R v Lyttelton - [2016] NZHC 1041

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2008-044-009465 [2016] NZHC 1041

THE QUEEN

v

MARTIN VICTOR LYTTELTON

Hearing: 18 May 2016

Appearances:

S McColgan for the Crown
Defendant in person
M Gibson as amicus curiae

Judgment:

18 May 2016

SENTENCING NOTES OF ASHER J

Solicitors:
Crown Solicitor, Auckland.
M Gibson, Auckland.

Copy to: Defendant

R v LYTTELTON [2016] NZHC 1041 [18 May 2016]

[1] Mr Lyttelton, you appear for sentence today having been convicted of three counts; first of attempted murder, second, of causing grievous bodily harm with intent to injure; and third, aggravated burglary. The maximum sentences for attempted murder and aggravated burglary are 14 years’ imprisonment, and for causing grievous bodily harm with intent to injure, seven years’ imprisonment.

[2] This is the second time you have been sentenced for this offending. You originally pleaded guilty to these charges and were sentenced by Wylie J on
31 March 2010 to a term of imprisonment of five years and 11 months.1 The

breakdown was a sentence of five years and 11 months for the attempted murder, four years and six months for causing grievous bodily harm, and three years for the aggravated burglary. You served that sentence entirely, being given parole after three years and two months, which was just over half the sentence. You were then released on parole and you completed the parole period.

[3] Some years after you were convicted and sentenced, you appealed the convictions. Your appeal was allowed by the Court of Appeal.2 It was allowed on the basis that there was one possible defence available to you. The Court said of you that at the time of the offending you were “so affected by a combination of mental illness and drugs that [you] may have lacked the specific intent that the charges required”.3 The Court of Appeal did not find the defence strong,4 but could not exclude it and ordered a retrial. I presided over that retrial which took place before a jury, and the convictions were the result.

[4] I approach the exercise of sentencing you afresh. It is a principle of sentencing that it is desirable that there should be a general consistency of sentencing so I have and will on occasion refer to Wylie J’s decision. However, I take the view that it is my obligation to reach my own conclusions about the facts, your culpability
and mitigating factors.

1 R v Lyttelton HC Auckland CRI-2008-044-9465, 31 March 2010.
2 Lyttelton v R [2014] NZCA 638.
3 At [82].
4 At [87].

[5] Before I turn to the facts I record that I have had very extensive submissions from you, Mr Lyttelton, on matters of fact. As I have recorded in my ruling earlier today, you have in the end sought a disputed facts hearing and made a very considerable number of detailed submissions about the facts broadly, and about specific matters.

[6] I have read all your submissions and I have considered them. I will not,…

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 Lyttelton

Details

AGLC: R v Lyttelton [2016] NZHC 1041
Case: [2016] NZHC 1041
Decision Date: 18 May 2016

CaseChat Overview and Summary

Martin Victor Lyttelton was convicted of attempted murder, causing grievous bodily harm with intent to injure, and aggravated burglary. The Court of Appeal had previously allowed his appeal against conviction on the basis that there was a possible defence available to him that at the time of the offending he was so affected by a combination of mental illness and drugs that he may have lacked the specific intent required. The Court ordered a retrial which resulted in the convictions being upheld. The Court noted that it was sentencing him afresh and took the view that it was the Court's obligation to reach its own conclusions about the facts, culpability, and mitigating factors. The Court found that the most serious charge was attempted murder and the appropriate starting point was eight years' imprisonment. The Court found that the second charge of causing grievous bodily harm with intent to injure was a very serious example of that offence and would have fixed a sentence of at least five years' imprisonment. The Court did not place particular sentencing weight on the third charge of aggravated burglary given that the home invasion was already taken into account when assessing the culpability of the attempted murder and grievous bodily harm charges. The Court found that a deduction of 30 per cent for the defendant's illness and the effect of drugs on him was appropriate. The Court also found that a further five per cent discount should be allowed to take into account the defendant's good record up to the offending. The Court found that no deduction was appropriate for a guilty plea or remorse. The Court concluded that the appropriate end sentence would be seven years' imprisonment for attempted murder, five years' imprisonment for causing grievous bodily harm with intent to injure, and three years' imprisonment for aggravated burglary, all terms to be served concurrently. The defendant was sentenced to a total term of imprisonment of seven years.

Orders