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R v Lawes

R v Lawes

Case [2018] NZHC 2448 18 September 2018

Unconscionable Conduct

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-044-003841

[2018] NZHC 2448

THE QUEEN

v

MARTIN HENRY LAWES

Hearing: 18 September 2018

Appearances:

R McCoubrey for the Crown

D P H Jones QC for the Defendant

Sentence:

18 September 2018

SENTENCING NOTES OF WYLIE J

Solicitors/counsel:
Crown Solicitor at Auckland D P Jones QC, Auckland

R v LAWES [2018] NZHC 2448 [18 September 2018]

Introduction

[1] Mr Lawes, you appear for sentence today having entered guilty pleas to five charges. The details are as follows:

(a)three charges of entering into a dealing involving a person under 18 for the purposes of sexual exploitation. One charge covers the period January to December 2015, another the period 16 June to 10 July 2016, and the third 1 November 2016 to 21 July 2017. Entering into a dealing involving a person under 18 for the purposes of sexual exploitation is an offence pursuant to s 98AA(1)(a)(i) of the Crimes Act 1961. Each offence is punishable by a maximum penalty of 14 years’ imprisonment;

(b)a representative charge of knowingly being concerned in the importation of objectionable publications between March 2013 and July 2017. This is an offence pursuant to s 209(1A)(a) of the Customs and Excise Act 1996. It is subject to a maximum penalty of 10 years’ imprisonment;1 and

(c)one charge of being in possession of objectionable publications on 28 September 2017. This is an offence pursuant to s 131A(1) of the Films, Videos, and Publications Classification Act 1993. Until 7 May 2015, the maximum penalty was five years’ imprisonment. The penalty has since been increased by Parliament to a term of imprisonment not exceeding 10 years, or a fine not exceeding $50,000.2

[2] You entered your pleas on 3 August 2018 before Lang J after I had given you a sentence indication on 27 July 2018.3

1      Customs and Excise Act 1996, s 209(5)(a).
2      Films, Videos, and Publications Classification (Objectionable Publications) Amendment Act 2015, s 6.
3      R v Lawes [2018] NZHC 1891.

Factual background

[3] The offending was committed by you through the use of computers at your home in suburban Auckland. You live streamed children being sexually exploited and abused; you downloaded objectionable material via the internet and you kept some of the material on your home computers.

[4] According to the summary of facts, the live streaming of child sexual abuse via the internet involves a perpetrator who can direct the abuse of children through video sharing platforms, and watch the abuse he or she has directed being carried out. The abuse can be tailored to the requests of the perpetrator. It can also be recorded and further disseminated through what are known as dark net sites and peer to peer internet networks. Traditionally, the victims of live stream child sexual abuse have been children in South East Asia, and in particular, in the Philippines. More recent reports suggest that the live streaming of the sexual abuse…

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 R v Lawes

Details

AGLC: R v Lawes [2018] NZHC 2448
Case: [2018] NZHC 2448
Decision Date: 18 September 2018

CaseChat Overview and Summary

The case of R v Lawes involved a defendant who had entered guilty pleas to multiple charges, including dealing with persons under 18 for the purposes of sexual exploitation, knowingly being concerned in the importation of objectionable publications, and being in possession of objectionable publications. The court had to decide on the appropriate starting point and sentence for these charges, considering various aggravating and mitigating factors. The defendant's offending was characterized by its premeditated nature, the young age of the victims, and the extent of the communications and money transfers involved. The court found that the defendant's actions caused considerable harm to the child victims and that there were no mitigating factors that could significantly reduce the severity of the sentence. The court also considered the defendant's cooperation with the police and his recent charitable donations, but did not find these factors sufficient to warrant a significant reduction in sentence. The final sentence imposed was four years and six months’ imprisonment for the charges of dealing with persons under 18 for the purposes of sexual exploitation, and concurrent sentences of two years’ imprisonment for the importation and possession of objectionable publications. The defendant was also required to be registered on the Child Sex Offender Register.

Orders