LYNN v R [2020] NZCA 616

LYNN v R [2020] NZCA 616 [4 December 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA326/2020[2020] NZCA 616BETWEEN DEREK JAMES LYNNAppellantAND THE QUEENRespondentHearing: 10 November 2020Court: Courtney, Woolford and Mander JJCounsel: W D McKean for AppellantMRL Davie for RespondentJudgment: 4 December 2020 at 10 amReissued: 10 December 2020Effective dateof Judgment: 4 December 2020JUDGMENT OF THE COURTA The appeal is allowed.B The total sentence of seven years and five months' imprisonmentis quashed and replaced with a total sentence of six years, seven monthsand 30 days' imprisonment. The individual sentences are as set out at [50]and [51].____________________________________________________________________REASONS OF THE COURT(Given by Woolford J)[1] On 19 June 2020, Derek Lynn was sentenced to a total of seven years and fivemonths' imprisonment on nine charges of burglary, four charges of arson,two representative charges of intentional damage and one charge of driving whiledisqualified (third or subsequent).1 He now appeals against sentence on the basis it ismanifestly excessive. This Court must allow the appeal only if satisfied that there wasan error in the sentence and a different sentence should be imposed.2Factual backgroundBurglaries[2] In September 2017, the appellant, together with his former girlfriend, burgledfour unoccupied properties in One Tree Point, 35 km to the south-east of Whangarei,which he had noted as being advertised as holiday rentals. He took a wide variety ofhousehold items and sporting and recreational equipment, including mountain bikes,dive gear and an outboard motor, together valued in excess of $17,000.[3] In March 2018, the appellant, again with his former girlfriend, burgleda property in Morningside, Whangarei, taking household items valued at $5,815.[4] In May 2018, the appellant, together with another co-offender, burgleda property in Onerahi, Whangarei, taking a laptop valued at $600.[5] Then, in June 2018, the appellant, together with another co-offender,Wesley Hodgkinson, burgled another three properties in Whangarei Heads,Whangaumu and Whareora, Whangarei. Apart from a wide variety of household itemsand sporting and recreational equipment, the appellant took a gun safe containing anumber of firearms and a motor vehicle, which was later found burnt out. The totalvalue of the household items stolen exceeded $23,000.1 R v Lynn [2020] NZDC 11649 [Sentencing notes].2 Criminal Procedure Act 2011, s 250(2).Arsons[6] On 13 April 2018, the appellant, together with Mr Hodgkinson, set fire to threevehicles parked one after the other in Paranui Valley Road, Whangarei, by lighting thevehicles under the front wheel arch, where the mud flap connects to the vehiclechassis.[7] Then on 15/16 April 2018, the appellant, together with Mr Hodgkinson, set fireto a 150 m long, 8 m high, totara shelter belt in a rural location in Maungatapere,12 km to the west of Whangarei.Intentional damage[8] Between 20 and 29 June 2018 and between 6 and 25 July 2018, the appellant,together with Mr Hodgkinson, destroyed multiple car tyres on 46 different vehicles byslashing them with a knife, causing the tyres to deflate. All tyres were unable to berepaired and had to be replaced. The vehicles were targeted at random.Disqualified driving[9] On 2 March 2018, the appellant appeared in the Whangarei District Court andwas convicted of driving while disqualified (third or subsequent). He was disqualifiedfrom driving for one year and one day from that date. At 9.59 am on 1 August 2018,the appellant was the driver of a motor vehicle on Maunu Road, Avenues, Whangarei,when he was stopped by police and spoken to. Checks revealed he was disqualified.The car he was driving was impounded for 28 days.District Court sentence[10] After reciting the facts, Judge de Ridder noted that the appellant's principal co-offender, Mr Hodgkinson, had been sentenced to seven years and seven months'imprisonment for his role in the burglaries, arsons and intentional damage.3Mr Hodgkinson had been sentenced on a greater number of arson charges, but a lessernumber of burglaries. It was accepted by the Crown and defence that the appellant3 Sentencing notes, above n 1, at [9].and Mr Hodgkinson were equally responsible for the intentional damage charges. TheJudge noted that the significance of that was, of course, that in sentencing the appellanton the two representative charges of intentional damage, the principle of parityrequired him to adopt the same approach as was adopted by Judge D G Harvey, whosentenced Mr Hodgkinson.4[11] The Judge then turned to the seriousness of the charges. First, with regard tothe burglaries, the Judge accepted that there was significant planning andpremeditation.5 The appellant targeted residential properties. There were nineburglaries and the value of the property taken was significantly in excess of $40,000.The Judge noted that the appellant had nine previous convictions for burglary between2010 and 2011 plus a number of convictions for other dishonesty offending.6[12] As far as the arson charges were concerned, there were three vehicles involvedof significant value.7 The shelter belt was a long-standing and significant feature ofthe area. It was relatively close to houses. Finally, in respect of the intentional damagecharges, the Judge noted the sheer number of vehicles involved, the scale of damagecaused and the cost and inconvenience to a large number of people.[13] The Judge then referred to the 68 victim impact statements which had beenfiled in court, the probation report and a health assessor's report under s 38 of theCriminal Procedure (Mentally Impaired Persons) Act 2003. The Judge noted that thes 38 report writer expressed his belief that the appellant had a genetic predispositionto mental health difficulties and that he had complex psychological problems thatarose from childhood trauma and adversity.8 The report writer did not, however, findany evidence of severe or enduring mental illness, but considered that there wasclinical evidence at least that was supportive of a personality disorder. The reportwriter concluded that the appellant had complex psychological problems that neededto be addressed in order to reduce his risk of reoffending.4 R v Hodgkinson [2019] NZDC 10012.5 Sentencing notes, above n 1, at [10].6 At [11].7 At [12].8 At [16].[14] After reviewing the Crown and defence submissions, the Judge thendetermined the appropriate sentences for the different sets of offending. Dealing firstwith the charges of burglary, the Judge was satisfied that an appropriate starting pointwas four years' imprisonment. That four-year starting point took into account both theaggravating factors of the offending itself and the appellant's personal aggravatingfactors, in particular his criminal history. The Judge then considered the discountswhich might be available for the appellant's personal mitigating factors. First, therewas the appellant's psychological problems. In the Judge's view, the appropriatediscount for such issues was 15 per cent or eight months' imprisonment, whichreduced the sentence to 40 months' imprisonment.9 The Judge also accepted that therewas some limited remorse for which he considered a very modest reduction of onemonth was available, which took the sentence further down to 39 months'imprisonment. Finally, the appellant was entitled to a further discount for his guiltypleas. A discount of 15 per cent was considered to be appropriate by the Judge, whichequated to seven months.10 By the Judge's calculations that took the appellant's endsentence on the burglary charges to two years and eight months' imprisonment.[15] In respect of the arson charges, the Judge was satisfied that an appropriatestarting point was three years' imprisonment.11 Again, a 15 per cent reduction for theappellant's psychological problems took the sentence down to 30 months'imprisonment. A further month was deducted for the appellant's remorse, togetherwith 15 per cent for his guilty pleas, which took the end sentence on the arson chargesto two years' imprisonment.[16] The Judge then said that the intentional damage charges should obviously havea starting point of three years' imprisonment, the same as that adopted in respect ofMr Hodgkinson.12 Applying the same discounts he had granted on the arson charges,the Judge came to an end sentence of two years' imprisonment on the intentionaldamage charges.9 At [40].10 At [26].11 At [27].12 At [28].[17] Finally, in respect of the driving while disqualified charge, in the Judge's view,a sentence of nine months' imprisonment was appropriate.13[18] The Judge made all the sentences cumulative, resulting in a total sentence ofseven years and five months' imprisonment.Co-offender's sentence[19] The appellant's co-offender, Mr Hodgkinson, pleaded guilty to two charges ofburglary, one charge of arson knowing danger to life was likely to ensue, nine chargesof arson relating to motor vehicles and two representative charges of intentionaldamage. On 24 May 2019, he was sentenced to a total sentence of seven years andseven months' imprisonment.14 The Judge took the lead offences to be the arsoncharges, which on their own would merit a starting point in the vicinity of seven years'imprisonment.15 In addition, the Judge was of the view that a starting point of aroundthree years' imprisonment was appropriate for both the burglary and the intentionaldamage charges.[20] The Judge noted, however, that bearing in mind the principle of totality, heshould select a starting point for the arsons of four and half years' imprisonment ratherthan seven years' imprisonment.16 Mr Hodgkinson was also entitled to a full 25 percent discount for his guilty pleas.17 Accordingly, in relation to the arson charges andgiving Mr Hodgkinson credit for his guilty pleas, he was sentenced to three years andfour months' imprisonment.18 On the representative charges of intentional damage,he was sentenced to two years and three months' imprisonment, which was cumulativeon the sentence of three years and four months' imprisonment for arson. On the twocharges of burglary, he was sentenced to two years' imprisonment, which was alsocumulative. This meant that Mr Hodgkinson received a total sentence of seven yearsand seven months' imprisonment.13 At [29].14 R v Hodgkinson, above n 4.15 At [40].16 At [42].17 At [44].18 At [47].Appellant's submissions[21] The appellant appeals against sentence on the grounds that the Judge:(a) did not give sufficient credit for guilty pleas that avoided a lengthy trial;(b) did not sufficiently reduce the sentence to recognise remorse;(c) imposed a cumulative sentence of imprisonment on the driving whilstdisqualified charge, which itself was manifestly excessive;(d) did not take into account the totality of the offending resulting in an endsentence out of proportion to the gravity of the overall offending; and(e) did not take into account totality resulting in disparity in treatment fromthe co-offender, Mr Hodgkinson, and that disparity in treatment was notconsonant with the appearance of justice.[22] No issue is taken with the starting points adopted by the Judge for the differentsets of offending. They are all within range if they were considered on their own.Nor is any issue taken with the 15 per cent discount for the appellant's psychologicalproblems.[23] It is submitted, however, that more credit should have been given forthe guilty pleas. It came immediately after a decision of this Court which gave theappellant some success in ruling a part of his police interview inadmissible.19 Theguilty pleas saved the Crown and the Court enormous resources that would have beenrequired to prosecute the offending. Counsel submits that a 20 per cent discount wasjustifiable.[24] Counsel further submits that the 2.5 per cent discount for remorse was alsoquite inadequate. Where there is tangible evidence of genuine remorse, discountsof around five to eight per cent have been given.19 Lynn v R [2019] NZCA 656.[25] Counsel submits the Judge was then required to stand back and look atthe overall sentence. He did not do so. If he had, he would have made an adjustmentto the sentence similar to that made in the sentencing of Mr Hodgkinson. Counselsubmits that the overall offending was connected. It was spree offending involvingthe same type of offending (theft and property damage) in the same place over thesame period involving common participants. The connected nature of the offendingfavoured a concurrent sentencing approach.[26] Counsel submits the failure to take totality into account in the appellant'ssentencing meant that there was disparity in the approach to the sentencing comparedto Mr Hodgkinson. The argument on disparity is not about the length of the sentencebut is said to arise because of the different treatment of the two offenders. Counseltherefore submits that:(a) the total period of imprisonment was wholly out of proportion to thegravity of the overall offending because totality was not taken intoaccount; and(b) the differences in approach to sentencing meant there was an unfairdisparity which resulted in the appellant being sentenced to a longerperiod of imprisonment than he otherwise would have.[27] Finally, counsel submits the sentence for driving while disqualified requires itsown consideration. Before sentencing, the appellant had pleaded guilty and beensentenced for a separate offence of driving while disqualified on 6 August 2018, fivedays later than the offence for which he was sentenced on 19 June 2020. He hadreceived a sentence of four months' imprisonment. Counsel submits it is difficult tojustify why the appellant would receive a sentence of nine months' imprisonmentwhen it was more than double the sentence imposed for the same offence committedfive days later. In sentencing for that offence, given its proximity to the later offence,counsel argues the Judge was required to take totality into account and the period ofimprisonment to which the Judge would have sentenced the appellant if dealing withboth offences at the same time. Counsel submits that the appellant would not havereceived a sentence of 13 months' imprisonment on two charges of driving whiledisqualified, committed five days apart. Furthermore, the Judge made no allowancefor a plea of guilty or any other mitigating factors in arriving at an end sentence ofnine months' imprisonment.[28] In conclusion, counsel submits that the end sentence was a crushing sentencefor a man whose offending was likely linked to his personality disorder brought aboutby a very difficult childhood.Discussion[29] Section 84 of the Sentence Act 2002 sets out guidance on the use of cumulativeand current sentences. It provides:84 Guidance on use of cumulative and concurrent sentences ofimprisonment(1) Cumulative sentences of imprisonment are generally appropriate ifthe offences for which an offender is being sentenced are different inkind, whether or not they are a connected series of offences.(2) Concurrent sentences of imprisonment are generally appropriate if theoffences for which an offender is being sentenced are of a similar kindand are a connected series of offences.(3) In determining for the purpose of this section whether 2 or moreoffences committed by 1 offender are a connected series of offences,the court may consider—(a) the time at which they occurred; or(b) the overall nature of the offending; or(c) any other relationship between the offences that the courtconsiders relevant.[30] In the present case, the burglaries happened over a nine-month period betweenSeptember 2017 and June 2018 and occurred over a wide area from One Tree Point,35 km south-east of Whangarei, to Whangaumu, 31 km north-east of Whangarei, andin various suburbs of Whangarei itself. Mr Hodgkinson was only a co-offender inthree of the burglaries. The appellant's former girlfriend was the co-offender in fiveof the burglaries. The burglaries are quite different in kind to the arson and intentionaldamage charges.[31] The arsons occurred in mid-April 2018. The two representative charges ofintentional damage are dated between 20 and 29 June 2018 and 6 and 25 July 2018, atleast two months after the arsons. We do, however, acknowledge that on sentencingthree charges of arson relating to the destruction by fire of three motor vehicles on23 June 2018 were withdrawn. There is, therefore, some overlap in time andcircumstances between the arson of cars and the wilful damage of car tyres, but, again,the arson of a shelter belt is quite different in kind to the wilful damage of car tyres.The disqualified driving charge is also quite different in kind.[32] As has often been said, the key question in an appeal against sentence is theappropriateness of the end sentence and not how it was reached,20 but, in this case, itwas clearly open to the Judge to utilise a cumulative approach to sentencing.[33] Although the crime of arson has a higher maximum sentence (14 years'imprisonment) than burglary (10 years' imprisonment), the Judge was right to considerthe burglaries to be the lead offences. He adopted a starting point of fouryears' imprisonment,21 which took into account the appellant's nine previousconvictions for burglary, for which he had received three years' imprisonment.The Judge then discounted the starting point by approximately 33 per cent to recognisethe appellant's psychological problems, his remorse and the pleas of guilty to reach anend sentence of two years and eight months' imprisonment, which is less than the threeyears' imprisonment the appellant had previously received for burglary.[34] As to the discount for the guilty pleas, the Judge noted that they did not comeat the earliest opportunity and whilst the appellant had every right to challenge issuesas to his interview in this Court, the fact remained that that process was followedbefore guilty pleas were entered. As to remorse, the Judge gave the appellant what,he said, was "a very modest reduction" of approximately two per cent for remorse onaccount of the courses he had completed in prison and the letter he had written to theCourt.22[35] What was not brought to the Judge's attention, however, was the fact that theappellant admitted in an interview that he committed nine burglaries when the police20 See Andrews v R [2012] NZCA 61 at [27]; and Connelly v R [2008] NZCA 550 at [13].21 In his sentencing submissions filed in the District Court, counsel for the appellant suggested thata starting point of three and a half years' imprisonment was appropriate.22 Sentencing notes, above n 1, at [23].only had evidence in the form of a statement from his former girlfriend of twoburglaries. His admissions, therefore, enabled the police to solve seven burglaries theymay not otherwise have been able to solve. As this Court stated in R v Strickland:23An offender who confesses other offending to the police, especiallyin circumstances where conviction on those other offences might nototherwise have followed, or where the offender's co-operation saves theauthorities considerable time and work, is entitled to have that co-operationtaken into account when the sentence is fixed.[36] In R v Grant, the appellant's disclosures led to clearance of 16 unsolvedburglaries.24 This Court found that an effective sentence of five years' imprisonmentfor 18 burglaries was therefore excessive and reduced the effective sentence to one offour years' imprisonment.25[37] Whether this factor is built into the discount for the guilty pleas or remorse, weconsider that it should be recognised in a tangible way. In the present case, we are ofthe view that the discount for the appellant's guilty pleas can, and should appropriately,be increased by five per cent to 20 per cent.[38] This also takes into account our view that the discount of 15 per cent failed toacknowledge the extent of the benefits the guilty pleas brought to the criminal justicesystem. The appellant's guilty pleas saved the substantial costs associated with alengthy defended hearing. We agree with the commentary in Adams on Criminal Law— Sentencing, that there are also social utility benefits for witnesses, particularlycomplainants, who are not required to give evidence and may be assisted through theappellant's acknowledgement of responsibility for the offending.26 The sheer scale ofthe trial forgone is reflected in the 68 victim impact statements filed in Court. As notedby the Supreme Court in Hessell v R, the value to be attributed to a guilty plea is to beassessed having regard to all the circumstances of the case rather than by reference toa prescriptive scale of discounts that depend on when the plea was entered.2723 R v Strickland [1989] 3 NZLR 47 (CA) at 51.24 R v Grant (1992) 8 CRNZ 483 (CA).25 At 487.26 Simon France (ed) Adams on Criminal Law — Sentencing (online looseleaf ed, Thomson Reuters)at [SA9.18].27 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [70].[39] Taking into account the adjusted 20 per cent discount for the appellant's guiltypleas, the sentences are now two years and six months' imprisonment for the burglariesand one year, 10 months and 15 days' imprisonment each for the arsons and for theintentional damage, totalling a cumulative sentence of six years, two months and30 days' imprisonment before the disqualified driving sentence is considered.[40] As to the disqualified driving sentence, the Judge did not identify a startingpoint, nor did he accord the appellant any discount for personal mitigating factors.Nor was any allowance then made for totality, given that the appellant had pleadedguilty and been sentenced to four months' imprisonment for disqualified driving fivedays after the date of the offence for which he was being sentenced.[41] The total sentence imposed for the two offences, five days apart, was13 months' imprisonment. For his last two offences of driving while disqualified in2016 and 2017, the appellant received sentences of eight months' imprisonment andnine and a half months' imprisonment respectively.[42] While a total sentence of 14 months' imprisonment could conceivably bejustified for the two offences committed five days apart, we think the fairer thing todo, in the absence of any indication from the Judge of a starting point or discounts forpersonal mitigating factors, is to treat the nine months' imprisonment as the startingpoint from which the same discounts as for the burglaries, arsons and wilful damageare deducted. Such an approach would also take into account the principle of totalitywhen the sentence is to be cumulative on the burglaries, arsons and wilful damagesentences. This would lead to a sentence of five months and 15 days' imprisonmenton the disqualified driving charge.[43] All in all, this leads to a total sentence of six years, seven months and 30 days'imprisonment rather than the seven years and five months' imprisonment originallyimposed — a modest reduction of approximately nine months.[44] Section 85 of the Sentence Act also requires the court to consider the totalityof the offending. It provides:85 Court to consider totality of offending(1) Subject to this section, if a court is considering imposing sentences ofimprisonment for 2 or more offences, the individual sentences mustreflect the seriousness of each offence.(2) If cumulative sentences of imprisonment are imposed, whetherindividually or in combination with concurrent sentences, they mustnot result in a total period of imprisonment wholly out of proportionto the gravity of the overall offending.(3) If, because of the need to ensure that the total term of cumulativesentences is not disproportionately long, the imposition of cumulativesentences would result in a series of short sentences that individuallyfail to reflect the seriousness of each offence, then longer concurrentsentences, or a combination of concurrent and cumulative sentences,must be preferred.(4) If only concurrent sentences are to be imposed,—(a) the most serious offence must, subject to any maximumpenalty provided for that offence, receive the penalty that isappropriate for the totality of the offending; and(b) each of the lesser offences must receive the penaltyappropriate to that offence.[45] The Judge can be seen to have imported the principle of totality into the totalsentence when he adopted a starting point of three years' imprisonment for the arsoncharges. He did so by reference to the four-and-a-half-year starting point adopted byJudge Harvey in sentencing the appellant's co-offender, Mr Hopkinson, throughapplication of the totality principle. Judge Harvey stated that the starting point for thearsons would otherwise be seven years' imprisonment, or half the maximum sentence.[46] Standing back and looking at the adjusted overall sentence, it is not wholly outof proportion to the gravity of the overall offending. The offending was serious,widespread and covered a broad range of property offending over almost a year. Theoffending had an impact on a large number of people and caused considerable alarmand concern about safety and security in the community. The total sentence is wellwithin each of the maximum sentences for burglary, arson and wilful damage.[47] Finally, we do not consider that an issue of parity arises with the sentenceimposed on Mr Hodgkinson. They have similar levels of culpability and similarpersonal characteristics. Mr Hodgkinson's culpability for arson is higher due to thegreater number of arsons which he committed. However, the appellant's culpabilityfor burglary is higher, and he was also sentenced for disqualified driving. We agreewith the Crown that, in the round, there is not a great deal of difference in theirculpability. Mr Hodgkinson received a sentence of seven years and seven months'imprisonment for his offending. Although he received a 25 per cent discount for hisguilty pleas made at the earliest opportunity, he did not receive any further discountfor personal mitigating factors. The appellant did, receiving 15 per cent discount forhis psychological problems and a small reduction for remorse.Result[48] The appeal is allowed.[49] The sentences of two years and eight months' imprisonment for burglary, twoyears' imprisonment for arson, two years' imprisonment for intentional damage andnine months' imprisonment for disqualified driving are quashed. In their place, thesentences set out below are substituted.[50] The appellant is sentenced to two years and six months' imprisonment forthe burglaries. For the arson charges, the appellant is sentenced to one year, 10 monthsand 15 days' imprisonment, cumulative on the sentence of two years and six months'imprisonment for the burglaries. In respect of the intentional damage charges,the appellant is sentenced to one year, 10 months and 15 days' imprisonmentcumulative on the sentence of one year, 10 months and 15 days' imprisonment forthe arson charges.[51] For the driving while disqualified charge, the appellant is sentenced to fivemonths and 15 days' imprisonment, which we round to five months' imprisonment.This sentence is cumulative on the sentence of one year, 10 months and 15 days'imprisonment for the charges of intentional damage.[52] This leads to a total sentence of six years, seven months and 30 days'imprisonmentSolicitors:WRMK Lawyers, Whangarei for AppellantCrown Law Office, Wellington for Respondent