R v Lynch HC Auckland CRI 2009-092-3881

[2010] NZHC 1238

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-092-3881

THE QUEEN

v

MATENI LYNCH

Hearing:         22 July 2010

Counsel:         RS Reed for the Crown

DL O'Connor for the prisoner

Sentence:       22 July 2010

SENTENCING NOTES OF RODNEY HANSEN J

Solicitors:          Meredith Connell, P O Box 2213, Shortland Street, Auckland 1140 for Crown

Mr DL O’Connor, P O Box 2283, Shortland Street, Auckland 1140 for prisoner

R V LYNCH HC AK CRI-2009-092-3881  22 July 2010

Introduction

[1]      Mr Lynch, you appear for sentence having been convicted after trial of being an accessory after the fact to murder.  I adjourned your sentence on 2 July so that further  consideration  could  be  given  to  your  eligibility for  a  sentence  of  home detention.   What I have to say today should be read together with my sentencing notes of 2 July.   I won’t repeat the relevant factual background and sentencing considerations that are set out in those notes.

[2]      Your role in the destruction of the Nissan Regulus was to go with the three co-accused and pick up the Regulus from where it was parked.  You and Mr Tere then drove it to the carpark at the Velodrome and set fire to it.

Personal background

[3]      You are 21 years of age now.  You were aged 19 at the time of the offending. You are of Tongan descent.  You are the eldest in a family of nine and continue to reside with  your parents.   I acknowledge their presence here today in  Court to support you.

[4]      You have been in a relationship for the past two years with Ms Tania Kingi. She is pregnant with your child and is due to give birth next month.  Unlike most of your co-accused, you have no gang affiliations.   Although you are currently unemployed, the pre-sentence report indicates that you have worked intermittently as a painter and a driller.

[5]      At the time of this offending, you had only been before the Court on one occasion.   You were admonished in 2003 for unlawfully taking a motor vehicle. Unfortunately, your otherwise good record has since been further tarnished.   You and Ms Kingi have pleaded guilty to a charge of burglary.   You are due to be sentenced for that offending on 29 July.

[6]      The probation officer assesses you as at moderate risk of reoffending.  The contributing factors are poor lifestyle balance, aggravated by your choice of associates.  Given that you have been assessed as at moderate risk of offending, you are eligible to be assessed for what is called the Medium Intensity Rehabilitative (MIR) programme and I propose to make assessment for and participation in that programme an available condition of the sentence I impose.

Sentence

[7]      For  the  reasons  that  I discussed  with  sentencing the  four co-accused  on

2 July, I consider the starting point for sentence on the charge of being an accessory after the fact to murder is one of two years imprisonment.   There are no personal aggravating features in your case which might warrant an uplift.  There are, however, mitigating factors, including your youth.

[8]      The determination of the final sentence is complicated by the conditions on which you have been on bail since the offending and also by the fact that you spent a period of six weeks in custody.  You were in custody from when you were arrested on 20 June 2008 until 7 August 2008 when you were released on bail, subject to a

24-hour curfew.  That was varied to a curfew of 7.00 p.m. to 7.00 a.m. daily on 22

May 2009.

[9]      There was a breach of the curfew on 24 August 2009 and on 5 November

2009 you committed the burglary for which you are to be sentenced next week.  You were  then  released  on  bail  with  a  24-hour  curfew  and  you  have  remained concurrently on High Court bail, subject to a curfew of between 7.00 p.m. and

7.00 a.m.

[10]     The situation, in summary, is that you have spent six weeks in custody; nine months on bail, subject to a 24-hour curfew; and a year and two months on bail, subject to a 12-hour curfew.   It is, as I have said, partly having regard to those restrictive bail conditions and the period you spent in custody that Mr O’Connor has submitted that you are eligible for a sentence of home detention.

[11]     While the nature of the offending and parity with your co-offenders favour a full custodial sentence, there are several factors which favour a home detention sentence.  One is your previous record which, certainly at the time of the offending, was, for practical purposes, unblemished.  The other is your relative youth and the fact that you cooperated fully with the police following your apprehension.  Finally, there is the time you spent in custody and on restrictive bail conditions.  It is well established that when considering alternatives to a full custodial sentence, credit for time in custody should normally be given and may be given for time spent on bail on

restrictive conditions: see Faisandier v R[1]; M v R[2] and R v Aram[3].

[1] Faisandier v R, CA185/00 [12 October 2000].

[2] M v R, CA468/97 [5 March 1998].

[3] R v Aram, CA407/06 [2 August 2007].

[12]     The report into your suitability for home detention records that the proposed address where you have been living with your parents is suitable.  Your mother and father and three siblings reside there.  They have all signed consent forms and are supportive of you.  They are all assessed as suitable in the report.  The report writer states that she is unaware of any other offending or non-compliance history that would exclude a sentence of home detention.   You are assessed as a suitable candidate.

[13]     I am satisfied that, in your case, a sentence of home detention is appropriate. As  I  indicated  in  the  course  of  hearing  submissions  from  both  counsel,  my assessment is that the time you spent in custody and on restricted bail conditions, together with the other mitigating factors I have referred to, would have justified a reduction in a prison sentence to 18 months.  On that basis, I consider a sentence of home detention for a period of nine months to be appropriate.

Result

[14]     The sentence I impose is one of nine months home detention, subject to the following conditions:

a)       You are to travel directly to 4 Oroua Place, Otara, today and to remain at that address, to be met by the supervising probation officer and security person.

b)You are to reside at that address for the duration of the sentence of home detention and not to move from the address without the written permission of your supervising probation officer.

c)       You are to abstain from the use and consumption of alcohol and/or illicit drugs for the duration of your term of home detention.

d)You are to attend any such programme or counselling, including the MIR programme, as may be directed by the probation officer to the satisfaction of the programme provider or counsellor and the supervising probation officer.

e)       If the MIR programme is undertaken and is not completed by the expiration of the term of home detention, then I impose a special post- detention condition for a period not exceeding six months requiring you to complete that programme.