Erickson v R - [2012] NZCA 449

IN THE COURT OF APPEAL OF NEW ZEALAND

CA241/2012
[2012] NZCA 449

BETWEEN JOHN MERVYN ERICKSON
Appellant

AND THE QUEEN
Respondent

Hearing: 20 September 2012

Court: White, Simon France and Asher JJ

Counsel: P M Keegan for Appellant
M H Cooke for Respondent

Judgment: 1 October 2012 at 10.00 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by White J)

Introduction

This is an appeal against a sentence of two years, nine months’ imprisonment following a conviction for arson.[1] The conviction was entered when Mr Erickson pleaded guilty to the charge after the Crown Solicitor’s opening at his trial.
[1] R v Erickson DC New Plymouth CRI-2011-043-1009, 1 May 2012.
The sole ground of appeal is that Judge Roberts’ starting point of three years’ imprisonment was manifestly excessive.

Factual background

There is no challenge to the factual background summarised in the Judge’s sentencing notes.[2] Mr Erickson deliberately set fire to an old farmhouse in which he had lived as a tenant for some 10 years. Mr Erickson lit the fire because he had been evicted from the farmhouse after its new owner, the daughter of the previous owner, obtained an order from the Tenancy Tribunal.
[2] At [1]–[6].
Mr Erickson had threatened the new owner that if he had to leave the property he would set fire to it. The fire was lit using a number of old tyres placed at the rear of the farmhouse. The damage caused meant that repairs were not feasible and the new owner received an insurance payment of $47,000.

Judge’s sentencing

After considering the High Court decisions in Duncan v Police[3] and Coxon v Police[4] and the decision of this Court in R v Rameka,[5] the Judge found the current situation to be closer factually to the High Court decisions where the starting point was three years’ imprisonment.[6]
[3]      Duncan v Police HC Palmerston North AP31/9, 30 August 1999.
[4]      Coxon v Police HC Dunedin CRI-2011-412-9, 7 April 2011.
[5]      R v Rameka CA426/04, 16 June 2005.
[6] At [29].
The Judge concluded that the offending was moderate to serious, noting that at the time of the fire the property was habitable and had not been abandoned. He identified the following aggravating factors:[7]
(a)       the extent of loss, $47,000;
(b)       the aspect of retribution and pre-mediation;
(c)       the impact on the owner who was concerned for her safety and wellbeing as well as for her property; and
(d)      Mr Erickson’s 51 previous convictions, including 13 for drug offences, several for breaching protection orders, domestic violence, assault with a weapon and unlawful firearm possession, which had resulted in eight sentences of full-time imprisonment.
[7] At [28].
The Judge then adopted a starting point of three years’ imprisonment and after allowing a two month deduction for the late guilty plea and a further deduction of one month for an offer of reparation, which was not in fact ordered, the end sentence was two years…

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 Erickson v R

Details

AGLC: Erickson v R [2012] NZCA 449
Case: [2012] NZCA 449
Decision Date: 1 October 2012

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by John Mervyn Erickson against his sentence, which was a two years, nine months' imprisonment term for arson. Erickson's appeal centred on the starting point of three years' imprisonment, which he argued was manifestly excessive. The appeal was grounded on the argument that the starting point was disproportionate, considering the circumstances of the arson, which involved an unoccupied property without any risk to life or other property. Erickson's counsel contended that the arson caused less damage compared to other cases where similar starting points were applied, and that the insurance payout, which amounted to $47,000, actually enriched the property owner.

The court evaluated Erickson's appeal against the backdrop of New Zealand's sentencing guidelines for arson, which emphasize the need to consider the extent of damage, the risk to life, and the offender's mental state. The court acknowledged that while there is no fixed guideline for arson, appellate authorities generally set starting points within the three to five year range, with some variation based on specific case circumstances. The court found that the three-year starting point in Erickson's case was reasonable, considering the significant damage to the property, the potential risk to Erickson's former landlord, and Erickson's extensive criminal history.

After reviewing the precedents and considering the discounts applied by the sentencing judge, including a reduction for the late guilty plea and an offer of reparation, the Court of Appeal concluded that the sentence was appropriate. The court highlighted that the discounts granted in this case were generous, particularly given the late plea and the absence of an ordered reparation. Consequently, the Court dismissed Erickson's appeal against the sentence.

Orders