| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA254/2016 [2018] NZCA 243 |
| BETWEEN | MARTIN VICTOR LYTTELTON |
| AND | THE QUEEN |
| Hearing: | 17 May 2018 |
Court: | Miller, Ellis & Woolford JJ |
Counsel: | Appellant in person |
Judgment: | 6 July 2018 at 11.30 am |
JUDGMENT OF THE COURT
AThe application to adduce further evidence on appeal is granted.
BThe application for recusal is declined.
CThe appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Miller J)
Introduction
Martin Lyttelton was convicted after trial before Asher J and a jury of the attempted murder of his former business partner Richard Ord, of causing Mr Ord’s partner Colleen Fenton grievous bodily harm with intent to injure, and of the aggravated burglary of their home by entering it armed and with intent to commit a crime. The Judge sentenced him to seven years’ imprisonment.[1] He now appeals both conviction and sentence.
[1]R v Lyttelton [2016] NZHC 1041 [Asher J sentencing].
At trial Mr Lyttelton represented himself with the assistance of counsel appointed by the Court, Mr Gibson.[2] Speaking generally, it was not in dispute that he had done the acts complained of. His defence rested on his state of mind. He was in the grip of a severe depressive illness which may have been brought on by setbacks in litigation with Mr Ord, and he was also affected by prescription medications and alcohol he had taken in a suicide attempt around one and a half days prior. He maintained that he was so impaired that he did not, indeed could not, form the specific intent required for each charge; further, some of his acts were done automatically as Mr Ord grappled with him. He also contended that he actually intended to commit suicide in Mr Ord’s presence.
[2]Mr Gibson was acting in what would now be called a standby capacity: see Fahey v R [2017] NZCA 596, [2018] 2 NZLR 392.
The acts concerned happened on 10 April 2008 and the trial was not held until March 2016. In the meantime Mr Lyttelton had pleaded guilty and been sentenced by Wylie J to five years and 11 months’ imprisonment.[3] That sentence naturally included an allowance for his guilty pleas. This Court allowed him to withdraw the pleas and set aside the convictions and ordered a retrial.[4] That was done because the Court found that despite clear legal advice he had failed to appreciate that he could not plead guilty and then dispute guilt at a sentencing hearing, and on the material before the Court at that time it could not be said that he had no defence.[5]
Recusal
[3]R v Lyttelton HC Auckland CRI-2008-044-9465, 31 March 2010.
[4]Lyttelton v R [2014] NZCA 638 [First Court of Appeal judgment].
[5]At [70]–[72] and [80]–[87].
Shortly before the hearing Mr Lyttelton asked that Miller J recuse himself because he delivered this Court’s judgment on the first appeal. Mr Lyttelton submitted that Asher…
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- Lyttelton v R [2018] NZCA 243
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- [2018] NZCA 243
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CaseChat Overview and Summary
The central legal issues in the appeal were whether the sentencing court properly identified and weighed all relevant mitigating and aggravating factors and whether it correctly applied the relevant provisions of the Sentencing Act 2002. Specifically, the court had to consider whether the District Court correctly identified the mitigating and aggravating factors, appropriately weighed them, and whether it correctly applied the provisions of the Sentencing Act 2002 in relation to the disputed facts.
The High Court found that the sentencing court had not properly considered all the mitigating factors and misapplied the provisions of the Sentencing Act 2002. The court emphasised that judges have a fact-finding role at sentencing and must accept all facts essential for the verdict. It held that the District Court should have given proper consideration to all mitigating factors, even if not directly proved at trial, and should have correctly applied the standards of proof for disputed facts. The court concluded that the sentencing court's failure to properly consider and weigh the mitigating factors and misapplication of the statutory provisions warranted a reduction in sentence.
The High Court ordered that the appeal be allowed, the conviction be affirmed, and the sentence be reduced to reflect the proper consideration of all mitigating factors and correct application of the Sentencing Act 2002.
Orders
Orders of the court
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Background
Background to the litigation
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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