essential error made in the District Court was taking the sexual violations of the victim’s mouth as the lead charges and categorising the offending as falling within rape band two of R v AM. This approach failed to take into account that the offending as a whole more appropriately fell in the unlawful sexual connection bands of R v AM, as the digital penetrations were the more prolonged and serious aspects of the offending. In support of this submission, Mr Forster relied on the short duration of both oral violations, the fact Mr Lawson’s penis was not erect during them, and Mr Lawson’s unreasonable belief in consent for the oral violation on the deck.
[22] Mr Forster submitted that if the unlawful sexual connection bands of R v AM had been applied, band two would require a starting point between four and 10 years’ imprisonment. Given the lack of age disparity, prolonged periods of sexual abuse or
7 Sentencing Notes, above n 4, at [31].
extreme violence, a starting point of seven or eight years was appropriate. Giving Mr Lawson the same credit he received in the District Court (15 per cent), that would lead to an end sentence of five years and 11 months’ imprisonment or six years and nine months’ imprisonment, respectively. In comparison, the current end sentence of eight years’ imprisonment is manifestly excessive.
For the respondent
[23] Mr Blaschke, for the Crown, submitted that the starting point was well within range, if not generous, and appropriate credit was given to reach an end sentence that should not be disturbed on appeal.
[24] Mr Blaschke submitted that the District Court judge correctly applied rape band two of R v AM. The rape bands encompass offending where there has been penile penetration of the mouth. That was the case here on two separate occasions, once in the bathroom and once on the deck. No error was made in using the rape bands to set the starting point. The number of aggravating factors present in the offending means the starting point could well have been higher.
[25] Even if the unlawful sexual connection bands were used, the offending would fall in band three given the presence of a number of aggravating factors (scale of offending, degree of violation, duration, premeditation, home invasion and violence). That would allow for a starting point between nine and 18 years’ imprisonment. However, at the very least the offending would fall within band two, which provides for a starting point of up to 10 years’ imprisonment.
[26] Finally, the Crown submitted that despite being acquitted of attempted rape, that aspect of the factual matrix remained relevant to the sentencing exercise. The victim’s account of the offending was accepted in its entirety by the Judge and the acquittal on the attempted rape charge was only a reflection of Mr Lawson’s erectile dysfunction. The acquittal was not a rejection of the victim’s evidence or the traumatic effect of the totality of the offending. The case demonstrates why penile penetration of the mouth is encompassed within the rape bands of R v AM.
Relevant law
[27] Under s 250 of the Criminal Procedure Act 2011, an appeal against sentence must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence and a different sentence should have been imposed.8
[28] Generally, the focus in a sentence appeal is on the final sentence rather than the process by which it was reached.9 In Tutakangahau v R, the Court of Appeal accepted, however, that there may be cases where “what has gone wrong as such as to require correction albeit the sentence imposed is within range”.10
[29] Although s 250 does not refer to “manifestly excessive”, it is a principle that is well-established in the Court’s approach to determining the extent of any error in sentence appeals.11 As the Court of Appeal said in Tutakangahau v R:12
The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of a prior error which often will involve questions such as whether the starting point is too high given the facts, or of incorrect discounts or as to parity with co-offenders.
[30] In Tutakangahau the Court of Appeal also said if “there is an error of the requisite character, the court will then form its own view of the appropriate sentence”.13
Cultural report
[31] A s 27 cultural report, prepared on 10 October 2023, was filed for consideration as fresh evidence on appeal. Mr Forster confirmed that the purpose of the report was to counter any submission by the Crown that the credit given to Mr Lawson for personal mitigation factors was too generous. As Mr Blaschke confirmed that the Crown did not make any such a submission, Mr Forster agreed there was no need for the s 27 report to be admitted on appeal. As noted above, Mr Lawson’s deprived and abusive background circumstances were already before the District Court through the
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
9 Ripia v R [2011] NZCA 101, At [15].
10 Tutakangahau v R, above n 8, at [36].
11 At [35]; and R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].
12 Tutakangahau v R, above n 8, at [32].
13 Tutakangahahu v R, above n 8, at [30].
psychological report. Both counsel agreed appropriate credit was given for them. In these circumstances, I do not need to consider whether the s 27 report should be admitted as fresh evidence.
Assessment
[32] I find no error in the approach taken by Judge Cathcart. The rape bands in R v AM were appropriately engaged by the offending. R v AM is clear that the rape bands are engaged where the lead offence is penile penetration of the mouth.14 This approach reflects the difficulty in saying “that any one form of non-consensual penetration is inherently a more serious violation of the victim's sexual autonomy than another”.15
[33] The Court in R v AM also noted that, at the higher end of the spectrum, sentences for digital penetration or oral sex (not involving penile penetration of the mouth) should come close to those for penile penetration or penetration with an object.16 The Court said:17
[79] In considering the culpability of offending in a particular case, we emphasise that what is required is an evaluative exercise of judgment. We see judges as having a reasonable degree of latitude in this exercise. Sentencing judges will have a range of information before them and, after trial, will have more information than can be gleaned from the record. In assessing the gravity of offending judges must, of course, do this in a fact-specific way focusing on the culpability of the offender and the effect on the victim and, as a corollary, they must not reason by stereotype or seek to turn responsibility for the offending back on the victim, in terms of “she asked for it” or other excuses based on rape myths.
[34] I agree with Judge Cathcart’s assessment of the aggravating features of the offending. It involved a home invasion in the middle of the night while the victim was asleep with her grandchild in her care during a global pandemic. Mr Lawson drove to the victim’s address from some distance away when he knew he has been trespassed by the victim and blocked by her on social media. He attempted to disable the phone and internet, moved her phone away from her and placed a knife close by. He then
14 R v AM, above n 5, at [65].
15 At [69] citing R v Millberry [2002] EWCA Crim 289, [2003] 1 WLR 546.
16 At [75].
17 At [79].
made sinister and threatening comments about what he planned to do the victim and proceeded to carry out those threats over a prolonged period of time, including using physical force when his demands were not being met. The Judge correctly described this a “frightening ordeal” for the victim.18
[35] Counsel were unable to refer me to a case involving both penile penetration of the mouth and digital penetration of the vagina/anus where the oral violations were not taken as the lead offending and/or the rape bands were not applied.19 I do not consider that the relatively short duration of the oral violations, erectile dysfunction and what the Judge correctly described as a grossly unreasonable belief in consent for the second oral violation,20 make it inappropriate to treat the oral violations as falling within the rape bands. Assessing the oral violations in the context of the offending as a whole, it is clear they resulted in the type of serious violation of the victim's sexual autonomy that require them to be treated as falling within the rape bands.
[36] I consider there was no error in adopting the rape bands and setting a starting point of nine and a half years’ imprisonment. Given the presence of the aggravating factors referred to above, placing the offending in the mid-to-low end of band two (between seven and 13 years’ imprisonment) appropriately reflects the totality of the offending.
[37] I also accept the respondent’s submission that the starting point is well within range even if considered under the unlawful sexual connection bands. Mr Lawson’s offending would fall on the higher end of the unlawful sexual connection band two or on the lower end of band three, allowing for a starting point range of four to 10 years’, or nine to 18 years’ imprisonment, respectively. That by itself would justify the starting point of nine and a half years’ imprisonment, especially factoring in the additional element of actual oral penetration.
18 Reasons for Verdict, above n 1, at [118].
19 This should be contrasted with cases involving penis to mouth violations that fall short of penetration (e.g. rubbing against or touching the lips): see Mohammed v R [2023] NZCA 295 at [49]-[51] where the Court of Appeal saw so no error in treating non-penetrative violation of the mouth as falling outside the rape bands.
20 The Court of Appeal in R v AM, above n 5, at [53] said: “If the belief is grossly unreasonable that will not avail the offender.”
[38] I agree with both counsel that the 18 months’ credit given to Mr Lawson for his personal mitigating circumstances was appropriate.
Conclusion
[39] Accordingly, I am not satisfied that the sentence imposed on Mr Lawson was in error and that a different sentence should have been imposed. The appeal is dismissed.
La Hood J
Solicitors:
Crown Solicitor’s Office, Napier
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