IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2022-404-000132
[2022] NZHC 1448
BETWEEN ORRIN LYNCH
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 13 June 2022 Appearances:
S H Hussain for the Appellant
E W Palsenbarg for the Respondent
Judgment:
20 June 2022
Reissued:
23 September 2022
JUDGMENT OF TAHANA J
This judgment was delivered by me on 20 June 2022 at 4.00pm and
re-delivered by me on 23 September 2022 in accordance with Criminal Procedure Rules 2012, r 1.6.
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
Public Defence Service, Waitakere Meredith Connell, Auckland
LYNCH v NEW ZEALAND POLICE [2022] NZHC 1448 [20 June 2022]
Introduction
[1] Mr Lynch pleaded guilty in the District Court at Waitakere to one charge of assault of a child.1
[2] On 6 April 2022, Mr Lynch was sentenced to one month home detention.2 The sentence was imposed cumulatively on a sentence of 10 months’ home detention which Mr Lynch was serving for unrelated offending.
[3]Mr Lynch appeals and says the sentence is manifestly excessive because:
(a)the starting point of five to six months’ imprisonment was too high;
(b)insufficient discount was applied for rehabilitative efforts; and
(c)the least restrictive outcome appropriate was not considered.
[4] The Crown opposes the appeal and says the end sentence is not manifestly excessive.
Background facts
[5] On 30 September 2018, Mr Lynch had been out drinking. The complainant was [X] years old at the time, was being cared for by a babysitter and had a friend present.
[6] When Mr Lynch arrived at the address, the complainant laughed at, and commented on, Mr Lynch’s state of intoxication. Mr Lynch took offence at this and slapped the complainant across the face. The slap caused soreness and discomfort but the complainant did not require medical treatment.
1 Crimes Act 1961, s 194(a); maximum penalty two years’ imprisonment.
2 New Zealand Police v Lynch [2022] NZDC 7899.
District Court judgment
[7] The Judge outlined the offending and noted that Mr Lynch was presently serving 10 months’ home detention.
[8] The Judge detailed Mr Lynch’s attempts to complete a Stopping Violence programme. Mr Lynch had been exited from the programme twice and was declined a third referral.3 The Judge noted the positive steps Mr Lynch was taking to address his alcohol and other drug dependency issues.
[9] The Judge then considered that the starting point should be five to six months’ imprisonment, given:
(a)the breach of trust; and
(b)the complainant’s vulnerability due to their age and relationship with Mr Lynch.4
[10] The Judge acknowledged Mr Lynch was entitled to a full guilty plea credit but did not specify the quantum.
[11] The Judge then said a four-month prison sentence could be converted to two months’ home detention however, totality needed to be factored in. The Judge considered that one month home detention served cumulatively on the existing sentence would be appropriate.5
Relevant law
[12] Mr Lynch has an appeal as of right under s 244 of…
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CaseChat Overview and Summary
The court considers that the starting point of five to six months’ imprisonment was too high, given the nature of the offence and comparing it to similar cases. While the breach of trust and the vulnerability of the complainant were valid considerations, the intoxication of the offender was not a mandatory aggravating factor that warranted a higher starting point. The court finds that a starting point of four months’ imprisonment would have been more appropriate. Regarding the discount for rehabilitative efforts, the court acknowledges that efforts to address alcohol issues were relevant but does not find that the Judge failed to consider them adequately. The significant overall discount, which reduced the sentence to one month home detention, is deemed appropriate.
In terms of the least restrictive outcome, the court notes that while the Judge considered the option of a conviction without discharge, it was within the Judge's discretion to impose a sentence of home detention, especially given the nature of the offence involving violence against a child. The court concludes that the Judge's decision was within the range that could be properly justified by accepted sentencing principles.
The court dismisses the appeal, finding that the sentence imposed by the Judge was not manifestly excessive. The starting point may have been too high, but the end sentence of one month home detention was within the range available, and the Judge had discretion in imposing the sentence of home detention.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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