Lynn v The Queen - [2020] NZCA 616

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA326/2020
[2020] NZCA 616

BETWEEN	DEREK JAMES LYNN Appellant
AND	THE QUEEN Respondent

Hearing:	10 November 2020
Court:	Courtney, Woolford and Mander JJ
Counsel:	W D McKean for Appellant MRL Davie for Respondent
Judgment:	4 December 2020 at 10 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe total sentence of seven years and five months’ imprisonment is quashed and replaced with a total sentence of six years and eight months’ imprisonment. The individual sentences are as set out at [49].

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REASONS OF THE COURT

(Given by Woolford J)

On 19 June 2020, Derek Lynn was sentenced to a total of seven years and five months’ imprisonment on nine charges of burglary, four charges of arson, two representative charges of intentional damage and one charge of driving while disqualified (third or subsequent).[1] He now appeals against sentence on the basis it is manifestly excessive. This Court must allow the appeal only if satisfied that there was an error in the sentence and a different sentence should be imposed.[2]

Factual background

Burglaries

[1]R v Lynn [2020] NZDC 11649 [Sentencing notes].

[2]Criminal Procedure Act 2011, s 250(2).

In September 2017, the appellant, together with his former girlfriend, burgled four unoccupied properties in One Tree Point, 35 km to the south-east of Whangarei, which he had noted as being advertised as holiday rentals. He took a wide variety of household items and sporting and recreational equipment, including mountain bikes, dive gear and an outboard motor, together valued in excess of $17,000.
In March 2018, the appellant, again with his former girlfriend, burgled a property in Morningside, Whangarei, taking household items valued at $5,815.
In May 2018, the appellant, together with another co-offender, burgled a property in Onerahi, Whangarei, taking a laptop valued at $600.
Then, in June 2018, the appellant, together with another co-offender, Wesley Hodgkinson, burgled another three properties in Whangarei Heads, Whangaumu and Whareora, Whangarei. Apart from a wide variety of household items and sporting and recreational equipment, the appellant took a gun safe containing a number of firearms and a motor vehicle, which was later found burnt out. The total value of the household items stolen exceeded $23,000.

Arsons

On 13 April 2018, the appellant, together with Mr Hodgkinson, set fire to three vehicles parked one after the other in Paranui Valley Road, Whangarei, by lighting the vehicles under the front wheel arch, where the mud flap connects to the vehicle chassis.
Then on 15/16 April 2018, the appellant, together with Mr Hodgkinson, set fire to a 150 m long, 8 m high, totara shelter belt in a rural location in Maungatapere, 12 km to the west of Whangarei.

Intentional damage

Between 20 and 29 June 2018 and between 6 and 25 July 2018, the appellant, together with Mr Hodgkinson, destroyed multiple car tyres on 46 different vehicles by slashing them with a knife, causing the tyres to deflate. All tyres were unable…

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 The Queen

Details

AGLC: Lynn v The Queen [2020] NZCA 616
Case: [2020] NZCA 616
Decision Date: 4 December 2020 at 10 am

CaseChat Overview and Summary

Derek Lynn appeals against his sentence of seven years and five months’ imprisonment on charges including burglary, arson, wilful damage, and driving while disqualified. The Court of Appeal allowed the appeal and reduced the sentence to six years and eight months’ imprisonment. The appeal was based on the grounds that the sentence was manifestly excessive due to inadequate discounts for guilty pleas and remorse, improper imposition of a cumulative sentence for the disqualified driving charge, failure to consider the totality of the offending, and unfair disparity compared to his co-offender's sentence. The Court found that the appellant's guilty pleas, which saved substantial resources, warranted a 20 per cent discount rather than 15 per cent. The sentence for the disqualified driving charge was reduced from nine months to five and a half months to account for totality and the prior sentence for a similar offence. The Court concluded that the revised sentence of six years and eight months’ imprisonment was proportionate to the gravity of the overall offending and did not unfairly disparately treat the appellant compared to his co-offender.

Orders