R v Lewis - [2014] NZHC 2761

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-055-2751 [2014] NZHC 2761

THE QUEEN

v

JUNIOR LEWIS

Charges:
Plea:

Sexual conduct with a child under 12 (4)

Not Guilty

Counsel:

AM McClintock and MJ Hammer for Crown
PE Dacre QC for Prisoner

Sentenced:

6 November 2014

SENTENCING NOTES OF BREWER J

Solicitors/Counsel: Meredith Connell (Auckland) for Crown
Paul Dacre QC (Auckland) for Prisoner

R v LEWIS [2014] NZHC 2761 [6 November 2014]

Introduction

[1] Mr Lewis, on 24 September 2014 you were convicted by me at a Judge alone trial of four charges of doing an indecent act on a child under 12. The maximum sentence for each charge is 10 years imprisonment. I now have to decide what the law requires your sentence to be.

Facts

[2] Your victim was P, a little girl only five years old. She was home in bed, sick with the chickenpox when you offended against her.

[3] P lived in a four bedroom home which was occupied by nine people, including yourself. She shared a room and a bed with her grandmother and guardian. On this day, the grandmother had a doctor’s appointment at 10:45 am. You had been staying at the house, off and on, for the previous couple of months.

[4] On the morning of the offending, you say you went to a bottle store and, when it opened at 9:00 am, bought alcohol. You returned to the house having, you say, consumed two cans of “Codys”. You spoke to the grandmother and you knew that she was on her way to the doctor. After she left the house, you went into the bedroom that the grandmother shared with P. P was in the bed, sick. You got into bed with her. You started by touching her genitalia over her underwear. You had your penis outside your pants. It was erect. You grabbed P’s hand and placed it on your penis. Subsequently you had skin to skin contact with P by rubbing your penis on her genitalia and over her anal area. The evidence she gave is that you “humped” her.

[5] I did not find it proved beyond reasonable doubt that you actually penetrated P with your penis. If I had decided that, Mr Lewis, the law would have required me to impose on you now a far more severe sentence than you will be getting.

[6] There were others in the house and I do not think your offending lasted very long. There is no evidence you ejaculated. In any event, you had finished your offending and were dressed when P’s adult brother came in and challenged you by

asking if you had done anything to his sister. You replied “no” and at once left the

house, never to return.

Personal circumstances

[7] You are 25 years old. You were just about to turn 24 at the…

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 Lewis

Details

AGLC: R v Lewis [2014] NZHC 2761
Case: [2014] NZHC 2761
Decision Date: 6 November 2014

CaseChat Overview and Summary

In the case of R v Lewis, Junior Lewis was convicted of four charges of indecent acts on a child under 12 years old. The victim was a five-year-old girl, referred to as P, who was home alone and sick with chickenpox when the offences occurred. The court needed to decide on an appropriate sentence for Mr. Lewis, taking into account the aggravating and mitigating factors of the case. The key legal issues were the starting point of the sentence and the balance between denunciation, deterrence, and rehabilitation purposes of sentencing.

The court determined a starting point of three years' imprisonment, considering the victim's vulnerability and the nature of the offences committed against her. The court found that the offences were serious and multiple, involving skin-to-skin contact. However, the court also took into account that the offences were opportunistic, not premeditated, and that Mr. Lewis had a comparatively low conviction history. The court noted that Mr. Lewis had no current partner, no children, and had been volunteering at a church. However, the court also noted that he continued to deny the offending and did not show remorse, which impacted the sentence.

Mr. Lewis was sentenced to three years' imprisonment for each of the four charges, to be served concurrently. The court also issued a formal warning under the three strikes system, stating that if Mr. Lewis were to commit another serious violent offence, he would be sentenced to a term without parole or early release. The court emphasised the importance of rehabilitation and reintegration into the community for Mr. Lewis, encouraging him to take part in any available courses and programmes.

Orders