Hutchinson v The Queen

[2004] NZCA 189

IN THE COURT OF APPEAL OF NEW ZEALAND

CA125/04

THE QUEEN

v

ANDREW IVAN HUTCHINSON

Hearing:16 August 2004

Coram:O'Regan J
Randerson J
Doogue J

Appearances:  R Wade for Appellant

B H Dickey for Crown

Judgment:19 August 2004 

JUDGMENT OF THE COURT DELIVERED BY DOOGUE J

Introduction

[1]     Andrew Ivan Hutchinson appeals against a sentence of 18 months imprisonment and a reparation order in the sum of $5264.25 imposed upon him by District Court Judge Moore in the Whangarei District Court on 24 March 2004 for the offence of wilfully setting fire to clothing on 6 October 2002.  The sentence was imposed following a late plea of guilty.  The appeal is brought upon the ground that the sentence was manifestly excessive.

Background circumstances

[2]     The 38 year old appellant had a liaison with the female complainant, the owner of the clothing that was burnt.  There was no permanent commitment between them.  However, the appellant had access to the female’s home, partially furnished with items owned by him.  The appellant saw her with another man.  He became jealous.  He was unable to communicate with her.  He went to her home.  The complainant was not at home.  The appellant took the key used by both of them from its hiding place and entered the house. 

[3]     The appellant went into the female’s bedroom.  He took a large quantity of clothing off clothes hangers and out of suitcases situated in the room.  He threw them out of a window on to the ground below.  He took a bottle of methylated spirits from the kitchen and poured the contents on to the pile of clothes.  He turned the front left element of the stove in the kitchen on to full.  He ignited a roll of newspaper on the element.  He then set fire to the pile of clothing.  He did not turn off the stove.  He left the property unlocked but returned the key to its hiding place.  The pile of clothes was close to the house and as a direct result of the fire, a supporting post holding up a conservatory which was attached to the house was almost burnt through.  The appellant took no steps to return to the property to find the condition of the fire.  It was left to burn unchecked until the complainant returned home and communicated with the fire brigade.  The total value of the property damaged was assessed at $5,264.25.

[4]     The pre‑sentence report, prepared some 17 months after the offence, indicated that the appellant was employed as a panelbeater earning approximately $800 per week.  The report referred to the appellant’s problems with alcohol abuse, which also lead to convictions for subsequent offences.  The appellant explained the offending was caused by his reaction to his female friend being with another man.  He advised the report writer that his friends and associates voiced their concerns to him about the female’s behaviour and joined with him in drinking alcohol and smoking cannabis.  He suggested that their behaviour socially influenced him and exacerbated his negative feelings of sadness and suspicion.  He denied any planning of the offence and said that his body went on “automation”.

[5]     The report commented that the appellant did not appear to be particularly remorseful for his actions but rather sought to minimise them by his explanation.  It was further noted that he was convicted of further offending while on bail and was serving a community based sentence for that offending.

[6]     The report noted there was a large amount of outstanding fines, apparently of some $5185, which made a monetary penalty inappropriate.  Notwithstanding that and that no reparation report was sought the report saw no reason why a reparation order should not be made if sought.

[7]     The appellant has a substantial history of driving with excess blood alcohol, with three offences prior to the present offence and two subsequent.  He was guilty on two occasions of breaching disqualification orders in respect of his driving.  He was guilty of a very minor wilful damage offence leading to a reparation order of $100 in 2001. 

[8]     The material put before the court included a letter from the female complainant making it clear that she believed that while the appellant had an intention to burn her clothes he had no intention that the house should catch fire.  She accepted that the appellant was aware of and extremely remorseful for his actions.

[9]     At the time of sentencing, the sentencing Judge had before him a statement of means, which indicated a gross income of $860 a week.  The appellant offered $50 week towards the reparation for the damage that he had caused.  The Judge noted that the appellant spent some $130 a week on his hobby of diving.

The Judge’s sentencing remarks

[10]     The Judge commented that the appellant is a mature man.  The Judge said it was not just the appellant’s intentions in respect of the fire but his recklessness in respect of it with which he was concerned.  He took the view that there was a significant need for deterrence in a sentence of offending of the kind involved.  He said:

It is not only a case of holding you accountable for what you have done and upholding community standards;  it is also a matter of making it clear to stupid arrogant males who want to put the frighteners on some lady that they think they own when they do not that if they think they own, when they do not, that, if they set fire to her things or her home, they are going to have to pay a significant price.

…

But there is no way here that anything less than a sentence of imprisonment can reflect the concern of the community at events such as this.  Destroying things by fire, particularly adjacent to a house, gives rise to significant risk.  Even if you knew the house was empty when you set fire to it, invariably people have got to put the fire out are at risk.  Sometimes, folk who not very skilled in the area of fires get in and try to help.  They are go into the house to make sure there is nobody there, and they get hurt.  Firemen are a bit more skilled, but their’s is still a dangerous job.

You have expressed remorse for this.  The complainant seems to have rather more maturity than you.  She is upset at what happened, but she does not believe that you really meant to burn the house down.  I am perfectly prepared to accept that.  “He was prepared to take the risk” is what it comes down to.  But, as she says, when you did this she was left with only the clothes she had on her back.

I cannot see how a starting point sentence of less than two years imprisonment is realistic.  Really it should be a little more.  You get a discount for your plea, but not as much as you could have got if you had faced up to this a long time ago.  But I accept that you did confess instantly to setting fire to her clothes.

[11]     The Judge then imposed the term of imprisonment under appeal, gave leave to apply for home detention and made the reparation order already referred to.  In making the reparation order, he ordered it to be paid by instalments of $100 per week to commence one month after the completion of his prison sentence.

Submissions for appellant

[12]     Counsel have stressed the mitigating circumstances already traversed and for the most part referred to in the Judge’s sentencing notes.  It is noted on behalf of the appellant that it does not appear his application for home detention has been dealt with to date.  While the appellant disputes the pre‑sentence report indication that he appeared to have no remorse, the Judge accepted the female complainant’s assessment, that there was genuine remorse.

[13]     It is submitted for the appellant that his personal belongings were still inside the house at the time and that by way of partial recompense, he later surrendered ownership of those belongings to the victim, including a stereo system, a fridge freezer, a washing machine, crockery and like things. 

[14]     The appellant complains that the sentencing Judge appeared to have worked on the basis that it was arson of the house.  We should say immediately that that is not the basis upon which the Judge sentenced the appellant.  An aggravating feature of the offence was that he was reckless so that the house was able to catch fire with a resultant risk of greater damage.

[15]     The appellant further complains that his difficulties in attending court in Whangarei when living in Auckland, the resultant loss of employment and a tarnished work record, combined with 18 months of restrictive bail conditions including a nightly curfew were not taken into account at the time of sentencing.  He submits that as he has lost both his employment and good record as a result of the sentence, he fears he will have great difficulty in obtaining fresh employment and meeting the terms of the reparation order upon his release.

[16]     Counsel notes that cases of arson and wilful damage inevitably show a wide range of sentences.  He notes in particular the decision in R v Constable (CA551/99, 24 May 2000).  That was a case involving burglary where more than $22,000 damage was caused to the property of the appellant’s estranged wife.  An appeal against a sentence of 12 month’s imprisonment following trial was dismissed.  It is submitted that in reality there were some similarities between the two cases.  However, we note immediately that there is a significant difference in that the damage was inevitably limited to what was done.  Here there was fire and recklessness with the resultant risk of damage to property beyond that sought to be destroyed.

[17]     It is submitted for the appellant that the sentence was manifestly excessive and that the sentence imposed upon the appellant should be reduced.  It is submitted that having regard to the time already been served by the appellant, it is appropriate to reduce the sentence of imprisonment to such a length, say nine months, as to allow the appellant’s immediate release.

[18]     It is further submitted that the reparation order should be quashed in any event.  There was no reparation report and the order appeared to be postulated upon the basis that the appellant would be given home detention and be able to work.  The appellant no longer has a job and with the substantial prison sentence there is no certainty he will be able to obtain one.  The order adds to a sentence that is itself said to be excessive. 

Submissions for the respondent

[19]     The respondent submits that the starting point of two years and the final term of 18 months imprisonment imposed by the sentencing Judge cannot be seen as manifestly excessive and were appropriate and justified having regard to:

a)The aggravating and mitigating features of the offending;

b)The relevant purposes of sentence;  and

c)Sentencing decisions in similar cases.

[20]     It is submitted by the respondent that the sentencing Judge correctly identified the aggravating features of the offending as including:

a)The significant risks posed by the offending and the recklessness of the appellant in creating such risks;

b)The harm caused by the offending;

c)The deliberate and premeditated nature of the offending;  and

d)The appellant’s previous convictions.

[21]     In oral submissions it was accepted that while the appellant deliberately went to the complainant’s home there was no formed intent to burn her clothing until after he found her absent.

[22]     The respondent submits that the sentencing Judge took sufficient note of the mitigating features, including the guilty plea and the early confession, the expression of remorse, and the attitude of the female complainant, and properly discounted the starting point by a quarter for those features. 

[23]     The respondent submits that the sentencing Judge rightly placed particular weight on the need for deterrence in sentencing for offending of this type.  It is accepted that there is no tariff sentencing for offending of this kind.  The respondent refers to the decision of this court in R v Howe, CA184/91, 16 September 2001, which involved arson committed in the context of a domestic dispute.  There, this court expressed the view that a sentence of three and a half years could properly be described as being “at the high end of the band of appropriate sentences for medium‑range arson”.  In Howe, as here, there was a guilty plea and an early acknowledgement of responsibility and remorse.  The respondent accepts that the damage caused in the present case is significantly less than in that case and that there was no deliberate intention here to set the house alight although there was the recklessness of the appellant already discussed. 

[24]     It is submitted that a sentence of one and a half years may be at the top end of the range for low level offending of this type where recklessness and thus the risk remains high but that it is within the sentencing discretion of the Judge. 

Discussion

[25]     We have little doubt that the prison sentence imposed is a severe one for the particular offending.  However, to categorise it as manifestly excessive is another matter.  If the appellant had taken care to ensure the damage he did was limited to the clothes we have little doubt the appeal would have succeeded.  But he did not.  He was reckless in the extreme as to the consequences of his actions.  He was not sentenced for setting fire to the house.  However, his recklessness was a serious aggravating circumstance of the offence committed by him.  As a result we take the view that the prison sentence under appeal was within, but only just within, the Judge’s sentencing discretion. 

[26]     This means that the term of imprisonment will stand, which inevitably affects our approach to the sentence of reparation. 

[27]     We must also note that if we are correctly advised it may be that the appellant’s application for home detention has not been dealt with.   Regardless whether that is so or not we request that the Court send a copy of this decision to the Parole Board for it to satisfy itself that the appellant’s rights are properly considered.

[28]     We do not think it appropriate to uphold the reparation order when the appellant is serving a considerable term of imprisonment and his ability to meet the order sought is entirely questionable.  That is particularly so when there are substantial outstanding fines, that were not remitted by the sentencing Judge.  There is no reparation report before the Court and nothing to enable us to satisfy ourselves that there was justification for the order sought.  Neither counsel could help us as to the statement of means before the Judge.  There is nothing to indicate the employability of the appellant when he is ultimately released. In all those circumstances we think an order that might otherwise be justifiable should not be allowed to stand.

[29]     In fairness to both the appellant and Mr Wade we would record that it has been impossible for them to confer together.  Mr Wade has ensured that not only has he said everything he thought he could properly say on behalf of the appellant but also he has put before us the substance of the appellant’s communications with him.  We have appreciated that approach in the particular circumstances of this case.

Decision

[30]     The appeal against the prison sentence is dismissed.  The reparation order is quashed.

Solicitors:

Crown Solicitors, Auckland