R v Lawson - [2013] NZHC 1150

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2011-091-3498 [2013] NZHC 1150

THE QUEEN

v

DAVID LAWSON

Hearing: 17 May 2013

Counsel: G Burston for the Crown
T Ellis and M Bott for David Lawson

Sentence: 17 May 2013

SENTENCING REMARKS OF MALLON J

Introduction

[1] Mr Lawson you don’t need to stand at the moment. When a sentence of preventive detention is sought there is a lot of material to go through and which needs to be explained.

[2] Mr Lawson you appear for sentencing today having been tried before a jury and convicted on one charge of aggravated robbery1 and one charge of kidnapping.2
I know you maintain your innocence and I have read your letter to me about the trial. I know you understand also that I am sentencing you on the basis of the jury
verdicts and the convictions entered in accordance with them.

1 Crimes Act 1961, s 235(c).
2 Section 209(b).

R V LAWSON HC WN CRI 2011-091-3498 [17 May 2013]

[3] The Crown seeks a sentence of preventive detention. There are some preliminary matters related to that, which you have heard counsel discuss this morning and which I wish to discuss first, before turning to the offending and the sentence that you are to receive.

[4] Two reports have been obtained as are required if a sentence of preventive detention is to be imposed. The report writers (Ms Waddington, a psychologist, and Dr Barry-Walsh, a psychiatrist) were required for cross-examination and that took place on Monday, 13 May 2013. At the conclusion of that your counsel provided submissions advancing the position that Ms Waddington’s report should not be accepted. This was on the basis that:

(a) Firstly, it is systematically inappropriate to appoint any psychologist from the Department of Corrections;

(b) Secondly, Ms Waddington’s behaviour in approaching the Crown for

advice disqualifies her or the Court from acting on her report; and

(c) Thirdly, Ms Waddington is insufficiently experienced.

[5] I do not accept the second or third points. Ms Waddington’s report is admissible and criticisms that are made potentially could go to weight. But Ms Waddington explained the limited nature of her inquiry of the Crown and she also explained her experience at the hearing on Monday. I am satisfied she has not aligned herself with the Crown and could not reasonably be viewed as having done so by her approach to the Crown. That in turn has not impacted upon the independence of the Court. I am also satisfied as to her experience. There was criticism of the information provided in her report. Important information said to be missing was however provided during the cross-examination hearing and subsequently.

[6] As to the systemic point, having reviewed the authorities referred to by your counsel, Mr Ellis,3 and others as well, 4 I have no concerns about receiving a report, as one of the many pieces of information before me, from a Corrections-employed psychologist.

[7] Yesterday I received further submissions about…

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 Lawson

Details

AGLC: R v Lawson [2013] NZHC 1150
Case: [2013] NZHC 1150
Decision Date: 17 May 2013

CaseChat Overview and Summary

The case of R v Lawson involved sentencing remarks delivered by Mallon J. The defendant, David Lawson, was convicted of aggravated robbery and kidnapping. The Crown sought a sentence of preventive detention. The court reviewed two reports from a psychologist and a psychiatrist, which were deemed admissible despite some criticisms. The court examined the circumstances of the offending, the victim impact, and the defendant's background, including his extensive criminal history. The court considered a finite sentence and ultimately decided on a sentence of eight years' imprisonment with a minimum period of imprisonment of four years and nine months, instead of imposing preventive detention. The court took into account the defendant's risk of reoffending, the harm caused to the community, and the principle that a lengthy determinate sentence is preferable if it provides adequate protection for society.

Orders