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…

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 Luke v The King

Details

AGLC: Luke v The King [2025] NZHC 1188
Case: [2025] NZHC 1188
Decision Date: 16 May 2025

CaseChat Overview and Summary

In the case of Vernon Ray Luke v The King, the appellant, Vernon Ray Luke, contested his sentence on the grounds that the sentence recorded for the indecent act charge did not align with the sentencing remarks made during the trial. The case was heard in the High Court of New Zealand, New Plymouth Registry, with J C Hannam representing the appellant and J E Bourke representing the respondent. The court's task was to determine whether there was an error in the sentencing and if a different sentence should have been imposed. Luke argued that the recorded sentence of three years for the indecent act charge did not match the two-year sentence he believed the judge intended, which could affect his future parole applications. The court acknowledged that while the final sentence was within the range available to the sentencing judge, there was an arithmetical discrepancy that required correction. After reviewing the sentencing remarks and the Crown's submissions, the court found that the judge intended a two-year sentence for the indecent act charge. Consequently, the court quashed the sentence of three years for the indecent act charge and substituted it with a sentence of two years' imprisonment, while maintaining the overall sentence of three years' imprisonment.

The legal issues revolved around whether the discrepancy in the recorded sentence constituted an error warranting correction, and whether the court should intervene despite the overall sentence being within the permissible range. The court referred to the precedent set in Tutakangahau v R, which highlighted that while appellate courts typically do not intervene if the sentence is within range, there are exceptions where corrections are necessary. The court also considered the Sentencing Act 2002, which mandates that individual sentences should reflect the seriousness of each offence. Given the evidence that the judge intended a two-year sentence for the indecent act charge, the court determined it was appropriate to correct the permanent court record to accurately reflect the intended sentence. This decision was made to ensure the record accurately represented the sentencing intentions and did not prejudice Luke's future parole considerations.

Orders