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…

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 Lyon v Police

Details

AGLC: Lyon v Police [2021] NZHC 1621
Case: [2021] NZHC 1621
Decision Date: 2 July 2021

CaseChat Overview and Summary

Shane James Lyon was sentenced by Judge Farnan in the District Court at Queenstown to 24 months' imprisonment for charges of arson, burglary, and making false statements to police, along with an order to pay reparation in the sum of $7,050. Lyon appealed the sentence, arguing it was not the least restrictive outcome and home detention should have been imposed. The High Court found no error in the District Court's sentencing. The District Court Judge had indicated a sentence of no more than 27 months' imprisonment, with the possibility of home detention if certain conditions were met, including a recommendation for home detention in the pre-sentence report. The pre-sentence report did not recommend home detention, and the Judge concluded Lyon was not a suitable candidate for home detention. The High Court found that the District Court Judge had properly exercised her sentencing discretion, taking into account all the purposes of sentencing, and had not made an error in imposing a short period of imprisonment rather than home detention. The appeal was dismissed.

Orders