R v Lewis
[2014] NZHC 2761
•6 November 2014
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 PrisonerSentenced:
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 time of the offending.
[8] You have 12 previous convictions including convictions for theft, excess breath alcohol and unlawfully taking a motor vehicle. I do not consider any of these to be relevant to your current offending.
[9] I have read your pre-sentence report. You had a childhood and an upbringing which I see mirrored in so many young men who appear for sentencing. You lived with your family on the East Coast until you were 13. You then moved in with your birth parents for a short time, before leaving due to your father’s gang affiliations. You were then living with the lady who has come to Court to support you. She took you off the streets. You say you would like to return to live with her, and your lawyer has told me this morning that the lady still supports you and is willing to have you back in her home.
[10] You have no current partner and you have no children.
[11] You have been volunteering at a church as a sound technician for the last
12 months. Your last employment was several years ago when you were a sprinkler installer. Since that employment ended you have been receiving the job seeker’s benefit.
[12] Mr Dacre has told me this morning that you now suffer from a painful kidney complaint and you will require continuing medical support. Being in prison will make that more difficult, I accept.
[13] Because you continue to deny the offending, you are not eligible for any Departmental programmes. But it is recommended you attend an assessment with a specialist Maori cultural advisor due to your lack of social support in the community.
The writer of the report considers that such an assessment would be a vital way for you to extend your positive social networks and learn more about your cultural heritage.
[14] On the basis of your comparatively low conviction history, the report writer assesses you as having a low likelihood of re-offending. However, having regard to the nature of the offences which you continue to deny, you are assessed as posing a medium risk of harm to the community.
[15] The report writer recommends that you receive a sentence of imprisonment.
Purposes and principles of sentencing
[16] Mr Lewis, the Sentencing Act sets out the purposes and principles of sentencing which a Judge has to have regard to. I will not list them. With offending of this sort, acknowledging the harm you have caused and denouncing the offending are prime purposes. But I also have to take into account that you will be back in the community before too long and that rehabilitation and doing what is possible to reintegrate you with the community are purposes with which I need to balance the other purposes.
Starting point
[17] The Crown has recommended that you receive a starting point of imprisonment of three years and six months through to four years’ imprisonment. The Crown says the aggravating features of your offending are that P was only five at the time; she was vulnerable, not only by her age but because she was sick and home alone; and you abused her trust as a family member. Furthermore, you committed acts upon her which were violating and intrusive.
[18] Your counsel, Mr Dacre QC, says that that is too high and that a two year starting point for your offending is the appropriate starting point. Mr Dacre has referred me, in particular, to a case of the Court of Appeal called R v M which made
quite a survey of cases of indecent assault and pointed out that there were only rare exceptions which resulted in a starting point higher than two years.1
[19] I have considered all of the cases referred to by the lawyers. I will note them in the written record of this sentence but I will not dissect them at this time because I know that what matters to you is the end result.2
[20] Mr Lewis, the lawyers are correct when they say that there is no one case which provides a roadmap to what I have to do with you. I have to decide where your case fits in broadly with all the other cases. Of course, each case is unique and the same factor can be given different weight in different cases because of different circumstances relevant to that factor.
[21] Here, P was only five years old. That factor makes her naturally vulnerable. But she was more vulnerable than usual because she was sick and in bed. As an adult living in her home, you were in a position of trust, but not to the extent you would have been if you were legally responsible for her. Your offending did not last long and this was a single incident. It was opportunistic and not premeditated. But the indecent acts were serious and multiple. You exposed your penis. There was contact between your penis and P’s hand. You rubbed your penis against her genitals and her bottom. I find that that involved skin to skin contact since you removed P’s pants.
[22] Fortunately, the evidence I have is that P was able to complain almost immediately and was given significant support by the responsible adults around her. I do not have a victim impact statement for her because she is too young and the grandmother has not responded to a request to provide a victim impact statement. So I take it that although the incident caused her trauma and she has suffered a loss of
innocence which no child should suffer, I have no evidence of ongoing harm.
1 R v M [2009] NZCA 456.
2 R v Thorpe [2012] NZHC 229; R v Paki [2012] NZHC 3494; Walker v R [2010] NZCA 288;
R v Johnson [2010] NZCA 168; R v B (2002) 19 CRNZ 342 (CA); O v R [2010] NZCA 609.
[23] There is a real need to denounce your offending. But you are a young man, and you will be a young man when you rejoin the community, so I must balance the one factor with the other.
[24] I consider that P’s special vulnerability and the nature of your actions against her take your case beyond the two years period which you have heard about. I take a starting point of three years’ imprisonment.
[25] Mr Lewis, I cannot adjust that starting point, either up or down. There are no discounts to which you are entitled. You did not plead guilty and instead took the case to trial. You are not remorseful because you maintain the offending did not occur. While I do not consider your previous convictions should cause me to increase the starting point, they disqualify you from a discount for previous good character.
Sentence
[26] On each of the four charges, I sentence you to three years’ imprisonment, with each charge to be concurrent with the other (meaning that the total period of imprisonment will be three years).
[27] Mr Lewis, what worries me about your future is that you lack empathy and you have not taken responsibility for your offending. Empathy means being able to put yourself in another person’s position; to feel their hurt as if it were your own. To offend as you did against a sick five year old child shows that you disregarded her as a person. You continue to deny your offending.
[28] Mr Lewis, people who sexually offend against children and refuse to take responsibility for their offending often repeat their offending. They do it again. The law now has a system called the three strikes system. You have committed offences which fall within this system. You have committed your first strike, and I will shortly give you a formal warning that the law requires me to give you. But the heart of it is that the next time there will be no parole at all and the time after that it will be the maximum penalty. Mr Lewis, if this were your third strike instead of your first strike, I would be forced to sentence you to 10 years’ imprisonment and
you would serve the 10 years without parole. Think about that please and think about doing every course and rehabilitation programme that will be offered to you.
[29] This is the formal warning which I am now required to give. You will also be given a written notice outlining the consequences of further convictions and the notice lists the offences which are strike offences.
1. If you are convicted of any serious violent offences other than murder committed after this warning and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release.
2. If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event the Judge must sentence you to a minimum term of imprisonment.
[30] Please stand down.
Brewer J