R v Lynch - [2014] NZHC 1788

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2012-054-001412 [2014] NZHC 1788

THE QUEEN

v

JOHN BURNARD LYNCH

Counsel:
D J Flinn for Crown

O S Winter for Prisoner

Sentencing:

30 July 2014

SENTENCING NOTES OF WILLIAMS J

[1] Mr Lynch on 8 November 2013, a jury in the District Court found you guilty on eight counts of indecently assaulting a girl under 12. Six of the counts were representative charges and two were individual counts. When he reviewed the matter, Judge Lynch, who was the presiding Judge, considered that a sentence of preventive detention could well be appropriate here (in light of your history of sexual offending) and so your sentencing was removed to the High Court to consider that.

[2] In this sentencing, I will summarise the procedural background to this case. I will then outline the facts of your offending as found by the jury in the District Court, then I will address the question of a finite sentence – beginning with a starting point for the offending, then considering factors relevant to you personally before identifying a final finite sentence. Then, and only then, will I address the question of whether preventive detention is justified in your case, and I will reach conclusions
and pass sentence.

R v LYNCH (SENTENCING) [2014] NZHC 1788 [30 July 2014]

Procedural history

[3] In this case the initial charges were more serious against you than those with which the Crown ultimately proceeded. The initial trial was adjourned because the victim who I will call ‘T’ suffered a medical issue.

[4] When the matter came back to the Court for hearing, there was a mistrial because it seems, as the victim’s evidence unfolded, the more serious sexual violation charges could not be supported. The jury was discharged and after another adjournment because of material published in the local newspaper, the trial finally proceeded in November last year as I indicated. This time though, the Crown proceeded only with the eight indecent assault counts that I have mentioned at the beginning.

The facts

[5] I note at the outset Mr Lynch that you reject the jury’s verdicts and maintain your innocence. You are supported in that stance by Rosemary Kauri, your former partner and the person who you continue to care for; and by Susan Vincent who, it seems, grew up around you. She is the daughter of Rosemary Kauri and she says that nothing like the allegations, in this case, occurred to her.

[6] All of that may be so Mr Lynch, but I of course must sentence you on the basis of the jury’s verdicts entered following the trial. So your ongoing denials, even if genuinely felt by you are not relevant to me except where they reflect your refusal to address the causes of your offending. I will come back to the point of your offending later in…

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 R v Lynch

Details

AGLC: R v Lynch [2014] NZHC 1788
Case: [2014] NZHC 1788
Decision Date: 30 July 2014

CaseChat Overview and Summary

The High Court of New Zealand was tasked with sentencing John Burnard Lynch, who had been found guilty of eight counts of indecently assaulting a girl under 12 by a jury in the District Court. The case involved a victim who was a relation of Lynch's housemate and former partner, with whom he had a fatherly relationship. The offenses spanned a three-year period from February 2004 and included various incidents of sexual misconduct, such as touching the victim while she slept and during showers, and exposing her to pornography in a private "video room." Lynch denied the charges and maintained his innocence despite the jury's verdicts.

The court was required to decide on the appropriate sentence for Lynch, considering both a finite prison sentence and the possibility of preventive detention. The court assessed the seriousness of the offenses, the harm caused to the victim, Lynch's history of similar sexual offenses, and his potential risk of reoffending. Psychological evaluations indicated a high risk of reoffending due to Lynch's ongoing preoccupation with sexual matters and cognitive difficulties. However, the court also considered Lynch's age, ill health, and the absence of recent offending.

The court concluded that a finite sentence of four and a half years was appropriate, taking into account the harm caused and Lynch's history of offending. Despite concerns about his risk of reoffending, the court determined that preventive detention was not warranted due to Lynch's age, health issues, and the potential for an extended supervision order upon his release. The court sentenced Lynch to four and a half years' imprisonment to be served concurrently on each of the eight counts of indecent assault.

Orders