Lynch v The the King - [2022] NZHC 2939

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2022-483-021

[2022] NZHC 2939

BETWEEN
ANTHONY JOHN LYNCH

Appellant

AND

THE KING

Respondent

Hearing: 9 November 2022

Appearances:

S J Iorns for the Appellant

J J Harvey for the Respondent

Judgment:

9 November 2022

ORAL JUDGMENT OF PALMER J

Solicitors/Counsel
Iorns & Co – Barristers, Wellington
Wilkinson Smith Lawyers Limited, Whanganui

LYNCH v R [2022] NZHC 2939 [9 November 2022]

What happened?

[1] Between 10 November 2020 and 31 January 2021, Mr Anthony Lynch, then aged 42, was the owner and manager of the Fiesta Court Motel in Whanganui. Drug dealers stayed at the motel, dealing in methamphetamine from the premises. Mr Lynch acted as a middle-man. He offered to supply methamphetamine on 45 occasions. He also offered MDMA on two occasions and cannabis on six occasions. In the vehicle in which he was arrested, the Police located a cut-down single shotgun, 12 rounds of ammunition, drug utensils and a knife.

[2] Mr Lynch pleaded guilty to one charge each of offering to supply methamphetamine, offering to supply MDMA, offering to supply cannabis, unlawful possession of a firearm and unlawful possession of ammunition. He spent a month remanded in custody and 16 months on electronically-monitored (EM) bail. He failed to comply with his terms of bail on two occasions. Once, early in his sentence, he received a warning for deviating on his return from an approved absence. For the other, he did not attend a scheduled drug counselling appointment due to having cramp in both calves.

[3] On 17 August 2022, Judge I C Carter, in the District Court at Whanganui, sentenced Mr Lynch by adopting a starting point of 21 months’ imprisonment.1 He uplifted that by three months for the supply of MDMA and cannabis, and by nine months for possession of a firearm and ammunition.2 He did not consider any discount for remorse was warranted.3 He did not consider there was sufficient information to establish a connection between prior drug addiction and the offending so did not allow a discount for that.4 But he discounted the sentence by 20 per cent for the guilty pleas which occurred a considerable time before trial.5 The Judge said:

[25] You spent a lengthy period of time on EM bail and that was subject to restrictive conditions. The period of time on EM bail was from late March 2021 to today’s date, a period of just over 16 months. I am going to discount the sentence by half of that, namely eight months for the time spent on EM bail.

1 R v Lynch [2022] NZDC 15673 at [18].
2 At [19]–[20].
3 At [22].
4 At [23].

[4] That resulted in a sentence of 18 and a half months’ imprisonment.6 The Judge converted that to home detention.7 He said:

[28] Having decided to convert the sentence to one of home detention, I need to consider whether you should get further credit for the period…

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 The the King

Details

AGLC: Lynch v The the King [2022] NZHC 2939
Case: [2022] NZHC 2939
Decision Date: 9 November 2022

CaseChat Overview and Summary

In Lynch v The King, Anthony John Lynch appeals against a sentence imposed by the District Court. Mr Lynch pleaded guilty to multiple drug-related offences and possession of a firearm and ammunition. The District Court sentenced him to 18 and a half months’ imprisonment, which it converted to home detention for nine months and one week, deducting eight months for time spent on electronically-monitored (EM) bail. Mr Lynch argues that the District Court erred in not deducting an additional month for time spent in custody prior to his release on EM bail. The Crown accepts the error but argues that the sentence is not manifestly unjust. The High Court must determine if the sentence appeal should be upheld.

The central legal issue in this appeal is whether the District Court made a material error in sentencing by not deducting a month for time spent in custody prior to the imposition of EM bail. The appeal hinges on the interpretation of statutory provisions, particularly sections 9(3A) of the Sentencing Act 2002 and section 250 of the Criminal Procedure Act 2011. The court must consider whether the error was material and whether the resulting sentence falls within the available range. Both parties agree that the District Court made an error by not deducting time spent in custody, but they disagree on the materiality of that error.

The High Court finds that the District Court erred by not deducting a month for time spent in custody. This error is material because a month is a significant portion of the nine-month and one-week home detention sentence, amounting to 10.8 per cent. The court emphasizes that full credit should be given for time spent in custody, in line with established case law. The court also notes that the 50 per cent discount for time spent on EM bail was generous, but the additional month for custody is material. The sentence imposed is not manifestly unjust, but the error necessitates a reduction. The court quashes the original sentence and imposes a sentence of home detention for eight months and one week, aligning with the statutory guidelines and maintaining the original conditions set by the District Court.

The final orders of the court are to quash the sentence of home detention imposed by the District Court and impose a sentence of home detention for eight months and one week, with all other orders and conditions remaining as set by the District Court.

Orders