LYTTELTON v THE QUEEN [2016] NZHC 1251

LYTTELTON v THE QUEEN [2016] NZHC 1251 [10 June 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2016-404-173[2016] NZHC 1251BETWEEN MARTIN VICTOR LYTTELTONApplicantAND THE QUEENRespondentHearing: 10 June 2016Counsel: G E Minchin for ApplicantF M T Culliney for RespondentJudgment: 10 June 2016JUDGMENT OF BREWER JSolicitors/Counsel: Graeme Minchin (Auckland) for ApplicantMeredith Connell (Auckland) for RespondentIntroduction[1] Mr Lyttelton was found guilty by a jury in the High Court at Auckland on a number of charges including attempted murder. He was sentenced by Asher J on 18 May 2016 to a period of imprisonment.1 He has appealed his conviction and his sentence. Mr Lyttelton now applies for bail pending the hearing of his appeal.Background[2] The case has an unusual background in that Mr Lyttelton originally pleaded guilty to the charges upon which he has now been convicted. He served his sentence and went back in the community, where by all accounts he picked up the traces of his business and did good in the community. However, after some quite lengthy period of time, he sought to have his convictions overturned. The Court of Appeal, on quite a narrow point going to state of mind, granted Mr Lyttelton's application and ordereda trial. The jury heard the evidence and, as I have said, found Mr Lyttelton guilty of the charges.[3] Justice Asher, in sentencing, imposed the same sentence as was imposed by the Judge before whom Mr Lyttelton first appeared for sentence. The only difference was that the credit Mr Lyttelton had gained at the first sentencing for his pleas of guilty was not available to him following trial. That meant that Mr Lyttelton's sentence was increased by 13 months' imprisonment and he has been serving thatsentence since the jury's findings. I am advised that he has now become eligible forparole.Discussion[4] When a prisoner serving a sentence has appealed the conviction or the sentence and wishes to have bail pending appeal, then the prisoner has quite a difficult test to meet. Section 14 of the Bail Act 2000 provides:(1) If a person is in custody or subject to a sentence of home detention under a conviction and is appealing the conviction or sentence, or both, the court must not grant bail unless it is satisfied on the balance1 R v Lyttelton [2016] NZHC 1041.of probabilities that it would be in the interests of justice in the particular case to do so.(2) The onus is on the appellant to show cause why bail should be granted.[5] Subsection (3) of s 14 lists considerations which may guide the Court in considering the interests of justice. Mr Minchin, who appears today for Mr Lyttelton, has addressed me in terms of those considerations and I think that that is appropriate.[6] The first consideration is the apparent strength of the grounds of appeal. There are quite a few grounds of appeal. They go, first, to the strength of the evidence and, second, to the summing-up of the trial Judge. So far as the appeal against sentence is concerned, the ground of appeal is that the Judge did not follow mandated procedure when told that there were issues of fact to be decided. Instead, the Judge proceeded directly to sentence.[7] So far as this consideration is concerned, I note that the case against Mr Lyttelton was largely agreed as to the facts. It is not contested that Mr Lyttelton armed himself with a shotgun and a knife and went to the house of the victims. It is not contested that there he fired two shots from the shotgun. One, having passed through a door, severely wounded one of the victims. She almost died and remains physically affected. It is not contested that Mr Lyttelton had the knife in his handand struggled with the male victim. The Crown's allegation was that Mr Lyttelton tried to kill the male victim with the knife, but Mr Lyttelton's evidence was that hewas not trying to use the knife against the male victim. The jury rejected that assertion as being a reasonable possibility, and I note that the trial Judge was of the same mind.[8] With that as background, I note that the grounds of appeal would call for a detailed sifting of the evidence, decisions to be made as to whether the allegations are sustainable, and, even if they are, whether, on the balancing test, they render a verdict or verdicts unsafe.[9] Mr Minchin was not counsel at trial and he does not have a great knowledge of the grounds of appeal since he did not himself draft the notice of appeal. He has been unable to point me to any particular aspect of the evidence or of the trialJudge's summation that would, in a proceeding such as this, ring an alarm bell. Accordingly, I do not find that, on the balance of probabilities, the applicant has shown that the grounds of appeal are strong.[10] The second consideration is the length of the sentence that has been imposed on the applicant. Mr Minchin makes the very relevant point that the sentence is effectively a short one and that the appeal will be nugatory if Mr Lyttelton is held in custody. I accept that submission. However, I have already noted that Mr Lyttelton is now eligible for parole. If Mr Lyttelton meets the requirements of the Parole Board, then he will be released anyway.[11] The third consideration is the likely length of time that will pass before the appeal is heard. Mr Minchin has made inquiries of the Court of Appeal registry and the rough estimate he has been given is that there will be about five months before the appeal is heard. Mr Lyttelton will almost certainly have been released before the appeal comes to be heard.[12] The fourth consideration is the personal circumstances of the applicant andthe applicant's immediate family. Here, Mr Minchin is on firm ground. He points to the successful rehabilitation of Mr Lyttelton since he was released from his imprisonment following his pleas of guilty. Mr Lyttelton has a wife and three daughters, two of whom reside with him. Mr Lyttelton is the sole breadwinner. I have to point out, however, that when an offender is sentenced to a term of imprisonment, there are always consequences for his immediate family and imprisonment always impacts on the income earning ability of the person imprisoned.[13] The final consideration is a general one. It is any other consideration that the Court considers relevant. Here, Mr Minchin points to the activities of Mr Lyttelton in managing the property portfolios and business affairs of a number of people who are in varying degrees dependent on his assistance. In particular, he works withelderly persons who without his guidance might be considered vulnerable. This morning, Mr Minchin has handed to me four testimonials which eloquently give detail of the good work that Mr Lyttelton has been doing.Decision[14] I am bound by s 14 of the Bail Act. I am prohibited from releasing Mr Lyttelton on bail unless Mr Lyttelton shows cause, on the balance of probabilities, why bail should be granted. I have looked at his case, taking into account those matters which apply to all persons sentenced to a term of imprisonment and to the particular background of Mr Lyttelton's case.[15] Here, where I do not see any apparent strength in the grounds of appeal and where the Parole Board will release Mr Lyttelton imminently if he satisfies the Parole Board that he should be released, I do not find that Mr Lyttelton has discharged his onus. I am not satisfied on the balance of probabilities that it would be in the interests of justice to grant Mr Lyttelton bail in advance of his appeal to the Court of Appeal.[16] Accordingly, the application is dismissed.________________________________Brewer J