Hazeldine v Police - [2016] NZHC 1132

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2016-443-10 [2016] NZHC 1132

BETWEEN
HAYDEN JOHN HAZELDINE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 11 May 2016

Counsel:

M S Boyd for Appellant
S J Simpkin for Respondent

Judgment:

27 May 2016

JUDGMENT OF BROWN J

Background

[1] On 17 February 2016 the appellant pleaded guilty in the District Court at Hawera to a charge under s 268 of the Crimes Act 1961 that on 9 October 2015 he attempted to damage by fire a residential dwelling at Gladstone Street, Hawera. The maximum penalty for that offence is 10 years’ imprisonment.

[2] Judge A C Roberts sentenced the appellant to a term of imprisonment of one year and nine months. The appellant appeals that sentence.

Circumstances of the offending

[3] At about 5.03 pm on Friday, 9 October 2015 the defendant was at his rented residential property in Hawera with his partner and their three children. The defendant and his partner had an argument inside the property and she then went outside with the children. The defendant proceeded to use his lighter to set fire to a
curtain belonging to him in the dining room. Once the curtain was sufficiently alight

HAZELDINE v NZ POLICE [2016] NZHC 1132 [27 May 2016]

he walked out of the house intending for the house to burn down. While outside he told his partner that she had better leave because the house was burning down. She then went back inside and extinguished the burning curtain. Although the curtain was damaged by fire, there was no damage caused to the house. In explanation the appellant said that after arguing with his partner he was frustrated and set the curtain alight with the intention of burning the house down.

Department of Corrections report

[4] The Corrections report noted that the appellant first came to the attention of the Courts in September 2009. His offending history largely comprised burglary, shop lifting, drug related offending and one charge for male assaults female. For those offences he received reparation, community work and supervision. He has two convictions for breach of community work for which he received a final warning on one and imprisonment on the other.

[5] The report noted that the appellant was well supported by his immediate family at Hawera and a Hawera address was proposed as a suitable residence for home detention which was the recommended sentence.

Sentencing notes

[6] After recording the circumstances of the offending and noting the appellant’s prior history of offending, Judge Roberts noted that although home detention was the recommended sentence, regrettably for the appellant that was no longer available. Consequently the issue for the Court was the length of a prison sentence.

[7] The Judge noted that there is no tariff and referred to High Court decisions cited by the Crown solicitor who pointed to three aggravating factors, namely premeditation, the subject property being a domestic dwelling and the potential real danger to others including the three children.

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.

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Details

Case: [2016] NZHC 1132
Decision Date: 27 May 2016

CaseChat Overview and Summary

Hayden John Hazeldine appealed against a sentence of one year and nine months’ imprisonment imposed by Judge A C Roberts in the District Court. Hazeldine pleaded guilty to a charge under s 268 of the Crimes Act 1961 of attempted to damage by fire a residential dwelling at Gladstone Street, Hawera on 9 October 2015. The Crown submitted that the appropriate starting point was two and a half to three years’ imprisonment. Counsel for the appellant submitted that the offending was impulsive and childish with no significant damage resulting and advocated a starting point of 12 months’ imprisonment. The Judge adopted a starting point of two years and four months. The appellant appealed against the sentence, contending that the Judge erred in finding premeditation as an aggravating factor, finding that the offending was motivated by revenge or retribution, the analysis of comparable cases in setting the starting point and failing to impose home detention or leave to apply for home detention. The High Court found that the Judge appropriately considered premeditation and motivation and that the starting point was towards the top of the available range but was not manifestly excessive. The High Court accepted that a sentence of home detention was the appropriate sentence and allowed the appeal. The sentence of imprisonment was quashed and replaced with a sentence of nine months’ home detention.

Orders