Lyons v Police
[2017] NZHC 1015
•16 May 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2017-404-119 [2017] NZHC 1015
BETWEEN JAYDEN LYONS
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 16 May 2017 Appearances:
G A Harvey for Appellant
Z R Hamill for RespondentJudgment:
16 May 2017
JUDGMENT OF PAUL DAVISON J
Solicitors:
Mason Treloar Harvey, Auckland
Kayes Fletcher Walker, Auckland
LYONS v POLICE [2017] NZHC 1015 [16 May 2017]
Factual background
[1] The appellant, Mr Jayden Lyons, is aged 37. On 9 March 2017 he pleaded guilty to one charge of burglary, and was sentenced to six months’ imprisonment by Judge C J McGuire in the Papakura District Court on 9 March 2017.1 He appeals against the sentence on the grounds that it was manifestly excessive.
The offending
[2] At around 2.15 am on 4 January 2017, Mr Lyons forced a rear door to a vacant Crippled Children’s Society (CCS) building and removed the copper fittings and hot water cylinder from the building. This action caused water to flood into the kitchen area and a contractor had to be called to turn off the water. Neighbours contacted the Police when hearing the cylinder being removed. Mr Lyons hid the hot water cylinder behind a fence. Police apprehended him as he tried to leave the address in his motor vehicle.
[3] The police sought a reparation order of $400 to be paid by Mr Lyons for the damage he had caused and the repair necessary to the hot water cylinder.
Procedural history
[4] Mr Lyons first appeared in the Papakura District Court on 4 January 2017 and was remanded on bail with a 24 hour curfew without entering a plea. Mr Lyons applied for and was granted legal aid and Ms Singh was assigned as his counsel. He next appeared in Court accompanied by Ms Singh on 26 January 2017 and on that occasion he entered a plea of not guilty. On 9 March 2017 Mr Lyons appeared before Judge McGuire, represented by Ms Singh. On that occasion he entered a plea of guilty and was remanded on bail until 10 am on 5 May 2017 for sentencing. Judge McGuire ordered that a PAC report with a home detention assessment annexure be prepared.
[5] The Judge granted Ms Singh’s application to vary the terms of bail and
curfew to enable Mr Lyons to attend appointments with the Probation Service and
1 Police v Lyons [2017] NZDC 4987.
WINZ. When explaining his reasons for requiring a PAC report before sentencing the appellant, Judge McGuire commented that from his reading of the Police summary of facts and the appellant’s criminal history, he was concerned that there might be a mental health background to the offending. He said he needed to know more about Mr Lyons before sentencing him. The Judge also addressed Mr Lyons and said that, although he would order bail to continue, he was at a substantial risk of a sentence of imprisonment being imposed upon him when he was sentenced on 5
May 2017.
[6] Mr Lyons then left the Courtroom and waited while bail papers were prepared for him to sign with the varied bail conditions. While waiting for the bail papers to be ready, Judge McGuire ordered Mr Lyons to be recalled to Court. By then it was 5.15 pm and Ms Singh had departed and was not advised that her client had been recalled to Court.
[7] In Ms Singh’s absence another member of the Public Defenders’ staff, Mr McDougall-Moore, offered to assist the Judge. Despite Mr McDougall-Moore having no instructions from Mr Lyons and no authority from Ms Singh, Judge McGuire appears to have accepted his offer of assistance. There followed an exchange between the Judge and Mr McDougall-Moore in which the Judge briefly explained that Mr Lyons had burgled the CCS building and that he, the Judge, wanted to try and resolve the matter that day if possible. The Judge went on to say that Mr Lyons wanted to have the matter resolved and asked the probation officer present if she could provide the Court with an earlier PAC report. It appears that an earlier PAC report was then provided to the Judge who then proceeded to sentence Mr Lyons without hearing any submissions either from Mr Lyons himself or on his behalf from Mr McDougall-Moore. I note that Mr McDougall-Moore was named on the Judge’s sentencing notes as Mr Lyons’ counsel.
District Court sentencing
[8] The Judge proceeded to sentence Mr Lyons and in doing so expressed his reasons in the briefest terms. His sentencing remarks are recorded in three short paragraphs. Judge McGuire began by noting that Mr Lyons had two prior
convictions for burglary, the most recent being in November 2015 when he had been sentenced to community detention and ordered to pay reparation. The Judge commented that he considered that this was a very lenient sentence for someone of his age with a record of burglary, theft and receiving, as well as being unlawfully in a building. The Judge said that offending of that kind has real consequences for people.
[9] The Judge then proceeded to directly impose a sentence of imprisonment, saying:
[3] So because it is the last case of the day, he is looking at six months’ jail and that would mean his community-based sentences are cancelled. At your age you know what the issues are Mr Lyons. I was wanting to see whether there were any outstanding psychological or psychiatric issues. There do not seem to be, so that is the sentence, and if you pull a stroke like this another time you will get at least two years’ jail. So that is what is on offer. Well in fact is more than what is on offer. It will be your sentence as you have already pleaded guilty and a conviction has been entered. Six months’ imprisonment, no release conditions.
[10] As is apparent, the Judge made no reference to a starting point or to aggravating or mitigating factors, or to personal factors relating to the appellant. None of the features that are set out in ss 7, 8 and 9 of the Sentencing Act 2000 were alluded to.
[11] The Judge’s comment that because the matter was the last case of the day the
appellant was looking at six months’ imprisonment was not explained.
Grounds of Appeal
[12] Mr Lyons appeals on the basis that:
(a) the sentence was contrary to the purposes and principles of sentencing because by not contemplating sentences less than imprisonment the Judge did not consider the least restrictive outcome, resulting in a manifestly excessive sentence;
(b)the defendant did not waive his right to a pre-sentence report, and appears to have been sentenced on the basis of an earlier outdated pre- sentence report;
(c) the sentencing proceeded in the absence of assigned counsel;
(d)having previously adjourned the matter, the learned Judge followed incorrect procedure.
The appellant’s submissions
[13] Mr Harvey as counsel for Mr Lyons submits that the Judge did not articulate his reasons for precisely why the appellant was sentenced to six months’ imprisonment. There was no reference to a starting point, end point, or aggravating and mitigating factors.
[14] Mr Harvey says, in the absence of further reasons, there appears to have been no consideration of the least restrictive outcome, including specifically electronically monitored community-based sentences.
[15] Mr Harvey also submits that the Judge appears to have utilised an older pre- sentence report when there was no reason or basis upon which to conclude that there had not been any changes of significance. Given that an updated report was initially requested, submits Mr Harvey, it was procedurally incorrect to sentence Mr Lyons on the basis of an earlier report.
[16] Mr Harvey also submits that sentencing Mr Lyons in these circumstances without his assigned counsel present or being advised that the sentencing was proceeding was procedurally incorrect.
[17] Mr Harvey says that Mr Lyons’ position is that if his appeal is successful, the Court should set aside the sentence and impose another sentence of four months’ imprisonment in substitution. As the sentence imposed is almost served, this would be better than remitting the case to the District Court which would put Mr Lyons
back in the Court process and, Mr Harvey submits, could effectively be regarded as a double punishment.
[18] I note that no authorities have been cited in relation to the appropriate
sentence, which is submitted to be four months’ imprisonment.
Respondent’s submissions
[19] The Crown acknowledges that the sentencing process miscarried due to the combined effect of: the sentencing proceeding, when Mr Lyons’ case had earlier been adjourned for a new pre-sentence report, proceeding in the absence of assigned counsel, and with reference to an earlier and outdated report, and without the opportunity being afforded to counsel or Mr Lyons to make submissions on the report, or more generally as regards the appropriate sentence to be imposed.
[20] The Crown notes that while the appellant seeks to be re-sentenced on this appeal, there is still no current pre-sentence report available. Ms Hamill submits that given these procedural defects, the appropriate course would be to remit the matter back to the District Court for sentencing, to be undertaken with the benefit of a current updated pre-sentence report. Addressing Mr Lyons’ request for re-sentencing in this Court, the Crown submits that with the information available to the Court on this appeal, an end sentence of six months’ imprisonment would be within the available range, and that it should not be disturbed on appeal, should this Court embark upon that process. The Crown’s position essentially is that notwithstanding the errors in the sentencing process, the end sentence imposed was appropriate or at least within the appropriate range.
Approach on Appeal
[21] Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow the appeal if satisfied that:
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
[22] In any other case, the Court must dismiss the appeal.2
Discussion
Is there an error?
[23] The circumstances of the sentencing of the appellant in the District Court were unusual, and it is clear that several procedural errors were made which have resulted in an error in the sentence imposed.
[24] Judge McGuire erred in his manner of dealing with the sentencing process by not following the well settled and principled three-step approach to sentencing.3 The Judge did not select a starting point based on the aggravating and mitigating factors of the offending, and then adjust this by applying the aggravating and mitigating factors personal to the offender. While Judge McGuire appears to have quite simply decided on a term of six months’ imprisonment and sentenced Mr Lyons to that, no reasons or rationale or explanation of how that sentence was arrived at was provided by the Judge. The extent of the Judge’s reasoning was expressed in his comment:
“because it is the last case of the day, he is looking at six months’ jail and that would mean his community-based sentences are cancelled.” Expressed in those brief terms, it is not possible to know just what factors the Judge took into account, or to know whether or not he did in fact undertake a Taueki sequential three step reasoning process.
[25] This error was compounded by the fact that the Judge, in reaching a sentence of six months’ imprisonment, did not consider a sentence other than one of imprisonment, such as electronically monitored home detention. Earlier in the day when ordering the preparation of a PAC report the Judge had also ordered the preparation of a home detention assessment annexure to the report. Therefore it is clear that although the Judge had earlier turned his mind to the possibility of a sentence of home detention, this possibility was not addressed when the sentencing
process was undertaken later that same day. While a generous reading of the
2 Criminal Procedure Act 2011, s 250(3).
3 R v Taueki [2005] 3 NZLR 372 (CA) and Hessell v R [2010] NZSC 135, [2011] NZLR 607;
confirmed in R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23.
sentencing suggests that it was implicit in Judge McGuire’s reasoning that Mr Lyons’ recidivist offending meant that imprisonment was appropriate to send a message of deterrence given his prior history, there was no consideration of the relevant factors as to whether a sentence of home detention could be appropriate nevertheless.
[26] Moreover, the Judge erred in sentencing Mr Lyons without a recent pre- sentence report. The Judge stated that there did not appear to be outstanding psychological issues, and so six months’ imprisonment would be the sentence. This assessment was on the basis of an old pre-sentence report, which at the time of sentencing on 9 March 2017 was some 10 months old.
[27] Section 26 of the Sentencing Act 2002 addresses the preparation and production of pre-sentence reports. Section 26(1) provides that where an offender charged with an offence punishable by imprisonment is found guilty or pleads guilty, the Court may direct a report to be prepared for the Court. Of note, s 26(3) provides:
The court must not direct the preparation of a report under subsection (1) on any aspects of the personal characteristics or personal history of an offender if a report covering those aspects is readily available to the court and there is no reason to believe that there has been any change of significance to the court since the report was prepared.
(emphasis added)
[28] I note that s 26(3) is expressed in mandatory terms. If a report was available to the Court, that covered Mr Lyons’ personal background and characteristics and there was no reason for the Judge to believe that there had been any significant change in that regard since that report was prepared, it would not have been open to Judge McGuire to order the preparation of a new report. Here the Judge had already raised the issue of whether a new PAC report was required earlier in the day when Ms Singh appeared for Mr Lyons and he entered a plea of guilty. At that stage the Judge obviously considered that a fresh PAC report was required and in ordering that report to be prepared must have been of the view that there was no existing report that covered the personal history of the appellant available to him and further, there appeared to be significant changes in that personal history that would be addressed in a fresh report. In particular the Judge considered the possibility that the appellant’s mental health was in part an explanation for his behaviour. At that stage the Judge
had ordered the preparation of a fresh PAC report with a home detention assessment annexure. Having made that assessment and ordered that report, the Judge later adopted a quite inconsistent approach by proceeding to sentence the appellant on the basis of the earlier PAC report, without considering whether there had been any such changes of personal circumstances.
[29] Counsel for Mr Lyons was not given any opportunity either to be present at that hearing or to make submissions on this point and I find that the presence and involvement of Mr McDougall-Moore was not an adequate substitute for Mr Lyons’ own assigned counsel, Ms Singh.
[30] Moreover, it was procedurally incorrect and inconsistent with the requirements of procedural fairness for the Judge to sentence Mr Lyons on the basis of an earlier and outdated PAC report after previously ordering an updated report and unequivocally informing Mr Lyons’ counsel that the sentencing was adjourned until
5 May 2017 specifically for the purpose of obtaining such a new report.
[31] While the wording of s 26(1) is not phrased so as to expressly require a pre- sentence report prior to sentence in every case, well-established sentencing practice in New Zealand is not to sentence an offender to a term of imprisonment without such a report. In R v Spring the Court of Appeal stated “that where a Court is contemplating a sentence of imprisonment it could only be in the most unusual circumstances, and where the term of imprisonment is to be very short, that a
sentence should be imposed without a pre-sentence report”.4
[32] Similarly, in R v Johansen the Court of Appeal said that, regardless of the precise outcome, as a term of unusual length would clearly result, it was desirable that an up-to-date report be obtained rather than rely on the report prepared for the sentencing some two and a half years’ previously with annexures as to Johansen’s
behaviour while in prison.5
4 R v Spring CA221/85, 18 November 1985.
5 R v Johansen (1997) 15 CRNZ 111 (CA).
[33] Furthermore, regarding the use of a previous report, in this Court Tipping J in Dixon v Police stated that as a general rule when contemplating a sentence of imprisonment, a report as old as six months should not be relied upon.6 Tipping J also reiterated the dangers of sentencing people to imprisonment without an up to date pre-sentence report in Percy v Police, where there was a delay of some 18 months.7
[34] As I have noted, at the time that Mr Lyons was sentenced the earlier report was 10 months old. It is now today exactly one year old.
[35] Recently the Court of Appeal in R v Harriman reviewed the authorities in relation to this issue and concluded:8
The purpose of a pre-sentence report is to ensure that a sentencing Judge has adequate information about an offender, before imposing a sentence of imprisonment or deciding whether a non-custodial sentence is sufficient to respond to particular offending. Given that purpose, it is inappropriate to sentence unless the Judge can rule out any reasonable possibility that further information might come to light that could affect the credit to be given to mitigating factors.
A possible exception to that general rule is a case involving offending that falls into a relatively strict tariff guideline decision, such as R v Fatu [2006]
2 NZLR 72 (CA), in the context of offending involving the Class A controlled drug methamphetamine. If a sentencing Judge were satisfied that an offender had given an informed waiver of the pre-sentence report and
sufficient assurances were available to satisfy the Judge that all relevant personal information was before him or her, it would be open to sentence
without one. Otherwise, exceptional circumstances would be required, to be assessed on a case by case basis.
[36] Harriman suggests that only truly exceptional circumstances or offending within strict tariff guideline decisions could potentially justify sentencing without a pre-sentence report, and even then the Judge would have to be satisfied that the offender had given an informed waiver of the pre-sentence report and that all relevant personal information was before him or her.
[37] I accept Mr Harvey’s submission that Mr Lyons has not waived his right to a fresh pre-sentence report being prepared, in circumstances where a report had been
6 Dixon v Police HC Christchurch AP 181/90, 18 July 1990.
7 Percy v Police HC Dunedin AP 161/90, 16 November 1990.
8 R v Harriman [2009] NZCA 156.
ordered and the matter of sentencing had been adjourned until 5 May 2017 to enable such a report to be prepared. Any waiver that may be implied can only be effective where the party giving the waiver is fully informed and in an instance such as this, where counsel was engaged and retained, without the benefit of counsel’s advice I do not consider that an informed waiver would have been provided in any event.
[38] Ms Singh was present at the first appearance when Mr Lyons’ sentencing was adjourned on the basis I have described. As I have noted, at the later appearance Mr McDougall-Moore, who also is an employee of the Public Defence Service, offered to assist and appeared for Mr Lyons. This was simply because Ms Singh was no longer present at Court. As I have noted, Judge McGuire briefly summarised the case to Mr McDougall-Moore and thereafter no submissions were made, either by Mr McDougall-Moore as counsel, or by Mr Lyons on his own behalf before Judge McGuire proceeded to impose sentence on Mr Lyons.
[39] As a result, Mr Lyons was deprived of his right to counsel, and deprived of his right to be heard; no submissions were able to be made on his behalf either as to the pre-sentence information being relied upon by the Judge or as to the appropriate sentence to be imposed.
[40] By proceeding to sentence Mr Lyons in the absence of his assigned counsel after earlier remanding him on bail for sentencing, amounted to an error in the sentencing within the terms of s 250(2) of the Criminal Procedure Act. The scope of error under that section includes errors affecting procedural fairness as well as complying with the relevant sentencing law and taking all relevant matters into consideration. Matters of procedural fairness and process play an important part in promoting and maintaining public confidence in our system of criminal justice, and any significant departure from the required standards of procedural fairness, such as has occurred here, will inevitably result in the decisions and orders made being set aside and quashed.
[41] Accordingly, I am satisfied that there is an error in the sentence imposed because the District Court Judge did not follow settled sentencing procedure, nor consider the least restrictive outcome, and proceeded to sentence the offender on the
basis of an earlier outdated pre-sentence report having earlier adjourned the sentencing on the basis that a new report would be prepared, and proceeded to sentence the offender in the absence of his counsel without affording him any opportunity to be heard.
Should a different sentence now be substituted and imposed?
[42] The second limb that must be satisfied on appeal is that a different sentence should be imposed.
[43] Section 251(2) of the Criminal Procedure Act 2011 requires the Court to choose between three options where a sentence appeal is allowed:
(2) The first appeal court must, within the limits allowed by law,—
(a) set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate; or
(b) vary the sentence, vary any part of the sentence, or vary any condition of the sentence; or
(c) remit the sentence to the court that imposed it and direct that court to take any action of a kind described in paragraph (a) or (b) as specified by the first appeal court.
[44] The sentence of six months’ imprisonment imposed on the appellant was commenced, in terms of him serving it, on 9 March 2017. Accordingly, Mr Lyons will be automatically released on parole after serving half of his sentence, that is three months, on 8 June 2017. As at the date of the hearing of this appeal, he has only just over three weeks left of his sentence to serve.
[45] The appellant here submits that having regard to the fact that Mr Lyons has almost served the sentence imposed, this Court should now set aside the sentence and impose another sentence in substitution so as to bring this matter to a conclusion without any further delay. Mr Lyons’ position as evident from Mr Harvey’s submissions is that he would prefer to be re-sentenced, while recognising the legal issues that now appear in relation to his appeal. Mr Lyons’ preference for that course effectively constitutes a waiver of his right to an updated pre-sentence report.
[46] There is also some merit in the argument advanced that if the matter were to be remitted back to the District Court, Mr Lyons will once again be engaged in the Court process, with the possibility of receiving a different sentence and the anxiety associated with that process. On that basis, Mr Harvey submits that the Court should set aside the appellant’s sentence and impose in substitution a sentence of four months’ imprisonment.
[47] However, to re-sentence Mr Lyons without the benefit of a PAC report, even with the appellant’s waiver, would involve this Court proceeding on a similar basis to that adopted by Judge McGuire, namely imposing a sentence without any up to date personal information relating to the appellant. Without a pre-sentence report this Court could not proceed to make an informed sentencing decision. For that reason, I regard that course as inappropriate, and I consider the proper course is for the sentence imposed by Judge McGuire to be set aside, and the matter remitted back to the District Court for the appellant to be sentenced.
[48] However, notwithstanding my decision to remit this matter back to the District Court for sentencing, I consider that it is likely to be of assistance to the District Court and counsel to comment on the appropriate sentence. It is clearly in the interests of justice that the matter of sentence be determined and finalised without delay.
Setting a starting point
[49] The Crown in its submissions has referred to Kahika v Police where a starting point of eight months’ imprisonment was taken and, following a 25 per cent discount for a guilty plea, an end sentence of six months’ imprisonment imposed for similar offending was undisturbed on appeal.9 The offending there involved two co- offenders removing copper materials from a vacant property. That appeal was brought on grounds of disparity, as the appellant’s co-offender had been sentenced to
200 hours’ community detention, but the appeal was dismissed on the basis that the personal circumstances of the appellant justified the imposition of a higher sentence.
The Crown also draws parallels between the offender’s previous convictions in both
9 Kahika v Police [2012] NZHC 185.
cases. The Crown says that here, Mr Lyons’ multiple prior convictions for offending including burglary, receiving and theft, coupled with his action in making a forced entry and causing flood damage, warrant the application of an uplift. The Crown submits that following a discount of 25 per cent, an end sentence of six months’ imprisonment was available. In my view a more nuanced approach is appropriate in this case.
[50] The significant aggravating factors commonly present in burglary offending are not noticeably present in this case. The CCS building that Mr Lyons entered was vacant. The value of the damage done was comparatively low at $400, despite flooding and the inconvenience caused by the need to call out a tradesman to rectify the situation. The unlawful entry was made when Mr Lyons “forced a rear door to the premises”, although no damage appears to have been effected to the point of entry. While the Judge was quite right to comment that offending of this kind affects the lives of people, in this case there were no occupants of the property or other persons directly affected in the way that is often the case where the burglary of a residence takes place.
[51] I am satisfied that the seriousness of the present offending is at the low end for offending of its kind and a starting point of four months’ imprisonment would be appropriate in my view.
[52] Mr Lyons has 26 previous convictions, two of which are for burglary. He has two convictions for receiving, and seven for theft. He has never previously been sentenced to a term of imprisonment. He has previously been sentenced to sentences of community detention and community work. At the time of this offending Mr Lyons was serving a sentence of supervision and community work and he has a history of offending while on bail. Taking all those factors into account, I would apply an uplift to the starting point of three months’ imprisonment.
[53] Mr Lyons’ guilty plea, although not entered at his first appearance in Court, still warrants in my view a discount, and applying a discount of 25 per cent to those figures would produce an end sentence of five months and one week imprisonment.
[54] Without the benefit of a pre-sentence report I am unable to determine whether there are further factors which would warrant a further discount relating to rehabilitative efforts on his part or remorse or other matters of a personal nature that would justify a consideration of a further reduction. I do note, however, that the earlier pre-sentence report prepared in May 2016, refers to him engaging in good pro-social activities and having good support. That report also notes that Mr Lyons had at the time been making an effort to remove himself from anti-social influences and associates. That report commented that a long sentence of imprisonment rather than community detention would impede him from gaining meaningful day-time employment, and it concluded with an assessment that Mr Lyons was at low risk of reoffending. That report proved to be inaccurate in its prediction, of course, and whether or not those factors or efforts to remove himself from social influences and associates have been built on or elaborated upon or maintained by Mr Lyons are matters that are not before me and on that basis I am unable to make an informed decision as to whether any further reduction would be justifiable.
[55] Given that Mr Lyons has largely served the sentence imposed upon him, the imposition of a sentence of home detention would no longer be appropriate. The
2016 pre-sentence report did recommend a sentence of community detention, and that of course should have been a consideration of the sentencing Judge giving effect to the requirement of imposing the least restrictive outcome in all of the circumstances.
[56] A sentence of five months and one week imprisonment would mean that Mr Lyons would be released, but as a sentence of that length is not significantly less than that already imposed by Judge McGuire, were this Court to be determining the matter I would regard the sentence previously imposed as being within the range available to the Judge. Of course, as I have said I do not have any up to date personal information regarding Mr Lyons such as would be contained in a PAC report, and for that reason I will not proceed to sentence Mr Lyons.
[57] To conclude, I allow the appeal and make an order setting aside the sentence
imposed on Mr Lyons of six months’ imprisonment and I remit the matter back to the
District Court to re-sentence Mr Lyons and to do so having regard to the contents of
this judgment and the matters that I have set out herein.
Paul Davison J
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