IN THE COURT OF APPEAL OF NEW ZEALAND CA305/2008 [2008] NZCA 415 THE QUEEN ALISTAIR MARK STUART LYON. Robertson, Cooper and Winkelmann JJ

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1 IN THE COURT OF APPEAL OF NEW ZEALAND CA305/2008 [2008] NZCA 415 THE QUEEN v ALISTAIR MARK STUART LYON Hearing: 20 August 2008 Court: Counsel: Judgment: Robertson, Cooper and Winkelmann JJ Appellant in Person M A Woolford for Crown 10 October 2008 at 3.30 pm JUDGMENT OF THE COURT A B C D The appeal is allowed. The sentence imposed in the District Court on the charge of carrying an air gun under s 45(1) of the Arms Act 1983 is quashed and a sentence of 150 hours community work is substituted. The other sentences imposed in the District Court are confirmed. All sentences are to be served concurrently. R V LYON CA CA305/2008 [10 October 2008]

2 REASONS OF THE COURT (Given by Cooper J) [1] Mr Lyon appeals against an effective sentence of 200 hours community work imposed by Judge Sharp in the Auckland District Court. [2] The appellant was sentenced on three charges alleging, respectively carrying an air gun, assault with intent to injure and possession of methamphetamine. On the first of the charges, which was laid under s 45(1) of the Arms Act 1983, the appellant was found guilty after a jury trial. The maximum penalty available was four years imprisonment. The Judge took that as the lead offence. The appellant pleaded guilty to the other two offences which carried potential maximum penalties of one year s imprisonment (assault under s 196 of the Crimes Act) and six months imprisonment (possession of a Class A controlled drug under s 7(1)(a) and 7(2)(a) of the Misuse of Drugs Act 1975). [3] The sentences imposed were 200 hours community work in respect of the Arms Act charge and 100 hours community work in respect of each of the other two charges, with all terms to be served concurrently. Background [4] The offence of carrying an air gun was committed on 8 September The weapon was in fact a paint ball gun. In her sentencing notes Judge Sharp recounted that Mr Lyon had left his apartment at 7.30 a.m. that morning and as he walked towards a group of shops he pointed the gun at a man who was standing at an ATM machine. The Judge described the offending as probably something in the nature of a practical joke which had been exacerbated by the appellant s drug-induced strange behaviour. The victim was evidently not overly disturbed by the appellant s behaviour on that occasion, regarding it as more odd than frightening. [5] The circumstances of the assault were that at about 6.00 a.m. one Sunday morning in September 2005 Mr Lyon went to a property in Orakei, owned by him,

3 but occupied only by his estranged partner with her two children. He was carrying a samurai sword in a black sheath and a large hunting knife. He was in an agitated state when he entered the premises, and on going into the living area he saw two friends of his former partner, who were sitting there. He told both of them to leave. One of them stood and approached the appellant, who head-butted him in the face twice, causing injury to the victim s lip and forehead. [6] Insofar as the charge of methamphetamine is concerned, the Judge did not have before her a summary of facts and this Court is in the same position. However, she observed that as it was a summary charge the amount of methamphetamine possessed must have been small. She gave credit for the fact that Mr Lyon had agreed to sentencing occurring in the absence of the report, especially as this was against a background of considerable delays in the system that were not attributable to him. The sentence [7] Some of the reasoning behind the sentences imposed was contained in paragraphs [16] [21] of the sentencing notes. The Judge said: [16] He has a large number of convictions. I have seen some old presentence reports about him and it is clear that over at least the last decade he has been the author of his own misfortunes in terms of the addictions that he has suffered from. [17] He has convictions for possession of methamphetamine and indeed other drugs and drug related offences. He does also have convictions for the possession of ammunition, pistol, offensive weapon and explosives. [18] When the Crown does not seek anything other than a communitybased sentence; when so much time has elapsed between the offending and sentencing; when there have been these miscarriages of justice in terms of Mr Lyon continually appearing in Court for sentence and no pre-sentence report being available though no fault of his, it is apparent that a communitybased sentence is all that should be imposed upon him. These are not matters where with the lapse of time I would be interested in, nor would it be justified, to impose a loss of liberty. [20] In addition, Mr Lyon was on bail for much of the period between the offending and the present and for one year of that, was on electronic bail where, as I understand it, he paid for the electronic bracelet out of his own pocket.

4 [21] One year on, very restrictive bail of that type is something that the Court can definitely take into account by way of credit or personal mitigating feature. [8] She concluded that the least restrictive outcome appropriate in the circumstances was to impose the sentences of community work. Arguments on appeal [9] The appellant advanced a number of arguments as to why the sentence was plainly excessive. He referred first to the fact that since the offending he had spent some fifteen months on a farm, subject to electronic bail and a 24 hour curfew. He claimed that during that period he had been attacked with a steel bar, suffered a fractured skull and cheekbone and spent two weeks in intensive care at Auckland hospital. He also claimed to have spent one month in Mt Eden prison on remand in respect of the air gun charge and he relied also on the fact that he had served a 15 month prison sentence (in respect of different offending) after the current offences had been committed. He argued that had these matters been able to be dealt with at the same time, concurrent sentences might have been imposed. [10] He gave an account of the circumstances in which the assault had been committed, explaining in more detail than appears in the Judge s sentencing remarks what happened on the morning in question. He claimed that the victim had had his hands on the hilt of the samurai sword and was trying to lift it off the floor. The assault had occurred in an attempt to break the victim s grip on the sword. None of these matters were mentioned in the summary of facts on which the appellant s guilty plea was entered, and we were not formally asked to receive further evidence. Nevertheless, we have considered what Mr Lyon said about the facts. [11] Finally, the appellant referred to the fact that prior to the sentencing there had been dialogue between the Judge and counsel then instructed, Mr Hart. As a result, Mr Hart had asked the appellant whether he was agreeable to being sentenced in the absence of a pre-sentence report on the basis that there was no risk of any further loss of liberty. The Judge had stated clearly before imposing sentence that there was no question of loss of liberty. The appellant argued that because a sentence of

5 community work would inevitably involve loss of his liberty whilst carrying out the work, the Judge had breached her own assurance. [12] He argued in the circumstances that the appropriate sentence on the charges would have been conviction and discharge. [13] The Crown submitted that the sentences imposed were reasonable. Mr Woolford noted that the Judge had expressly considered the fact that the appellant had spent a period of time on electronic bail and that very restrictive bail conditions should be taken into account by way of reducing the sentence that might otherwise be imposed. As to time spent in custody on remand, it was insufficiently long to warrant any discount on sentence. [14] Mr Woolford also pointed out that the current offending had occurred after the appellant had been sentenced for the offending for which he was responsible in 2002 and The present offending had in fact occurred up to three years later. The only reason that the appellant had been able to advance his argument based on the possibility of concurrent terms was that after he was originally sentenced on 11 February 2004, a Solicitor-General s appeal against the sentence imposed succeeded on 11 July There had been extraordinary delays in scheduling the hearing of that appeal due to the absence of necessary records from the District Court. [15] The result of the appeal was that the sentences of 280 hours community work and 12 months supervision that had originally been imposed in the District Court in respect of offending under the Arms Act 1983 and s 202A of the Crimes Act were replaced by an effective sentence of 15 months imprisonment. The Judge granted leave to apply for home detention. In the course of delivering her judgment, Frater J observed that cumulative sentences were appropriate for offending that occurred four to five months apart in the circumstances of that case. Mr Woolford submitted that here, where the offending had in fact occurred in 2005, it was unlikely that concurrent sentences would have been imposed even if all matters had been before the Court at the same time.

6 Discussion [16] Most of the matters raised by Mr Lyon in support of the appeal lack substance. [17] His argument that he had spent a month on remand on the air gun charge without bail did not appear to be correct. He was evidently in custody initially for a period of about two weeks before bail was granted. There were then occasions when he was arrested for breach of bail and on each occasion bail was renewed after a period of about one week. It would clearly not be appropriate for time spent remanded in custody as a consequence of a breach of bail to be taken into account in reduction of sentence. [18] Of the other matters raised in support of the appeal, as discussed above, the 15 month prison sentence he served was the result of much earlier offending. There was no proper basis upon which that could have been taken into account in fixing the sentence for the present offences. The fact that the appellant was apparently recalled from home detention as a consequence of the laying of the present charges has no implications for the sentences under appeal. [19] As to the appellant s criticism of the Judge for indicating that she would not impose a sentence which involved any further loss of liberty, this reflects a simple misunderstanding by the appellant of what the Judge meant. She was plainly referring to the options available for sentencing judges under the Sentencing Act 2002 which provides for custodial and non-custodial sentences. A sentence of community work falls readily within the category of a non-custodial sentence and would not be aptly described as one involving loss of liberty in the sense that the appellant now asserts. [20] It is plain from Judge Sharp s observations on sentence that she was influenced to a considerable extent by the appellant s previous convictions. They included relevant convictions for possession of methamphetamine as well as other and more serious offending under the Misuse of Drugs Act. As well, there were convictions for disorderly behaviour, assault, possession of a knife in a public place,

7 threatening language and threatening to kill. The Judge was clearly entitled to treat this history as aggravating. [21] The Judge took as the lead offence the charge under s 45(1) of the Arms Act. We have already briefly referred to the Judge s description of this offending but consider it important to consider everything that she said. Her remarks were: [7] The carrying of an air gun was an odd offence. It is clear to me that at the time (that is 8 September 2005) Mr Lyon must have been in the throes of his various addictions for which he has received treatment at the Capri Trust on a residential basis. He was released having successfully sought treatment for addictions approximately one year ago. I am not told, nor do I know independently, of any further problems caused by his addictions that Mr Lyon has had, thus it would appear that his treatment has been successful. [8] In any event, it appears that armed with what I accept was a paint ball gun, Mr Lyon left his apartment at 7:30 am on 8 September 2005 and went downstairs to the little group of shops below his apartment and pointing the gun walked to a man who was standing at an ATM machine there, saying something very odd. He lowered the weapon afterwards, mumbled something and walked off towards a café. [9] It appeared to me, from the evidence of the (shall we say) complainant, that in fact he was not frightened and clearly had a view that Mr Lyon was something of an oddity at the time. [10] He was, as I understand it, apprehended by the police either having a cup of coffee or about to have a cup of coffee that same morning just a few minutes later, probably sublimely unaware of the difficulties that he had caused. [11] I accept that that offending was probably something in the nature of a practical joke, which was exacerbated by whatever addiction he was suffering from at the time. [12] I accept that his behaviour was such as would normally frighten any member of the public who came upon Mr Lyon in such a situation, but I also accept that Mr Lyon meant nothing by the conduct and that there was in fact no danger. [22] Given this description of the Arms Act offending, a sentence of as much as 200 hours community work appears stern, even if the sentence is regarded as having been loaded to reflect the totality of the overall offending for which the appellant was to be sentenced. The Judge did not expressly say that that was the approach she was adopting, but we assume that she was in fact doing so.

8 [23] A sentence of 100 hours community work was imposed in respect of the assault. While we allowed the appellant to give his account of what happened as the background to the offence, and he sought to minimise its impact, the summary of facts on which the appellant s guilty plea was based indicated that he head-butted the victim twice in the face causing injury to his lip and forehead. In our view, the assault was serious, and there could be no criticism of the sentence imposed. [24] The sentence of 100 hours community work was imposed for the offence of possessing methamphetamine. It was not known how much of the drug was in the appellant s possession, although the Judge did say that the amount must have been small. In the absence of further information about the methamphetamine offence we doubt that a sentence of 100 hours was warranted. [25] The final outcome of an effective sentence of 200 hours community work was stern, but within the range available to the Judge having regard to the totality principle. However, a difficulty then arises in relation to the time spent on electronic bail. The Judge said that she took into account the period of time that the appellant had spent on electronic bail, but she did not identify a particular allowance that she made on account of that factor. [26] As cases such as R v Nepe [2008] NZCA 98 show, it can be legitimate to reduce the sentence for this reason, depending on how restrictive the conditions of bail are. Here Mr Woolford did not argue that the Judge had been wrong to describe the conditions that applied as very restrictive or wrong to make an appropriate allowance. The difficulty is that she did not state how much she in fact allowed. She should have done so. The appellant was entitled to a reasonably substantial allowance for this consideration, given that the Judge accepted that the period involved was a year. Having regard to the seriousness of the overall offending and the sentences imposed by the Judge, we consider that an appropriate allowance would be achieved by a 50 hour reduction from the sentence of 200 hours community work otherwise appropriate for the Arms Act offence.

9 Result [27] The appeal is allowed and the sentence imposed in the District Court on the Arms Act offence is quashed. We substitute a sentence of 150 hours community work for that offence. [28] The other sentences imposed in the District Court are confirmed. All sentences are to be served concurrently. [29] The appellant must report to a probation officer at noon on Wednesday 15 October Solicitors: Crown Law Office, Wellington