Lowenstein v Police

[2020] NZHC 786

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-000023

[2020] NZHC 786

BETWEEN

JACOB LOWENSTEIN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	21 April 2020
Appearances:	J D Lucas and J M Campbell for Appellant S Bicknell for Crown
Judgment:	22 April 2020

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 22 April 2020 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date…22 April 2020

Introduction

[1]                 The appellant, Mr Lowenstein, pleaded guilty to two charges of arson and a charge of unlawfully taking of a  motor  vehicle.  This  offending occurred  while  Mr Lowenstein was on bail, awaiting sentence, for a charge of assault with intent to injure and an associated burglary charge.

[2]                 Judge Saunders, in a decision of 14 June 2019, sentenced Mr Lowenstein to an end sentence of six years and nine months’ imprisonment.1 Mr Lowenstein now

1      R v Lowenstein [2019] NZDC 11538.

LOWENSTEIN v NEW ZEALAND POLICE [2020] NZHC 786 [22 April 2020]

appeals this sentence on the ground that the end cumulative sentence was manifestly excessive.

[3]                 Mr Lowenstein appeals out of time. He filed his appeal on 2 August 2019 in the Court of Appeal. The appeal was dismissed on 21 February 2020 for want of jurisdiction.2 The High Court is the first appeal court for this appeal. Accordingly, Mr Lowenstein applies for leave for this appeal to be heard by the Court.

Facts

[4]                 On 20 June 2018 Mr Lowenstein entered the restricted area of the property of Pak’nSave in Wainoni disguised as an employee. Mr Lowenstein sought out the victim. He confronted the victim whom he believed had insulted or abused his mother the previous day. Mr Lowenstein punched the victim in the face multiple times before being restrained. The victim sustained severe bruising, a cut to the lip and was shaken up by the violence. Mr Lowenstein plead guilty in October 2018 to charges of assault with intent to injure and burglary. The burglary was not for the purpose of theft, but to seek out the victim who Mr Lowenstein knew worked there.

[5]                 While on bail awaiting sentence, Mr Lowenstein committed three further offences.

[6]                 On 11 March 2019 Mr Lowenstein put a lighter, some paper and fuel in his backpack and left his house. He unlawfully took a Mazda station wagon that was parked in a driveway on Puriri Street, Riccarton. Mr Lowenstein then drove the car to Upper Riccarton, parking it a short distance from The Church of Jesus Christ of Latter-day Saints.

[7]                 Mr Lowenstein entered the property through a door he had smashed the previous day. He poured petrol over a couch and carpet in the lounge and set it alight. The fire destroyed the lounge and kitchen area. The cost of the damage was approximately $500,000. The church does not have insurance.

2      Lowenstein v R [2020] NZCA 25.

[8]                 On 13 March 2019 Mr Lowenstein drove to The Church of Jesus Christ of Latter-day Saints at Main South Road, Greymouth. He broke into the building and set it alight using petrol. The entire building was destroyed despite attempts by the fire service to extinguish the fire. The cost of the damage was approximately $700,000. The cost of repairing the two church buildings is around $1.32 million.

[9]                 Police spoke to Mr Lowenstein after the fires, but he did not admit any wrongdoing at that point.  Approximately  three  weeks  later,  on  1  April  2019,  Mr Lowenstein  approached  the  police  and  admitted  his  guilt.   At  this  point   Mr Lowenstein stated his reason for the arson was anti-religious, but after speaking with a friend, realised what he had done was wrong. On 3 April 2019 he appeared before the court and pleaded guilty to two charges of arson and one charge of unlawful taking of a motor vehicle.

District Court decision

[10]             Judge Saunders considered the arson at Greymouth on 13 March 2019 to be the lead offending. The Judge adopted a starting point of seven years imprisonment for that offending. The Judge sentenced Mr Lowenstein concurrently, uplifting the sentence by two years for the arson of 11 March 2019. This brought the starting sentence to nine years imprisonment, incorporating a concurrent period for the unlawful  taking of  a motor  vehicle.  The Judge then  applied  a further  uplift  of  18 months’ imprisonment for the June 2018 offending at Pak’nSave. This brought the starting point to 10 years and six months’ imprisonment.

[11]             The Judge considered the psychiatric report of Mr Metoui which had been provided to be akin to a s 27 Sentencing Act 2002 cultural report covering matters of upbringing.3 A 12-month discount to reflect matters covered in the report and participation in restorative justice was applied, reducing the sentence to nine years and six  months.    The  Judge  then  applied  a  full  25 per  cent  discount  to  reflect    Mr Lowenstein’s guilty plea. On a strict arithmetical basis this brought the end sentence to seven years and one-month imprisonment.

3 At [20].

[12]             Considering the principle of totality, the Judge applied an end  sentence  of  six years imprisonment in relation to the arson offending and nine months’ imprisonment in relation to the Pak’nSave offending. This brought the total effective term to six years and nine months’ imprisonment.

Principles on appeal

[13]             Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.4 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.5 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.6

Submissions

Appellant’s submissions

[14]             In bringing this appeal Mr Lowenstein does not challenge the starting point of 10 years and six months’ imprisonment. However, Mr Lucas, for Mr Lowenstein, submits Judge Saunders erred in conflating and combining the two mitigating factors of restorative justice and personal circumstances. The discount applied was around

9.5 per cent (12 months). Mr Lucas contends the mitigating factors are distinct and a greater discount ought to have been applied.

[15]             Mr Lucas also submits Mr Lowenstein’s remorse is genuine and exceptional. It goes beyond undergoing a restorative justice conference. It includes Mr Lowenstein going to the police station to take responsibility for his wrongdoing. Mr Lucas submits

4      Criminal Procedure Act 2011, ss 250(2) and 250(3).

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

6      Ripia v R [2011] NZCA 101 at [15].

it is unusual for offenders to go to police to confess, as such Mr Lowenstein’s case is exceptional.

[16]             Mr Lucas states it is a well-established principle that self-referral of criminal offending to the police is a significant mitigating factor for sentencing. He cites several cases:

(a)In R v Strickland the defendant was sentenced for five attacks on women over a three-week period.7 After being apprehended by the police after the last attack he admitted the other attacks. The Judge noted confession for offending that may not have resulted in conviction saves considerable time and work, that factor ought to be considered in sentencing.8

(b)In R v Sanday the appellant raped a disabled woman and confessed to police.9 The court considered there was a strong public interest element in encouraging offenders to confess crimes to the police. The deduction from the starting sentence of one third was held to be warranted in the unique circumstances.

(c)In D v Police Nicholson J considered that a very substantial discount of “at least half after the guilty plea discount” ought to have been applied.10 In this case the appellant had self-referred to the police after raping his daughter. Significant efforts were taken to make apologise and make amends.

(d)In R v Ringrose the Court of Appeal allowed an appeal on the ground that there should have been a 15 per cent discount made for youth and confessing to authorities.11

7      R v Strickland [1989] 3 NZLR 47, (1989) 4 CRNZ 632 (CA).

8      At 635.

9      R v Sanday CA146/99, 29 July 1999.

10     D v Police (2000) 17 CRNZ 454 (HC) at [24].

11     Ringrose v R [2011] NZCA 634 at [24].

[17]             Mr Lucas submits a discount for remorse of at least 15 per cent ought to have been imposed. This encompasses confessing to the police and participating in a restorative justice conference. Mr Lucas notes it was acknowledged by the victims that Mr Lowenstein’s apology was genuine.

[18]             Mr Lucas submits Mr Lowenstein’s offending is a product of his upbringing and a discount of around six per cent is appropriate. Mr Lucas notes Mr Lowenstein’s upbringing was polarised. His mother was a drunk who was incarcerated numerous times. His father was a devout Christian and strict disciplinarian. Mr Lowenstein’s relationship  with  his  father   degenerated   and   reached   a   low   point   when   Mr Lowenstein’s father denounced a musical tribute Mr Lowenstein had composed for his grandparents and posted online.

[19]             Mr  Lucas submits the Pak’nSave offending of  June 2018 was a result of   Mr Lowenstein’s extreme love for his mother which resulted in him becoming angry at a perceived insult she suffered while shopping. The arsons were an extreme act of anger to the rejection he felt from his father. This background impacts the culpability of the offending.

[20]             In summary, Mr Lucas submits the following discounts ought to have been applied:

(a)15 per cent for remorse and voluntary admission of guilt,

(b)Six per cent for personal circumstances,

(c)25 per cent for Mr Lowenstein’s guilty pleas.12

An end sentence of around five years and seven months imprisonment is therefore justified. This is comprised of a sentence of five years for the arsons and a cumulative sentence of seven months for the assault and burglary.13

12 I note that Judge Saunders applied full 25 per cent guilty plea discount.

13 I note that Mr Lucas has erred in his calculation of what the end sentence should be. Applying the discounts submitted by Mr Lucas the end sentence would be six years and two months imprisonment.

Respondent’s submissions

[21]             Ms Bicknell, for the respondent, submits Judge Saunders’ methodology discloses no error and the end-sentence is within range.

[22]             Ms Bicknell notes Judge Saunders considered Mr Lowenstein’s admission to the arsons to be “perhaps… the most powerful mitigating factor… alongside the credit you will get for the guilty plea…”.14 Ms Bicknell notes the aggravating factors were premeditation, the fact Mr Lowenstein was on bail when he committed the arsons, the “significant” financial impact of the offending on the church, the emotional harm to the churchgoers and a risk of harm to the firefighters.

[23]             Ms Bicknell submits Judge Saunders properly recognised Mr Lowenstein’s confession to police and remorse when applying the 12-month discount. Ms Bicknell makes five primary submissions in support of the appeal being dismissed.

[24]             Firstly, Ms Bicknell notes Mr Lowenstein received a 25 per cent discount for his guilty pleas, and any additional discounts require “a robust evaluation of all the circumstances.”15 The guilty plea already recognised Mr Lowenstein’s acceptance of responsibility.

[25]             Secondly, it was three weeks after the arsons when Mr Lowenstein approached the police. Ms Bicknell describes this as “prompt, but not immediate”.

[26]             Thirdly,  the  restorative  justice  participation   is   of   mutual   benefit   to Mr Lowenstein and the victims. Too great a discount risks undermining that apparently mutual benefit.

[27]             Fourthly, the credit given to the matters in the psychiatric report may be viewed as generous as it was largely based on self-reporting by Mr Lowenstein. It does not follow that the report demonstrated a compelling link between Mr Lowenstein’s background and the offending.

14     R v Lowenstein, above n 2, at [13] – [14].

15     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].

[28]             Finally, Mr Lowenstein received a non-specific additional four-month discount after deductions for mitigating factors.

Analysis

Starting point

[29]             No issue is taken with the starting point adopted by Judge Saunders for either the lead offending, being the arson at Greymouth, or for the uplifts for the further arson charge, relating to the Riccarton Church fire and for the assault and burglary charges of June 2018.

[30]             Having reviewed the District Court analysis of the aggravating features of the lead offending, including that it was premeditated and resulted in both financial loss and the devastating loss to parishioners of a building that was of social and religious importance, I concur with that view. The starting point set reflects relevant Court of Appeal authorities on sentencing for arson and the uplifts applied for the further offending are appropriate.16

Mitigating factors

[31]             The mitigating factors as they relate to Mr Lowenstein are remorse, as demonstrated by handing himself in to police, and his participation in restorative justice, his personal circumstances as identified in the psychiatric report and his guilty plea.

Assisting authorities by handing in to police

[32]             Where assistance to authorities has been provided, discounts to sentence may be given. Considerations when arriving at the appropriate discount are the type and seriousness of the offending, the nature and value of the assistance, the situation in which the assistance was given and the consequences of the defendant giving

16     R v Z CA138/00, 27 June 2000 and R v Lucas-Edmonds [2009] 3 NZLR 493 (CA).

assistance,   such   as personal  danger.17   The Court of Appeal has held a key determinative factor of the discount to be given will be the value of the assistance.18

[33]             There are obvious policy reasons for applying discounts to the sentence imposed where an individual assists authorities by confessing to a crime before being charged with the offending. At one end of the spectrum, where the offending might never have come to light but for the confession, significant discounts are warranted. For example, in R v Sanday a discount of 33 per cent was applied to recognise the exceptional circumstances including that the crime would have gone undetected had the offender not confessed.19

[34]             Even where it is likely the defendant would have been charged in due course, as I consider was the case here, there are benefits which flow from early acknowledgment of a crime. In particular, there is a saving of time and cost in investigating the crime and gathering evidence to support a charge. I also accept that acknowledgement of the wrongdoing is relevant to the assessment of remorse.

[35]             In the present case, the offending was of a serious nature. The value of the assistance meant that the police saved time and resources investigating the offences, noting the arson offences, in particular, would have involved considerable technical investigation. However, I accept Ms Bicknell’s submission that the confession involved no personal risk beyond self-incrimination. There is also no evidence to suggest Mr Lowenstein would not have been apprehended following the police investigation. Accordingly, the value of the assistance does not fall into the same class as that in R v Sanday, where the offending would have gone entirely undetected had the offender not confessed.

17     See Williams v R [2011] NZCA 384, Waihape v R [2012] NZCA 425, R v Cameron CA319/99, 25 November 1999.

18     Williams v R, above n 23.

19     R v Sanday, above n 9.

[36]             The authorities identified by Mr Lucas show a discrete discount in recognition of  the  value  of  self-referral  of  offending  is  justified.  I  therefore  consider  Judge Saunders erred in his sentencing methodology by not providing such a discrete discount. Considering the authorities above, I consider a discount of 10 per cent be applied. In setting that discount I have focussed on the benefits to the administration of justice which confession of a crime brings. I have been careful not to double-count for remorse, which is addressed separately below.

Further discounts

[37]             Mr Lowestein’s remorse, demonstrated by acknowledging his offending, participating in restorative justice, and apologising, also warrants a distinct discount which I set at five per cent.

[38]             I consider, too, that the personal mitigating factors from Mr Lowenstein’s dysfunctional upbringing, as reflected in the psychiatric report, warrant a five per cent discount.20 It is clear that his dysfunctional upbringing and the distorted relationships he had with each parent as described in the report, was a direct contributing factor to his offending.

[39]             This brings the overall discount for mitigating factors to 20 per cent. From a starting sentence of 10 years and six months (126 months) the sentence is therefore reduced to eight years and five months (101 months). I then apply a full 25 per cent discount for guilty pleas.

[40]             Considering all these matters, a final sentence of six years and four months is arrived at. This is five months less than the sentence imposed by Judge Saunders. That is a sufficiently material difference for me to allow the appeal and impose a different sentence. The amended sentence will be imposed as follows:

(a)a sentence of five years  seven  months  for the arson committed on  13 March 2019;

20     Judge Saunders applied a 12 month, 9.52 per cent, discount for these two factors.

(b)a concurrent sentence of  four  years  for  the  arson  committed  on  11 March 2019; and

(c)a concurrent sentence of two years for the unlawful taking of the motor vehicle.

[41]             As was imposed by Judge Saunders, there is also a cumulative sentence of nine months in relation to the assault with intent to injure and the burglary, to reach an end sentence of six years four months’ imprisonment.

Conclusion

[42]The appeal is allowed.

[43]The sentence of six years and nine months imprisonment is quashed.

[44]             A sentence of six years and four months’ imprisonment is substituted, to be imposed as follows:

(a)on the charge of arson committed on 13 March 2019,  five  years seven months’ imprisonment;

(b)on the charge of arson committed on 11 March 2019, four years’ imprisonment (concurrent);

(c)on the charge of theft of a motor vehicle, two years’ imprisonment (concurrent);

(d)on the charge of assault with intent to injure, nine months’ imprisonment (cumulative on the sentence for the 13 March 2019 arson); and

(e)on the charge of entering a building with intent to commit an imprisonable offence, nine months’ imprisonment (cumulative on the sentence for the 13 March 2019 arson, but concurrent with the sentence for assault).

Solicitors:

J Lucas, Barrister, Christchurch Raymond Donnelly & Co., Christchurch