C v Police HC Christchurch Cri-2006-409-198

[2006] NZHC 1353

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2006-409-000198

C

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         2 November 2006

Counsel:         P N Allan for Appellant

C E Butchard for Respondent

Judgment:      3 November 2006

JUDGMENT OF PANCKHURST J

Introduction

[1]      In relation to offences of breaching a protection order and attempted arson the appellant was sentenced to two and a half years imprisonment.  This represented a term of two years and three months for the attempted arson and three months, cumulative, for the breach of a protection order.

[2]      The appellant challenges the sentence on the basis that it is clearly excessive.

C V NZ POLICE HC CHCH CRI-2006-409-000198  3 November 2006

The facts of the case

[3]      The appellant was in a relationship over several months.   The relationship deteriorated and eventually ended in about June 2006.  The appellant found difficulty in accepting that the relationship was over.  There were problems.

[4]      On 14 July his former partner obtained a protection order.  On 13 August the appellant contravened the order and on 22 August he was sentenced to 40 hours community work with reference to this offence.

[5]      The very next day the appellant made a total of 33 telephone calls to his former partner.  These began at about 10.00 pm on 23 August and continued until approximately 3.00 am the following morning.   They were short, but abusive in nature.

[6]      Then, at about 3.00 am the appellant went to a service station, obtained 50 cents  worth  of  petrol  in  an  empty  container  and  drove  to  his  former  partner’s address.  Outside was parked a vehicle belonging to a male mutual acquaintance of the two.  The spare wheel of the vehicle was attached to the back.   The appellant poured the petrol over the spare wheel.  He then returned to his vehicle, obtained a stick, around which he wrapped a tea-towel.  He ignited the tea-towel and threw this at the tyre on the back of the other car.  The flame went out.  No damage was done.

[7]      However, the appellant returned to the service station and this time obtained

$2.00 worth of petrol in a plastic bottle.  En route back to the address he was stopped by the police.  He admitted to what he had done, and was about to do, as a result of which he was charged with attempted arson.

The appellant’s personal circumstances

[8]      Mr C   is 34  years of age.   He suffers from schizophrenia,  which  is controllable provided he adheres to a medication regime.

[9]      From  1985  to  2006  he  has  offended,  accumulating  a  record  for  driving offences, dishonesty and violence.   In 1990, 1991 and 1998 he was sentenced to

terms of imprisonment, the last one a term of two and a half years for wounding with intent.   On the other hand there have been significant periods during which the appellant has not incurred convictions.

[10]     The pre-sentence report was not a helpful one.  He was assessed as lacking insight, of low motivation and as having inadequately responded to sentences of supervision.  The report included this:

All sentencing options have been considered.  The offending merits a prison sentence because it is destructive, dangerous, recidivist, and he has been unable to take advantage of the opportunities to habilitate afforded through court and Parole Board ordered interventions.

If a community-based sentence was imposed, the report writer recommended special conditions in relation to medical supervision and participation in an accredited domestic violence programme.

The sentencing decision

[11]     Judge  Doherty  imposed  sentence  on  12  October  2006.    He  noted,  with concern, the background to the offending, including that the appellant had appeared in court the day before the subject offending was committed.  The Judge observed that the appellant was unmotivated and inclined to minimise his own culpability by shifting the blame to the victims in lieu of himself.

[12]     The Judge assessed the appellant’s culpability in these terms:

[9]       Both of these offences are really, in my view, manifestations of your aggressive and violent disposition.  You are aggressive and violent and that has been borne out in the past and can be seen by your record.  You appear unable to rationalise your behaviour and you, according to the probation service, have a total lack of insight.   You blame others and you minimise your own behaviour.   Those are classic difficulties that give rise to your being a continuing risk to others in the community.  It may be that there are gaps in your offending brought on by the fact that you do not enter into relationships but when you do things go dramatically awry and are likely to for those that you have the relationships with.

[13]     A starting-point of three years imprisonment was adopted for the attempted arson having regard to the appellant’s “overall culpability and  your background circumstances”.  A credit of one quarter was given for the appellant’s cooperation

and guilty plea.   Hence a sentence of two years three months imprisonment was imposed.  The Judge continued that the breach of the protection order was a separate offence,  although  “tied  up  with”  the  attempted  arson.    He  concluded  that  a cumulative three month term was required.

Submissions in relation to the appeal

[14]     Mr Allan noted that this was a list sentencing, which meant that the Judge did not have the benefit of submissions from Crown counsel.  It appears that there was no reference made to previous cases of attempted arson, at least the Judge did not refer to any in his sentencing remarks.

[15]     Against this background counsel submitted that the three year starting-point was too high for an attempt.  Had the visitor’s vehicle been set alight, and damaged, counsel suggested the three year starting-point may have been appropriate.  But for what was characterised as an inept attempt at arson, Mr Allan criticised the starting- point adopted as plainly excessive.

[16]     Attention  was  also  drawn  to  the  circumstance that  the  appellant  pleaded guilty to the attempted arson on his first appearance.  A plea was entered to the other charge after a delay of about six weeks.  Even so, counsel submitted, the guilty pleas warranted a greater discount than a quarter, particularly if some account was taken of the appellant’s medical history.

[17]     Finally the accumulation of the three month term upon the sentence of two years and three months was criticised.  The two offences were connected and similar in kind, in that they were both misguided actions directed towards the appellant’s former partner and born of the breakdown in their relationship.

[18]     Ms Butchard accepted that the sentence was stern.  She noted that the Judge did not adopt the “modern approach” to fixing a starting-point (as per para [8] of R v Taueki  [2005] 3 NZLR 372 (CA)), in that aggravating features relating to the offender were brought to account in arriving at the three year point. Correctly, a starting-point is to be set which reflects the seriousness of the offending for an adult

offender after a defended hearing.  Hence, in real terms, Ms Butchard suggested, the actual starting-point was somewhat less than three years, before it was rounded-up to reflect the circumstance of the appellant’s previous record.

[19]     Counsel  also  submitted  that  both  offences  had  to  be  regarded  seriously, because they reflected sustained malice on the appellant’s part in the aftermath of his relationship with his former partner.   Although the methods employed by the appellant were amateurish, the attempted arson demonstrated seriousness of intent and perseverance on the appellant’s part.   Therefore, the sentence for this offence was within the available range.

[20]     Finally, Ms Butchard submitted that the cumulative three month term was justified because the breach of the protection order was different in kind to the companion offence: s84(1) Sentencing Act 2002.

Was the end sentence clearly excessive?

[21]     Arson, let alone attempted arson, can pose a difficult sentencing exercise. There is no established tariff for either offence because the circumstances of such offending can vary greatly.

[22]     Unlike the Judge below, I have had the assistance of reference to authority. For example, Ms Butchard referred to the decision of Durie J in Wrightson v Police Wanganui AP19/02 7 November 2002 in which the Judge said:

[6]       Be that as it may, considering the attempted arson cases involving a grudge and a proposal to exact revenge through an attack on buildings or cars, the most severe penalty imposed in the cases to which I have been referred is two years.  Usually the penalties have been considerably less.  I refer to R v Hewitt (CA 388/94, 21 February 1995); R v Mallia (CA 308/91,

29 November 1991); Hutana and others v Police (High Court, Christchurch AP 54/98,  29  April  1998,  Young J);  and Tairua  v Police  (High  Court, Whangarei, AP 61/99, 13 March 2000, Anderson J).  In those cases the facts pertaining to the offences and the offenders are various, but, even so, I cannot see how the special features of this case can be so different from those as to warrant a much higher penalty again.

In that case the appellant had attempted to set fire to a building using a considerable quantity of petrol and waste oil.  He was disturbed by a security patrol, so that arson

was prevented.  Despite his having a long history of offending, including offences of violence, the Judge considered that a sentence of three years (following a plea of guilty) was clearly excessive, so that a two year term was substituted.

[23]     To my mind Wrightson was an even worse case than the present one.  The offender was caught in the very act of attempting to set fire to a shop, in circumstances where he had the present ability to effect his purpose.  There were not the indications of ineptitude which are to be found in this case.

[24]     In light of the authorities to which I have been referred I do not consider a starting-point of more than two years can be justified for this particular attempted arson.   Nor do  I think that an uplift is required  from  that  point,  to  reflect  the appellant’s past record.   He has no previous convictions of a like nature, and the most recent of his offences involving violence were some years prior to the present offending.

[25]     On the other hand I agree with the assessment of the Judge that a one quarter reduction from the starting-point is as much as the guilty plea warranted.  It was not accompanied by remorse, rather an endeavour by the appellant to deflect blame to others.  Therefore, I regard 18 months as the appropriate sentence for the attempted arson.

Did the breach of the protection order justify a cumulative term?

[26]     It cannot be said that the offences are not different in kind.  Plainly they are, although they were closely interconnected and reflected a similar motivation.  Some Judges would have viewed a concurrent approach as appropriate.   But, I cannot conclude that the Judge was wrong to accumulate the three month term.  The term itself was not, I think, excessive.  This was significant offending, committed the day after the appellant had appeared for sentence on a like charge.  A firm response was required.

[27]     Substitution of a total sentence of 21 months requires me to consider the issue of home detention.  I am satisfied leave should not be granted.  The seriousness of

the offending and, in addition, the appellant’s persistent breach of the protection order indicates that he is not a suitable candidate for home detention.   Leave is declined.

[28]     With reference to conditions I direct that the appellant is subject to standard conditions and the special conditions that:

[a]     he is to attend medical appointments to the satisfaction of his supervising  probation  officer  and  health  professional,  and  to take prescribed medication in accordance with the prescription, and

[b]    he is to engage and complete an accredited domestic violence programme to the satisfaction of his supervising probation officer,

which shall apply until the sentence expiry date.

Solicitors:

FS Legal, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch for Respondent