Lynn v Police [2016] NZHC 2692 (10 November 2016)

Last Updated: 20 December 2016

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2016-488-37

CRI-2016-488-38

CRI-2016-488-39
CRI-2016-488-40 [2016] NZHC 2692

BETWEEN	DEREK JAMES LYNN Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	21 October 2016
Counsel:	L G Penney for Appellant J W Wall for Respondent
Judgment:	10 November 2016

_{JUDGMENT OF WHATA J}

This judgment was delivered by me on 10 November 2016 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ...............................

_{Solicitors: Crown Solicitors, Whangarei}

LYNN v POLICE [2016] NZHC 2692 [10 November 2016]

[1] Mr Lynn appeals (out of time) against a sentence of ten months’

imprisonment imposed by Judge DJ McDonald¹ for:

(a) Two breaches of release conditions; and

(b) Two driving while suspended charges.

[2] Leave to appeal out of time is not opposed and is granted.

[3] Mr Lynn claims that the end sentence was manifestly excessive.

[4] The background facts are straightforward. Mr Lynn had been sentenced to seven months’ imprisonment on two charges of assault and one of possession of an offensive weapon.² The victim of one of the assaults was his partner. One of his post-release conditions was that he was not to associate with her.

[5] On 21 April 2016 Mr Lynn breached this condition. He pleaded guilty to this and the Judge made an order under s 110 of the Sentencing Act 2002 that he come up for sentence within eight months. Another breach occurred on 25 July 2016, but he was not called up for sentence under s 111 of the Act. Rather, the Judge imposed a sentence of 80 hours’ community work and recorded a final warning. The warning did not work and, on 4 August, he was again found associating with his partner. Mr Lynn pleaded guilty to this breach and appeared for sentencing on the April and August breaches, and for two charges of driving while suspended.

[6] Judge MacDonald approached sentencing using the following start points: (a) Four months in relation to the first breach;

(b) Six months in relation to the second breach;

_{(c) Two months for driving while suspended.}

¹ _{New Zealand Police v Lynn [2016] NZDC 15425.}

² New Zealand Police v Lynn [2016] NZDC 1369.

[7] The Judge imposed an uplift of three months for prior misbehaviour. A 25 per cent discount for an early guilty plea was given, together with a further month to take into account the ill health of his mother. An end sentence of 10 months’ imprisonment was imposed.

Jurisdiction

[8] I may allow an appeal against sentence if I find that the Judge has materially erred.³ A sentence that is manifestly excessive may be set aside pursuant to this jurisdiction.⁴

Argument

[9] Mr Penney submits that the sentences were excessive, referring to two decisions:

(a) McLean v Police:⁵ the Court observed that a 12 month starting point for two breaches of release conditions, reduced to eight months’ imprisonment to take into account mitigating features (including a guilty plea), was at the top of the range.

(b) Jenkins v Department of Corrections:⁶ an end sentence of nine months’ imprisonment imposed by the District Court was held to be manifestly excessive for non-attendance at a programme designed to rehabilitate the offender. Lang J quashed the original sentence and substituted it for an end sentence of five and a half months.

[10] Mr Wall responds that:

(a) The Judge was correct to adopt a cumulative approach for successive, but separate, breaches;

³ _{Criminal Procedure Act 2011, s 250.}

⁴ _{Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27], [33] and [35].}

⁵ _{McLean v Police HC Invercargill CIV-2007-425-34, 1 October 2007.}

⁶ Jenkins v Department of Corrections [2014] NZHC 2895.

(b) McLean and Jenkins involve materially less serious breaches;

(c) Forsyth v Police⁷ is a helpful proxy – a sentence of eight months’ imprisonment following a discount for a guilty plea was not manifestly excessive for two breaches of non-association conditions and a background of non compliance.

Assessment

[11] I accept Mr Wall’s submission that the sentence imposed for two breaches of release conditions and for driving while suspended is not manifestly excessive, and, in fact, falls within the frame set by the three decisions cited to me. In reality, Mr Lynn showed contumelious disregard for release conditions designed to protect a victim of his primary offending. The start points for that offending of four and six months, and two months for the driving offences, were within range. A three month uplift for prior offending, while harsh, was not excessive, given Mr Lynn’s extensive history of law breaking – more than 50 convictions over eight years.

[12] The central key remaining issue is whether or not a discount for personal matters was sufficient. The Supreme Court has held that the “personal circumstances of an offender may be relevant either because they contributed to the offending, or on purely compassionate grounds”.⁸ It was known to the Judge that Mr Lynn’s mother was in a hospice and terminally ill, and sadly Mr Lynn’s mother passed away in the week preceding the hearing of this appeal. I accept that a different Judge may

have taken a more lenient approach, particularly if the true severity of the mother’s condition was known to the Judge at the time. But there needs to be some care in approaching this assessment with the benefit of hindsight and Mr Lynn must demonstrate that the Judge made a material error in his treatment of his personal circumstances. I am not persuaded that the Judge was exercising a discretion that

_{was not available to him in terms of fixing the length of sentence.}

⁷ _{Forsyth v New Zealand Police [2013] NZHC 139.}

⁸ Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612 at [14].

[13] For completeness, it does not appear that home detention was pursued in the District Court and Mr Penney submitted to me that a term of imprisonment was inevitable. Nothing in this judgment should be seen to endorse that proposition in a context like the present. Section 8(g) of the Sentencing Act 2002 stipulates that the least restrictive sentence possible should be imposed. Home detention was technically available, and a parent’s terminal illness is a strong factor in favour of home detention if a suitable location could be found. Regrettably, as Mr Lynn’s mother has now passed, little would be served in commuting the sentence to home detention at this late stage.

[14] The appeal is dismissed.