Wells v The Queen
[2015] NZHC 2371
•29 September 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-230 [2015] NZHC 2371
BETWEEN LEWIS WELLS
Appellant
AND
THE CROWN Respondent
Hearing: 25 September 2015 Appearances:
E Leary for the Appellant
K Lummis for the RespondentJudgment:
29 September 2015
JUDGMENT OF DUFFY J
This judgment was delivered by me on 29 September 2015 at 4 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors:
Crown Solicitor, Auckland
Counsel:
Eb Leary, Auckland
WELLS v THE CROWN [2015] NZHC 2371 [29 September 2015]
[1] On 28 August 2015 I delivered an interim judgment in which I found that the sentence imposed on the appellant, Lewis Wells, was manifestly excessive. The sentence of imprisonment that I arrived at was less than two years’ imprisonment which made Mr Wells eligible for a sentence of home detention instead of imprisonment. As more information was required before I could consider the imposition of a sentence of home detention I gave Mr Wells and the respondent a further opportunity to be heard on that subject. I am now in a position where I can deliver a final judgment on the sentence I consider appropriate for Mr Wells. This
judgment should be read together with the interim judgment,1 which sets out the
circumstances surrounding the offending as well as relevant law on sentencing.
[2] Before the resumption of the appeal hearing there were two telephone conferences, the first of which resulted in me directing an updated pre-sentence report and for information to be obtained from the SAFE programme to see what it had to offer Mr Wells.
[3] I now have the benefit of an updated pre-sentence report available to me as well as copies of email communications that Mr Wells’ counsel has had with a co- ordinator of the SAFE programme. Before dealing with the substantial matter for determination today I comment on an issue that arose at the resumed hearing.
[4] The respondent provided a copy of a statement from the pre-sentence report writer that was not written on paper with an official heading, nor was it in the form of a pre-sentence report. It did bear the signature of the writer of the pre-sentence reports. The statement made adverse factual allegations about Mr Wells that were not mentioned in either the original pre-sentence report or the updated pre-sentence report even though the bases of the allegations would have been known to the writer by the time she wrote the updated pre-sentence report. These allegations appeared to be an after-thought that she wanted to bring to the Court’s attention. The statement was filed on the morning of the resumed hearing which meant that Mr Wells’ counsel had little time to deal with it. Nonetheless, he objected to adverse allegations being
placed before the Court in such a casual way.
1 Wells v R [2015] NZHC 2075.
[5] In my view Mr Wells was entitled to be heard in relation to the adverse allegations. He needed to be given the opportunity to respond to them, and to test the objectivity of the writer. It is unusual for writers of pre-sentence reports to provide informally presented information subsequent to their pre-sentence reports when there has been no request from the Court for further information. The combination of the information and the way in which it was presented suggested a degree of advocacy on the part of the writer, which was not her role.
[6] The only way that I could resolve any dispute on the facts in such circumstances was if the contested information was placed before me in evidence, with Mr Wells being given the opportunity to test the adverse allegations in the usual way. This would have further delayed the completion of the appeal by some weeks while affidavits were prepared and hearing time allocated to enable that evidence to be tested. The completion of this appeal has already been protracted by the time taken to obtain the updated pre-sentence report and further information from the SAFE programme.
[7] The respondent responsibly accepted that, given the circumstances, the statement should be put to the side. I have, therefore, put its contents out of my mind.
[8] The only remaining substantial issue for determination is whether the sentence should be one of imprisonment or home detention.
[9] Mr Wells seeks a sentence of home detention. As matters stand I have reduced the sentence of imprisonment to one of 18 months. Normally that would give rise to a sentence of nine months’ home detention, if home detention were to be imposed. Mr Wells has already served two months in prison and accordingly his counsel submits he deserves a one month allowance to reduce the sentence from nine months to eight months’ home detention. However, in the face of the respondent’s strong submissions that the level of deterrence and denunciation that are required here warrant, if not mandate, a sentence of imprisonment, Mr Wells accepted that a term of no less than nine months home detention coupled with conditions was appropriate.
[10] I shall now say more about the conditions to be attached to the proposed sentence of home detention. As stated in the interim judgment Mr Wells strikes me as someone who has a problem regarding sexual offending involving young children. The present offence involved low level sexual offending of touching a seven year old boy on the head and on the bottom over his outer clothes. The touching occurred in a semi public place, outside the front areas of a group of townhouses. It is the fact that the offending occurred close to when Mr Wells’ parole conditions for more serious sexual offending with a boy under 16 years old ended that is what puts the present offending in a more serious category. The respondent submits that what occurred was in fact grooming of the victim as a prelude to more serious sexual offending.
[11] After Mr Wells’ release from prison in relation to the first offending he attended the SAFE programme.2 The co-ordinator of the programme initially described Mr Well as having successfully completed the programme. Later when I sought further information for the purpose of ascertaining if Mr Wells could attend the programme a second time and at a more intensive level the co-ordinator was less certain about the chances of Mr Wells successfully completing the programme. Nonetheless, SAFE is still prepared in principle to work with Mr Wells. I consider that if Mr Wells is to be rehabilitated he needs more intensive work with a
programme like SAFE, and, therefore, it would be appropriate to impose as a special condition to a sentence of home detention that he attend the SAFE programme. It is also open to me to impose such a special condition if I impose a sentence of imprisonment on Mr Wells.3
[12] Mr Wells has also said that he would accept as a special condition of a sentence of home detention that, as he lives on his own, when it comes to leaving his home for purposes of shopping he is restricted to doing so in the company of an
adult who has been approved by the Probation Service. This is to address the
2 His first sexual offending involved two acts of unlawful sexual connection with a boy aged 12-
16 years old; two indecent acts upon a boy aged 12-16 years old; and one indecent act on a boy aged under 12 years. All offences were committed against the same victim. Mr Wells received a total sentence of four and a half years’ imprisonment.
3 See s 93(2)(b) and s 93 (2A) of the Sentencing Act 2002.
concerns expressed in the updated pre-sentence report about his home being close to a park where children might be.
[13] Section 80D(1) authorises me to impose one or more special conditions as described in s 80D(4), if I am satisfied that the circumstances set out in s 80D(2) are present. Those circumstances are:
(a) there is a significant risk of further offending by the offender; and
(b) standard conditions alone would not adequately reduce the risk; and
(c) the imposition of special conditions would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender.
[14] I am satisfied that these circumstances are present here. Furthermore
Mr Wells acknowledges this to be the case.
[15] The special conditions in s 80D(4) include conditions relating to a programme of the type provided by SAFE. It seems, therefore, that I could sentence Mr Wells to home detention and direct as a special condition under s 80D(1) that Mr Wells attend treatment at SAFE.
[16] From what I have seen of the material provided by Mr Wells’ counsel to date,
it seems that the average duration of a programme at SAFE is 12 months. Section
80P permits me to impose special post-detention conditions on Mr Wells. Those conditions can continue for a period of no more than 12 months following the end of the detention.4
[17] Thus it would be possible to sentence Mr Wells to a period of home detention and to impose special conditions both during and post the detention period that he attend the SAFE programme.
[18] Mr Wells has already undergone one programme with SAFE for 16 months. His reoffending so soon after release from parole conditions following his last
sentence of imprisonment for similar offending shows that his earlier attendance at
4 Sentencing Act 2002, s 80N(4).
SAFE has not been enough to dissuade him from engaging with young children inappropriately. Thus further attendance at SAFE may go some way to reduce this conduct.
[19] It follows, therefore that if I impose a sentence of home detention I would also impose as a special condition that Mr Wells attend the SAFE programme both during the sentence of home detention and for the maximum period after the sentence ends. I understand that Mr Wells is willing to comply with such a sentence.
[20] The Crown’s submission is that the sentence of 18 months’ imprisonment should stand, and that I can impose special conditions on Mr Wells’ release from prison. Section 93(2)(b) permits me to impose special conditions on the offender, in which case I must specify when those conditions expire. Section 93(2A) provides that the expiry date of those special conditions may be the expiry date of the sentence, or a specified period before the sentence expiry date, or a date that is a
specified period of up to six months after the sentence expiry date.5 The Crown’s
stance, therefore, is that it is possible for me to impose as a special condition that Mr Wells attend the SAFE programme after he has served a sentence of imprisonment.
[21] If I were to impose a sentence of nine months’ home detention on Mr Wells, he could be subject to special conditions for the nine month period of home detention and an additional 12 months following the end of the sentence of home detention: a total period of 21 months. If Mr Wells were sentenced to 18 months’ imprisonment, he would be eligible for release on parole after serving nine months imprisonment6 and could be subject to special conditions until 6 months after the sentence expiry date, meaning that the maxim period of time that special conditions could be imposed on Mr Wells would be 15 months. Thus a sentence of
imprisonment would place greater constraint on the duration of any Court ordered
attendance at a SAFE programme.
5 Section 93(2B) provides that “sentence expiry date” has the meaning given to it in s 4 of the Parole Act 2002. This section defines “sentence expiry date” as the date on which the offender has served the full term of the sentence and therefore ceases to be subject to it. Under s 93(2A) I would also have to specify that the standard conditions would expire 6 months after the sentence expiry date, as I can only impose special conditions for as long as the standard conditions.
6 Parole Act 2002, ss 20 and 86(1).
[22] The Crown submitted that when Mr Wells was sentenced for his first offending the sentencing Judge had regard to rehabilitation. The Crown contended that when it came to the sentencing for a second offence of this kind I should pay more regard to denunciation and deterrence than to rehabilitation. I reject that submission. Each sentencing must turn on the facts peculiar to that offending, as well as the other relevant factors set out in the Sentencing Act. Rehabilitation is always a relevant factor at sentencing. I consider it is particularly relevant here because whatever sentence is imposed it will only be in place for a relatively short time and after that Mr Wells will be free to act according to his desires. The pre- sentence report assessed him as being at high risk of “reoffending in a sexual manner.” It is important, therefore, that he learn to control his interactions with young children otherwise he will continue to offend and therefore to harm more victims. Further rehabilitation in this regard will benefit the community as well as Mr Wells.
[23] The material that I have seen from the SAFE programme suggests it is usually successful with its treatment of offenders like Mr Wells. Thus, further attendance at SAFE may be sufficient to allow him to gain control of himself.
[24] The Crown submitted that Mr Wells responds well when he is under supervision, but not when released from such control. In this regard the Crown submitted that it was only when Mr Wells’ parole for the first offending had expired that he reoffended shortly thereafter. I accept that Mr Wells may perform well when under supervision. I also think that the occurrence of the present offending so soon after his previous offending for which he received a total sentence of four and a half years’ imprisonment shows that to date imprisonment has not been an effective deterrence. Whilst I acknowledge that a sentence of imprisonment would denounce Mr Wells’ conduct I do not consider that it would be effective to deter him from further offending, more is required to achieve that result.
[25] The Crown referred me to case law which states that a sentence of imprisonment is the usual response to sexual offending against children.7 In R v E which involved violence as well as sexual offences the Court of Appeal cited with approval a statement of Panckhurst J in Ramsden v Police regarding when a sentence of home detention is not appropriate:8
In Ramsden v Police, Panckhurst J stated that home detention is not a viable option where the gravity of the offending, the protection of the community or particular victims, the need for deterrence and the absence of rehabilitative indicators render home detention inappropriate.
[26] I accept that is so. However, I also consider that the case law precludes the fettering of the sentencing discretion by a perception that in the absence of exceptional circumstances there is a presumption against home detention where sexual offending against children is concerned. Both the Crown and Mr Wells
referred me to R v Kennedy9 where the Court of Appeal dismissed an appeal against
a refusal to order home detention where the end sentence reached was one of twelve months imprisonment. In Kennedy the Court of Appeal rejected the suggestion that home detention could only be imposed in exceptional circumstances for sexual offending against children:
[7] The maximum term of imprisonment available was 10 years’ imprisonment. The end sentence of 12 months’ imprisonment was not challenged and was entirely within the range. Home detention is a sentence in its own right, and had to be considered as an option. It was considered by the learned Judge, but rejected.
[8] The Judge referred to the absence of “exceptional circumstances” in declining to order a sentence that was less than a full custodial sentence. It is not necessary to adopt an “only in exceptional circumstances” approach to home detention in relation to sexual offending against children. All sentences that are potentially in the range should be considered on their merits, although it will be recognised that the likely sentencing outcome for sexual offending against children is imprisonment.
[9] Here the Judge considered the particular aggravating circumstances. He noted the serious breach of trust that was involved in this offending. He also referred to the skin on skin touching. He took these factors into account in assessing whether there should be a sentence of imprisonment. He could have also referred to the tender age of the complainant as a further
7 This case-law is referred to in the interim judgment I delivered as well as in Nath v R [2010] NZCA 418 at [22]; and R v E CA166/05, 27 September 2005 citing Ramsden v Police (2000) 17
CRNZ 444 (HC) at [18].
8 At [30] (citations omitted).
9 R v Kennedy [2011] NZCA 569.
aggravating factor, given that she was only nine years old. There was no error in his assessment of culpability.
(Emphasis added).
[27] The present offending is at a lesser level than was the case in R v Kennedy. It is only when it is viewed in the context of Mr Wells’ previous offending that the present offending takes on greater significance.
[28] The Crown essentially submitted that the present offending should be viewed as grooming for more serious sexual offending. The difficulty with this approach is that it entails assuming the worst of Mr Wells and believing that he had serious sexual offending, such as unlawful sexual connection with the victim, as a future goal. However, apart from the earlier offending, which was all dealt with at the one sentencing, there is no evidence to support such an assumption.
[29] Mr Wells does not have a long history of sexual offending against children. Apart from a traffic conviction in 1972 he has no other previous offences. The occasions that led to the sentencing in 2010 are the only occasions of sexual offending. Whilst he was prepared to engage with the present victim he may not have gone so far as he did with the victim of the earlier offending. How far he would have taken matters, if at all, is a matter of speculation. In the end, Mr Wells cannot be sentenced on the basis of fear of what he might do in the future. The present offending needs to be viewed reasonably in context with his past offending and the circumstances of the present offending.
[30] R v Hill makes it clear that a sentence of home detention imposes restriction on liberty and can lead to positive outcomes: 10
[33] The sentence of home detention reflects a perception that society’s interests are better served in some cases by the imposition of restrictions on liberty through home detention rather than through imprisonment. The explanatory note identifies the “acknowledged advantages” of home detention as including “low rates of reconviction and re-imprisonment, high compliance rates, and positive support for offenders’ reintegration and rehabilitation”.
10 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381.
[31] For the reasons outlined herein11 I consider that Mr Wells qualifies for the imposition of the type of special conditions that I have in mind to impose pursuant to s 80D(1). A sentence of nine months home detention coupled with the imposition of standard and special conditions both during and after the expiry of the home detention for the maximum period permitted results, is in my view a stern sentence. The restrictions such a sentence will imposes on Mr Wells’ liberty achieves the purpose of holding him accountable for his offending, as well as the purposes of denunciation and deterrence. At the same time it offers a better prospect of rehabilitation than a sentence of imprisonment as the requirement to participate in a rehabilitative programme like SAFE will be in place for longer. The pre-sentence report recognised that because the sentence of 18 months’ imprisonment that I reached would be a short sentence Mr Wells would not undergo any treatment for his offending while he was in prison.
[32] Whilst I do not consider that as a matter of legal principle Mr Wells needs to be seen as an exceptional case before he could receive a sentence of home detention I consider that the circumstances here are exceptional. For this reason also they warrant a sentence that differs from the usual approach.
[33] Accordingly, Mr Wells is sentenced to nine months’ home detention, commencing on Wednesday 30 September 2015 and I impose the following conditions;
(a) Standard conditions pursuant to s 80C(1) of the Sentencing Act for the duration of the sentence of home detention and for 12 months thereafter;
(c) A special condition pursuant to s 80D(4)(e) that Mr Wells is not to leave his home address for the purposes of shopping whilst undergoing the sentence of home detention without being accompanied by an adult person approved by the Probation Service;
and
11 At [14].
(d)A special condition pursuant to s 80D(4)(c) during the currency of the sentence of home detention and for 12 months thereafter that Mr Wells be assessed and if found suitable, participate and complete the SAFE treatment programme.
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