Cox v R
[2013] NZCA 194
•30 May 2013 at 2.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA91/2013 [2013] NZCA 194 |
| BETWEEN | JARED PAUL COX |
| AND | THE QUEEN |
| Hearing: | 20 May 2013 |
Court: | O’Regan P, Goddard and Lang JJ |
Counsel: | R Glover for Appellant |
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 fact that the complainant had rebuffed his advances. He had specifically targeted the complainant’s property in the incident giving rise to the second charge.
The Judge noted that there is no tariff or guideline judgment of this Court in relation to the crime of arson. He considered there was an element of premeditation in respect of the incident giving rise to the second charge. Other aggravating factors included the danger to others as a result of the fires being lit. The fires created a potential risk for both those in the vicinity and the firefighters who were called to the scene. The offending also caused reasonably significant financial loss. Taking those factors into account, the Judge considered a starting point of three years imprisonment reflected Mr Cox’s overall culpability.
The Judge noted that Mr Cox has four previous convictions for arson. These related to incidents that occurred on 27 August 2010 and 4 September 2010. Three of those charges were laid after Mr Cox had set alight paper that he had placed in the wheelarches of parked vehicles. He had started the fire that led to the first of the present charges in exactly the same way.
Mr Cox received a sentence of community work on the earlier charges, but had then breached that sentence. Judge Doherty sentenced Mr Cox on a charge of breaching the sentence of community work at the same time as he sentenced Mr Cox on the present arson charges. The Judge added an uplift of six months imprisonment to reflect Mr Cox’s previous convictions for arson, but did not impose any additional sentence on the charge of breaching the sentence of community work.
The Judge then applied a discount of 10 months, or just under 25 per cent, to reflect guilty pleas that came at a post-committal stage. This led to the end sentence of two years and eight months imprisonment.
Grounds of appeal
In support of the overall submission that the sentence was manifestly excessive, counsel for Mr Cox advances the following points:
(a)The Judge was wrong to conclude that Mr Cox acted with premeditation.
(b)The starting point was too high.
(c)The Judge made insufficient allowance for mitigating factors.
(d)The Judge ought to have selected a rehabilitative sentence that facilitated the payment of reparation.
Was the offending premeditated?
Counsel for Mr Cox contends that the reports available to the Judge make it clear that Mr Cox has a significant problem with alcohol. He submits that it is likely that Mr Cox was so intoxicated when he committed both offences that he would have been incapable of planning the offences in any meaningful way.
We accept that Mr Cox may have been intoxicated when he lit the fires. As the Judge noted, however, Mr Cox’s drinking problem does not provide an excuse for the offending. It only provides a possible explanation as to why it may have occurred. We accept that the first charge arose in circumstances that can properly be characterised as opportunistic. There was no suggestion that Mr Cox targeted the vehicle that he set alight in the early hours of 26 November 2011. Nevertheless, he had sufficient mental capacity to gather together paper, and to place it in the wheel arch of the vehicle before lighting it. He had adopted the same modus operandi in relation to similar offending in the past.
There must have been a greater degree of premeditation to the offending giving rise to the second charge. On this occasion the offending can be viewed as targeted, because Mr Cox must have deliberately walked to the complainant’s house after she had left the tavern. Mr Cox then had sufficient mental capacity to push the pram into the doorway, and to set fire to items within it. We consider that this was intentional and deliberate offending that must have had at least a degree of premeditation.
We note in any event that the Judge did not place undue emphasis on the issue of premeditation. His only reference to it was as follows:[2]
... But I agree with the Crown that in your case there was some sense of predetermination, premeditation and planning. It may have been opportunistic at the time you arrived there and thought about it but on both occasions you found fuel to light the fire and at least you accumulated something like paper or whatever to cause it.
[2]R v Cox, above n 1, at [8].
We consider the Judge’s comments properly place the issue of premeditation in context, and give it appropriate weight.
Was the starting point too high?
Counsel for Mr Cox contended that other judgments of this Court suggest that the Judge should have adopted a lower starting point than three years imprisonment. He submitted in particular that R v Protos,[3] one of the authorities relied upon by the Judge, indicated that a lower starting point was warranted.
[3]R v Protos CA259/04, 19 October 2004.
In Protos, this Court considered an appeal against sentence by an offender charged with two counts of arson. The first charge resulted from the fact that the appellant had wilfully set fire to a motor vehicle. The motor vehicle was parked next to an occupied house, which caught fire from the heat of the burning car. This led to the second charge. The fire caused damage totalling $13,200.
This Court held that a starting point of four years imprisonment was too high. The sentencing Judge had selected it having regard to the decision of this Court in R v Munro,[4] in which a starting point of five years imprisonment was upheld. In Munro, two offenders had deliberately set fire to an occupied dwelling with resultant risk to life. In Protos, the Court did not expressly refer to the starting point it considered to be appropriate. It would appear, however, that it adopted a starting point of around three years imprisonment, because it imposed an end sentence of two years imprisonment after taking into account the age and previous good character of the appellant. The Court also placed emphasis on the fact that the appellant had offered to pay reparation in full. We consider the offending in the present case to be broadly similar to that in Protos, although Mr Cox’s offending has the added element that he lit two separate fires on different dates. The starting point in the present case was therefore consistent with that selected in Protos. It is also consistent with those selected or approved by this Court in several other cases involving similar offending.[5]
[4]R v Munro CA132/02, 24 July 2002.
[5]R v Gilchrist CA429/90, 15 April 1991; R v Thomson (1992) 9 CRNZ 173 (CA); R v Skeens CA341/01, 26 February 2002; R v Rameka CA426/04, 16 June 2005; R v Grindrod CA263/99, 20 October 1999; and Carlos v R [2010] NZCA 248.
Having regard to the aggravating factors the Judge identified, we are satisfied that a starting point of three years imprisonment was well within the available range.
Was sufficient recognition given to mitigating factors?
As noted above, the Judge applied a discount of ten months, or approximately 24 per cent, to reflect Mr Cox’s guilty pleas. He declined, however, to make any further allowance for mitigating factors.
Counsel for Mr Cox contends that the Judge ought to have applied an additional discount to recognise the remorse expressed by Mr Cox.
Whether or not a separate discount is required to recognise remorse is very much a matter of sentencing discretion. In the present case, the only evidence of remorse is contained in the psychiatrist’s report. This contains the following passage:
22.Mr Cox said that he did not want to light fires again. He described the serious impact that his convictions had had on his life, including being under Corrections supervision for the last three years. He discussed the restriction associated with his curfew and knew that he could be pulled over by the Police at any time and would be charged if he was found in breach of his curfew. Mr Cox said he had no particular motive when the fires were lit and felt extremely guilty for the impact on the victims and also the impact on his family, for example if his name was published in the newspaper. He described the serious impact on his relationship.
We regard these statements as primarily reflecting Mr Cox’s concern for the effect his offending has had on himself and his family. We therefore do not consider the Judge was required to apply a separate discount to reflect remorse.
Should the Judge have imposed a rehabilitative sentence?
Given that the end sentence was more than two years imprisonment, there was no room for a community-based sentence of the type Mr Cox had received on the previous occasion when he was convicted of arson. We also note that the psychiatrist viewed Mr Cox’s addiction to alcohol as being the root cause of his offending. The psychiatrist did not consider Mr Cox would benefit in a meaningful way from any further psychological counselling. She also considered that Mr Cox’s anger problems were alcohol-related, and that they could appropriately be addressed by suitable alcohol and drug treatment programmes. She noted that such programmes would be available in a custodial environment in the event that Mr Cox were to receive a sentence of imprisonment.
Having regard to those comments, we do not consider that the Judge was required to make any further provision for Mr Cox’s rehabilitative needs.
Result
The appeal against sentence is dismissed.
Solicitors:
Crown Solicitor, Wellington for Respondent.
10