Lyon v Police

[2021] NZHC 1621

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2021-425-000003

[2021] NZHC 1621

BETWEEN

SHANE JAMES LYON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

28 June 2021

Appearances:

T J Jackson for the Appellant

C E R Power for the Respondent

Judgment:

2 July 2021

JUDGMENT OF NATION J

Introduction

[1]                 The appellant, Shane James Lyon, was sentenced to 24 months’ imprisonment by Judge Farnan in the District Court at Queenstown1 in respect of charges of arson (2),2 burglary (2),3 and making false statements to the Police.4 He was ordered to pay reparation in the sum of $7,050.

[2]                 My Lyon appeals his sentence on the basis it was not the least restrictive outcome in the circumstances and home detention should have been imposed.

1      R v Lyon [2021] NZDC 610.

2      Crimes Act 1961, ss 267(1)(a) and 267(1)(b).

3      Section 231(1)(a). Including one representative charge.

4      Summary Offences Act 1981, s 24(a).

LYON v POLICE [2021] NZHC 1621 [2 July 2021]

Background

[3]                 My Lyon was employed on a Central Otago station as a stockman and shepherd from approximately 1 September 2018 until his arrest on 16 August 2019. The station is located just outside Alexandra in the Galloway district.

[4]                 The victims of Mr Lyon’s offending are his former employers, a family who own the station. They live in a homestead on the property with their three children. A number of other dwellings are located near the homestead including a three bedroom house that was occupied by Mr Lyon, his then wife and two children. Another cottage was occupied by a family who have two children with special needs. All of the buildings are within 150 m of each other and Mr Lyon had free reign of the property.

[5]                 Shortly after Mr Lyon commenced his employment, the victims noticed small amounts of cash were missing from their kitchen where it was stored in envelopes. On several occasions amounts of up to $400 went missing and in March 2019 $650 from a children’s sports fundraiser was taken. The victims reported the thefts to the Police and installed cameras around the property. The cameras were subsequently either stolen or disabled.

[6]                 On 13 August 2019 the victims left the station for 48 hours, informing only Mr Lyon of where they were going. At about 7.30 pm Mr Lyon went to the homestead and took $180 cash from the kitchen. He then placed a tea towel in the wall oven and turned the oven on. Mr Lyon proceeded to break into the gun cabinet located in an out-building. He took four of the five rifles and placed them in positions leading away from the cabinet to give the appearance that the guns had been dropped by fleeing burglars. Some of the guns were loaded. Mr Lyon returned to the homestead and turned off the oven. By that stage the tea towel had created a fire in the oven and smashed the interior glass oven door.

[7]                 Mr Lyon rang the Police and reported that he had disturbed burglars who had fled, but he had recovered the firearms they were stealing. He stated he had gone into the smoke filled homestead, turned the oven off and doused the burning tea towel in water. Police attended and Mr Lyon reported the burglary and arson to them. Members of the rural community rallied in support of Mr Lyon and assisted in looking for the offenders.

[8]                 My Lyon’s then wife asked him to install a camera in a tree in the area of their own back door as she was fearful after the reported arson and burglary of the nearby homestead.

[9]On 14 August 2019, Mr Lyon was working outside in the carport. At around

9.15 pm he returned to his house through the back door. Shortly after, he said there was a fire in the area of the back door. He moved two vehicles and evacuated his family but did not attempt to put out the fire or call the fire brigade.

[10]              A neighbour put out the fire some five or 10 minutes later. The fire had been set in a clothing storage area. It destroyed children’s rain jackets and shoes and charred the outside of the house. Fire services and Police attended. A fire investigation revealed accelerant had been placed in the area to start the fire. The camera hidden in the tree was missing but the bracket was left behind.

[11]              Mr Lyon’s then wife was admitted to hospital as she was recovering from a heart attack three weeks prior to the arson. The stress caused her to become significantly unwell. Mr Lyon’s children were extremely distressed and were cared for away from the property.

[12]              On 16 August 2019, Mr Lyon called one of the victims, the station owner, to say he had been confronted by two masked men in or near his house at first light. He said the men had a photograph of his daughters which they had stolen from the house and threatened that if Mr Lyon did not co-operate they would harm the children.

[13]              The victim called the Police and the matter was reported as a home invasion. Additional Police staff were recalled from days off to attend. Local schools were alerted to the threats and took extra precautions regarding security.

[14]              Mr Lyon admitted to the arson at the homestead and the theft of cash from the victims. He stated he was going to burn the property down to cover his offending but had thought better of it and returned to turn the oven off. He denied setting the fire at his own back door and disposing of the camera.

Procedural History

[15]              Following two adjournments, on 9 September 2020 Judge Farnan provided Mr Lyon with a sentence indication. On 14 September 2020, defence counsel advised the Court Mr Lyon intended to accept the indication and requested the matter be called.

[16]              On 22 October 2020, defence counsel filed a memorandum seeking an adjournment due to Mr Lyon suffering a gunshot wound overnight. The Crown consented to the adjournment.

[17]              On 3 December 2020, Mr Lyon pleaded guilty to all seven charges. He was remanded on bail until 18 January 2021 pending sentence.

District Court decision

[18]              In her sentencing indication of 9 September 2020, the Judge traversed the facts of the offending. She referred to the impact of the offending on the victims and the submissions of counsel. She arrived at a starting point of three and a half years or 42 months’ imprisonment for the offending. From that, she indicated she would deduct 25 per cent for guilty pleas and 10 per cent for prior good character. She said that end sentence did not provide “any personal discounts for payment of reparation, attendance at restorative justice (if you express a willingness or if such a conference is convened), or potential mental health factors, support by independent evidence”. The indicated end sentence if Mr Lyon pleaded guilty was for “no more than 27 months’ imprisonment” but the Judge said there was the possibility of home detention.

[19]              Mr Lyon accepted the indication and pleaded guilty. The Judge admitted Mr Lyon to bail to enable him to pay reparation. On the actual sentencing, having canvassed the facts of the offending, the Judge noted that since the incident Mr Lyon had proffered a further explanation for his offending. My Lyon was reported as saying to Probation that he did not light the fires and there had been threats towards him after he found a cannabis plot. The Judge noted none of these matters had been reported to the Police.

[20]              The pre-sentence report expanded on Mr Lyon’s claim to have come across a cannabis grow. It records that he claimed he cut down the plants, his actions were found out and he became a target. He claimed he was threatened at gunpoint to pay

$10,000. He says this explained the theft of funds from the homestead.

[21]              The Judge did not accept the explanation, as it did not align itself with the amounts of money Mr Lyon stole from the property, which was considerably less than

$10,000. Her Honour noted the report-writer struggled to assess Mr Lyon’s remorse as his focus during the report writing process was on the impact upon himself. The Judge considered this extremely concerning.

[22]              The Judge concluded Mr Lyon was not a suitable candidate for home detention. Mr Lyon had been on bail without issue and there was a suitable address available. However, her Honour was disturbed by the allegation that Mr Lyon was now claiming the offending was drug related and third parties had committed the fires.

[23]              The Judge considered a further discount of five to 10 per cent for the reparation payment was appropriate. This brought the end sentence to 24 months’ imprisonment.

Principles on appeal

[24]              Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and a different sentence should be imposed.5 As the Court of Appeal stated in Tutakangahau v R, “an appellate court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.6 It is only appropriate for this court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.7

5      Criminal Procedure Act 2011, ss 250(2) and 250(3).

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

7      Ripia v R [2011] NZCA 101 at [15].

[25]              Home detention is an alternative to a short-term sentence of imprisonment.8 The court must be satisfied that the purposes for which the sentence is being imposed cannot be achieved by any less restrictive sentence.9

[26]              An appeal court must focus on the identification of error, having regard to the discretionary nature of the decision.10 The Court of Appeal in Manikpersadh v R said:11

[11]        This Court identified the appropriate approach in James v R in this way:12

[17] We record that an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits. The question is whether [the judge] erred in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a factor, or was he plainly wrong? Ms Guy Kidd for the Crown properly accepts that home detention can satisfy the objectives of deterrence and denunciation, but to a degree. We are satisfied, in accordance with earlier authority in this Court, that the decision about whether home detention will meet those objectives in a particular case is a strictly evaluative exercise. It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending.

(footnotes omitted.)

[12]        We agree with counsel for the respondent’s assessment that the proper approach of an appellate Court in cases such as this is that “the choice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion, with appellate review focusing … on the identification of error, if any, in the court below.”

Submissions

Appellant’s submissions

[27]              Mr Lyon appeals solely against the refusal to commute his sentence of imprisonment to home detention. Mr Jackson, on behalf of Mr Lyon, submitted the sentence indication stated the mitigating matters that were likely to lead to a conversion to home detention and it was not open to the Court to depart from that indication.

8      Sentencing Act 2002, s 15A(1)(b).

9      Section 15A(1)(a).

10     Doolan v R [2011] NZCA 542 at [39].

11     Manikpersadh v R [2011] NZCA 452.

12     James v R [2010] NZCA 206.

[28]Mr Jackson referred to the following passage of the sentence indication:

[73]  If you pay the reparation – and if there were other personal factors that I do not know about, or if there are those medical factors supported by evidence, and there was in the pre-sentence report a recommendation for home detention, no further offending, and no breaches of bail – then I would likely convert the remaining sentence to home detention, with some community work.

[29]              In essence, Mr Jackson said the sentence indication referred to factors that, if met, would result in Mr Lyon being sentenced to home detention. He says the Judge did not make it clear whether the factors were mandatory or the list was inclusive.

[30]              Mr Jackson took issue with what he said was the District Court Judge’s failure at sentencing to acknowledge the significance of the reparation payment or other mitigating factors. It was submitted the reparation payment was a factor that was relevant to home detention.

[31]              Mr Jackson submitted the Judge placed too much emphasis on the lack of remorse. Further, it was submitted the Judge erred in drawing conclusions from Mr Lyon’s recent gunshot wound, from his explanations or motivation for the offending, and the pre-sentence report-writer’s comments.

[32]              The pre-sentence report contains information regarding a gunshot wound to Mr Lyon’s leg. Mr Jackson submitted, if the Court was going to sentence Mr Lyon based on this information, Mr Lyon should have been afforded an opportunity to make submissions about that information.

[33]              Mr Jackson submitted Mr Lyon was a first time offender and had earned a stable living up to the point of his offending. In his submission, these factors weighed in favour of home detention. Further, the home detention address and occupants were suitable.

[34]              Mr Jackson said the comments Mr Lyon made to the pre-sentence report-writer could only be sensibly seen as symptoms of a man with deep psychological problems, rather than indicative of a lack of remorse.

Respondent’s submissions

[35]              Mr Power, for the Crown, submitted the sentence was within range and the District Court Judge made no error.

[36]              Mr Power was critical of Mr Jackson’s submission that the sentencing, particularly the possibility of communizing the sentence to home detention, was not subject to the pre-sentence report. He noted in a memorandum dated 14 September 2020 the matter of home detention was subject to “a positive pre-sentence report” and Mr Lyon making payment of reparation.

[37]              It was submitted Mr Lyon had produced no evidence of personal, medical or psychological issues to support the submissions that the sentence was inappropriate. Mr Power noted that Mr Lyon received a three month credit in respect of his payment of reparation.

[38]              In respect of the comments at [73] of the sentence indication, Mr Power said they set out matters that might lead to mitigation. In his submission, the payment of reparation and a positive pre-sentence report were mandatory for home detention to be considered. Mr Power noted the pre-sentence report included new assertions made by Mr Lyon that were inconsistent with his prior admissions. Overall, in his submission, the pre-sentence report was not positive and the Judge was correct to conclude Mr Lyon was not a suitable candidate for home detention.

Analysis

[39]              A sentence indication is binding on the judge that gave it unless information becomes available to the court after the sentence indication was given but before sentencing, and the judge considers the information materially affects the basis on which the sentence indication was given.13

[40]              The sentence indication was for an end sentence of no more than 27 months’ imprisonment. In respect of additional discounts, the Judge noted:14

13     Criminal Procedure Act, s 116(2).

14     Emphasis added.

[73]  If you pay the reparation – and if there were other personal factors that I do not know about, or if there are those medical factors supported by evidence, and there was in the pre-sentence report a recommendation for home detention, no further offending, and no breaches of bail – then I would likely convert the remaining sentence to home detention, with some community work.

[41]At sentencing the Judge summarised the above comment as follows:15

[3] I indicated that if reparation was paid, and if there were personal factors that I did not then know about, or medical evidence supported by evidence, and a pre-sentence report recommendation for home detention, the Court might reach that stage where consideration needed to be given to provide you with further discounts to bring you within the range of home detention.

[42] Mr Jackson said it was not clear if the matters listed by the Judge were mandatory or an inclusive list. Upon reviewing the passage at [40] above, I consider the Judge was indicating there were two factors that would weigh strongly in favour of granting home detention when considering whether to commute Mr Lyons’ sentence. First, the payment of reparation. Second, a recommendation for home detention in the pre-sentence report.

[43]              It is common ground that Mr Lyon paid the reparation sought, did not breach bail and did not commit further offending. The District Court Judge applied a three month discount in respect of the reparation payment.

[44]              The pre-sentence report dated 11 January 2021 recommended a term of imprisonment with special release conditions. As identified by the District Court Judge, the report contained allegations and explanations that were inconsistent with Mr Lyon’s prior statements.

[45]              The pre-sentence report recorded that Mr Lyon indicated, prior to his offending, he came across a cannabis grow with his daughter. He later returned to cut down the plants. As a result, he became a target and was threatened at gunpoint to pay

$10,000 to two men for his actions. He stated this debt was the reason he stole cash from his employers.

15     R v Lyon, above n 1.

[46]              In respect of the wilful damage and arson charges, Mr Lyon stated he did not light the fires and suspected the two males who were after him played a role in this. The report stated Mr Lyon received a gunshot wound in an alleged drive-by shooting which was under active investigation by Police. He told the report-writer it was not until this shooting that he disclosed his safety concerns to the Police. It is unclear from the Court file whether Mr Lyon did disclose these concerns.

[47]              The report-writer considered it was difficult to assess Mr Lyon’s remorse as he focussed on the impact the events had on him and struggled to comprehend why the victims felt traumatised. Importantly too, in talking to the report-writer about a supposed cannabis grow, Mr Lyon  appeared to again be attempting to shift responsibility for his offending to others, in a manner that was inconsistent with his accepting responsibility for what he had done and been genuinely remorseful for that offending and the harm it caused.

[48]              Fundamentally, for present purposes, the report-writer did not recommend a sentence of home detention. Accordingly, this factor weighed against sentencing Mr Lyon to home detention.

[49]              Consistent with her sentencing indication, the Judge did give Mr Lyon a credit of “some five to 10 per cent” for payment of reparation of $7,050.16 She also gave him a credit of 10 per cent for previous good character.

[50]              I do not consider there is any merit in Mr Jackson’s submission that the Judge erroneously placed too much weight on two of the eight sentencing purposes, namely deterrence and denunciation. In her sentencing indication, the Judge had properly assessed the culpability of Mr Lyon’s offending and both aggravating and mitigating matters relating to him personally. On sentencing, the Judge noted she needed to “consider the least restrictive outcome”.17 This approach was consistent with the comments of the Court of Appeal in Fairbrother v R where, in discussing home detention, the Court stated:18

16 At [43].

17     R v Lyon, above n 1, at [41].

18     Fairbrother v R [2013] NZCA 340. Emphasis added.

[30]   … the judge must make a considered and principled choice between [a short term period of imprisonment and home detention], recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.

[31]   Sometimes, as this Court said in R v D (CA253/2008), that can prove a very difficult exercise of judgment; and “the closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other”19

[51]              Before me, Mr Jackson submitted the issue as to whether home detention should have been imposed was finely balanced. I do not consider it was. There was no suggestion the Judge, in her indication, had made an error in arriving at an end sentence of 27 months’ imprisonment. On the actual sentencing, she gave a further discount of three months. There was no error in her deciding that, in all the circumstances and with due regard to what she had said in her sentence indication, it was not appropriate to substitute a sentence of home detention.

[52]              In her indication, the Judge said there might be a personal discount for potential mental health factors. On sentencing, there was no information put before the Judge as to such factors. Mr Power said the Court had been advised at an earlier stage in the proceedings that the defence was seeking some sort of psychological report. No such report was ever put before the Court.

[53]              Mr Jackson submitted the proffering of a new and implausible explanation for the offending should have been treated by the Judge as evidence of some pathological element to his offending. That may have suggested Mr Lyon had a pathological tendency to fabricate stories. The offending for which he was sentenced was not for simply fabricating a story but for thefts from his employer and arson.

[54]              In my view, the Judge’s decision to impose a short period of imprisonment, rather than home detention, was justified under sentencing principles and within the available range. It follows, I do not find the sentence was manifestly excessive.

19     R v D (CA253/2008) [2008] NZCA 254 at [66].

Conclusion

[55]The appeal is dismissed.

Solicitors:

JMJ Lawyers Ltd, Timaru RPB Law, Dunedin.