R v Lowe Ca134/01

[2002] NZCA 364

IN THE COURT OF APPEAL OF NEW ZEALAND  CA134/01

THE QUEEN

V

ROY ERIC LOWE

Hearing:  20 February 2002

Coram:  Anderson J
  Williams J
  Baragwanath J

Appearances:              J Mather for appellant

N M Crutchley for Crown

Judgment:                  26 February 2002

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JUDGMENT OF THE COURT DELIVERED BY BARAGWANATH J 

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1. In 1999 the appellant was charged with 15 counts of sexual offending dating from the late 1970s.  On the Friday before trial, Mr Lowe pleaded guilty to three counts of indecent assault on a boy aged 12 to 16, one count of inducing an indecent act with a boy aged 12 to 16, and one count of attempted anal intercourse.  Such plea had been foreshadowed at a previous callover.  The remaining charges were not pursued.  The appellant was sentenced to four and a half years imprisonment on each charge.  He appeals against that sentence on the grounds that it was manifestly excessive.

The facts

1. The offending occurred between 1 January 1976 and December 1978.  During that time, Mr Lowe lived in Auckland and operated a printing business, which led him to deliver magazines across Auckland and the North Island.  In the course of his business, he regularly visited two dairies in his Auckland suburb.

2. The family of three complainants consisted of the mother, three sons and a daughter, who lived at and operated a dairy. The children’s father had left and the three boys were aged between 8 and 15 years old.  Mr Lowe took the  family out to dinner and they held him in high regard.  He often asked the children to assist him with deliveries of his magazine within the Auckland area and occasionally the children would accompany him on trips out of town.  Mr Lowe also befriended the son of the owner of the other dairy in the suburb.  We will refer to that boy as C.  Mr Lowe got to know C very well; C was impressed that an adult paid so much attention to him.

3. In the course of his ‘friendship’ with these four boys, Mr Lowe was to commit sexual offences against all of them.  The details can be summarised.

4. In 1977 the eldest of the brothers ran away from home.  He went to see Mr Lowe, who invited him to stay the night.  Mr Lowe offered the boy alcohol and marijuana, before showing him where he could sleep.  A short while after the boy had climbed into bed the appellant climbed into the same bed and fondled the boy’s penis.

5. The second brother often visited the appellant at his home address.  On one occasion the boy fell asleep on Mr Lowe’s couch.  Mr Lowe woke him up and began fondling his penis – the boy was upset by this and pushed Mr Lowe away.  The youngest brother was picked up by Mr Lowe, nominally to obtain some school stationery for the boy.  While driving away from the boy’s home, Mr Lowe took his penis out of his pants and made the boy place his hand on the penis.  Mr Lowe made the boy repeat the act on the return trip. 

6. Mr Lowe invited C to travel to Whangarei with him. C went to the appellant’s home to stay the night before they departed for Whangarei.  Shortly after arriving at his home, Mr Lowe showed C a number of pornographic pictures.  Later, C offered to sleep on the couch but the appellant insisted they sleep in the appellant’s bed together.  When they were in bed, Mr Lowe began fondling C’s penis.  C initially froze; he then tried to move out of the bed.  Mr Lowe then put his head under the blankets and began to move down C’s body.  C began crying and tried to push the appellant away.  By this time C’s underpants had been pulled down.  The appellant then attempted to penetrate C’s anus with his penis, but failed to do so.  Eventually he stopped trying and fell asleep.  C continued to cry throughout the entire episode.

7. All three victims were traumatised by the offending against them. The offending has deeply and negatively affected them all in subsequent years.  This was exacerbated by the fact that they thought they alone were offended against, when in fact they had all been victimised.  The offending had a detrimental effect on the victims’ family lives and on their ability to form relationships in the future.

8. The police were notified about the offending in June 1999.  Although Mr Lowe initially stated that he could not remember any of the boys or their families, he pleaded guilty to the five offences charged.

9. The appellant is now 65 years old.  He has a number of other convictions, none of which are for sexual crimes.  The pre-sentence report assessed his level of motivation and ability to change as low.  His health is apparently not good. 

The Judge’s decision

1. In the High Court the sentencing Judge noted the aggravating features.  The victims were close friends of the appellant and they regarded him as something of a mentor.  The manner in which the appellant had wormed his way into the boys’ families before abusing them was particularly reprehensible.  The age of the victims was also an aggravating factor as was the significant psychological impact the offending had on them. 

2. The Judge noted that the maximum penalty in respect of these offences was 10 years imprisonment.  He adopted a term of 5-years imprisonment before mitigation and allowed a six-month discount for late guilty plea on the grounds that the appellant’s plea was entered so late in the proceedings that it could not entitle him to the full benefit of an early guilty plea. 

The arguments

1. Counsel for the appellant correctly observed, and the Crown conceded, that the original indictment was flawed.  The indictment alleged breaches of the wrong sections of the Crimes Act.  This confusion arose out of the complications that followed the Homosexual Law Reform Act 1986. Conduct that predates that Act, as this offending clearly did, must be prosecuted as though the original sections, which the Act repeals, are still in force.  The various defences created by the Act are not relevant for present purposes.

2. The indictment alleged breaches of ss 140A and 142 when in fact it should have referred to ss 140(1)(a)(c) and 142(b).  The maximum penalty under s 140(1)(a), indecent assault, and s 140(1)(c), inducing an indecent act, is 10 years imprisonment.  The maximum penalty under s 142(b), attempted sodomy of a male under 16, is 7 years imprisonment. 

3. Mr Lowe’s counsel contended that the confusion surrounding the indictment adversely influenced the sentencing process.  It was suggested that the Judge’s comment that

   You have heard me mention to counsel that there is a maximum penalty in the case of these offences of I think 10 years imprisonment

indicated that the Judge mistakenly believed that the charge of attempted anal penetration (or attempted sodomy, as it should have been) carried a maximum sentence of 10 years imprisonment whereas in fact the maximum was only 7 years.  Counsel argued that this meant there was a risk that the Judge had elevated the remaining counts in their seriousness. 

1. The Crown asked the Court to exercise its power under s 335 Crimes Act 1961 to amend an indictment in the case of error.  The Court was directed to R v Darke (CA255/88, 20 August 1989) where a similar problem was dealt with by exercising an analogous power under the Summary Proceedings Act 1957.  There can be no suggestion that the error in the indictment prejudiced the appellant: s 335(2) and (5).  It was clear to everyone, including the sentencing Judge, that the indecency counts were incorrect and that the maximum penalties were higher than in the indictment.  We therefore make an order amending the indictment to reflect the true position.

2. Mr Lowe’s counsel made three further submissions in support of his contention that the sentence was manifestly excessive.  First, he stated that Mr Lowe’s delay in pleading guilty was caused by slow negotiations between defence and Crown counsel.  A number of pre trial applications, which were justifiable given the age of the alleged offending, also delayed the guilty plea. As the delay was explicable counsel contended it should have resulted in a far greater discount than in fact occurred. 

3. Secondly, his counsel challenged the pre-sentence report’s conclusion that Mr Lowe has a low ability to change.  Counsel argued that the conclusion appeared to be based on an assumed sexual interest in children, yet there was no evidence of such an interest: no evidence that is beyond the present convictions for sexual abuse of children.  The various health problems of the appellant were also highlighted, and it appears the appellant has suffered a stroke between filing his appeal and the hearing of the appeal today. 

4. Finally, counsel argued that the appropriate range for sentencing was lower than the sentencing Judge believed.  Counsel pointed to the comments of the Court of Appeal in R v C (CA43/98, 28 May 1998) in respect of sexual violation of children by digital penetration, for which there is a 20 year maximum sentence, to the effect that:

   …the ordinary starting point in cases of sexual offending against children is imprisonment, especially where there is a breach of trust involved as here; and further that for sexual violation by digital penetration the normal sentencing range is 2-4 years imprisonment, and so the issue of suspension will not normally arise.

5. Counsel contended that the sentencing Judge’s 5 year gross term before mitigation was difficult to reconcile with those comments.  He also argued that the reduction in penalty between the old s 140 and new s 140A (from 10 years to 7 years imprisonment) was a statutory reflection of a readjustment of attitudes, which ought to affect sentencing.  Counsel submitted that these factors, in combination with the discount for the guilty pleas, meant the sentencing range should have been between two and three and a half years. 

6. Crown Counsel argued that the sentence was within the sentencing Judge’s discretion.  She referred the Court to several authorities including A v R (CA289/98, 4 November 1998), R v Accused [1993] 2 NZLR 286 and W v R (CA87/93, 4 June 1993), and contended that they demonstrated that heavy sentences are handed down for indecent assaults against male children where there are significant aggravating features. 

Discussion

Appellant’s first submission: delay in plea

1. The Judge correctly observed that an offender who pleads guilty at a very late stage should not receive the same sentencing discount as one who enters a guilty plea at the earliest stage. Mr Lowe was of course entitled to bring various pre-trial applications and to negotiate for an arrangement with the Crown.  But however the history of the proceedings is construed, the fact remains that Mr Lowe did not plead guilty until the Friday before his trial was to begin.  This entitles him to a discount of some kind but not to a substantial reduction.  We consider that the six month discount was open to the Judge.

Second submission: “low ability to change”

1. We recognise the lengthy period between the offending and the trial and the absence of evidence of misconduct in the interim. But there is no suggestion in the Judge’s sentencing notes that he was influenced by the prospect of further offending.

Third submission: the appropriate range

1. As to the challenge by counsel for Mr Lowe to the sentencing Judge’s gross term of five years, we accept that the cases cited by the Crown,  in which sentences of similar or greater length were handed down, indicate that a term of five years is at the high end in respect of this type of offending.  In A v R a six year sentence was upheld for twenty offences, eighteen of which were indecent, involving six complainants from two separate families.  The offences occurred over seventeen years, and a number of the convictions were representative.  In R v H (CA 496/95 22 July 1996) the Court said, at p 5, “ordinarily it would be difficult to justify a four year term for sexual offending falling short of any form of penetration.” 

2. In W v R  the Court of Appeal upheld a 6-year sentence for four charges of indecent assault and a sexual violation.  The Crown relied heavily on the analogy between R v W and the present case.  But while the sexual violation in that case received six years, the indecent assaults were punished by sentences of only three and three and a half years. 

3. In the present case the aggravating factors are significant.  While long term damage to victims of such offending is common, the present Victim Impact statements make particularly disturbing reading.  The complainants’ lives have been blighted by the offending.  It is only with the present charges, conviction and sentence that some closure has been achieved.  Additional aggravating features are the number and age of the victims and the breach of trust involved in the offending;  even though this was on a less serious scale than in the case of the some of the precedents cited.  We are of the view that the sentencing Judge’s gross term of five years before deductions was open to him.

4. Overall, while the net sentence of 4½ years was stern, it is within a proper range.

Result

1. We make an order amending the original indictment. The appeal is dismissed.

Solicitors

Crown Law Office, PO Box 5012 Wellington