Wells v The Queen - [2015] NZHC 2371

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 Respondent

Judgment:

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…

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 Wells v The Queen

Details

AGLC: Wells v The Queen [2015] NZHC 2371
Case: [2015] NZHC 2371
Decision Date: 29 September 2015

CaseChat Overview and Summary

Lewis Wells appealed against his sentence of imprisonment, arguing that it was manifestly excessive. The Crown argued that imprisonment was the usual response to sexual offending against children. The court had to decide whether the sentence should be one of imprisonment or home detention. The court found that the sentence imposed was manifestly excessive and reduced the sentence to 18 months. The court then had to decide whether the sentence should be one of imprisonment or home detention. The court found that a sentence of home detention coupled with the imposition of special conditions both during and after the expiry of the home detention for the maximum period permitted was appropriate. The court imposed a sentence of nine months’ home detention, commencing on Wednesday 30 September 2015 and imposed 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; (b) 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 (c) 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. The court found that the sentence of home detention coupled with the imposition of special conditions both during and after the expiry of the home detention for the maximum period permitted was a stern sentence, which achieved the purposes of holding Mr Wells accountable for his offending, denunciation, and deterrence, while offering a better prospect of rehabilitation than a sentence of imprisonment.

Orders