Lyttelton v R

Case [2018] NZCA 243

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA
 CA254/2016
 [2018] NZCA 243
BETWEEN

MARTIN VICTOR LYTTELTON
Appellant

AND

THE QUEEN
Respondent
Hearing:

17 May 2018

Court:

Miller, Ellis & Woolford JJ

Counsel:

Appellant in person
JEL Carruthers for Respondent

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

  1. 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].

  2. 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.

  3. 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].

  1. 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
Case
[2018] NZCA 243
Decision Date

CaseChat Overview and Summary

The appellant, Lyttelton, was found guilty of multiple charges of drug trafficking and was sentenced by the District Court. Lyttelton appealed against his sentence, arguing that the court failed to properly consider certain mitigating factors and misapplied the provisions of the Sentencing Act 2002. The High Court was tasked with determining whether the sentencing court had correctly applied the relevant statutory provisions and appropriately weighed the mitigating and aggravating factors.

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

Section 24 provides:24 Proof of facts(1) In determining a sentence or other disposition of the case, a court—(a)may accept as proved any fact that was disclosed by evidence at the trial and any facts agreed on by the prosecutor and the offender; and(b)must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt.(2)If a fact that is relevant to the determination of a sentence or other disposition of the case is asserted by one party and disputed by the other,—(a)the court must indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case:(b)if a party wishes the court to rely on that fact, the parties may adduce evidence as to its existence unless the court is satisfied that sufficient evidence was adduced at the trial:(c)the prosecutor must prove beyond a reasonable doubt the existence of any disputed aggravating fact, and must negate beyond a reasonable doubt any disputed mitigating fact raised by the defence (other than a mitigating fact referred to in paragraph (d)) that is not wholly implausible or manifestly false:(d)the offender must prove on the balance of probabilities the existence of any disputed mitigating fact that is not related to the nature of the offence or to the offender's part in the offence:(e)either party may cross-examine any witness called by the other party.(3) For the purposes of this section,—aggravating fact means any fact that—(a)the prosecutor asserts as a fact that justifies a greater penalty or other outcome than might otherwise be appropriate for the offence; and(b)the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the casemitigating fact means any fact that—(a)the offender asserts as a fact that justifies a lesser penalty or other outcome than might otherwise be appropriate for the offence; and(b)the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case. The approach to be taken to s 24 where an offender is to be sentenced after having been found guilty at trial has been settled by previous judgments of this Court.[43] Briefly:(a)Judges have a fact-finding role at sentencing. They must accept all facts, express or implied, that are essential for the verdict,[44] and may not adopt any view of the facts that is clearly inconsistent with it.[45] Subject to that, they may accept as proved any fact that was disclosed by evidence at the trial and may form their own view of the facts.[46](b)It is incumbent on a party to raise with the judge any fact that the party wishes to dispute at sentencing, and such facts must be clearly identified.[47](c)A disputed fact having been identified, the judge must indicate the weight likely to be attached to it and its significance for sentencing purposes.[48] If the judge considers the fact immaterial to sentence, it is not relevant for purposes of s 24(2).(d)Where a fact is relevant and a party wishes the court to rely upon it, the parties may adduce evidence of its existence unless the court is satisfied that sufficient evidence was adduced at trial.[49] Evidence is sufficient where it proved the fact to the standard required under s 24(2)(c) or s 24(2)(d).[50](e)Where an aggravating or mitigating fact is relevant, a party wishes to rely on it and the judge considers that it has not been proved to the required standard, a disputed facts hearing must be held.(f)At such hearing the prosecutor must prove a disputed aggravating fact, or negate a mitigating one relating to the offence or the offender’s part in it. The standard of proof is beyond reasonable doubt. The offender must prove any other disputed mitigating fact on the balance of probabilities.[51](g)Disputed-fact hearings are seldom required after trial.[52] Normally sentencing proceeds on facts disclosed in evidence there, with the judge giving such weight as seems fit to other facts advanced, but not tested and proved, in mitigation. However, it is possible that important and disputed aggravating or mitigating facts were not sufficiently established at trial, and where that happens a disputed‑facts hearing may be required.[53][43]We refer to the list in Geoff Hall Hall’s Sentencing (online looseleaf ed, LexisNexis) at [SA24.10].[44]Sentencing Act 2002, s 24(1)(b).[45]Gathergood v R [2010] NZCA 350 at [17].[46]R v Accused (CA125/87) [1988] 1 NZLR 422 (CA) at 426–427.[47]Archer v R [2017] NZCA 52 at [15]. See also Curtis v Police (1993) 10 CRNZ 28 (HC) at 33.[48]Sentencing Act, s 24(2)(a).[49]Archer, above n 47, at [12]–[13].[50]R v Bryant [1980] 1 NZLR 264 (CA) at 270–271; and R v Booth CA109/05, 18 July 2005 at [41]. See also Hall, above n 43, at [SA24.7].[51]Sentencing Act, ss 24(2)(c) and 24(2)(d).[52]R v Aram [2007] NZCA 328 at [71].[53]See for example Gilfedder v R [2013] NZCA 426 at [81]–[87]; Mata v R [2012] NZCA 593 at [12]–[19]; and Saggers v R [2012] NZCA 591 at [23]–[26]. See also Broekman v R [2012] NZCA 213 at [14]–[15]; and Archer, above n 47, at [16]–[23].

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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