Lewis v R - [2015] NZCA 444

IN THE COURT OF APPEAL OF NEW ZEALAND

CA115/2015
[2015] NZCA 444

BETWEEN	JOSEPH KORO TAPAHE LEWIS Appellant
AND	THE QUEEN Respondent

Hearing:	18 August 2015
Court:	Ellen France P, Courtney and Clifford JJ
Counsel:	N P Chisnall for Appellant M L Wong for Respondent
Judgment:	15 September 2015 at 11.30 am

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.

B The appeal against sentence is allowed.

CThe sentence of six years and nine months imprisonment with a minimum period of three years and two months imprisonment is quashed. In its place a sentence of five years and nine months imprisonment on the charge of wounding with intent to cause grievous bodily harm is substituted. The sentence of imprisonment for one year on the male assaults female charge remains and is to run concurrently.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France P)

Introduction

Joseph Lewis pleaded guilty to one charge of wounding with intent to cause grievous bodily harm in relation to his crew mate and to one charge of male assaults female in relation to his former partner. He was sentenced by Judge Zohrab in the Nelson District Court to an effective sentence of six years and nine months imprisonment with a minimum period of imprisonment (MPI) of three years and two months.[1]
[1]R v Lewis DC Nelson CRI-2014-042-341, 27 May 2014 [Sentencing remarks].
Mr Lewis appeals against sentence on the ground it is manifestly excessive. His appeal raises three points, namely: whether the starting point was manifestly excessive; whether there should have been a discount to reflect his mental health issues; and whether an MPI should have been imposed. We deal with these issues after setting out the background.

Background

The facts giving rise to the offending are set out in the sentencing remarks.
The male assaults female charge involved, as we have noted, Mr Lewis’ former partner. The family unit at the time was under financial pressure after Mr Lewis had recently become unemployed. What occurred in the early hours of the morning of 6 December 2013 was described by the Judge, who said:[2]
… The two of you were arguing over money and lack of food in the house. The argument quickly escalated to the point where you, without warning, headbutted her twice in the face with your forehead. The victim, with blood running from her nose, has taken the two children across the street to the neighbour’s to ring the police. In a fit of rage you then smashed all of the belongings including a television, microwave, chairs, electronic items and furniture. She had facial abrasions but did not require any medical attention.
[2]At [13].
The incident resulting in the wounding charge occurred two months later, on 7 February 2014 on a boat on which Mr Lewis and the victim worked. By that time, Mr Lewis’ long-term relationship with his partner had ended. Mr Lewis entered the wheelhouse of the boat where the victim…

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 Lewis v R

Details

AGLC: Lewis v R [2015] NZCA 444
Case: [2015] NZCA 444
Decision Date: 15 September 2015 at 11.30 am

CaseChat Overview and Summary

Joseph Koro Tapahe Lewis, the appellant, was convicted and sentenced for charges of wounding with intent to cause grievous bodily harm and male assaults female. He was sentenced to an effective term of six years and nine months imprisonment, with a minimum period of imprisonment (MPI) of three years and two months. He appealed against the sentence on the grounds that it was manifestly excessive, arguing that the starting point was excessive, a discount for his mental health issues should have been applied, and no MPI should have been imposed. The Court of Appeal of New Zealand allowed the appeal against the sentence, finding that while the starting point was within range, a discount for the appellant's mental health issues should have been applied, and no MPI should have been imposed. The sentence of six years and nine months imprisonment with an MPI of three years and two months was quashed, and a new sentence of five years and nine months imprisonment on the charge of wounding with intent to cause grievous bodily harm was substituted. The sentence of imprisonment for one year on the male assaults female charge remained and was to run concurrently.

The court held that while the starting point was within range given the other aggravating factors present, a discount for the appellant's mental health issues should have been applied. Although the link with the wounding offence in a causative sense was limited, the appellant's mental state was such as to moderate his culpability. A reduction in sentence of twelve months was appropriate. Once it was accepted there was a link between the appellant's mental health and his offending, that affected all of the factors identified as warranting an MPI. In the circumstances, it was not appropriate to impose an MPI. The court found no merit in the appellant's argument that premeditation was wrongly treated as an aggravating factor present in this case. The court also found no basis for taking a different view from that of the sentencing judge on the aspect of remorse.

Orders