Lewis v R
[2015] NZCA 444
•15 September 2015 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA115/2015 [2015] NZCA 444 |
| BETWEEN | JOSEPH KORO TAPAHE LEWIS |
| AND | THE QUEEN |
| Hearing: | 18 August 2015 |
Court: | Ellen France P, Courtney and Clifford JJ |
Counsel: | N P Chisnall for Appellant |
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.
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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 was sitting having first picked up a white‑handled fishing knife with a 15 cm blade. Mr Lewis showed the victim a photograph. The victim looked at it and then turned away.
Judge Zohrab described what happened next in this way:
[5] … With his back to you, you have placed your hand across his face, covering his mouth and nose, and you have used the fishing knife you were holding [in] your other hand to slash down the back of his neck and across his left ear, and again horizontally across the left side of his neck.
[6] Not surprisingly his neck began to bleed heavily and he placed his hand on the wound to stop the bleeding, and turned to face you. You have then stabbed him twice more with the knife, causing puncture wounds to the left side of the chest and left side of his abdomen.
[7] Surprisingly the victim was able to stand up and begin yelling to the other crew members, who were sleeping below deck, before making his way downstairs to the galley. You were still in possession of the knife. You have picked up his cellphone. You have left the wheelhouse via the starboard side door. You have jumped across to the wharf before concealing yourself on the rock seawall underneath the wharf.
Shortly afterwards, Mr Lewis handed himself in to the police and acknowledged the offending.
The victim’s injuries were summarised by the Judge as follows:[3]
The victim sustained four lacerations to the left side of his neck, including his left ear which required suturing, and he has received stab wounds to the left chest and left stomach, resulting in his left lung collapsing. He remained in hospital for eight days and required four weeks’ recuperation before being able to work again.
Sentencing remarks
[3]Sentencing remarks, above n 1, at [10].
The Judge identified a number of aggravating features of the offending including the extreme violence involved in the unprovoked attack with a knife, premeditation, serious injury with significant implications for the victim particularly financially, use of a weapon, a vulnerable victim and the fact that Mr Lewis was on bail for the male assaults female charge at the time of the later incident giving rise to the wounding charge. Taking these factors into account, the Judge placed the offending in the top end of band two of R v Taueki.[4]
[4]R v Taueki [2005] 3 NZLR 372 (CA) at [38]–[39]. Band two has a range of five to 10 years imprisonment.
The starting point adopted was eight years and six months imprisonment on the wounding charge with an uplift of 12 months imprisonment on the male assaults female charge. From this starting point of nine years and six months, there was a 25 per cent discount for the guilty plea. Judge Zohrab did not give any further discount for Mr Lewis’ mental health issues or for remorse.
An MPI of 50 per cent was imposed to reflect the “nasty incident with the former partner”, the fact Mr Lewis was on bail for that offending when the second incident occurred, and the seriousness of the wounding offending.[5] An MPI was seen as necessary to hold Mr Lewis accountable and for reasons of general and personal deterrence and denunciation.
The starting point
[5]Sentencing remarks, above n 1, at [40], and see at [22].
No issue is taken with the Judge’s assessment that the wounding offending fell within band two of Taueki. Nor is there any challenge to the uplift of one year for the male assaults female charge. Rather, the appellant challenges the assessment the offending was premeditated and says premeditation was wrongly treated as an aggravating factor present in this case.
As this Court noted in R v Taueki, a sentencing judge has to evaluate the seriousness of the aggravating features identified in a particular case. Premeditation is given as an example of the need for such an evaluation because “it may vary … from full scale planning and orchestrated vicious attack to a period of a few minutes or so after a perceived slight”.[6] Any premeditation in this case falls at the latter end of the spectrum but Judge Zohrab was careful to note only that Mr Lewis went and got the knife. There is nothing to suggest that this factor was given any great weight in the Judge’s analysis.
[6]R v Taueki, above n 4, at [30].
However, even where any question of premeditation is put to one side, we consider the starting point was within range given the other aggravating factors present. When the wounding charge is considered in the round, this was a serious assault involving a weapon and it resulted in significant injuries. Further, some uplift was appropriate to reflect the fact the offending occurred whilst Mr Lewis was on bail. We see no merit in this ground of appeal.
Mental health as a mitigating factor and the MPI
The Judge had before him at sentencing two reports from a forensic psychiatrist, Dr Peter Miller, prepared under s 38(2)(b) of the Criminal Procedure (Mentally Impaired Persons) Act 2003. The first of these reports dealt with fitness to stand trial and insanity. The second report records it is a response to a request for a sentencing report. The reports explained that Mr Lewis has been diagnosed with bipolar disorder and set out his psychiatric history.
Relevantly, in the year leading up to the December 2013 assault on his partner, Dr Miller recorded that Mr Lewis was seen by mental health services on admission to hospital in May 2013. He was “considered on hospital assessment to be suffering from mania and psychoses”. The report noted Mr Lewis “had been under significant stressors in that his mother had died only two weeks earlier”.
Dr Miller explained Mr Lewis was treated for a week and then transferred to the Henry Bennett Centre in June 2013.[7] He was discharged four days later on mood-stabilising and anti-psychotic medication. It seems a planned follow up did not occur and Mr Lewis did not continue with medication.
[7]The Henry Rongomau Bennett Centre provides inpatient care for people suffering a mental illness.
It appears family members had some concerns about the state of his mental health in October 2013. There was some telephone contact between Mr Lewis and his local mental health services as a result but no assessment or treatment at that stage.
After Mr Lewis had been bailed following the assault on his partner he was referred to his local mental health services on 6 December 2013 but was not seen. Dr Miller referred to Mr Lewis having “developed a morbid state of mind” in the days preceding the wounding incident.
Finally, Dr Miller also noted Mr Lewis was first diagnosed with a cannabis addiction at age 13.
Judge Zohrab correctly noted that Dr Miller had not been able to conclude that the mental health issues contributed “in an important way” to Mr Lewis’ offending. On that basis, the Judge did not consider there could be any further discount for that factor.[8] We should record that counsel appearing for Mr Lewis at sentencing (not his counsel on this appeal) acknowledged Mr Lewis’ mental health was not directly mitigating but instead sought some recognition for Mr Lewis’ poor psychological and emotional state.
[8]Sentencing remarks, above n 1, at [38].
Dr Miller said this was not a case where delusions or other elements of psychosis were in play “which would be required were Mr Lewis to not know what he was doing, or that what he did was morally wrong”. He also observed that Mr Lewis’ use of alcohol and synthetic cannabis contributed to his mental state disorder. With these caveats, Dr Miller acknowledged a link between Mr Lewis’ abnormal mental state and the wounding offence.
It is relevant also to note the further informative detail about Mr Lewis’ mental state in the weeks immediately prior to the wounding incident. Dr Miller said:
Mr Lewis was first seen in the Christchurch prison on 10th February by psychiatrist Dr Monasterio. Mr Lewis informed Dr Monasterio that in the weeks leading up to the incident on the boat, he had changeable moods, mainly low; he felt other crew members were talking about him and laughing at him, and he felt an increasing sense of tension. He had begun to entertain violent thoughts of killing himself or someone. He was admitted to the Te Whare Manaaki forensic secure unit for further assessment.
In hospital and with anti-psychotic medication, Mr Lewis improved within a few days in mood in particular and his improved mental state has persisted. He has been entirely co-operative with treatment and has not posed any concerns to nursing or medical staff.
That there is some link between Mr Lewis’ mental illness and the wounding offence is also consistent with the inexplicable nature of that offending. The victim said that the offending was “out of the blue like [Mr Lewis] has lost it before but not this level of violence”. This was not a planned event and some loss of rational control is evident.
Once a link is accepted, we consider it was appropriate to give some discount for Mr Lewis’ mental health issues. Although the link with the wounding offence in a causative sense was limited, his mental state was such as to moderate his culpability.[9] A reduction in sentence of twelve months is appropriate.
[9]E (CA689/10) v R [2010] NZCA 13, (2011) 25 CRNZ 411 at [68].
Once it is accepted there is a link between Mr Lewis’ mental health and his offending, that affects all of the factors identified as warranting an MPI. In the circumstances, it was not appropriate to impose an MPI.
Although not a focus of the appeal, some reliance was placed on a letter of remorse written by Mr Lewis for the sentencing Judge. Judge Zohrab did not consider there was genuine remorse and we see no basis for taking a different view from that of the Judge on this aspect.
Result
The notice of appeal was filed out of time. The delay is not minor but is explained and the Crown takes no objection. In these circumstances, the application for an extension of time to appeal is granted.
The appeal is allowed. The sentence of six years and nine months imprisonment with a minimum period of imprisonment of three years and two months 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.
Solicitors:
Public Defence Service, Wellington for Appellant
Crown Law Office, Wellington for Respondent
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