Albert v The Queen - [2017] NZHC 102

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2016-063-001418 [2017] NZHC 102

BETWEEN
BONNIE ALBERT

Appellant

AND

THE CROWN Respondent

Hearing: 2 February 2017

Appearances:

T Braithwaite for Appellant
S Casey for Respondent

Judgment:

8 February 2017

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 8 February 2017 at 3.00 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Albert v The Crown [2017] NZHC 102 [8 February 2017]

Introduction

[1] On 7 June 2016, Ms Bonnie Albert pleaded guilty to one charge of arson.1

She was 17 years old at the time of the offending. At sentencing in the Rotorua District Court on 9 December 2016, Judge CJ McGuire refused to grant her a discharge without conviction. The Judge took a sympathetic view of the matter, however, and directed that Ms Albert should come up for sentence if called upon; he ordered the payment of $200 reparations to the Fire Service. Ms Albert appeals the decision to refuse her discharge without conviction.

Factual background

[2] The Police summary of facts records that, on the afternoon of 27 April 2016, Ms Albert and another person, as well as three associates of the pair, were making their way home from the Rotorua CBD on foot. The group stopped at St Michael’s rugby field, where one of the others enticed the appellant to light a dry patch of vegetation on fire for fun. The small fire was put out. The group then ran across Te Ngae Road and into the Ngapuna walking tracks, where the other person ran ahead and lit a second fire. When the group caught up, they extinguished the fire before it could get out of control.

[3] The summary records that Ms Albert then lit a third fire, which rapidly raged out of control. No substantial damage was caused nor were there any injuries. However, the Fire Service had to be called to extinguish the fire. The Ngapuna walking tracks are a scenic thermal walkway that is popular with tourists. At the time the offence was committed the walkway was in use by members of the public, including tourists and children.

District Court

[4] Judge McGuire noted the particular interest that society has in ensuring young offenders can be rehabilitated and that the law recognises in some
circumstances young people may be less culpable for their offending. The Judge

1 Crimes Act 1961, s 267(3); maximum penalty of 5 years’ imprisonment.

approached the sentencing on the basis of the summary of facts, as he was required to do, and considered that deterrence and denunciation of this type of offending were warranted to ensure the safety of the community and preserve its reputation as a tourist town. The Judge assessed this as “serious offending”, taking into account the potential for tragedy given the use of the walkway by tourists at the time. Likewise, the Judge put weight on the fact that the town relies on the existence and functionality of its tourist amenities.

[5]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Albert v The Queen

Details

AGLC: Albert v The Queen [2017] NZHC 102
Case: [2017] NZHC 102
Decision Date: 8 February 2017

CaseChat Overview and Summary

Ms Bonnie Albert appeals against a decision of the Rotorua District Court not to grant her a discharge without conviction for one charge of arson. Ms Albert was 17 years old at the time of the offending. The court heard submissions that the sentencing judge erred in his assessment of the threshold under s 107 of the Sentencing Act 2002. Counsel argued that the proper assessment of the circumstances should have reduced the gravity of the offence and resulted in a discharge without conviction. The High Court accepted that the offending should be characterised as minor. The court found that the consequences of a conviction for Ms Albert would be out of all proportion to the gravity of the offence, given her age, remorse, and lack of any prior offending. The court allowed the appeal and quashed the conviction and sentence, ordering that Ms Albert be discharged without conviction.

Orders