Lynn v The Queen
[2020] NZCA 616
•4 December 2020 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA326/2020 [2020] NZCA 616 |
| BETWEEN | DEREK JAMES LYNN |
| AND | THE QUEEN |
| Hearing: | 10 November 2020 |
Court: | Courtney, Woolford and Mander JJ |
Counsel: | W D McKean for Appellant |
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)
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 to be repaired and had to be replaced. The vehicles were targeted at random.
Disqualified driving
On 2 March 2018, the appellant appeared in the Whangarei District Court and was convicted of driving while disqualified (third or subsequent). He was disqualified from driving for one year and one day from that date. At 9.59 am on 1 August 2018, the appellant was the driver of a motor vehicle on Maunu Road, Avenues, Whangarei, when he was stopped by police and spoken to. Checks revealed he was disqualified. The car he was driving was impounded for 28 days.
District Court sentence
After reciting the facts, Judge de Ridder noted that the appellant’s principal co-offender, Mr Hodgkinson, had been sentenced to seven years and seven months’ imprisonment for his role in the burglaries, arsons and intentional damage.[3] Mr Hodgkinson had been sentenced on a greater number of arson charges, but a lesser number of burglaries. It was accepted by the Crown and defence that the appellant and Mr Hodgkinson were equally responsible for the intentional damage charges. The Judge noted that the significance of that was, of course, that in sentencing the appellant on the two representative charges of intentional damage, the principle of parity required him to adopt the same approach as was adopted by Judge D G Harvey, who sentenced Mr Hodgkinson.[4]
[3]Sentencing notes, above n 1, at [9].
[4]R v Hodgkinson [2019] NZDC 10012.
The Judge then turned to the seriousness of the charges. First, with regard to the burglaries, the Judge accepted that there was significant planning and premeditation.[5] The appellant targeted residential properties. There were nine burglaries and the value of the property taken was significantly in excess of $40,000. The Judge noted that the appellant had nine previous convictions for burglary between 2010 and 2011 plus a number of convictions for other dishonesty offending.[6]
[5]Sentencing notes, above n 1, at [10].
[6]At [11].
As far as the arson charges were concerned, there were three vehicles involved of significant value.[7] The shelter belt was a long-standing and significant feature of the area. It was relatively close to houses. Finally, in respect of the intentional damage charges, the Judge noted the sheer number of vehicles involved, the scale of damage caused and the cost and inconvenience to a large number of people.
[7]At [12].
The Judge then referred to the 68 victim impact statements which had been filed in court, the probation report and a health assessor’s report under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003. The Judge noted that the s 38 report writer expressed his belief that the appellant had a genetic predisposition to mental health difficulties and that he had complex psychological problems that arose from childhood trauma and adversity.[8] The report writer did not, however, find any evidence of severe or enduring mental illness, but considered that there was clinical evidence at least that was supportive of a personality disorder. The report writer concluded that the appellant had complex psychological problems that needed to be addressed in order to reduce his risk of reoffending.
[8]At [16].
After reviewing the Crown and defence submissions, the Judge then determined the appropriate sentences for the different sets of offending. Dealing first with the charges of burglary, the Judge was satisfied that an appropriate starting point was four years’ imprisonment. That four-year starting point took into account both the aggravating factors of the offending itself and the appellant’s personal aggravating factors, in particular his criminal history. The Judge then considered the discounts which might be available for the appellant’s personal mitigating factors. First, there was the appellant’s psychological problems. In the Judge’s view, the appropriate discount for such issues was 15 per cent or eight months’ imprisonment, which reduced the sentence to 40 months’ imprisonment.[9] The Judge also accepted that there was some limited remorse for which he considered a very modest reduction of one month was available, which took the sentence further down to 39 months’ imprisonment. Finally, the appellant was entitled to a further discount for his guilty pleas. A discount of 15 per cent was considered to be appropriate by the Judge, which equated to seven months.[10] By the Judge’s calculations that took the appellant’s end sentence on the burglary charges to two years and eight months’ imprisonment.
[9]At [40].
[10]At [26].
In respect of the arson charges, the Judge was satisfied that an appropriate starting point was three years’ imprisonment.[11] Again, a 15 per cent reduction for the appellant’s psychological problems took the sentence down to 30 months’ imprisonment. A further month was deducted for the appellant’s remorse, together with 15 per cent for his guilty pleas, which took the end sentence on the arson charges to two years’ imprisonment.
[11]At [27].
The Judge then said that the intentional damage charges should obviously have a starting point of three years’ imprisonment, the same as that adopted in respect of Mr Hodgkinson.[12] Applying the same discounts he had granted on the arson charges, the Judge came to an end sentence of two years’ imprisonment on the intentional damage charges.
[12]At [28].
Finally, in respect of the driving while disqualified charge, in the Judge’s view, a sentence of nine months’ imprisonment was appropriate.[13]
[13]At [29].
The Judge made all the sentences cumulative, resulting in a total sentence of seven years and five months’ imprisonment.
Co-offender’s sentence
The appellant’s co-offender, Mr Hodgkinson, pleaded guilty to two charges of burglary, one charge of arson knowing danger to life was likely to ensue, nine charges of arson relating to motor vehicles and two representative charges of intentional damage. On 24 May 2019, he was sentenced to a total sentence of seven years and seven months’ imprisonment.[14] The Judge took the lead offences to be the arson charges, which on their own would merit a starting point in the vicinity of seven years’ imprisonment.[15] In addition, the Judge was of the view that a starting point of around three years’ imprisonment was appropriate for both the burglary and the intentional damage charges.
[14]R v Hodgkinson, above n 4.
[15]At [40].
The Judge noted, however, that bearing in mind the principle of totality, he should select a starting point for the arsons of four and half years’ imprisonment rather than seven years’ imprisonment.[16] Mr Hodgkinson was also entitled to a full 25 per cent discount for his guilty pleas.[17] Accordingly, in relation to the arson charges and giving Mr Hodgkinson credit for his guilty pleas, he was sentenced to three years and four months’ imprisonment.[18] On the representative charges of intentional damage, he was sentenced to two years and three months’ imprisonment, which was cumulative on the sentence of three years and four months’ imprisonment for arson. On the two charges of burglary, he was sentenced to two years’ imprisonment, which was also cumulative. This meant that Mr Hodgkinson received a total sentence of seven years and seven months’ imprisonment.
Appellant’s submissions
[16]At [42].
[17]At [44].
[18]At [47].
The appellant appeals against sentence on the grounds that the Judge:
(a)did not give sufficient credit for guilty pleas that avoided a lengthy trial;
(b)did not sufficiently reduce the sentence to recognise remorse;
(c)imposed a cumulative sentence of imprisonment on the driving whilst disqualified charge, which itself was manifestly excessive;
(d)did not take into account the totality of the offending resulting in an end sentence out of proportion to the gravity of the overall offending; and
(e)did not take into account totality resulting in disparity in treatment from the co-offender, Mr Hodgkinson, and that disparity in treatment was not consonant with the appearance of justice.
No issue is taken with the starting points adopted by the Judge for the different sets of offending. They are all within range if they were considered on their own. Nor is any issue taken with the 15 per cent discount for the appellant’s psychological problems.
It is submitted, however, that more credit should have been given for the guilty pleas. It came immediately after a decision of this Court which gave the appellant some success in ruling a part of his police interview inadmissible.[19] The guilty pleas saved the Crown and the Court enormous resources that would have been required to prosecute the offending. Counsel submits that a 20 per cent discount was justifiable.
[19]Lynn v R [2019] NZCA 656.
Counsel further submits that the 2.5 per cent discount for remorse was also quite inadequate. Where there is tangible evidence of genuine remorse, discounts of around five to eight per cent have been given.
Counsel submits the Judge was then required to stand back and look at the overall sentence. He did not do so. If he had, he would have made an adjustment to the sentence similar to that made in the sentencing of Mr Hodgkinson. Counsel submits that the overall offending was connected. It was spree offending involving the same type of offending (theft and property damage) in the same place over the same period involving common participants. The connected nature of the offending favoured a concurrent sentencing approach.
Counsel submits the failure to take totality into account in the appellant’s sentencing meant that there was disparity in the approach to the sentencing compared to Mr Hodgkinson. The argument on disparity is not about the length of the sentence but is said to arise because of the different treatment of the two offenders. Counsel therefore submits that:
(a)the total period of imprisonment was wholly out of proportion to the gravity of the overall offending because totality was not taken into account; and
(b)the differences in approach to sentencing meant there was an unfair disparity which resulted in the appellant being sentenced to a longer period of imprisonment than he otherwise would have.
Finally, counsel submits the sentence for driving while disqualified requires its own consideration. Before sentencing, the appellant had pleaded guilty and been sentenced for a separate offence of driving while disqualified on 6 August 2018, five days later than the offence for which he was sentenced on 19 June 2020. He had received a sentence of four months’ imprisonment. Counsel submits it is difficult to justify why the appellant would receive a sentence of nine months’ imprisonment when it was more than double the sentence imposed for the same offence committed five days later. In sentencing for that offence, given its proximity to the later offence, counsel argues the Judge was required to take totality into account and the period of imprisonment to which the Judge would have sentenced the appellant if dealing with both offences at the same time. Counsel submits that the appellant would not have received a sentence of 13 months’ imprisonment on two charges of driving while disqualified, committed five days apart. Furthermore, the Judge made no allowance for a plea of guilty or any other mitigating factors in arriving at an end sentence of nine months’ imprisonment.
In conclusion, counsel submits that the end sentence was a crushing sentence for a man whose offending was likely linked to his personality disorder brought about by a very difficult childhood.
Discussion
Section 84 of the Sentence Act 2002 sets out guidance on the use of cumulative and current sentences. It provides:
84 Guidance on use of cumulative and concurrent sentences of imprisonment
(1) Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.
(2) Concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.
(3) In determining for the purpose of this section whether 2 or more offences committed by 1 offender are a connected series of offences, the court may consider—
(a) the time at which they occurred; or
(b) the overall nature of the offending; or
(c) any other relationship between the offences that the court considers relevant.
In the present case, the burglaries happened over a nine-month period between September 2017 and June 2018 and occurred over a wide area from One Tree Point, 35 km south-east of Whangarei, to Whangaumu, 31 km north-east of Whangarei, and in various suburbs of Whangarei itself. Mr Hodgkinson was only a co-offender in three of the burglaries. The appellant’s former girlfriend was the co‑offender in five of the burglaries. The burglaries are quite different in kind to the arson and intentional damage charges.
The arsons occurred in mid-April 2018. The two representative charges of intentional damage are dated between 20 and 29 June 2018 and 6 and 25 July 2018, at least two months after the arsons. We do, however, acknowledge that on sentencing three charges of arson relating to the destruction by fire of three motor vehicles on 23 June 2018 were withdrawn. There is, therefore, some overlap in time and circumstances between the arson of cars and the wilful damage of car tyres, but, again, the arson of a shelter belt is quite different in kind to the wilful damage of car tyres. The disqualified driving charge is also quite different in kind.
As has often been said, the key question in an appeal against sentence is the appropriateness of the end sentence and not how it was reached,[20] but, in this case, it was clearly open to the Judge to utilise a cumulative approach to sentencing.
[20]See Andrews v R [2012] NZCA 61 at [27]; and Connelly v R [2008] NZCA 550 at [13].
Although the crime of arson has a higher maximum sentence (14 years’ imprisonment) than burglary (10 years’ imprisonment), the Judge was right to consider the burglaries to be the lead offences. He adopted a starting point of four years’ imprisonment,[21] which took into account the appellant’s nine previous convictions for burglary, for which he had received three years’ imprisonment. The Judge then discounted the starting point by approximately 33 per cent to recognise the appellant’s psychological problems, his remorse and the pleas of guilty to reach an end sentence of two years and eight months’ imprisonment, which is less than the three years’ imprisonment the appellant had previously received for burglary.
[21]In his sentencing submissions filed in the District Court, counsel for the appellant suggested that a starting point of three and a half years’ imprisonment was appropriate.
As to the discount for the guilty pleas, the Judge noted that they did not come at the earliest opportunity and whilst the appellant had every right to challenge issues as to his interview in this Court, the fact remained that that process was followed before guilty pleas were entered. As to remorse, the Judge gave the appellant what, he said, was “a very modest reduction” of approximately two per cent for remorse on account of the courses he had completed in prison and the letter he had written to the Court.[22]
[22]Sentencing notes, above n 1, at [23].
What was not brought to the Judge’s attention, however, was the fact that the appellant admitted in an interview that he committed nine burglaries when the police only had evidence in the form of a statement from his former girlfriend of two burglaries. His admissions, therefore, enabled the police to solve seven burglaries they may not otherwise have been able to solve. As this Court stated in R v Strickland:[23]
An offender who confesses other offending to the police, especially in circumstances where conviction on those other offences might not otherwise have followed, or where the offender’s co-operation saves the authorities considerable time and work, is entitled to have that co-operation taken into account when the sentence is fixed.
[23]R v Strickland [1989] 3 NZLR 47 (CA) at 51.
In R v Grant, the appellant’s disclosures led to clearance of 16 unsolved burglaries.[24] This Court found that an effective sentence of five years’ imprisonment for 18 burglaries was therefore excessive and reduced the effective sentence to one of four years’ imprisonment.[25]
[24]R v Grant (1992) 8 CRNZ 483 (CA).
[25]At 487.
Whether this factor is built into the discount for the guilty pleas or remorse, we consider that it should be recognised in a tangible way. In the present case, we are of the view that the discount for the appellant’s guilty pleas can, and should appropriately, be increased by five per cent to 20 per cent.
This also takes into account our view that the discount of 15 per cent failed to acknowledge the extent of the benefits the guilty pleas brought to the criminal justice system. The appellant’s guilty pleas saved the substantial costs associated with a lengthy defended hearing. We agree with the commentary in Adams on Criminal Law — Sentencing, that there are also social utility benefits for witnesses, particularly complainants, who are not required to give evidence and may be assisted through the appellant’s acknowledgement of responsibility for the offending.[26] The sheer scale of the trial forgone is reflected in the 68 victim impact statements filed in Court. As noted by the Supreme Court in Hessell v R, the value to be attributed to a guilty plea is to be assessed having regard to all the circumstances of the case rather than by reference to a prescriptive scale of discounts that depend on when the plea was entered.[27]
[26]Simon France (ed) Adams on Criminal Law — Sentencing (online looseleaf ed, Thomson Reuters) at [SA9.18].
[27]Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [70].
Taking into account the adjusted 20 per cent discount for the appellant’s guilty pleas, the sentences are now two years and six months’ imprisonment for the burglaries and one year and 10 and a half months’ imprisonment each for the arsons and for the intentional damage, totalling a cumulative sentence of six years and three months’ imprisonment before the disqualified driving sentence is considered.
As to the disqualified driving sentence, the Judge did not identify a starting point, nor did he accord the appellant any discount for personal mitigating factors. Nor was any allowance then made for totality, given that the appellant had pleaded guilty and been sentenced to four months’ imprisonment for disqualified driving five days after the date of the offence for which he was being sentenced.
The total sentence imposed for the two offences, five days apart, was 13 months’ imprisonment. For his last two offences of driving while disqualified in 2016 and 2017, the appellant received sentences of eight months’ imprisonment and nine and a half months’ imprisonment respectively.
While a total sentence of 14 months’ imprisonment could conceivably be justified for the two offences committed five days apart, we think the fairer thing to do, in the absence of any indication from the Judge of a starting point or discounts for personal mitigating factors, is to treat the nine months’ imprisonment as the starting point from which the same discounts as for the burglaries, arsons and wilful damage are deducted. Such an approach would also take into account the principle of totality when the sentence is to be cumulative on the burglaries, arsons and wilful damage sentences. This would lead to a sentence of five and a half months’ imprisonment on the disqualified driving charge.
All in all, this leads to a total sentence of six years and eight and a half months’ imprisonment rather than the seven years and five months’ imprisonment originally imposed — a modest reduction of eight and a half months.
Section 85 of the Sentence Act also requires the court to consider the totality of the offending. It provides:
85 Court to consider totality of offending
(1) Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.
(2) If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.
(3) If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.
(4) If only concurrent sentences are to be imposed,—
(a) the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and
(b) each of the lesser offences must receive the penalty appropriate to that offence.
The Judge can be seen to have imported the principle of totality into the total sentence when he adopted a starting point of three years’ imprisonment for the arson charges. He did so by reference to the four-and-a-half-year starting point adopted by Judge Harvey in sentencing the appellant’s co-offender, Mr Hopkinson, through application of the totality principle. Judge Harvey stated that the starting point for the arsons would otherwise be seven years’ imprisonment, or half the maximum sentence.
Standing back and looking at the adjusted overall sentence, it is not wholly out of proportion to the gravity of the overall offending. The offending was serious, widespread and covered a broad range of property offending over almost a year. The offending had an impact on a large number of people and caused considerable alarm and concern about safety and security in the community. The total sentence is well within each of the maximum sentences for burglary, arson and wilful damage.
Finally, we do not consider that an issue of parity arises with the sentence imposed on Mr Hodgkinson. They have similar levels of culpability and similar personal characteristics. Mr Hodgkinson’s culpability for arson is higher due to the greater number of arsons which he committed. However, the appellant’s culpability for burglary is higher, and he was also sentenced for disqualified driving. We agree with the Crown that, in the round, there is not a great deal of difference in their culpability. Mr Hodgkinson received a sentence of seven years and seven months’ imprisonment for his offending. Although he received a 25 per cent discount for his guilty pleas made at the earliest opportunity, he did not receive any further discount for personal mitigating factors. The appellant did, receiving 15 per cent discount for his psychological problems and a small reduction for remorse.
Result
The appeal is allowed.
The sentences of two years and eight months’ imprisonment for burglary, two years’ imprisonment for arson, two years’ imprisonment for intentional damage and nine months’ imprisonment for disqualified driving are quashed. In their place, the sentences set out below are substituted.
The appellant is sentenced to two years and six months’ imprisonment for the burglaries. For the arson charges, the appellant is sentenced to one year and 10 months’ imprisonment, cumulative on the sentence of two years and six months’ imprisonment for the burglaries. In respect of the intentional damage charges, the appellant is sentenced to one year and 10 months’ imprisonment cumulative on the sentence of one year and 10 months’ imprisonment for the arson charges. And for the driving while disqualified charge, the appellant is sentenced to five and a half months’ imprisonment, cumulative on the sentence of one year and 10 months’ imprisonment for the charges of intentional damage.
This leads to a total sentence of six years and eight and a half months’ imprisonment, which we round down to six years and eight months.
Solicitors:
WRMK Lawyers, Whangarei for Appellant
Crown Law Office, Wellington for Respondent
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