R v Sewell CA497/95 [1996] NZCA 283 (13 February 1996)

Last Updated: 13 February 2019

_{IN THE COURT OF APPEAL OF NEW ZEALAND C.A.497/95}

THE QUEEN

v

_{LAWRENCE SEWELL}

Coram: Eichelbaum CJ McKay J

Thorp J

Hearing: 13 February 1996 (at Wellington) Counsel: W Shurrock for Appellant

M J Bodie for Crown

_{Judgment: 13 February 1996}

_{JUDGMENT OF THE COURT DELIVERED BY McKAY J}

This appeal is against sentences of 4 years imprisonment imposed concurrently in respect of two offences of which the appellant was found guilty by a jury. The first was the attempted sexual violation of a girl under 12, and the second an indecent act on her brother, also under 12. The appellant was a friend of their parents, and the children had from time to time stayed with him.

The appellant lived in a campervan at the beach. It was in this campervan that the offences occurred, when the children were staying with him. The girl was

7 years of age, and on the particular occasion she and her brother were invited to stay with the appellant. They were taken there by their parents, and stayed two nights before being collected by their mother. The appellant lay on his bed and persuaded

the girl to jump on his chest. He was lying on his back, and made the girl lie on her back on top of him. He pulled her pants down and tried to insert his penis into her anus. This occurred only once. He was charged with sexual violation, but was found guilty only of the attempt. The charge in respect of the boy was a representative one. The boy was aged 6 years at the time. The appellant pulled the boy’s underpants down, and put his penis on that of the boy and moved it around. This incident also occurred in the appellant’s campervan when the children stayed with him in the weekend or holidays. The boy said it happened every time they were there, some 20 times in all.

The appellant gave evidence and denied that the offending occurred. He had earlier denied it in a video interview. He said he was in a de facto relationship with an older woman, who lived in the same motor camp. He said that his physical relationship was non existent, as he could not hold or even start an erection. She gave evidence confirming this. It was presumably this evidence which caused the jury to convict only of attempt on the count relating to the girl.

Counsel accepted that there were aggravating features of the offending in the breach of trust involved, in the age of the complainants and in the fact that the charge concerning the boy was a representative one. She accepted that protection of the community is of paramount importance. She nevertheless submitted that the appellant’s age, (he is now 67), his impotence, his lack of previous convictions and his place of residence provided safeguards against any further offending, so that the risk to the community is not great.

Counsel confirmed that the appellant’s age is, as he stated in evidence, 67 years. His de facto was at the time of giving evidence aged 74 years. We were told that the trial had received considerable publicity in the area where they lived, so that from the point of view of danger to the public there is little likelihood of other

children being allowed contact with the appellant. In any event, he is limited by the fact of his impotence. Counsel stressed his age, which she pointed out made the sentence a more severe one on the appellant than it would be in the case of a younger man.

On the other hand, these were multiple offences involving two children, the girl on one occasion but the boy on a number of occasions. Each witnessed the acts on the other. The effect on the boy is described in the victim impact report, and led to his making several threats to kill himself, and one occasion when he attempted to do so. He is still only a child. The appellant’s impotence may have prevented him from completing the act of sexual violation, but it has not prevented him from the attempt, nor from the offences in respect of the boy. The offences involved an appalling breach of trust in respect of the children of friends who had been entrusted to his care for the purpose of holidays. The pre-sentence report indicates that the appellant still denies his offending, which gives little confidence that he will not offend again if given the opportunity.

Counsel referred us to a number of cases, some of which preceded the recent increase in maximum sentence for sexual violation. The maximum penalty is now

20 years. The penalty for the attempt has not changed, and remains at 10 years. We accept that Parliament regarded this maximum as sufficient, and as not requiring to be increased. It does not follow, however, that the general levels of penalty for attempted sexual violation should remain at the same level as previously. Parliament has given the clearest possible indication that the offence of sexual violation is to be regarded more seriously than previously, and that the general level of sentences should be increased. If the offence is more serious, so also must be the attempt. It would be totally inconsistent, and would defy logic, to treat the offence as being markedly more serious than before, but the attempt as remaining at the same level as before. The intention of Parliament in regard to the offence has been recognised by

this Court as requiring an increase in the normal sentence imposed: R v A [1994] 2

NZLR 129. The same must apply to the attempt. It is only the maximum sentence which remains unchanged.

While accepting that the appellant’s age is a factor to be considered, and taking full account of the matters urged on us by counsel, we are not persuaded that the total sentence of 4 years is beyond the range properly available to the Judge. The appeal is accordingly dismissed.

Solicitors

Crown Law Office, Wellington