Lynch v Police - [2022] NZHC 1448

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…

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 Lynch v Police

Details

AGLC: Lynch v Police [2022] NZHC 1448
Case: [2022] NZHC 1448
Decision Date: 20 June 2022

CaseChat Overview and Summary

In this case, Orrin Lynch appeals against his sentence of one month home detention, imposed cumulatively on a sentence of 10 months' home detention which he was already serving for unrelated offending. The appeal focuses on the starting point of the sentence, the discount applied for rehabilitative efforts, and the consideration of the least restrictive outcome. The Crown opposes the appeal, asserting that the sentence is not manifestly excessive. The legal issues before the court include the appropriateness of the starting point, the discount for rehabilitative efforts, and whether the least restrictive outcome was considered.

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