LYNCH v NEW ZEALAND POLICE [2022] NZHC 1448

LYNCH v NEW ZEALAND POLICE [2022] NZHC 1448 [20 June 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI 2022-404-000132[2022] NZHC 1448BETWEEN ORRIN LYNCHAppellantAND NEW ZEALAND POLICERespondentHearing: 13 June 2022Appearances: S H Hussain for the AppellantE W Palsenbarg for the RespondentJudgment: 20 June 2022Reissued: 23 September 2022JUDGMENT OF TAHANA JThis judgment was delivered by me on 20 June 2022 at 4.00pm andre-delivered by me on 23 September 2022 in accordance with Criminal Procedure Rules 2012, r 1.6.Registrar/Deputy RegistrarSolicitors/Counsel:Public Defence Service, WaitakereMeredith Connell, AucklandIntroduction[1] Mr Lynch pleaded guilty in the District Court at Waitakere to one charge ofassault of a child.1[2] On 6 April 2022, Mr Lynch was sentenced to one month home detention.2 Thesentence was imposed cumulatively on a sentence of 10 months' home detentionwhich Mr Lynch was serving for unrelated offending.[3] Mr Lynch appeals and says the sentence is manifestly excessive because:(a) the starting point of five to six months' imprisonment was too high;(b) insufficient discount was applied for rehabilitative efforts; and(c) the least restrictive outcome appropriate was not considered.[4] The Crown opposes the appeal and says the end sentence is not manifestlyexcessive.Background facts[5] On 30 September 2018, Mr Lynch had been out drinking. The complainantwas [X] years old at the time, was being cared for by a babysitter and had a friendpresent.[6] When Mr Lynch arrived at the address, the complainant laughed at, andcommented on, Mr Lynch's state of intoxication. Mr Lynch took offence at this andslapped the complainant across the face. The slap caused soreness and discomfort butthe complainant did not require medical treatment.1 Crimes Act 1961, s 194(a); maximum penalty two years' imprisonment.2 New Zealand Police v Lynch [2022] NZDC 7899.District Court judgment[7] The Judge outlined the offending and noted that Mr Lynch was presentlyserving 10 months' home detention.[8] The Judge detailed Mr Lynch's attempts to complete a Stopping Violenceprogramme. Mr Lynch had been exited from the programme twice and was declineda third referral.3 The Judge noted the positive steps Mr Lynch was taking to addresshis alcohol and other drug dependency issues.[9] The Judge then considered that the starting point should be five to six months'imprisonment, given:(a) the breach of trust; and(b) the complainant's vulnerability due to their age and relationship withMr Lynch.4[10] The Judge acknowledged Mr Lynch was entitled to a full guilty plea credit butdid not specify the quantum.[11] The Judge then said a four-month prison sentence could be converted to twomonths' home detention however, totality needed to be factored in. The Judgeconsidered that one month home detention served cumulatively on the existingsentence would be appropriate.5Relevant law[12] Mr Lynch has an appeal as of right under s 244 of the Criminal Procedure Act2011 ("the Act").3 New Zealand Police v Lynch [2022] NZDC 7899 at [4].4 New Zealand Police v Lynch [2022] NZDC 7899 at [7].5 New Zealand Police v Lynch [2022] NZDC 7899 at [8].[13] Section 250 of the Act sets out how a court is to determine a sentence appeal.An appeal must be allowed if the court is satisfied that there is an error in the imposedsentence and that a different sentence should be imposed.[14] The Court of Appeal in Palmer v R outlined the position with respect tosentence appeals, stating that:6 the standard of appellate review in sentence appeals requires that theappellant show a material error was made and satisfy the appellate court thata different sentence ought to be imposed. Sentencing is not a science and anappellate court will not ordinarily interfere unless the end sentence wasoutside the range available to the sentencing judge. For that reason it is notan error to describe sentencing decisions as discretionary, so long as it is clearthat "discretion" means only the sentence enjoys an appropriate margin ofappreciation.[15] In Tutakangahau v R, the Court of Appeal said that the concept of "manifestlyexcessive" continues to apply to appeals against sentence.7 The Court held that theappellate court's focus is on the sentence imposed rather than the process by which itwas reached.8 A Judge on appeal should not intervene where the "sentence imposedwas within a range that could be properly justified by accepted sentencing principles".9[16] Also relevant to this appeal is the totality principle. Under s 85 of theSentencing Act 2002, where the court is imposing a sentence for multiple offences, itmust consider whether those sentences should be imposed cumulatively orconcurrently. Cumulative sentences will generally be appropriate where the offencesare different in kind,10 whereas concurrent sentences are generally appropriate wherethe offences are similar.11 If cumulative sentences are imposed, they "must not resultin a total period of imprisonment wholly out of proportion to the gravity of the overalloffending."12 Where the court is imposing a sentence of home detention on an offender6 Palmer v R [2016] NZCA 541 at [17].7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36] citing Tutakangahau v R [2014]NZHC 556 at [10].10 Sentencing Act 2002, s 84(1).11 Sentencing Act 2002, s 84(2).12 Sentencing Act 2002, s 85(2).who is already serving a sentence of home detention, the total term of the homedetention sentence must not exceed 12 months.13AppealThe starting point[17] On behalf of the appellant, Ms Hussain submits that the starting point of fiveto six months' imprisonment is manifestly excessive when compared to other casesand refers to Hendry v Police14 and Kawhena v Police.15[18] In Hendry v Police, Ms Hendry was the grandmother of a two-year-old.Ms Hendry slapped him across the face after he misbehaved. Ms Hendry had previousconvictions for using violence against family members. The sentencing Judgeimposed a starting point of three months' imprisonment; uplifted by a further threemonths for Ms Hendry's previous convictions. The Judge allowed a full 25 per centdiscount for guilty plea. This resulted in an end sentence of four months'imprisonment which was converted to two months' home detention.[19] On appeal, the three months' uplift was found to be too high and an uplift ofone month imprisonment was imposed. Considering the other factors identified, theend point reached was six weeks' home detention. The Judge then substituted that for100 hours community work and six months' supervision. In doing so, the Judgeacknowledged the change in Ms Hendry's home situation and that she was addressingher alcohol problem.[20] In Kawhena v Police,16 the defendant received a starting point of six months'imprisonment for offending in which she struck her 13-year-old daughter in the facefive times with a closed fist and kicked her in the upper leg area.13 Sentencing Act 2002, s 80B(2).14 Hendry v Police [2012] NZHC 3581.15 Kawhena v Police [2014] NZHC 908.16 Kawhena v Police [2014] NZHC 908.[21] I agree with Ms Hussain that Mr Lynch's offending is less serious than that inHendry and Kawhena. Mr Lynch's offending was a one-off, open-handed slap in theface of the complainant.[22] Ms Palsenbarg, counsel for the Crown, referred to V v Police where Moore Jconsidered that a starting point of six months' imprisonment would be appropriatewhere the defendant had slapped her five-year-old son twice; once on the face andonce on the back.17 That offending was clearly more serious given the number of slapsand age (five versus [X] years).[23] In Williams v Police,18 the defendant slapped her five-year-old son once in theface. The starting point adopted by the Judge was four months' imprisonment. Onappeal Venning J said the end sentence of three months' imprisonment was notmanifestly excessive.19[24] In L v Police,20 the defendant had punched her 13-year-old daughter twice inthe head before kicking her three times. She received a starting point of six monthsimprisonment which was upheld on appeal.[25] The Crown acknowledges that the starting point of five to six months is at thehigher end of the scale but says it is within range. The Crown refers to aggravatingfactors including Mr Lynch's intoxication and the breach of trust.[26] I consider that the Judge was correct to identify breach of trust, considering thechild's age and relationship to Mr Lynch, as an aggravating factor. Intoxication is notone of the mandatory aggravating factors that the court must consider under s 9 of theSentencing Act 2002. While the court may consider any other aggravating factors itthinks fit,21 in my view the fact that Mr Lynch was intoxicated would not have justifieda further uplift on the starting point.17 V v Police [2015] NZHC 2284.18 Williams v Police [2017] NZHC 720.19 Williams v Police [2017] NZHC 720 at [11].20 L v Police [2017] NZHC 1463.21 Section 9(4)(a).[27] In light of the authorities, in my view the starting point of five to six months'imprisonment was excessive. The present offending is similar to that in Hendry vPolice,22 V v Police23 and Williams v Police.24 Those cases all involved one or twoslaps to a child's face; although in each case the child was younger and therefore morevulnerable. In those cases, starting points of three months', six months' and fourmonths' imprisonment were imposed respectively. While the starting point in V vPolice25 was six months' imprisonment, I consider that to be at the top end of the scale.In the present circumstances, where the complainant was older and was only slappedonce, a starting point of four months' imprisonment would have been appropriate.Mitigating factors[28] Ms Hussain says Mr Lynch should have received a discount for the partialcompletion of a rehabilitative programme. She says that Mr Lynch completed stageone and had enrolled in stage two of the Salvation Army program but had "difficultieswith attendance during COVID-19 lockdown". Ms Hussain says that Mr Lynch hassince re-enrolled and is completing the programme while he serves the home detentionsentence.[29] The Judge considered Mr Lynch's referral to a Stopping Violence programme,his non-attendance at the initial assessment and re-referrals. The Judge had declineda third referral to that programme. The Judge also noted positive steps Mr Lynch hadbeen taking to address his dependency on alcohol and other substances. The Judgereferred to other outstanding charges for driving offences which were before the courtat a later date. The Judge then considered the charge of assault on a child.[30] Ms Hussain submits that efforts taken to address Mr Lynch's alcohol issues areas important as courses regarding violence given alcohol was a cause of the offending.I accept that efforts to address alcohol issues are relevant. It is not clear whether thesewere taken into account when the Judge reduced the end sentence from two months to22 Hendry v Police [2012] NZHC 3581.23 V v Police [2015] NZHC 2284.24 Williams v Police [2017] NZHC 720.25 V v Police [2015] NZHC 2284.one month home detention given the quantum of the discount. While the Judge onlyrefers to totality, the overall discount is significant.[31] Against a starting point of four months' imprisonment, with a 25 percentdiscount for the guilty plea (1 month discount) and a 25 per cent discount forrehabilitative efforts and totality26 (1 month), I accept that an end sentence of twomonths' imprisonment commuted to 1 month home detention is appropriate.[32] While I do not agree with the starting point and that the Judge may not haveexpressly considered as mitigating factors the steps taken by Mr Lynch to address hisalcohol issues, I accept that the end sentence was not manifestly excessive given thesignificant overall discount. From a starting point of five to six months, to arrive atan end sentence of two months' imprisonment commuted to one month homedetention, a discount of 60 to 66 per cent would have to be applied. This is verysignificant and in my view is sufficiently large to factor in rehabilitative efforts.[33] The end sentence of one month home detention was therefore not manifestlyexcessive.Least restrictive sentence[34] One of the mandatory principles of sentencing is that the Judge "must imposethe least restrictive outcome that is appropriate in the circumstances".27 Ms Hussainsays that the Judge did not consider other alternatives to home detention, as follows:28(a) a conviction and discharge;(b) an order to come up for sentence if called on;(c) reparation to the complainant;(d) community work; or26 I make no findings on the issue of totality. Even if totality is factored in with rehabilitative efforts,the end sentence is not manifestly excessive.27 Sentencing Act 2002, s 8(g).28 Sentencing Act 2002, ss 10A and 19.(e) a period of home detention to be served concurrently.[35] Prior to setting the starting point for the sentence, the Judge stated:29The primary issue today is whether there should be an additional sentence ofhome detention imposed in respect of this one charge before the Court. OnMr Lynch's behalf Ms Hussain submits that the appropriate outcome shouldbe convict and discharge, given the positive steps Mr Lynch has been takingto address his dependency.[36] The Judge did therefore consider the option of convict and discharge. Thatwas dismissed.[37] Whether to impose a less restrictive sentence is a discretionary matter for theJudge as noted by Whata J in L v Police:30 while L's good character and good prospect of rehabilitation are strongfactors in her favour, it cannot be said that home detention is wrong inprinciple. While it was available to the Judge to impose a sentence lower inthe hierarchy (for example community work), it was well within his discretionto place considerable weight on factors such as denunciation and deterrencein a context involving violence to children. But even so, it cannot be seriously suggested that home detention is alwaysgoing to be excessive in case involving child abuse and a person of otherwisegood character. It is essentially a discretionary matter for the sentencing judgein light of all the background facts. In this case there is no suggestion that thejudge did not consider them and, in any event, a short period of home detentionis not excessive.[38] Ms Hussain submits that the fact that Mr Lynch lacks any recent violentcriminal history and has not repeated any similar offending since it occurred in 2018means that other less restrictive sentences, like discharge or come up for sentence ifcalled upon, would have been appropriate.[39] The Judge did consider conviction without discharge and rejected this option.I accept that in the circumstances of the offending, it was well within the Judge'sdiscretion to impose a sentence of home detention. While a community sentence mayhave been imposed in Hendry, in that case there was no suitable address for home29 New Zealand Police v Lynch [2022] NZDC 7899 at [6].30 L v Police [2017] NZHC 1463 at [19]–[20].detention available.31 In this case, home detention was an option available to theJudge.[40] Further, a concurrent sentence of home detention was not appropriate as thepresent offending was unrelated and different to the other convictions which led to theearlier home detention sentence.32Conclusion[41] As held in Tutakangahau v R and outlined above, the appellate court shouldnot interfere where the "sentence imposed was within a range that could be properlyjustified by accepted sentencing principles".33 While the starting point may have beentoo high, the end sentence of one month home detention was within the rangeavailable.[42] The Judge also considered whether a lesser sentence was appropriate and notedMr Lynch's existing sentence of home detention. The option of discharge withoutconviction was rejected and it was not mandatory for the Judge to consider otheroptions. It was open to the Judge to impose a sentence of one month home detention.[43] The sentence imposed by the Judge was not manifestly excessive.Result[44] The appeal is dismissed.______________________Tahana J31 Hendry v Police [2012] NZHC 3581 at [13] and [16].32 Sentencing Act 2002, s 84.33 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36] citing Tutakangahau v R [2014]NZHC 556 at [10] at [35]–[36].