R v Luce [2007] NZCA 476 (1 November 2007)

Last Updated: 2 January 2015

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.

B The 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 followed her out. Mr Luce hurriedly left. When spoken to he denied the offence.

[7] X suffered an abrasion to her vagina and some continuing pain. Though only three at the time, she has never forgotten the incident and suffered anxiety and sleeplessness on the three occasions on which trial was impending. Because the trial was adjourned twice almost three years elapsed. The family generally suffered. X’s older sister and brother each feel accountable for what happened to her.

[8] On 3 January 2004 Y, aged nine, was with her mother at The Warehouse in a nearby town. Mr Luce, also there with his wife and son, went to the toy section where Y was and waited until she was alone. He approached her, lifted her from the ground and felt her vagina with his fingers over the top of her shorts. Then he put her down and continued to touch her for a short time until she ran away. She and her mother identified him. He was stopped. When spoken to by the police, he said nothing.

[9] Y has suffered all the classic symptoms of sexual abuse. She has lost her self esteem. She suffers extreme anger. She is in constant need of reassurance. She has become distrustful of men. In shops she suffers panic. Her whole family has been affected by the time the case took to come to trial and the two adjournments.

[10] When interviewed for the purpose of sentence Mr Luce vehemently denied these offences. He showed no remorse. He showed no instinct to address his propensity to offend. That and his history of previous such offending suggested that his risk of re-offending was high. These were not isolated offences. For four indecent

assaults in 1995 on different dates, two on girls under 12 and two on girls under 16, he was sentenced to two years, six months imprisonment.

Sentence

[11] The primary feature aggravating Mr Luce’s offending, the Judge said, was how predatory it was. Mr Luce, he said, singled out two young girls, X aged three and Y aged nine, in public places with their families, where they ought to have been safe. He inflicted injury on X whom he violated. That Mr Luce had four related previous convictions for which he had been sentenced to imprisonment, the Judge considered, was independently aggravating.

[12] The Judge saw no factor as mitigating and expressly discounted Mr Luce’s poor state of health. The Judge’s decision is captured in this passage:

... you are in poor health ... However ... your poor health is not the reason for justification of your offending. Your poor health did not stop you from offending. It is not a mitigating factor and nor is it a reason to impose a reduced sentence. Your sentence should properly reflect the extent of your criminal behaviour against the two young girls concerned and the danger you may potentially still pose to society. You must by now be regarded as a recidivist paedophile. Your behaviour is deserving of the utmost condemnation. You have offended against innocent, vulnerable girls. They have been badly affected and remain badly affected by what you did to them.

[13] For the sexual violation the Judge took a starting point of five years, and the indecent assault one and a half years. He considered that the aggravating features he had identified justified some increase. He also had regard to the principle of totality. He imposed a five and a half year sentence for the sexual violation. He made the one and a half year sentence for the indecent assault cumulative.

[14] The Judge imposed a minimum non-parole period of four years. He regarded the offences as serious and Mr Luce as a recidivist offender. He reiterated that he saw Mr Luce as posing an ongoing risk to young girls.

[15] The five year starting point for the sexual violation, we consider, accords with R v Hall CA 412/05 17 May 2006 where, at para [35], this Court said that for this form of offending ‘starting points in excess of five years may well be appropriate in more serious cases’. That Mr Luce singled out X, a very young girl, that he took her from a playground where she ought to have been safe, that he inflicted injury to her vagina, makes this offending serious to that degree. The increase of six months, imposed presumably to take account of Mr Luce’s previous related offending, is unexceptional.

[16] The one and a half year sentence imposed for the indecent assault on Y was, we accept, at the upper end of the range for sentence but not beyond. In R v Weavers CA 482/05 1 March 2006 a final sentence of two years, on a Solicitor-General’s appeal, was upheld for repeated incidences of touching an 11 year old girl, accompanied by threats of violence. The aggravating features we have identified, principally the predatory nature of this offending and the effect on the victim, are as significant.

[17] The Judge’s decision to impose cumulative sentences was open to him under

84(1) of the Sentencing Act 2002. The two offences were discrete in time and place. The sentences imposed cumulatively recognised the harm he inflicted on each victim: R v Mwai [1995] 3 NZLR 149, 158. The total sentence was within bounds.

[18] The only issue can be whether, though that sentence was open to the Judge, he ought to have reduced it on account of Mr Luce’s extremely poor state of health and his short life expectancy.

State of health and life expectancy

[19] According to a medical report, prepared for this appeal by a renal physician, Mr Luce has suffered mounting and compounding ill health for in excess of 25 years. He suffers chronic kidney disease and first began dialysis in 1981. He underwent a renal transplant in 1984. That failed in 2005 and he has undergone dialysis ever

since. He has suffered hypertension since 1980. That has led to major cardiovascular complications. He has very severely impaired heart function.

[20] Mr Luce, the opinion concludes, is now at a very low ebb. He cannot expect to undergo any further remedial surgery. His condition will never improve. To the contrary. At the most he can expect to live two to three more years.

[21] The Judge had no such report for the purpose of sentence but, as counsel for the Crown accepts, knew at least generally of Mr Luce’s diagnosis and prognosis. When deciding at some earlier point whether Mr Luce should have bail, the Judge heard evidence from a medical practitioner familiar with Mr Luce. The Judge had then to consider whether a lesser sentence was justified under s 8(h) of the Sentencing Act, whether the sentence that he thought right to impose, which we think was open to him, might be disproportionately severe. We must now embark on that exercise ourselves.

[22] Section 8(h) preserves the principle of mercy on sentence; a principle of long standing: R v Wihapi [1976] 1 NZLR 423, 424, CA. Nevertheless, it is a principle to be given effect in such cases as these with some caution. The fear has always been that ill health could become a licence to offend and avoid accountability: R v Verschaffelt [2002] NZCA 244; [2002] 19 CRNZ 638; R v Pomana [2007] NZCA 138; R v KGB [2007] NZCA 292; R v Bernard [1997] 1 Cr App R(s).

[23] One consideration has always been whether ill health is able to be managed sufficiently within the prison, to ensure that the sentence imposed is not disproportionately severe. There are also remedies given by statute. The Chief Executive may release a prisoner ‘for compassionate or humane treatment’: s 66(2)(a)(ii), Corrections Act 2004. Ultimately, the Parole Board is able to release a prisoner early if he or she is ‘seriously ill and unlikely to recover’: s 41, Parole Act

2002.

[24] That said, the prerogative of mercy, now expressed in s 8(h), remains. In Verschaffelt, for instance, this Court increased a discount from a proper sentence from one-third to one half, in the main to take account of the disproportionate

severity of that sentence, given the appellant’s age and state of health. Another such instance is R v Gallagher (1994) 9 CRNZ 421.

[25] Where extreme ill health is coupled with a very low life expectancy, as is the case here, a more than usual discount can be justified. As Lamer CJ said in R v M (CA) (1996) 1 SCR 500, at [74]:

... the sentencing judge should be mindful of the age of the offender in applying the relevant principles of sentencing. After a certain point, the utilitarian and normative goals of sentencing will eventually begin to exhaust themselves once a contemplated sentence starts to surpass any reasonable estimation of the offender’s remaining natural life span.

[26] That is our own conclusion in this case. Mr Luce is in such ill health and his life expectancy is now so palpably short that the usual purposes and principles of sentence have become increasingly notional, and the difficulties inherent in a sentence of imprisonment so palpable that, despite the statutory remedies, that should be recognised in the ultimate sentence. It should be reduced by two years.

[27] The simplest way to achieve that, while respecting the total sentence the Judge imposed, is to allow the appeal against sentence, to increase the sentence for the sexual violation offence to seven years, treating the indecent assault as an aggravating feature, to impose the 18 month sentence for the indecent assault concurrently, not cumulatively, and to reduce the seven year sentence to five years imprisonment.

Minimum term

[28] As we said at the outset, the four year minimum term the Judge imposed was fixed as a proportion of the aggregate total sentence of seven years and that was not open in law. The sentence for indecent assault could not be taken into account for that purpose. The sentence would have needed to be two years at least to qualify: s 86(1) Sentencing Act.

[29] The minimum term the Judge imposed should not then have exceeded two- thirds of the five and a half year sentence imposed for the sexual violation, a period

of three years, eight months: R v Paniora CA 148/03 30 July 2003; R v Bell [2007] NZCA 17. So, if the sentence had stood as it was, we would have had to make that correction.

[30] The minimum term imposed could, ironically, remain in place as a result of the lead sentence that we intend to substitute on this appeal but in our view the considerations that have led us to reduce that sentence also mandate quashing the existing term and imposing none in its place. That is what we intend to do.

Result

[31] Mr Luce’s appeal against sentence is allowed. His sentence will be quashed and his effective sentence will now be five instead of seven years imprisonment, achieved in the way in which we have set out in [27]. The minimum term will be quashed and no further term imposed.

Solicitors:

Crown Law Office, Wellington