R v Lyttelton
[2016] NZHC 1042
•18 May 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2008-044-009465 [2016] NZHC 1042
THE QUEEN
v
MARTIN VICTOR LYTTELTON
Hearing: 18 May 2016 Appearances:
S McColgan for the Crown
Defendant in person
M Gibson as amicus curiaeJudgment:
18 May 2016
JUDGMENT OF ASHER J
(on request for disputed facts hearing,
and on application of s 79 of the Parole Act 2002)
Solicitors:
Crown Solicitor, Auckland.
M Gibson, Auckland.
Copy to: Defendant
R v LYTTELTON [2016] NZHC 1042 [18 May 2016]
Introduction
[1] Mr Lyttelton appears before me today for sentence. In this ruling I need to deal with two preliminary matters that will not form part of the essential sentencing reasoning. For this reason I am issuing a separate ruling on the two points, although aspects of what I say may appear in the sentencing.
Adjournment
[2] Since the conclusion of the trial I have received well in excess of 10 submissions on various points relating to the sentencing. Mr Lyttelton’s submissions have included a document headed “Defendant’s submissions for a proof of facts hearing under s 24 of the Sentencing Act 2002”.
[3] In conferences discussing the pending sentencing hearing Mr Lyttelton has at times appeared to disavow a wish for such a s 24 hearing.1 But today, the day I am to impose sentence, he has towards the end of his oral submissions made it clear that he does seek a form of disputed facts hearing and wishes this sentencing to be adjourned so that this may take place.
[4] In his very detailed submissions he takes issue with a large number of factual matters. Some of these reflect the defence that he put forward at the trial, and some of them are matters of detail. I do not propose setting out all of the disputed factual matters that he raises. In general terms it can be said that he now invites me to conclude that at least in part Mr Ord perjured himself when he gave evidence at the trial on how the facts unfolded once he had entered the home. He also submits that the original Police summary of facts was misleading, that the Crown has misled the Court in its sentencing submissions, and that relevant facts have been suppressed by
the Police. He has relied on past Law Commission reports,2 and an article by
Professor Hall.3
1 R v Lyttelton HC Auckland CRI-2008-044-009465, 3 May 2016 [Minute (No 22)].
2 Law Commission Proof of Disputed Facts on Sentence (R76, 2001).
3 Geoff Hall “Proof of Facts: a New Zealand Perspective” (unpublished paper).
[5] The Crown opposes any adjournment and submits that I am in a position to determine all relevant facts having heard the evidence at the trial, and having the benefit of the jury verdicts.
[6] Mr Gibson, amicus curiae, has made no submission on this point.
[7] Section 24(1) 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.
[8] I am plainly bound by some facts essential to the jury verdicts under s 24(1)(b). I am bound by the jury verdict to accept that Mr Lyttelton intended to kill Mr Ord. I am bound by the jury verdict to find that Mr Lyttelton intended to injure Ms Fenton or another person and caused grievous bodily harm when he fired the shotgun. I am bound to find that Mr Lyttelton deliberately entered Mr Ord’s home to commit an offence.
[9] The facts of what transpired were not complex. As I will set out in my sentencing notes, Mr Lyttelton entered the home with a shotgun, cartridges and a knife, and fired the shotgun hitting Ms Fenton. There was then an extensive struggle between Mr Lyttelton and Mr Ord. Eventually Mr Lyttelton ceased to struggle, and following that the Police arrived and he was arrested. The only three witnesses were Ms Fenton, Mr Ord and Mr Lyttelton. I heard from them all.
[10] Under s 24(1)(a) I may accept as proved any fact that was disclosed by the evidence at the trial. I am well able to reach definite conclusions bearing in mind the onus and standard of proof, from the evidence that I have heard. There may be cases where following a trial a Judge may still need to follow a disputed fact procedure because of areas of factual uncertainty not specifically addressed at the trial. Some
possible examples of this were set out by Williams J in R v Allison (No 35).4
However in most cases the trial Judge, having heard the evidence, is well able to reach conclusions on the facts under s 24(1) without hearing more. The parties on sentencing can make submissions to the Judge on the facts, or invite the Judge to interpret them one way or another, but normally the Judge will not be assisted by any further evidence because the Judge has heard the relevant evidence.
[11] I am satisfied that I have heard the relevant evidence in relation to what happened, and I can assess Mr Lyttelton’s culpability for his offending on that evidence. Mr Lyttelton’s disputed facts are ones that I am well able to resolve.
[12] To give an example, Mr Lyttelton alleges that Mr Ord has perjured himself. I heard Mr Ord’s evidence and I heard Mr Lyttelton’s evidence. I am sure that Mr Ord’s evidence was given truthfully and to the best of his recollection. There may have been, over his various accounts of what happened, the odd minor variation, but that is to be expected from a truthful witness trying to recount and remember events of the past. I am satisfied that what he said in Court under the full pressure of the oath and the court process was the truthful account of what happened. I accept it on that basis.
[13] Insofar as Mr Lyttelton’s evidence on occasions varied from that of Mr Ord’s (and it must be noted that in broad strokes he accepted most of what Mr Ord said), I prefer Mr Ord’s evidence to that of Mr Lyttelton.
[14] To give a more specific and important example of what Mr Lyttelton says, he asserts that he was acting as an automaton during the struggle and at the first opportunity discontinued the struggle. This again was an issue traversed at the trial. After discussion, Mr Lyttelton expressly disavowed any automatism defence. He did, however, through the trial (and this was put to the jury) rely on expert evidence
that his actions were automatic and reflexive when he was struggling with Mr Ord.
4 R v Allison (No 35) HC Auckland T002481, 29 July 2003 at [4].
[15] Mr McColgan’s submission on the other hand has been that Mr Lyttelton was deliberately striving throughout the struggle to kill Mr Ord. He could have stopped at any time. He did not do so.
[16] It is difficult to see how Mr Lyttelton’s version of what happened could be seen as consistent with the jury verdict. In any event I am well able to assess the two submissions against the evidence I heard. In my view, Mr Lyttelton was in a position to discontinue the struggle at any time and chose to continue to fight. I will have more to say about this in my actual sentencing. Suffice to say that I will not benefit from any further evidence on the point. I have heard all the relevant evidence.
[17] Another matter I should mention before I cease this analysis is the number of minor matters of detail that Mr Lyttelton contests. He says for instance that the trajectory of the shotgun cartridge that was fired through the door has been misstated to me by the Police and Mr McColgan. I do not propose spending time on this issue, because I do not regard it as important. I am satisfied, consistent with the jury verdict, that when Mr Lyttelton fired through the door he intended to injure a person behind the door. That is enough. Whether the trajectory of the shotgun was aiming towards the left or the right, the intent was there and the grievous bodily harm to Ms Fenton followed.
[18] In many other instances also, Mr Lyttelton has mentioned matters of particular detail. Sentencing is in the end a process carried out by a Judge by broadly assessing the facts. Culpability is determined by a Judge in the end standing back and assessing the facts as a whole. Sentencing decisions do not generally get involved in the minutiae of facts, although there will be the odd occasion where that is necessary. But clearly I must pay heed to all the evidence I have heard about it and make the broad findings of fact necessary for me to fairly and accurately sentence Mr Lyttelton.
[19] Thus, there is no need for a disputed facts hearing. Section 24(2), which deals with disputed questions of fact, is a section primarily applied in disputed fact situations arising on guilty pleas. While there may be the odd case where a disputed
fact hearing is required after trial, this in my assessment is most certainly not one of them.
[20] I have heard full submissions on the facts and I determine that this sentencing should proceed today.
Section 79
[21] The second issue raised is whether, if Mr Lyttelton is sentenced today to any term in excess of the five year and 11 month sentence he received originally from Wylie J,5 he should have to return to prison. This is a point originally and responsibly raised by Mr Gibson as amicus curiae, and understandably adopted by Mr Lyttelton. The primary submissions on the point have been made by Mr Gibson.
[22] The essence of Mr Gibson’s submission is that the provisions of the Parole Act mean that even if the sentence imposed upon Mr Lyttelton is longer than the five years and 11 months, the provisions of s 79 of the Parole Act provide that if a sentence has ceased to apply because it has been quashed and a retrial ordered, and a sentence of imprisonment is imposed following the retrial, the start date of the later sentence is the start date of the original sentence. The point he makes is that the start date of the original sentence could be treated as being when Mr Lyttelton was remanded in prison on 12 March 2008. He was then continuously in prison until his release on parole after the actual sentencing. The start date should be treated as
12 March 2008, which means in his submission that any sentence imposed should be by virtue of s 9 treated as having been served.
[23] Mr Gibson has relied on the decision of R v Lloyd where Venning J, applying s 79, formed the view that the start date of the sentence he was imposing was the start date of the original term.6 Given that term had already been served, he took the view that subject to the paperwork being completed, the defendant should be free to
go. The defendant would not go to prison.
5 R v Lyttleton HC Auckland CRI-2008-044-9465, 31 March 2010.
6 R v Lloyd HC Auckland CRI-1995-088-808007, 17 June 2005.
[24] Mr McColgan submits that this is an erroneous interpretation of s 79. He says that if Mr Gibson was right the Parole Act would be used to defeat the purpose of sentencing and the effect of this particular sentence. He submits that the section is not directed to the Court, but rather to the Parole Board and that this Court should impose a sentence in the usual way. He accepts that by virtue of ss 89–91 of the Parole Act, Mr Lyttelton should get full credit for time served, but that he should not get a windfall of credit for time which has passed while he has not been subject to a sentence.
[25] It is necessary to briefly refer to some other relevant sections. Section 82 of the Sentencing Act, which is a section that must be taken into account by a Judge, provides that in determining the length of any sentence of imprisonment being imposed the Court must not take into account any part of the period during which the offender was on pre-sentence detention as defined in s 91 of the Parole Act.
[26] Section 79 itself is in Subpart 3 of the Parole Act, which relates to sentence calculation. It is a part of the Act which can be seen as directed to the Parole Board, rather than Courts imposing sentences. Its purpose is to set out for the Parole Board how sentences should be calculated. Section 79 provides:
79 Start date if later sentence replaces original sentence
(1) The start date of a sentence that is substituted for a sentence that was quashed or otherwise set aside on appeal (the original sentence) is the start date of the original sentence.
(2) If a sentence (the “original sentence”) ceases to apply because the conviction to which it relates is quashed and a retrial ordered, and if a sentence of imprisonment is imposed following the retrial, the start date of the later sentence is the start date of the original sentence.
(3) In either situation referred to in subsection (1) or subsection (2), if the original sentence was directed to be served cumulatively on another sentence but the later sentence is not directed to be served cumulatively, then the start date of the later sentence is the start date that the original sentence would have had if it had not been directed to be served cumulatively.
[27] “Start date” is defined in s 4 as follows:
start date, in relation to a sentence of imprisonment, means the date on and from which an offender who is subject to the sentence begins to be subject to it (see sections 76 to 81)
[28] It is my assessment that the assessment of time served and when a sentence has been deemed to run from is a matter for the Parole Board to calculate and not for the Judge. If Judges had to carry out that sort of calculation it would prolong sentencing processes considerably. A separate regime has been set up by the legislature, leaving the calculation of time to be served to the Parole Board and not to Judges. This is the general approach taken by Judges when they are sentencing on a retrial. The usual practice of Judges when sentencing on a retrial is to impose the sentence afresh, but recognising and understanding that the time already served will
be taken into account.7
[29] I do not believe that R v Lloyd has created a true exception to this approach. In that case the defendant had already served some seven years in prison for manslaughter. In the subsequent retrial he was charged and convicted of the lesser charge of improperly offering an indignity to a dead body. Rather than the lengthy term of imprisonment that was imposed for manslaughter, he received the much lower sentence of 12 months’ imprisonment. The obvious problem faced by the Court was therefore that Mr Lloyd had clearly been in prison for a far longer period on a charge that he was no longer convicted of, than the 12 months that was the appropriate sentence on the subsequent retrial. It would have been entirely unfair to him for him to have had to go back to prison to await a Parole Board hearing, given that he had plainly been in prison already for his criminal offending for a much longer period than the sentence to be imposed. In those circumstances Venning J, paying heed to the practical effect of s 79(1), was not prepared to send Mr Lloyd back to prison. That case is very different from the present where Mr Lyttelton faces a sentence that will be longer than the original sentence imposed.
[30] So I conclude that s 79 is not directed to a sentencing Judge (although it can be taken into account on occasions as it was in R v Lloyd) and does not apply to this
sentencing process.
7 See, for example, R v Keophila [2014] NZHC 1896; R v Lundy CRI-2001-054-832244 HC Wellington, 30 March 2015; R v Sturm HC Auckland CRI-2002-004-278640, 26 May 2006.
[31] Although it is not essential to my decision, I do record that in any event I agree with the submissions of Mr McColgan that s 79 should not be interpreted in the way proposed by Mr Gibson. The section only sets a start date for the calculation of the sentence. It is silent on the issue of how periods spent by a defendant who has served a sentence, and has also been out of prison for a period, should be assessed. It does not cover how the Parole Board should deal with the period of time following the service of a sentence of imprisonment, prior to the imposition of a new sentence of imprisonment. It does not say that the sentence of imprisonment is deemed to have been continued to be served for the period following the expiry of the original sentence. It therefore does not address the present situation.
[32] Giving the section a purposive interpretation, the intention of the section is to provide a start date for the calculation of time served, rather than the chronological passage of time. Given that the statute is silent on what should happen, when there has been a gap between the original term of the sentence and a new longer sentence being imposed, it is open to the Parole Board, applying a purposive interpretation, to deduct the period between the original quashed sentence expiring and the new sentence commencing from any of its calculations, while of course nevertheless giving full credit to time served.
[33] Given that I do not face the sort of situation that the Judge faced in R v Lloyd, when I impose sentence I will not consider myself bound to direct that Mr Lyttelton not go to prison.
……………………………..
Asher J