Lynn v Police - [2016] NZHC 2692

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2016-488-37
CRI-2016-488-38
CRI-2016-488-39

CRI-2016-488-40 [2016] NZHC 2692

BETWEEN
DEREK JAMES LYNN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 21 October 2016

Counsel:

L G Penney for Appellant
J W Wall for Respondent

Judgment:

10 November 2016

JUDGMENT OF WHATA J

This judgment was delivered by me on 10 November 2016 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors: Crown Solicitors, Whangarei

LYNN v POLICE [2016] NZHC 2692 [10 November 2016]

[1] Mr Lynn appeals (out of time) against a sentence of ten months’

imprisonment imposed by Judge DJ McDonald1 for:

(a) Two breaches of release conditions; and

(b) Two driving while suspended charges.

[2] Leave to appeal out of time is not opposed and is granted.

[3] Mr Lynn claims that the end sentence was manifestly excessive.

[4] The background facts are straightforward. Mr Lynn had been sentenced to seven months’ imprisonment on two charges of assault and one of possession of an offensive weapon.2 The victim of one of the assaults was his partner. One of his post-release conditions was that he was not to associate with her.

[5] On 21 April 2016 Mr Lynn breached this condition. He pleaded guilty to this and the Judge made an order under s 110 of the Sentencing Act 2002 that he come up for sentence within eight months. Another breach occurred on 25 July 2016, but he was not called up for sentence under s 111 of the Act. Rather, the Judge imposed a sentence of 80 hours’ community work and recorded a final warning. The warning did not work and, on 4 August, he was again found associating with his partner. Mr Lynn pleaded guilty to this breach and appeared for sentencing on the April and August breaches, and for two charges of driving while suspended.

[6] Judge MacDonald approached sentencing using the following start points: (a) Four months in relation to the first breach;
(b) Six months in relation to the second breach;

(c) Two months for driving while suspended.

1 New Zealand Police v Lynn [2016] NZDC 15425.
2 New Zealand Police v Lynn [2016] NZDC 1369.

[7] The Judge imposed an uplift of three months for prior misbehaviour. A 25 per cent discount for an early guilty plea was given, together with a further month to take into account the ill health of his mother. An end sentence of 10 months’ imprisonment was imposed.

Jurisdiction

[8] I may allow an appeal against sentence if I find that the Judge has materially erred.3 A sentence that is manifestly excessive may be set aside pursuant to this jurisdiction.4

Argument

[9] Mr Penney submits that the sentences were excessive, referring to two decisions:

(a) McLean v Police:5 the Court observed that a 12 month starting point for two breaches of release conditions, reduced to eight months’ imprisonment to take into account mitigating features (including a guilty plea), was at the top…

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 Lynn v Police

Details

AGLC: Lynn v Police [2016] NZHC 2692
Case: [2016] NZHC 2692
Decision Date: 10 November 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Derek James Lynn, the appellant, appealed against a sentence of ten months' imprisonment imposed by Judge DJ McDonald for two breaches of release conditions and two driving while suspended charges. The appeal was heard on 21 October 2016, with L G Penney representing the appellant and J W Wall representing the respondent. The judgment was delivered on 10 November 2016.

The legal issues that the court had to determine were whether the sentence imposed by the Judge was materially erroneous, and whether it was manifestly excessive. The court assessed the arguments presented by both parties and considered the relevant case law.

The court held that the sentence imposed for the breaches of release conditions and the driving offences was not manifestly excessive and fell within the frame set by the cited decisions. The court also found that while a different Judge might have taken a more lenient approach, particularly if the true severity of the appellant's mother's condition was known, the Judge was not exercising a discretion that was not available to him in terms of fixing the length of sentence. The appeal was dismissed, and the sentence remained unchanged.

The final orders of the court were that the appeal was dismissed, and the sentence of ten months' imprisonment remained in place. The court did not find any material error in the Judge's treatment of the appellant's personal circumstances and did not consider it appropriate to commute the sentence to home detention at that late stage.

Orders