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Lochhead v The Queen

Lochhead v The Queen

Case [2020] NZHC 2334 8 September 2020

Criminal Liability

Sentencing

Breach of Protection Order

Threatening to Kill

Guilty Pleas

Mental Health

Admissibility of Evidence

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-000102

[2020] NZHC 2334

BETWEEN
JASON HEATH LOCHHEAD

Appellant

AND

THE QUEEN

Respondent

Hearing: 3 September 2020

Counsel:

S Teki-Clark and M Smit for the Appellant A Harvey for the Respondent

Judgment:

8 September 2020

JUDGMENT OF DOOGUE J

This judgment was delivered by Justice Doogue on 8 September 2020 at 3.30 pm.

Registrar/ Deputy Registrar Date:

Solicitors:
Crown Solicitor, Christchurch

LOCHHEAD v R [2020] NZHC 2334 [8 September 2020]

Introduction

[1] On 21 July 2020, Judge Gilbert sentenced the appellant, Jason Heath Lochhead, to two years, three months’ imprisonment for:1 attempting to dissuade a witness;2 threatening to kill (representative);3 publishing an intimate visual recording;4 breach of protection order (representative);5 and wilful damage (representative).6

[2] Mr Lochhead appeals the end sentence on the basis that it is manifestly excessive, because the Judge gave insufficient discounts for his guilty pleas, his mental health issues, and the time he spent on curfew.

[3] The respondent submitted that the end sentence was available to the Judge, and the appeal should be dismissed.

Background

Factual background

[4] Mr Lochhead and the victim have been in a relationship for over five years. A final protection order was granted in favour of the victim on 11 December 2018.

[5] On three occasions in August 2019, Mr Lochhead went uninvited to the victim’s address and refused to leave. On one occasion, he approached the victim’s vehicle and punctured two tyres, using a knife he had brought with him. On another occasion, he smashed a bedroom window. Mr Lochhead was arrested as a result of these actions. He was granted bail, with a condition not to contact the victim.

[6] Between 24 January 2019 and 4 November 2019, Mr Lochhead and the victim exchanged multiple voice messages over the mobile application WhatsApp. During

1      R v Lochhead [2020] NZDC 14301.
2      Crimes Act 1961, s 117(a); maximum penalty seven years’ imprisonment.
3      Section 306; maximum penalty seven years’ imprisonment.
4      Section 216J; maximum penalty three years’ imprisonment.
5      Family Violence Act 2018 ss 90(a), 9 and 112(1)(a); maximum penalty three years’ imprisonment.
6      Summary Offences Act 1981, s 11(1)(a); maximum penalty three months’ imprisonment or fine of $2,000.

this period, Mr Lochhead sent around 575 messages to the victim. These messages contained numerous threats of violence.

[7] Seven of the messages contained explicit threats to end the victim’s life. Judge Gilbert referred to two specific messages in his sentencing decision.7 They covered matters such as slitting her throat, putting her into a body bag, cutting off her head, and, if the police arrived, saying that she would die.

[8] Two messages demanded that she go to a police station and have her lawyer withdraw her statements and the charges that were in train against him. Further, if she did not, he threatened that he would gain full custody of her daughter and she would never see her again.

[9] On 23…

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 Lochhead v The Queen

Details

AGLC: Lochhead v The Queen [2020] NZHC 2334
Case: [2020] NZHC 2334
Decision Date: 8 September 2020

CaseChat Overview and Summary

Jason Heath Lochhead appealed against his sentence for multiple offences including attempting to dissuade a witness, threatening to kill, publishing an intimate visual recording, breach of a protection order, and wilful damage. The District Court judge sentenced Lochhead to two years, three months' imprisonment, which Lochhead argued was manifestly excessive due to insufficient discounts for his guilty pleas, mental health issues, and time spent on curfew. The appeal was heard by Doogue J on 3 September 2020 and judgment was delivered on 8 September 2020. The appeal was dismissed by Doogue J. The appeal was assessed on the basis that the sentence was manifestly excessive or inappropriate. The appeal raised three issues: whether the Judge gave insufficient credit for Lochhead's early guilty pleas, whether the Judge gave sufficient credit for Lochhead's mental health diagnoses, and whether the Judge failed to take into account the time that Lochhead spent on restrictive curfew. The appeal was dismissed on all three grounds. Doogue J found that the Judge's discount for the guilty pleas was appropriate, that a discount for mental health issues was also appropriate, and that the Judge was correct not to afford Lochhead any credit for time spent on bail.

Orders