Luke v The King

[2025] NZHC 1188

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2025-443-000017

[2025] NZHC 1188

BETWEEN

VERNON RAY LUKE

Appellant

AND

THE KING

Respondent

Hearing:	15 May 2025
Counsel:	J C Hannam for Appellant J E Bourke for Respondent
Judgment:	16 May 2025

JUDGMENT OF LA HOOD J

(Appeal against sentence)

[1]    Mr Luke was sentenced to three years’ imprisonment on charges of knowingly possessing an objectionable publication,1 male assaults female,2 and doing an indecent act on a child under 12.3 He appeals his sentence on the grounds that the sentence for the indecent act charge recorded in the certified copy of the permanent court record does not reflect the sentencing remarks. He is concerned this may have implications for future consideration of his criminal history, for example, when applying for parole.

The offending

[2]    The possessing objectionable publications offending relates to 1,019 files of Child Exploitation Material that were located on Mr Luke’s mobile phone following

1      Films, Videos, and Publications Classification Act 1993, s 131A(1); maximum penalty 10 years’ imprisonment or $50,000 fine.

2      Crimes Act 1961, s 194(b); maximum penalty two years’ imprisonment.

3      Section 132(3); maximum penalty 10 years’ imprisonment.

LUKE v R [2025] NZHC 1188 [16 May 2025]

the execution of a search warrant on 20 April 2023. These included category A, B and C material.

[3]    One of the videos depicted an adult male hand touching a female child in her vaginal area while she is asleep. The hand slowly moves the child’s pyjamas and reusable cloth nappy aside, exposing her genitals, and touches the child’s genitals and rubs the child’s vagina. The video is 58 seconds long. It was established that the adult male hand was the defendant’s, and the victim was known to him.

[4]The male assaults female offending was against a former partner.

Court record

[5]    Mr Hannam arranged for a certified copy of the permanent court record to be provided after Mr Luke raised with Mr Hannam that the sentence recorded on the indecent act charge did not match his recollection of the Judge’s sentencing remarks (presumably due to documents Mr Luke had received in prison recording the sentence).

[6]    The certified copy of the permanent court record provides that Mr Luke received a sentence of three years’ imprisonment on the charge of doing an indecent act on a child. It also records that he received a sentence of three year’s imprisonment for the possessing objectionable material charge and a sentence of nine months’ imprisonment for the assault.

Sentencing decision

[7]    The Judge adopted a starting point of three and a half years’ imprisonment for the charge of possessing objectionable material.4 He then turned to consider the indecent act offending. The Judge said he agreed with the Crown submission that “two years’ imprisonment cumulative on the three and a half years is appropriate.”5

4      R v Luke [2024] NZDC 4373 at [41].

5 At [42].

[8]    The Judge added a further nine months for the assault offending, and uplifted the sentence by three months to account for Mr Luke’s previous family violence convictions and the fact that he was serving a sentence of intensive supervision.6 This resulted in a starting point of six and a half years’ imprisonment, reduced to four and a half years for totality.7

[9]    The Judge allowed a reduction of 25 per cent for Mr Luke’s guilty plea, and a further reduction for Mr Luke’s methamphetamine addiction, leading to an end sentence of three years’ imprisonment.8

[10]   In conclusion, the Judge said the final (meaning  overall)  sentence  was  three years’ imprisonment,9 but did not further state the individual sentences of imprisonment imposed on each charge. In these circumstances, it is not clear why the permanent court record has a sentence of three years’ imprisonment recorded on the indecent act charge.10

Approach on appeal

[11]   Mr Luke’s right of first appeal against sentence is under s 244 of the Criminal Procedure Act 2011. In order to succeed, he must show that there was an error in the sentence reached and that a different sentence should have been imposed.11 In Tutakangahau v R, the Court of Appeal held that an appellate court will not usually intervene where the sentence is within the range available to the sentencing Judge but said:12

However, we need to acknowledge that there may be cases, although not common, where what has gone wrong is such as to require correction albeit the sentence imposed is within range. A straightforward example is where an explicit arithmetical error has occurred and would have been corrected if it had been drawn to the attention of the sentencing judge at the time. In those circumstances, we expect the appeal court will impose the corrected sentence, giving effect to the sentencing judge's intentions.

6 At [44].

7 At [45].

8      At [46]–[48].

9 At [48].

10     For example, the Judge’s handwritten notes on the record of appearances attached to the Crown Charge Notice simply records the overall end sentence of three years’ imprisonment.

11     Criminal Procedure Act 2011, s 250(2).

12     Tutakangahau v R [2014] NZCA 279 at [36].

[12]   Section 85(1) of the Sentencing Act 2002 provides that “… if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence”.

Decision

[13]   It seems clear that the Judge considered a sentence of no more than two years’ imprisonment was appropriate for the indecent act charge. The two-year starting point was applied on a cumulative basis to the lead charge (as was the prison sentence on the assault charge) and the overall starting point was then reduced for totality. This indicates the Judge’s view was that two years’ imprisonment appropriately reflected the seriousness of that offending. Had the Judge taken the approach of uplifting the lead charge for the other offending in a way that accounted for totality, a two-year uplift may not have reflected the full seriousness of the offending. But that is not what he did.

[14]   This is confirmed by reference to the Crown submissions in the District Court, with which the Judge said he agreed. The Crown submitted that the three instances of offending were distinct and different, occurring at separate times, meaning cumulative sentences were appropriate.

[15]   The Crown referred to R v Ranga, where the defendant received a starting point of 18 months’ imprisonment for doing an indecent act on a child under 12.13 The defendant there did not face other charges. The Crown submitted that the present offending was more serious given the greater age disparity, similar level of vulnerability and higher level of premeditation, and suggested that an appropriate starting point would be in the vicinity of two years’ imprisonment. As noted, this was accepted   by   the   Judge.   Defence   counsel   submitted   a   starting   point   of   12 months’ imprisonment would have been appropriate for this offending.

[16]   If the Judge had turned his mind to this issue at the time of sentencing, the individual sentence imposed on the indecent act charge may have been  less than  two years given the reductions made to the overall cumulative starting point.

13     R v Ranga [2014] NZHC 2583.

However, counsel for Mr Luke responsibly did not seek a further reduction and was content to rely on the fact that the Judge could not have intended to impose a sentence of more than two years.

[17]   I therefore consider this is one of those rare occasions where the Court should correct the sentence to ensure the permanent court record reflects the sentence the Judge intended to impose. Whether or not this will have any impact on future consideration of Mr Luke’s criminal history is not a matter before me. Moreover, my decision should not be taken as general endorsement of an end sentence of two years’ imprisonment for indecent act offending of this nature (a matter on which I did not hear argument). I am simply correcting the record to reflect the sentencing remarks.

[18]   Accordingly, the sentence of three years’ imprisonment on the indecent act charge is quashed and substituted with a sentence of two years’ imprisonment. The sentence is otherwise unchanged.

La Hood J

Solicitors:

Hannam & Co Lawyers, New Plymouth for Appellant Crown Solicitor, New Plymouth for Respondent