IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CRI 2022-404-000132
[2022] NZHC 1448	

BETWEEN	ORRIN LYNCH
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	13 June 2022	
Appearances:	S H Hussain for the Appellant
E W Palsenbarg for the Respondent	
Judgment:	20 June 2022	
Reissued:	23 September 2022	

JUDGMENT OF TAHANA J

This judgment was delivered by me on 20 June 2022 at 4.00pm and
re-delivered by me on 23 September 2022 in accordance with Criminal Procedure Rules 2012, r 1.6.

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:
Public Defence Service, Waitakere Meredith Connell, Auckland

LYNCH v NEW ZEALAND POLICE [2022] NZHC 1448 [20 June 2022]

Introduction

[1]	Mr Lynch pleaded guilty in the District Court at Waitakere to one charge of assault of a child.1

[2]	On 6 April 2022, Mr Lynch was sentenced to one month home detention.2 The sentence was imposed cumulatively on a sentence of 10 months’ home detention which 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 manifestly excessive.

Background facts

[5]	On 30 September 2018, Mr Lynch had been out drinking. The complainant was [X] years old at the time, was being cared for by a babysitter and had a friend present.

[6]	When Mr Lynch arrived at the address, the complainant laughed at, and commented on, Mr Lynch’s state of intoxication. Mr Lynch took offence at this and slapped the complainant across the face. The slap caused soreness and discomfort but the 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 presently serving 10 months’ home detention.

[8]	The Judge detailed Mr Lynch’s attempts to complete a Stopping Violence programme. Mr Lynch had been exited from the programme twice and was declined a third referral.3 The Judge noted the positive steps Mr Lynch was taking to address his 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 with Mr Lynch.4

[10]	The Judge acknowledged Mr Lynch was entitled to a full guilty plea credit but did not specify the quantum.

[11]	The Judge then said a four-month prison sentence could be converted to two months’ home detention however, totality needed to be factored in. The Judge considered that one month home detention served cumulatively on the existing sentence would be appropriate.5

Relevant law

[12]	Mr Lynch has an appeal as of right under s 244 of the Criminal Procedure Act 2011 (“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 imposed sentence and that a different sentence should be imposed.

[14]	The Court of Appeal in Palmer v R outlined the position with respect to sentence appeals, stating that:6

… the standard of appellate review in sentence appeals … requires that the appellant show a material error was made and satisfy the appellate court that a different sentence ought to be imposed. Sentencing is not a science and an appellate court will not ordinarily interfere unless the end sentence was outside the range available to the sentencing judge. For that reason it is not an error to describe sentencing decisions as discretionary, so long as it is clear that “discretion” means only the sentence enjoys an appropriate margin of appreciation.

[15]	In Tutakangahau v R, the Court of Appeal said that the concept of “manifestly excessive” continues to apply to appeals against sentence.7 The Court held that the appellate court’s focus is on the sentence imposed rather than the process by which it was reached.8 A Judge on appeal should not intervene where the “sentence imposed was 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 the Sentencing Act 2002, where the court is imposing a sentence for multiple offences, it must consider whether those sentences should be imposed cumulatively or concurrently. Cumulative sentences will generally be appropriate where the offences are different in kind,10 whereas concurrent sentences are generally appropriate where the offences are similar.11 If cumulative sentences are imposed, they “must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.”12  Where the court is imposing a sentence of home detention on an offender

6	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 home detention sentence must not exceed 12 months.13

Appeal

The starting point

[17]	On behalf of the appellant, Ms Hussain submits that the starting point of five to six months’ imprisonment is manifestly excessive when compared to other cases and 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 previous convictions for using violence against family members. The sentencing Judge imposed a starting point of three months’ imprisonment; uplifted by a further three months for Ms Hendry’s previous convictions. The Judge allowed a full 25 per cent discount 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 of one month imprisonment was imposed. Considering the other factors identified, the end point reached was six weeks’ home detention. The Judge then substituted that for 100 hours community work and six months’ supervision. In doing so, the Judge acknowledged the change in Ms Hendry’s home situation and that she was addressing her 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 face five 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 in Hendry and Kawhena. Mr Lynch’s offending was a one-off, open-handed slap in the face of the complainant.

[22]	Ms Palsenbarg, counsel for the Crown, referred to V v Police where Moore J considered that a starting point of six months’ imprisonment would be appropriate where the defendant had slapped her five-year-old son twice; once on the face and once on the back.17 That offending was clearly more serious given the number of slaps and age (five versus [X] years).

[23]	In Williams v Police,18 the defendant slapped her five-year-old son once in the face. The starting point adopted by the Judge was four months’ imprisonment. On appeal Venning J said the end sentence of three months’ imprisonment was not manifestly excessive.19

[24]	In L v Police,20 the defendant had punched her 13-year-old daughter twice in the head before kicking her three times. She received a starting point of six months imprisonment which was upheld on appeal.

[25]	The Crown acknowledges that the starting point of five to six months is at the higher end of the scale but says it is within range. The Crown refers to aggravating factors including Mr Lynch’s intoxication and the breach of trust.

[26]	I consider that the Judge was correct to identify breach of trust, considering the child’s age and relationship to Mr Lynch, as an aggravating factor. Intoxication is not one of the mandatory aggravating factors that the court must consider under s 9 of the Sentencing Act 2002. While the court may consider any other aggravating factors it thinks fit,21 in my view the fact that Mr Lynch was intoxicated would not have justified a 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 v Police,22 V v Police23 and Williams v Police.24 Those cases all involved one or two slaps to a child’s face; although in each case the child was younger and therefore more vulnerable. In those cases, starting points of three months’, six months’ and four months’ imprisonment were imposed respectively. While the starting point in V v Police25 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 slapped once, 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 partial completion of a rehabilitative programme. She says that Mr Lynch completed stage one and had enrolled in stage two of the Salvation Army program but had “difficulties with attendance during COVID-19 lockdown”. Ms Hussain says that Mr Lynch has since re-enrolled and is completing the programme while he serves the home detention sentence.

[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 declined a third referral to that programme. The Judge also noted positive steps Mr Lynch had been taking to address his dependency on alcohol and other substances. The Judge referred to other outstanding charges for driving offences which were before the court at 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 are as 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 these were taken into account when the Judge reduced the end sentence from two months to

22	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 only refers to totality, the overall discount is significant.

[31]	Against a starting point of four months’ imprisonment, with a 25 percent discount for the guilty plea (1 month discount) and a 25 per cent discount for rehabilitative efforts and totality26 (1 month), I accept that an end sentence of two months’ 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 have expressly considered as mitigating factors the steps taken by Mr Lynch to address his alcohol issues, I accept that the end sentence was not manifestly excessive given the significant overall discount. From a starting point of five to six months, to arrive at an end sentence of two months’ imprisonment commuted to one month home detention, a discount of 60 to 66 per cent would have to be applied. This is very significant and in my view is sufficiently large to factor in rehabilitative efforts.

[33]	The end sentence of one month home detention was therefore not manifestly excessive.

Least restrictive sentence

[34]	One of the mandatory principles of sentencing is that the Judge “must impose the least restrictive outcome that is appropriate in the circumstances”.27 Ms Hussain says 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; or

26	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:29

The primary issue today is whether there should be an additional sentence of home detention imposed in respect of this one charge before the Court. On Mr Lynch’s behalf Ms Hussain submits that the appropriate outcome should be convict and discharge, given the positive steps Mr Lynch has been taking to address his dependency.

[36]	The Judge did therefore consider the option of convict and discharge. That was dismissed.

[37]	Whether to impose a less restrictive sentence is a discretionary matter for the Judge as noted by Whata J in L v Police:30

… while L’s good character and good prospect of rehabilitation are strong factors in her favour, it cannot be said that home detention is wrong in principle. While it was available to the Judge to impose a sentence lower in the hierarchy (for example community work), it was well within his discretion to place considerable weight on factors such as denunciation and deterrence in a context involving violence to children.

… But even so, it cannot be seriously suggested that home detention is always going to be excessive in case involving child abuse and a person of otherwise good character. It is essentially a discretionary matter for the sentencing judge in light of all the background facts. In this case there is no suggestion that the judge did not consider them and, in any event, a short period of home detention is not excessive.

[38]	Ms Hussain submits that the fact that Mr Lynch lacks any recent violent criminal history and has not repeated any similar offending since it occurred in 2018 means that other less restrictive sentences, like discharge or come up for sentence if called 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’s discretion to impose a sentence of home detention. While a community sentence may have been imposed in Hendry, in that case there was no suitable address for home

29	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 the Judge.

[40]	Further, a concurrent sentence of home detention was not appropriate as the present offending was unrelated and different to the other convictions which led to the earlier home detention sentence.32

Conclusion

[41]	As held in Tutakangahau v R and outlined above, the appellate court should not interfere where the “sentence imposed was within a range that could be properly justified by accepted sentencing principles”.33 While the starting point may have been too high, the end sentence of one month home detention was within the range available.

[42]	The Judge also considered whether a lesser sentence was appropriate and noted Mr Lynch’s existing sentence of home detention. The option of discharge without conviction was rejected and it was not mandatory for the Judge to consider other options. 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 J

31	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].