Wells v The Queen - [2015] NZHC 2075

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-230 [2015] NZHC 2075

BETWEEN
LEWIS WELLS

Appellant

AND

THE CROWN Respondent

Hearing: 25 August 2015

Counsel:

E Leary for the Appellant
K Lummis for the Respondent

Judgment:

28 August 2015

INTERIM JUDGMENT OF DUFFY J

This judgment was delivered by me on 28 August 2015 at 3.00 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 2075 [28 August 2015]

[1] The appellant, Lewis Payne Wells, pleaded guilty and was sentenced concurrently to two years’ three months’ imprisonment on two counts of indecent assault on a boy under 12.1 In addition the sentencing Judge imposed a minimum period of imprisonment (“MPI”) of 15 months’ imprisonment. He appeals on the basis that the sentence imposed was manifestly excessive.

Facts

[1] The agreed summary of facts states that between 1 December 2014 and 27

January 2015 the appellant approached the victim, a nine year old boy, on two separate occasions. He had no relationship with or connection to the victim, but simply met him on the footpath. On both occasions he gave the victim money.

[2] The summary of facts goes on to say that at about 1 pm on Tuesday 27

January 2015 the appellant drove his motorbike to the victim’s address. The summary of facts does not state how the appellant came to know the victim’s address. Nor is it abundantly clear that the occasions on which the appellant offered the victim money occurred on two separate occasions that pre-dated the offending. The summary of facts should have made this clear. However, I am prepared to read it as referring to two separate occasions of money being offered to the victim together with two instances of offending on the one day, which were closely linked in time.

[3] The parole conditions imposed upon the appellant following his release from prison for offending of a similar, but more serious character, expired on 15
December 2014.2 The reference in the summary of facts to dates between 1

December 2014 and 27 January 2015 leaves open the possibility that the appellant first approached the victim at a time while the appellant was still on parole. However, the Crown does not know precisely when the appellant approached the victim and offered him money. The summary of facts is ambiguous in that as
presently stated it can be read to suggest that the first approach to the victim

1 Contrary to s 132(3) of the Crimes Act 1961. The maximum penalty for this offending is 10
years’ imprisonment.
2 These conditions provided that the appellant could not associate with children under the age of
16 without approval.

occurred while the appellant was still on parole. On the other hand, it is equally probable that the approach occurred sometime after 15 December 2014, but before
27 January 2015.

[4] It is regrettable that the summary of facts contains…

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 2075
Case: [2015] NZHC 2075
Decision Date: 28 August 2015

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Wells v The Crown dealt with an appeal by Lewis Payne Wells against his sentence for two counts of indecent assault on a child under 12. The appellant pleaded guilty and was sentenced to a concurrent imprisonment term of two years and three months, along with a minimum period of imprisonment (MPI) of 15 months. The appeal focused on the grounds that the sentence was manifestly excessive, with specific contentions regarding the starting point of the sentence, the uplift for previous convictions, the consideration of the appellant's personal circumstances, and the imposition of an MPI without proper notice. The court considered various precedents and the specifics of the case, ultimately finding that the starting point was too high, the uplift for previous convictions was excessive, and the imposition of an MPI was improper. The court issued an interim judgment, proposing a sentence of less than two years' imprisonment and directing further proceedings to explore options for the appellant's rehabilitation, such as home detention combined with access to specialist treatment.

Orders