Erickson v R
[2012] NZCA 449
•1 October 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA241/2012 [2012] NZCA 449 |
| BETWEEN JOHN MERVYN ERICKSON |
| AND THE QUEEN |
| Hearing: 20 September 2012 |
| Court: White, Simon France and Asher JJ |
| Counsel: P M Keegan for Appellant |
| 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 and nine months’ imprisonment.[8]
Submissions from Mr Erickson
[8] At [31]–[38].
Mr Keegan, counsel for Mr Erickson, while acknowledging that the appeal was “marginal”, submitted that the starting point was manifestly excessive because:
(a) The arson was directed at an unoccupied property in respect of which there was no risk of any danger to any person or other property.
(b) The insurance payment had in fact enriched the owner as the property would have been difficult to let.
(c) This case was significantly less serious than R v Innes,[9] where a campervan with a person sleeping inside had been put on fire, and R v Coxon, where there were other charges as well as arson and the offence was committed while the appellant was serving a sentence of community detention: In both cases a starting point of three years’ imprisonment was adopted.
[9] R v Innes [2009] NZCA 407.
Mr Keegan conceded, however, that a starting point of two to three years’ imprisonment was within the available range.
Discussion
In view of Mr Keegan’s concession, we are able to give our reasons for dismissing the appeal briefly.
First, there is no guideline judgment for arson.[10] Each case will depend on its own facts and involve a consideration of the property damaged, whether there was danger to life both of occupants and fire fighters and the mental state of the offender.[11] Appellate authorities generally adopt starting points in the three to five year range, although lower starting points may be adopted in particular circumstances.[12] The starting point of three years’ imprisonment in the present case was therefore well within range.
[10] R v Gilchrist CA429/90, 15 April 1991 at 3.
[11] R v Z CA138/00, 27 June 2000 at [6].
[12] Howarth v R [2010] NZCA 523 at [51].
Although R v Innes involved greater danger to life, it involved much less damage to property ($300) and Mr Innes had no criminal record. Cases more similar to the present are R v Taylor[13] and R v Golding.[14] In R v Taylor this Court approved a starting point of three years’ imprisonment on an arson charge where the appellant had set the complainant’s house on fire following the end of their relationship.[15] The appellant would have known that the property was unoccupied and the damage amounted to about $50,000 in 1995. In R v Golding this Court considered that a starting point of three years’ imprisonment for setting fire to an old farmhouse used as a hay store was possibly too high, but in that case the house was not habitable and the value of the property destroyed was $2,350.[16]
[13] R v Taylor CA488/94, 17 July 1995.
[14] R v Golding CA329/96, 17 October 1996.
[15] At 3.
[16] At 4.
We also consider that the discounts given by the Judge in this case were generous, particularly in view of the lateness of the guilty plea and the fact that there was no order for reparation.
Result
For these reasons the appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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