Lyttelton v The Queen

[2016] NZHC 1251

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-173 [2016] NZHC 1251

BETWEEN

MARTIN VICTOR LYTTELTON

Applicant

AND

THE QUEEN Respondent

Hearing:	10 June 2016
Counsel:	G E Minchin for Applicant F M T Culliney for Respondent
Judgment:	10 June 2016

JUDGMENT OF BREWER J

Solicitors/Counsel:           Graeme Minchin (Auckland) for Applicant

Meredith Connell (Auckland) for Respondent

LYTTELTON v THE QUEEN [2016] NZHC 1251 [10 June 2016]

Introduction

[1]      Mr Lyttelton was found guilty by a jury in the High Court at Auckland on a number of charges including attempted murder.   He was sentenced by Asher J on

18 May 2016 to a period of imprisonment.1   He has appealed his conviction and his

sentence.  Mr Lyttelton now applies for bail pending the hearing of his appeal.

Background

[2]      The case has an unusual background in that Mr Lyttelton originally pleaded guilty to the charges upon which he has now been convicted.  He served his sentence and went back in the community, where by all accounts he picked up the traces of his business and did good in the community.  However, after some quite lengthy period of time, he sought to have his convictions overturned.  The Court of Appeal, on quite a narrow point going to state of mind, granted Mr Lyttelton’s application and ordered a trial.  The jury heard the evidence and, as I have said, found Mr Lyttelton guilty of the charges.

[3]      Justice Asher, in sentencing, imposed the same sentence as was imposed by the Judge before whom Mr Lyttelton first appeared for sentence. The only difference was that the credit Mr Lyttelton had gained at the first sentencing for his pleas of guilty was not available to him following trial.   That meant that Mr  Lyttelton’s sentence was increased by 13 months’ imprisonment and he has been serving that sentence since the jury’s findings.  I am advised that he has now become eligible for parole.

Discussion

[4]      When  a  prisoner  serving  a  sentence  has  appealed  the  conviction  or  the sentence and wishes to have bail pending appeal, then the prisoner has quite a difficult test to meet.  Section 14 of the Bail Act 2000 provides:

(1)       If a person is in custody or subject to a sentence of home detention under a conviction and is appealing the conviction or sentence, or both, the court must not grant bail unless it is satisfied on the balance

1      R v Lyttelton [2016] NZHC 1041.

of probabilities that it would be in the interests of justice in the particular case to do so.

(2)      The onus is on the appellant to show cause why bail should be granted.

[5]      Subsection (3) of s 14 lists considerations which may guide the Court in considering  the  interests   of  justice.     Mr  Minchin,   who  appears  today  for Mr Lyttelton, has addressed me in terms of those considerations and I think that that is appropriate.

[6]      The first consideration is the apparent strength of the grounds of appeal. There are quite a few grounds of appeal.   They go, first, to the strength of the evidence and, second, to the summing-up of the trial Judge.   So far as the appeal against sentence is concerned, the ground of appeal is that the Judge did not follow mandated procedure when told that there were issues of fact to be decided.  Instead, the Judge proceeded directly to sentence.

[7]      So  far  as  this  consideration  is  concerned,  I  note  that  the  case  against Mr Lyttelton was largely agreed as to the facts.  It is not contested that Mr Lyttelton armed himself with a shotgun and a knife and went to the house of the victims.  It is not contested that there he fired two shots from the shotgun.   One, having passed through a door, severely wounded one of the victims.  She almost died and remains physically affected.  It is not contested that Mr Lyttelton had the knife in his hand and struggled with the male victim.  The Crown’s allegation was that Mr Lyttelton tried to kill the male victim with the knife, but Mr Lyttelton’s evidence was that he was not trying to use the knife against the male victim.   The jury rejected that assertion as being a reasonable possibility, and I note that the trial Judge was of the same mind.

[8]      With that as background, I note that the grounds of appeal would call for a detailed sifting of the evidence, decisions to be made as to whether the allegations are sustainable, and, even if they are, whether, on the balancing test, they render a verdict or verdicts unsafe.

[9]      Mr Minchin was not counsel at trial and he does not have a great knowledge of the grounds of appeal since he did not himself draft the notice of appeal.  He has been unable to point me to any particular aspect of the evidence or of the trial Judge’s summation that would, in a proceeding such as this, ring an alarm bell. Accordingly, I do not find that, on the balance of probabilities, the applicant has shown that the grounds of appeal are strong.

[10]     The second consideration is the length of the sentence that has been imposed on the applicant.   Mr Minchin makes the very relevant point that the sentence is effectively a short one and that the appeal will be nugatory if Mr Lyttelton is held in custody.  I accept that submission.  However, I have already noted that Mr Lyttelton is now eligible for parole.   If Mr Lyttelton meets the requirements of the Parole Board, then he will be released anyway.

[11]     The third consideration is the likely length of time that will pass before the appeal is heard.  Mr Minchin has made inquiries of the Court of Appeal registry and the rough estimate he has been given is that there will be about five months before the appeal is heard.  Mr Lyttelton will almost certainly have been released before the appeal comes to be heard.

[12]     The fourth consideration is the personal circumstances of the applicant and the applicant’s immediate family.  Here, Mr Minchin is on firm ground.  He points to the successful rehabilitation of Mr Lyttelton since he was released from his imprisonment following his pleas of guilty.   Mr  Lyttelton has a wife and three daughters, two of whom reside with him.  Mr Lyttelton is the sole breadwinner.  I have to point out, however, that when an offender is sentenced to a term of imprisonment, there are always consequences for his immediate family and imprisonment  always  impacts  on  the  income  earning  ability  of  the  person imprisoned.

[13]     The final consideration is a general one.  It is any other consideration that the Court considers relevant.  Here, Mr Minchin points to the activities of Mr Lyttelton in managing the property portfolios and business affairs of a number of people who are in varying degrees dependent on his assistance.   In particular, he works with

elderly persons who without his guidance might be considered vulnerable.   This morning, Mr Minchin has handed to me four testimonials which eloquently give detail of the good work that Mr Lyttelton has been doing.

Decision

[14]     I  am  bound  by  s 14  of  the  Bail  Act.    I  am  prohibited  from  releasing Mr Lyttelton  on  bail  unless  Mr  Lyttelton  shows  cause,  on  the  balance  of probabilities, why bail should be granted.   I have looked at his case, taking into account  those  matters  which  apply  to  all  persons  sentenced  to  a  term  of imprisonment and to the particular background of Mr Lyttelton’s case.

[15]     Here, where I do not see any apparent strength in the grounds of appeal and where the Parole Board will release Mr Lyttelton imminently if he satisfies the Parole  Board  that  he  should  be  released,  I  do  not  find  that  Mr  Lyttelton  has discharged his onus.  I am not satisfied on the balance of probabilities that it would be in the interests of justice to grant Mr Lyttelton bail in advance of his appeal to the Court of Appeal.

[16]     Accordingly, the application is dismissed.

Brewer J