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French v R

French v R

Case [2014] NZCA 297 2 July 2014

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA586/2013
[2014] NZCA 297

BETWEEN	DALJIT FRENCH Appellant
AND	THE QUEEN Respondent

Hearing:	12 June 2014
Court:	Randerson, Keane and MacKenzie JJ
Counsel:	C B Wilkinson-Smith for Appellant M D Downs for Respondent
Judgment:	2 July 2014 at 2:30 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by MacKenzie J)

The appellant was found guilty at trial on one count of arson. She was sentenced on 5 August 2013 by Judge Roberts to five years and six months imprisonment.[1] She appeals against that sentence. An appeal against conviction was abandoned.
[1]R v French DC New Plymouth CRI-2012-043-313, 5 August 2013.
There are three grounds of appeal. Mr Wilkinson-Smith for the appellant submits that first, the Judge erred in taking into account an aggravating factor that was disputed by the appellant, without resolving that dispute under s 24 of the Sentencing Act 2002. Second, he submits that the starting point is too high. Third, he submits that the Judge erred in failing to consider the appellant’s mental health issues, including a major depressive disorder.
Counsel for the respondent rightly describes this as a case of troubling facts. The appellant had recently separated from her husband and was living in the former family home with her two children, aged about nine and seven at the time of the offending. The appellant intentionally lit a fire in close proximity to the closed door of the boys’ bedroom, against which she had placed bed frames as an obstruction. She had put an accelerant over furnishings in the lounge at the other end of the hallway. When the fire was lit vapours from that accelerant ignited in a vapour explosion. A fire developed in the lounge and quickly took hold and burned many parts of the house. The boys woke up and escaped out the bedroom window. The appellant was found naked and in apparent shock. She had minor injuries which were later shown to be self-inflicted. She told Police she had been attacked sexually by an intruder with a knife. She said someone had been around her property on preceding nights and that her husband had threatened to kill her.
In sentencing, Judge Roberts observed that the appellant denied her guilt despite overwhelming evidence, including having been caught by her son in the process of starting the fire. He said she had no previous convictions and noted the pre-sentence report writer’s view that the appellant had lasting health and emotional problems. He described the recommendation of home detention as clearly inappropriate. He referred to a subsequent psychiatric report expressing the conclusion that the appellant has a personality disorder. He noted counsel’s submission of a longstanding issue of depression and the appellant’s claims of historic and more recent abuse. The Judge discussed a number of comparable authorities on sentence. He found as aggravating factors the seriousness of the offending; the consequential loss, both to the appellant’s husband…

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 French v R

Details

AGLC: French v R [2014] NZCA 297
Case: [2014] NZCA 297
Decision Date: 2 July 2014 at 2:30 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Daljit French appeals against her sentence for arson, which was determined to be five years and six months imprisonment. The Court of Appeal comprises Randerson, Keane, and MacKenzie JJ. The primary legal issues in the appeal revolve around the sentence's appropriateness, focusing on whether the sentencing judge erred by considering a disputed aggravating factor, the starting point for the sentence, and the failure to discount for the appellant's mental health issues.

Regarding the first issue, the court held that the sentencing judge did not err in considering the extent of the loss to the husband as an aggravating factor. The court found that the judge did not place undue reliance on the husband's victim impact statement and that the extent of the loss was not a critical factor in assessing the criminality of the appellant's conduct. The second issue concerning the starting point for the sentence was also dismissed. The court found that the starting point of six years was justified given the seriousness of the crime and the likelihood of danger to life. The final issue was the sentencing judge's failure to discount for the appellant's mental health issues. The court held that the appellant's mental health issues did not sufficiently moderate her culpability or render a sentence of imprisonment more punitive, and therefore, the judge's decision not to give a discount was proper.

The Court of Appeal dismissed the appeal against the sentence.

Orders