JAYDEN LYONS AND NEW ZEALAND POLICE

[2024] NZHC 3728

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-000523

[2024] NZHC 3728

BETWEEN

JAYDEN LYONS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	9 December 2024
Counsel:	GD Macdonald for Appellant A Lin for Respondent
Judgment:	9 December 2024

ORAL JUDGMENT OF DOWNS J

Solicitors/Counsel:

Crown Solicitor, Manukau. GD Macdonald, Auckland.

LYONS v POLICE [2024] NZHC 3728 [9 December 2024]

The appeal

[1]    Jayden Lyons received a sentence of two years and two months’ imprisonment for three burglaries, being unlawfully in an enclosed yard, and breaching community work.1 Mr Lyons appeals his sentence. He contends the Judge erred in relation to mitigating factors and the ultimate sentence should have been one of home detention rather than imprisonment.

[2]    The appeal must be allowed if there is an error in the sentence and a different sentence should be imposed.2 The overarching consideration is whether the sentence is manifestly excessive.3

Background

[3]    On 14 September 2023, Mr Lyons went to a property in Pukekohe. He rifled through a large skip bin located at the front of the property and took items from the bin. That conduct constituted the offence of being unlawfully in an enclosed yard.

[4]    All three burglaries concern the same victim: Brian Roberts Storage Yard, a secondhand car dealership in Pukekohe.

[5]    On 6 November 2023, between 7 and 9 in the evening, Mr Lyons cut open the fence and entered the yard.  He  took  multiple  catalytic  converters and  car keys. Mr Lyons returned to the yard 8 November, that is, two days later. He again cut the boundary fence. Mr Lyons siphoned petrol from fuel tanks, again took catalytic converters, and on this occasion, radios and exhaust systems. Mr Lyons inadvertently left behind a pair of white cotton gloves, later found to contain his DNA.

[6]    Mr Lyons final burglary occurred 15 December 2023, at approximately 11.20 in the evening. He returned to the yard, climbed the fence, and once inside the property, took stereos from vehicles. The offending was captured on closed-circuit television.

1      Police v Lyons [2024] NZDC 22830.

2      Criminal Procedure Act 2011, S 250(2).

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

[7]    The victim estimated the damage to the vehicles to be approximately $20,000. The fence cost $1,387 to fix. Most items were not recovered.

[8]    The final offence concerns Mr Lyons breach of community work. That sentence was imposed 15 February 2024. Mr Lyons later failed to report as required.

Sentencing

[9]    Judge D J Orchard adopted a global starting point of 36 months’ imprisonment. The Judge added four months for Mr Lyons extensive criminal history, which encompasses offending for dishonesty and burglary. The Judge deducted 20 percent for Mr Lyons’ guilty pleas and an additional 15 percent for rehabilitative efforts.

[10]   The Judge added that even if the sentence had been 24 months’ imprisonment or less, she would not have imposed home detention:

[20]   Finally, I note the recommendation in the pre-sentence report is one   of community detention and supervision. I am sorry but notwithstanding your recent efforts at rehabilitation that would have been a totally inadequate sentence, but the other thing is I am afraid the end sentence is one of two years and two months;’ imprisonment. That does not actually allow for me imposing a sentence of home detention. Even if it did, notwithstanding your current efforts, in my view the seriousness of your offending and also your history and the fact that you have had other opportunities to address your methamphetamine addiction would mean that a sentence of home detention is just not adequate to address the seriousness of your offending.

The case for Mr Lyons

[11]   On behalf of Mr Lyons, Mr Macdonald contends the Judge erred in relation to discounts for mitigating factors. He argues the Judge should have given full credit for guilty pleas, that is 25 percent rather than 20 percent. Mr Macdonald also argued the discount  for  rehabilitation  was  a  little  too  low.   In  his  written  submissions,   Mr Macdonald contended another 15 percent was warranted, but in oral argument, he was more circumspect.

[12]   Mr Macdonald argued the Judge should have employed a rehabilitative approach to sentencing by imposing  a term  of 24  months’ imprisonment  or less. Mr Macdonald highlighted Mr Lyons recent progress at a Salvation Army Bridge

Programme. Mr Lyons was admitted to that programme 15 July 2024. He was there until 9 August 2024. The treatment summary form from the Salvation Army describes Mr Lyons as “polite, friendly and conscientious throughout his time in the programme”. It is clear some progress was made. Mr Macdonald contends that progress should have been built on by a sentence of home detention in conjunction with a programme directed at addiction.

Analysis

[13]   I address guilty plea discount first. The charges were laid 30 December 2023. Mr Lyons appeared in court that day. Mr Lyons pleaded guilty 10 April 2024 at a case review hearing. A fourth burglary charge in relation to the same car yard was abandoned that day.

[14]   In Hessell v R,4 the Supreme Court held the discount for a guilty plea is an evaluative exercise. That discount should be fixed by reference to established rationales which take the form of benefits to the judicial system and its participants. Consequently, considerations include the timing of the plea, the strength of the prosecution case, and the value to the system of the guilty plea or pleas.

[15]   It was open to the Judge to give Mr Lyons full discount. That said, it was not wrong for the Judge to provide 20 percent rather than 25 percent. This because the prosecution case was particularly strong in relation to those charges which endured. As I said earlier, Mr Lyons’ DNA was found on the gloves inadvertently left at the scene. The first and third burglaries had a distinctive modus operandi in that Mr Lyons cut the fence in the same place. He was caught on closed-circuit television on the third occasion. Mr Lyons was, of course, entitled to assess the strength of the prosecution case before determining whether to plead guilty. But that decision meant there was some delay. The point to emphasise is that an evaluative exercise was called for. The idea that only one correct answer flows from that exercise is a misconception.

[16]   This brings me to discount for rehabilitation. The Judge accepted Mr Lyons appeared to have performed well in the programme. The Judge also accepted

4      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

Mr Lyons had a methamphetamine habit causative of his offending. Both factors explain the discount of 15 percent. While I have listened carefully to Mr Macdonald’s contention of error in relation to this aspect, I am unpersuaded that is so. The Judge had an element of discretion. That she settled upon 15 percent rather than, for example, 20 percent, does not amount to error.

[17]   This leads to the third and most important issue on appeal, which presupposes it was open to the Judge to impose home detention. There was an argument for this approach had the notional sentence been at or less than 24 months’ imprisonment. The argument is this. It was common ground before the Judge that Mr Lyons had a methamphetamine problem. There was also material before the Judge to support the imposition of home detention in conjunction with a programme to support Mr Lyons. A rehabilitative approach was a possibility.

[18]   The other side of the ledger, however, is this. Mr Lyons had as Ms Lin, on behalf of the respondent observes, committed reasonably serious offending. And,  Mr Lyons has an extensive criminal history, including for dishonesty and burglary. I provide some examples; they are that only.

[19]   On Boxing Day 2020, Mr Lyons committed burglary. In September 2021, he committed another burglary. These two burglaries resulted in an eight-month sentence of home detention on 20 January 2022.

[20]   On 7 April 2021, Mr Lyons committed another burglary. Sentence was imposed November 2022. Mr Lyons again received another sentence of home detention, this time, three months.

[21]   This brings me to the third example. On 2 March 2023, Mr Lyons committed yet another burglary. That resulted in what appears to have been a reasonably lenient sentence of community work  and  reparation.  Those  sentences  were  imposed  June 2023.

[22]   It follows the Judge was presented with a binary choice: to accede to a submission of a sentence of 24 months’ imprisonment or less and impose home

detention; or to impose a sentence of imprisonment. The Judge considered the latter better reflected the needs of denunciation and deterrence, particularly given Mr Lyons’ criminal history. I am unpersuaded of error in connection with that decision, even assuming the sentence was at or below 24 months’ imprisonment. And as I have already explained, I have not discerned error in the Judge’s conclusion a 26-month sentence of imprisonment was warranted.

[23]   For completeness, I note the Judge imposed the uplift for Mr Lyons’ criminal history in the wrong sequence. I mention this because had the Judge employed the sequence identified in Moses v R, Mr Lyons’ sentence would actually have been a little longer.5

Result

[24]The appeal is dismissed.

……………………………..

Downs J

5      Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.