The Queen v Lyon - [2008] NZCA 415

IN THE COURT OF APPEAL OF NEW ZEALAND
CA305/2008
[2008] NZCA 415
THE QUEEN
v
ALISTAIR MARK STUART LYON
Hearing:20 August 2008

Court:Robertson, Cooper and Winkelmann JJ
Counsel:Appellant in Person

M A Woolford for Crown

Judgment:10 October 2008 at 3.30 pm

JUDGMENT OF THE COURT

A THE APPEAL IS ALLOWED.
BThe sentence imposed in the District Court on the charge of carrying an air gun under s 45(1) of the Arms Act 1983 is quashed and a sentence of 150 hours community work is substituted.

C The other sentences imposed in the District Court are confirmed.
DAll sentences are to be served concurrently.

REASONS OF THE COURT
(Given by Cooper J)
[1]       Mr Lyon appeals against an effective sentence of 200 hours community work imposed by Judge Sharp in the Auckland District Court.
[2]       The appellant was sentenced on three charges alleging, respectively carrying an air gun, assault with intent to injure and possession of methamphetamine. On the first of the charges, which was laid under s 45(1) of the Arms Act 1983, the appellant was found guilty after a jury trial. The maximum penalty available was four years’ imprisonment. The Judge took that as the lead offence. The appellant pleaded guilty to the other two offences which carried potential maximum penalties of one year’s imprisonment (assault under s 196 of the Crimes Act) and six months’ imprisonment (possession of a Class A controlled drug under s 7(1)(a) and 7(2)(a) of the Misuse of Drugs Act 1975).
[3]       The sentences imposed were 200 hours community work in respect of the Arms Act charge and 100 hours community work in respect of each of the other two charges, with all terms to be served concurrently.
Background
[4]       The offence of carrying an air gun was committed on 8 September 2005. The weapon was in fact a paint ball gun. In her sentencing notes Judge Sharp recounted that Mr Lyon had left his apartment at 7.30 a.m. that morning and as he walked towards a group of shops he pointed the gun at a man who was standing at an ATM machine. The Judge described the offending as probably something in the nature of a practical joke which had been exacerbated by the appellant’s drug-induced strange behaviour. The victim was evidently not overly disturbed by the appellant’s behaviour on that occasion, regarding it as more odd than frightening.
[5]       The circumstances of the assault were that at about 6.00 a.m. one Sunday morning in September 2005 Mr Lyon went to a property in Orakei, owned by him, but occupied only by his estranged partner with her two children. He was carrying a samurai sword in a black sheath and a large hunting knife. He was in an agitated state when he entered the premises, and on going into the living area he saw two friends of his former partner, who were sitting there. He told both of them to leave. One of them stood and approached the appellant, who head-butted him 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 The Queen v Lyon

Details

AGLC: The Queen v Lyon [2008] NZCA 415
Case: [2008] NZCA 415
Decision Date: 10 October 2008

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of The Queen v Lyon was heard on appeal by Robertson, Cooper and Winkelmann JJ. The appellant, Alistair Mark Stuart Lyon, appealed against an effective sentence of 200 hours community work imposed by Judge Sharp in the Auckland District Court. The appellant was sentenced on three charges: carrying an air gun under the Arms Act 1983, assault with intent to injure under the Crimes Act, and possession of methamphetamine under the Misuse of Drugs Act 1975. Lyon argued that the sentence was excessive, claiming that he had been subject to restrictive bail conditions and had already served time in custody. He also argued that the sentence breached an assurance by the Judge that there would be no further loss of liberty. The Crown submitted that the sentences were reasonable, and that the appellant's arguments lacked substance.

The Court of Appeal considered the arguments and found that most of the appellant's claims were unfounded. They found that time spent on remand due to breach of bail was not relevant for reducing the sentence, and that the appellant's prior 15-month prison sentence was unrelated to the current offences. The Court also found that the appellant had misunderstood the Judge's assurance regarding loss of liberty. The Court found that the sentence for the Arms Act offence was excessive, and that a 50-hour reduction was appropriate due to the restrictive bail conditions. The Court of Appeal allowed the appeal, quashed the sentence imposed in the District Court for the Arms Act offence, and substituted a sentence of 150 hours community work for that offence. The other sentences imposed in the District Court were confirmed, and all sentences were to be served concurrently.

Orders