Lepper v The Queen - [2018] NZSC 58

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

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 32/2018
[2018] NZSC 58

BETWEEN	JOSEPH WARREN LEPPER Applicant
AND	THE QUEEN Respondent

Court:	Glazebrook, O’Regan and Ellen France JJ
Counsel:	Applicant in person K S Grau for Respondent
Judgment:	26 June 2018

JUDGMENT OF THE COURT

The application for an extension of time to file an application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Introduction

Mr Lepper applies for leave to appeal nearly two years out of time against a Court of Appeal decision dismissing his appeal against the imposition of the sentence of preventive detention.[1]

Background

[1]Lepper v R [2016] NZCA 209 (Wild, Courtney and Gilbert JJ).

The sentence of preventive detention was imposed after Mr Lepper pleaded guilty to abduction with intent to commit unlawful sexual connection.[2] Mr Lepper and a young man drove from Christchurch to Dunedin on 19 October 2013. That evening they tried to force a woman they had passed by into the van. She struggled sufficiently to fend them off until nearby residents came to help after which Mr Lepper and the co-offender left. The victim was bruised and lost handfuls of hair.
[2]R v Lepper [2014] NZHC 3015 (Gendall J).
This incident occurred about seven months after Mr Lepper was released from prison (in March 2013) where he had been serving a sentence of 10 years imprisonment. That sentence related to an incident in 2002 when Mr Lepper forced a woman off the street and into a park where he raped her. Whilst in prison serving his sentence in relation to the 2002 offending, Mr Lepper was involved in various incidents, including two threats to kill female staff members. Mr Lepper was also charged but acquitted of assaulting another inmate with a pool cue.
Mr Lepper was diagnosed with schizoaffective disorder in 2009. He was assessed fit to stand trial in a report prepared by Dr David Bathgate, a consultant psychiatrist, in November 2013. Dr Bathgate records that Mr Lepper told him that after his release in March 2013 he stopped taking his anti-psychotic medication.
The High Court Judge was satisfied, given the fact the offending occurred so soon after Mr Lepper’s release and in similar circumstances to the 2002 offending, that a pattern of serious sexual offending was established. The Judge also considered the health assessors’ reports and concluded there was a high risk of re-offending in a sexual way. Preventive detention was seen as preferable to protect the community from harm by guaranteeing Mr Lepper would not be released until the risk of re‑offending had been adequately addressed. The sentence was also seen as providing an incentive for Mr Lepper to finally decide to seek the treatment needed.

The proposed appeal

The main point Mr Lepper wishes to raise on appeal is that the sentence of preventive detention was manifestly excessive because…

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 Lepper v The Queen

Details

AGLC: Lepper v The Queen [2018] NZSC 58
Case: [2018] NZSC 58
Decision Date: 26 June 2018

CaseChat Overview and Summary

In the case of Lepper v The Queen, the applicant, Joseph Warren Lepper, sought leave to appeal nearly two years out of time against a Court of Appeal decision dismissing his appeal against the imposition of a sentence of preventive detention. The Court of Appeal had dismissed Mr Lepper's appeal against a sentence of preventive detention imposed after he pleaded guilty to abduction with intent to commit unlawful sexual connection. The sentence of preventive detention was imposed following an incident where Mr Lepper and a co-offender attempted to force a woman into their van, an offence that occurred shortly after his release from prison. Mr Lepper had previously been imprisoned for a serious sexual offence. The High Court Judge had imposed the sentence of preventive detention to protect the community from the risk of Mr Lepper re-offending in a sexual way. The Court of Appeal had upheld the sentence, noting that Mr Lepper had been offered but declined treatment on parole.

The legal issues in this case centred on whether the sentence of preventive detention was manifestly excessive and whether the appeal met the threshold for leave to appeal. Mr Lepper argued that he did not understand what he was doing at the time of the offending and, therefore, was being punished for being unwell. He also claimed that the reference to a pool cue incident in one of the health assessor’s reports was inappropriate. The Court had to determine whether these issues were sufficient to warrant leave to appeal. The Court noted that the proposed appeal did not raise a question of general or public importance and that there was no appearance of a miscarriage of justice given the evidence that Mr Lepper understood the nature and quality of his act at the time of the offending.

The Court dismissed the application for an extension of time to file an application for leave to appeal, concluding that the proposed appeal did not meet the threshold for leave. The Court observed that the sentence of preventive detention was a question of the application of well-settled principles to the particular facts. The Court also noted that Mr Lepper's explanation for the delay in filing the present application did not adequately account for the lengthy delay. Given these considerations, the Court dismissed the application for leave to appeal.

Orders