Lynch v The the King

[2022] NZHC 2939

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2022-483-021

[2022] NZHC 2939

BETWEEN

ANTHONY JOHN LYNCH

Appellant

AND

THE KING

Respondent

Hearing:

9 November 2022

Appearances:

S J Iorns for the Appellant

J J Harvey for the Respondent

Judgment:

9 November 2022

ORAL JUDGMENT OF PALMER J

Solicitors/Counsel

Iorns & Co – Barristers, Wellington

Wilkinson Smith Lawyers Limited, Whanganui

LYNCH v R [2022] NZHC 2939 [9 November 2022]

What happened?

[1]    Between 10 November 2020 and 31 January 2021, Mr Anthony Lynch, then aged 42, was the owner and manager of the Fiesta Court Motel in Whanganui. Drug dealers stayed at the motel, dealing in methamphetamine from the premises. Mr Lynch acted as a middle-man. He offered to supply methamphetamine on 45 occasions. He also offered MDMA on two occasions and cannabis on six occasions. In the vehicle in which he was arrested, the Police located a cut-down single shotgun, 12 rounds of ammunition, drug utensils and a knife.

[2]    Mr Lynch pleaded guilty to one charge each of offering to supply methamphetamine, offering to supply MDMA, offering to supply cannabis, unlawful possession of a firearm and unlawful possession of ammunition. He spent a month remanded in custody and 16 months on electronically-monitored (EM) bail. He failed to comply with his terms of bail on two occasions. Once, early in his sentence, he received a warning for deviating on his return from an approved absence. For the other, he did not attend a scheduled drug counselling appointment due to having cramp in both calves.

[3]    On 17 August 2022, Judge I C Carter, in the District Court at Whanganui, sentenced Mr Lynch by adopting a starting point of 21 months’ imprisonment.1 He uplifted that by three months for the supply of MDMA and cannabis, and by nine months for possession of a firearm and ammunition.2 He did not consider any discount for remorse was warranted.3 He did not consider there was sufficient information to establish a connection between prior drug addiction and the offending so did not allow a discount for that.4 But he discounted the sentence by 20 per cent for the guilty pleas which occurred a considerable time before trial.5 The Judge said:

[25] You spent a lengthy period of time on EM bail and that was subject to restrictive conditions. The period of time on EM bail was from late March 2021 to today’s date, a period of just over 16 months. I am going to discount the sentence by half of that, namely eight months for the time spent on EM bail.

1      R v Lynch [2022] NZDC 15673 at [18].

2      At [19]–[20].

3 At [22].

4 At [23].

[4]    That resulted in a sentence of 18 and a half months’ imprisonment.6 The Judge converted that to home detention.7 He said:

[28] Having decided to convert the sentence to one of home detention, I need to consider whether you should get further credit for the period of approximately a month that you spent in custody early in the piece. I do not consider that a separate discount for that is appropriate in the circumstances here. It was a relatively brief period and a separate discrete recognition for that is, in my view, not justified.

[5]    Accordingly, the end sentence was home detention for nine months and one week with post-detention conditions.8 Mr Lynch appeals the sentence.

Submissions

[6]    Mr Iorns, for Mr Lynch, submits that he spent 31 days in custody before being admitted to EM bail, which is usually given full credit in a sentence of home detention. It was a clear error. He submits that, when combined with the eight-month discount for spending 16 months on EM bail which could have been three to seven months home detention, the sentence is manifestly unjust. The sentence ought to be reduced accordingly. One month is not tinkering.

[7]    Mr Harvey, for the Crown, concedes that the Judge erred by not making an allowance for the time spent in custody, which should have resulted in a reduction of one month in the sentence of home detention. However, he submits the sentence imposed does not rise to the level of manifestly excessive such that a new sentence should be imposed. He submits the 50 per cent allowance for the time spent on EM bail was at the top end of the range and is arguably generous in light of the bail breach. He accepts the one month is significant but submits the difference could have been made up in a number of different ways.

6 At [26].

7 At [28].

Should the sentence appeal be upheld?

[8]    Under s 250 of the Criminal Procedure Act 2011, I must allow the appeal if satisfied there is a material error in the sentence and a different sentence should be imposed. The focus is on whether the end sentence is within the available range.9

[9]    As Mr Harvey submits, in Longman v R, Simon France J made clear that the default position is that the Court should give full credit for time spent on custodial remand in setting the period of home detention.10 In contrast, time spent on EM bail is a mandatory consideration in fixing the appropriate length of a sentence of imprisonment, consistent with s 9(3A) of the Sentencing Act 2002.11 I accept that discounts of 50 per cent are common, reflecting that there is no parole period for a sentence of home detention.

[10]   I agree with the position accepted by both parties, that the Judge erred in not making an allowance for the time spent in custody. But I do not accept that conversion of 18 and a half months’ imprisonment to nine months and one week’s home detention was generous. It is routine. The bail breach does not make it otherwise. If the difference of a month was relevant to a longer sentence, that might support the Crown’s position that the end sentence was not manifestly unjust. But one month is

10.8 per cent of a nine month and one week term. That difference is material. It is more than merely tinkering with the sentence. A month is a long time when confined to your home, as many New Zealanders learned during lockdowns when they were allowed to leave for exercise.

[11]   As the parties agree, the Judge erred. A different sentence should be imposed. I quash the sentence of home detention imposed by the District Court and impose a sentence of home detention for eight months and one week. I do not alter the other orders or conditions imposed by the District Court.

Palmer J

9      Ripia v R [2011] NZCA 101 at [15]; Tutakangahau v R [2014] NZCA 279.

10     Longman v Police [2017] NZHC 2928 at [9].