R v Luce

Case [2007] NZCA 476 1 November 2007

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PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA202/07 [2007] NZCA 476

THE QUEEN

v

ALLEN JOHN LUCE

Hearing: 11 October 2007
Court: Hammond, Baragwanath and Keane JJ Counsel: C P Brosnahan for Appellant
S B Edwards for Crown

Judgment: 1 November 2007 at 11 am

JUDGMENT OF THE COURT

A Appeal against sentence allowed.

BThe sentences imposed in the District Court are set aside. On the sexual violation count we impose a sentence of five years imprisonment. On the count of indecent assault we impose 18 months imprisonment, concurrent.

C The minimum term of imprisonment is quashed.

R V LUCE CA CA202/07 1 November 2007

REASONS OF THE COURT

(Given by Keane J)

[1] On 1 May 2007 Allen Luce, having been found guilty at trial of two sexual offences against young girls, was sentenced by the trial Judge, Judge Dawson, to seven years imprisonment.

[2] For sexually violating X, then aged three, on 9 November 2003, by penetrating her vagina with his finger, he was sentenced to five and a half years imprisonment. For indecently assaulting Y on 3 January 2004 by touching her vagina with his fingers over her shorts, he was sentenced cumulatively to one and a half years imprisonment. The Judge also imposed a minimum non-parole period of four years.

[3] On this appeal Mr Luce contends that the sentence the Judge imposed was manifestly excessive. For the sexual violation, he contends, a four year sentence at most was warranted. For the indecent assault the sentence of one and a half years imposed, he contends, was also excessive; and more so because it was imposed cumulatively. That offended the principle of totality.

[4] Secondly, Mr Luce contends, the Judge was wrong to fail to take into account his extreme state of ill health. He has since this offending suffered recurrent renal failure and now must undergo frequent dialysis. His life expectancy is very short. He has ceased to be capable of offending. A deterrent sentence is not called for. Some level of mercy is.

[5] Finally, Mr Luce contends, and the Crown accepts, the Judge could not impose on him a four year non-parole period. The period imposed was as a proportion of the total sentence. The indecent assault sentence did not qualify to be taken into account. It was less than two years. That at least needs to be corrected.

[6] On 9 November 2003, in the early afternoon, X, aged three, was with her family at a go-kart venue. The family were in the grandstand. X was playing in the adjacent park watched, as it seems intermittently, by her sister. Mr Luce approached X. He took her to the mens’ toilets, took down her pants, and inserted his fingers in her vagina. Then he redressed her. She went immediately to her mother. The young boy had seen her leaving the toilets. He identified Mr Luce, who had…

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 Luce

Details

AGLC: R v Luce [2007] NZCA 476
Case: [2007] NZCA 476
Decision Date: 1 November 2007

CaseChat Overview and Summary

In the case of R v Luce, the Court of Appeal of New Zealand reviewed the sentence imposed on Allen Luce, who had been found guilty of two sexual offences against young girls. The trial judge had sentenced Luce to seven years imprisonment, consisting of five and a half years for sexually violating a three-year-old girl and one and a half years for indecently assaulting a nine-year-old girl, with a non-parole period of four years. Luce appealed against his sentence, arguing that it was manifestly excessive, that the trial judge failed to consider his poor health and short life expectancy, and that the non-parole period was incorrectly calculated.

The Court of Appeal considered the arguments presented by both parties. They found that the trial judge's decision to impose a five and a half-year sentence for the sexual violation and a one and a half-year sentence for the indecent assault was within the appropriate range. However, the Court found that the trial judge should have considered Luce's poor health and short life expectancy when determining the appropriate sentence. Given Luce's extremely poor health and short life expectancy, the Court of Appeal determined that the sentence should be reduced by two years, resulting in an effective sentence of five years imprisonment.

Furthermore, the Court of Appeal noted that the non-parole period imposed by the trial judge was incorrectly calculated, as it did not take into account the sentence for the indecent assault offence. The Court quashed the minimum term and imposed no further term in its place.

The Court of Appeal allowed Luce's appeal against sentence, resulting in a reduced sentence of five years imprisonment, with the indecent assault sentence running concurrently. The minimum term was quashed and no further term imposed.

Orders