Lynn v The Queen

Case [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].

____________________________________________________________________

REASONS OF THE COURT

(Given by Woolford J)

  1. 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).

  1. 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. 

  2. In March 2018, the appellant, again with his former girlfriend, burgled a property in Morningside, Whangarei, taking household items valued at $5,815. 

  3. In May 2018, the appellant, together with another co-offender, burgled a property in Onerahi, Whangarei, taking a laptop valued at $600. 

  4. 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

  1. 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. 

  2. 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

  1. 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…

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Lynn v The Queen [2020] NZCA 616
Case
[2020] NZCA 616
Decision Date

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

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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