Cox v R - [2013] NZCA 194

IN THE COURT OF APPEAL OF NEW ZEALAND

CA91/2013
[2013] NZCA 194

BETWEEN	JARED PAUL COX Appellant
AND	THE QUEEN Respondent

Hearing:	20 May 2013
Court:	O’Regan P, Goddard and Lang JJ
Counsel:	R Glover for Appellant S K Barr for Respondent
Judgment:	30 May 2013 at 2.00 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Lang J)

Mr Cox pleaded guilty in the District Court at Christchurch to two charges of arson. On 24 January 2013, Judge Doherty sentenced him to two years and eight months imprisonment.[1] Mr Cox appeals against the sentence on the basis that it was manifestly excessive.

Background

[1]R v Cox DC Christchurch CRI-2012-009-521, 24 January 2013.

The first charge arose as a result of an incident that occurred in the early hours of 26 November 2011. Earlier that evening, Mr Cox had been drinking at a tavern with the complainant in relation to the second charge. He had previously been involved in a brief relationship with the complainant, and he unsuccessfully sought during the evening to revive the relationship.
At approximately 1.00 am, Mr Cox left the bar and began walking home. Whilst walking home, he observed a Mitsubishi station wagon parked in the driveway of a residential address. Mr Cox stuffed some paper under the wheel arch of the vehicle, and then set it alight. The vehicle was parked within two metres of a dwelling house in which the occupants were sleeping. A passerby called the fire brigade, who attended the scene and extinguished the fire. The fire caused damage to the vehicle requiring repairs totalling $2,117.60.
The second charge arose as a result of an incident that occurred in the early hours of 1 January 2012, after Mr Cox had been drinking at the same tavern. During the course of the evening, he spoke briefly with the complainant. She then left the tavern using the pretext of going to the toilet. After leaving the tavern, Mr Cox went to the complainant’s address. There he pushed a baby’s pram up against the doorway, before setting the pram alight. Both the pram and the complainant’s dwelling caught fire. A neighbour called the fire brigade, who extinguished the fire. The fire caused damage totalling $12,323.60.

The sentence

The Judge had the benefit of three reports that traversed Mr Cox’s background. They were a pre-sentence report written by the Probation Service, a report written by a psychologist whom Mr Cox had consulted privately and a report prepared by a psychiatrist employed by the Forensic Psychiatry Service of the Mental Health Division of the Canterbury District Health Board. The reports confirmed that Mr Cox has significant issues relating to alcohol and gambling. When affected by alcohol he reacts angrily to perceived slights by others. This has led in the past to Mr Cox becoming involved in physical confrontations whilst intoxicated. The Judge concluded that Mr Cox had lit both fires as an angry response to the…

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 Cox v R

Details

AGLC: Cox v R [2013] NZCA 194
Case: [2013] NZCA 194
Decision Date: 30 May 2013 at 2.00 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Jared Paul Cox appealed against his sentence of two years and eight months imprisonment imposed by the District Court at Christchurch. Cox pleaded guilty to two charges of arson and argued that the sentence was manifestly excessive. The first arson charge involved setting a fire under a vehicle, and the second involved setting a fire to a baby's pram, causing damage to the complainant's property. The Court of Appeal found that the sentence was not manifestly excessive and dismissed the appeal.

The Court of Appeal considered several issues, including whether the offending was premeditated, if the starting point of three years imprisonment was too high, whether sufficient allowance was made for mitigating factors, and if a rehabilitative sentence should have been imposed. The Court found that the offending had some degree of premeditation, especially in the second charge, and that a starting point of three years imprisonment was within the available range. The Court also noted that while the Judge applied a discount for the guilty pleas, no further allowance was made for mitigating factors. The Court concluded that the Judge did not need to apply a separate discount for remorse, as the evidence of remorse primarily reflected Cox's concern for the effect his offending had on himself and his family. Finally, the Court found that there was no need for a rehabilitative sentence, as the psychiatrist considered Cox's addiction to alcohol as the root cause of his offending, and suitable alcohol and drug treatment programs would be available in a custodial environment.

Orders