Meha v R

[2014] NZCA 307

IN THE COURT OF APPEAL OF NEW ZEALAND

CA793/2013
[2014] NZCA 307

BETWEEN	JUDITH MEREL ANE MEHA Appellant
AND	THE QUEEN Respondent

Hearing:	16 June 2014
Court:	White, Keane and MacKenzie JJ
Counsel:	S J Gray for Appellant K Raftery for Respondent
Judgment:	4 July 2014 at 10.00 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Keane J)

1. On 8 November 2013, after her trial in the High Court at Rotorua, Judith Meha was sentenced to imprisonment for four years, six months for the last and most serious of three arson offences and one attempt in the period 7–21 September 2013.[1]  She was sentenced to lesser concurrent terms for her less serious offences.

   [1]R v Meha [2013] NZHC 2957.

2. Ms Meha appeals her sentence as manifestly excessive on two grounds.  She contends that the trial Judge, Mallon J, took too high a starting point, five years, six months, and allowed her an insufficient one‑year discount for her “personality functioning difficulties”, her otherwise good character and lack of previous convictions. 

Four offences

1. In January 2012 Ms Meha met the victim of her four offences through an online dating site and a few weeks later moved into his home in Tokoroa.  Their relationship ended in June‑July 2012, when he helped her move into a house nearby.  She then began to send him anonymous threatening texts and, shortly after attempting to reconcile with him in early September 2012, committed her four offences. 

2. On 7 September 2012 at about 6 am, Ms Meha set fire to the mat outside the victim’s back door, a fire he detected and extinguished.  On 12 September 2012, just after midnight, when he was asleep, she attempted to set fire to the hedge in front of his house, a fire a neighbour detected and which was put out.  On 14 September 2012 at about 1 am, when the victim was again asleep, she set fire to his front door, a fire he put out after a smoke alarm sounded.  On 21 September 2012 she committed the most serious of her four offences.

3. At about 3 am Ms Meha slid a rubbish bin lid filled with petrol under the base weatherboards of the exterior wall of his bedroom, in which the victim was then asleep, and then lit it.  She was detected by surveillance cameras which the victim had installed after the 14 September fire.  The police woke him and the fire brigade put out the fire.  By then the marks to the exterior weatherboards indicate the fire already stood two metres high and one metre wide. 

Starting point

1. For this last and most serious of her offences, her lead offence for sentence, Mallon J took a starting point of five years, six months, for four reasons essentially:[2]

   (a)Ms Meha’s offending was premeditated.  Over 14 days she deliberately lit four fires at her victim’s home, and at the same time sent him threatening texts. 

   (b)Ms Meha put her victim directly at risk.  All four offences were at night, or in the early hours of the morning, when he was likely to be asleep; and there was risk also to anyone who put out the fires.

   (c)Ms Meha’s offending increased in seriousness.  In her last and most serious offence she targeted her victim directly by setting fire to his bedroom wall using accelerant.  She put him at very serious risk.

   (d)While the material damage to her victim’s house was low, he suffered high emotional harm.

   [2]At [20].

2. In this, Mallon J took account of cases where the offender had burnt the home of a relative or former partner.[3]   She said that where, as here, there was more than one offence, they typically attracted a five‑year starting point.  She distinguished those cases involving many arsons and significant property damage.[4]

   [3]At [21]. The Judge cited R v Thomson (1992) 9 CRNZ 173 (CA); R v Taylor CA488/94, 17 July 1995; R v Skeens CA341/01, 26 February 2002; R v Munro CA132/02, 24 July 2002; R v Rameka CA426/04, 16 June 2005; R v O’Sullivan HC Whangarei CRI-2007-088-5182, 19 August 2008; and Howarth v R [2010] NZCA 523.

   [4]R v Grindrod CA263/99, 20 October 1999; R v Van Haaren [2008] NZCA 91; R v Lucus‑Edmonds [2009] NZCA 193, [2009] 3 NZLR 493; R v Rikiriki [2009] NZCA 217; Ollerenshaw v R [2010] NZCA 32; and R v Webb [2013] NZHC 746.

3. Ms Meha contends that the Judge’s starting point for her lead offence ought to have been no higher than three years, with an uplift no greater than one year to take account of her three earlier related offences, a total starting point of four years.  We are unable to agree.

4. There is no tariff for arson, the circumstances differ too greatly.[5]  Critical factors are the degree of property damage, the degree of danger to any occupant or fire fighter, and the mental state of the offender.  All require assessment and their significance differs in every case.[6]

   [5]R v Munro, above n 3; R v Protos CA259/04, 19 October 2004; and R v Gilchrist CA429/90, 15 April 1991.

   [6]R v Z CA138/00, 27 June 2000.

5. Ms Meha relies on three decisions in which this Court endorsed starting points in the range three–four years, where there was very significant damage to two houses and to a commercial building, in each instance much more significant damage than that in this case.[7]  But in those cases the offenders set fire to properties, which they knew to be unoccupied.  Any risk was confined to those who had to put the fires out. 

   [7]R v Taylor, above n 3; R v Christie CA268/99, 20 October 1999; and R v Gilchrist, above n 5.

6. In her three accomplished arson offences, by contrast, Ms Meha set fire to her victim’s house at night, or in the early hours of the morning, when he was likely to be asleep, and her last offence was particularly sinister.  She must then have intended to put him at serious risk.  It is completely fortuitous that those fires were detected before they could take hold and that he did not suffer injury or death.[8]  As this Court has recently observed, cases of arson involving homes in which occupants are asleep properly attract starting points of five years and above.[9]

   [8]R v Gilchrist, above n 5; R v Taylor, above n 3; R v Christie, above n 7; and Ollerenshaw v R, above n 4.

   [9]French v R [2014] NZCA 297 at [10]. In that case the more serious factor was that the offending involved children. A sentence of five years, six months’ imprisonment for a single arson offence was not manifestly excessive.

7. That apart, the Judge was entitled to align Ms Meha’s offences with those cases in which the homes of former partners or relatives had been set alight, which did attract starting points in the vicinity of five years.[10] 

Discount

[10]R v Thomson, above n 3; R v Skeens, above n 3; R v Rameka, above n 3; and Howarth v R, above n 3.

1. Ms Meha then contends that the one year discount that Mallon J allowed her, a discount slightly in excess of 18 per cent, for her “personality functioning difficulties”, and good character, was manifestly insufficient.  It ought to have been 33 per cent.  Here too we are unable to agree.

2. Ms Meha contends that she was entitled to a greater discount than she received for her “significant personality dysfunction” relying on a psychiatric report, obtained before trial, which also stated that she had suffered considerable abuse during her difficult life. 

3. Ms Meha was not on sentence able to contend, however, on the principles identified in E (CA689/2010) v R, that her moral culpability was less than any other offender, or that there was less need for general or specific deterrence, or that a sentence of imprisonment would weigh more heavily on her than a person in normal health or have a significant effect on her mental health.[11]  She suffered “significant personality dysfunction” and depression.  But she did not suffer from any loss of understanding.  Nor was it suggested that her dysfunction contributed in any way to her offending. 

   [11]E (CA689/2010) v R [2010] NZCA 13, (2011) 25 CRNZ 411 at [70].

4. Ms Meha was equally unable to contend for a distinct discount on the basis that she had suffered “prolonged abuse”, which had “contributed materially to her offending”, a possibility this Court identified in Davidson v R.[12]  At most her report described her as “a very anxious dysphoric woman who is likely to suffer a number of the sequelae of having been a victim of repeated physical, sexual and emotional abuse”. 

   [12]Davidson v R [2011] NZCA 356 at [9].

5. The Judge was right equally, we conclude, not to allow Ms Meha any significant discount for her good character on the principle this Court identified in R v Findlay.[13]The discount this Court there endorsed, 25 per cent, was for very significant contributions to the community.  Nor could she claim a discount on purely compassionate grounds, a possibility the Supreme Court identified in Jarden v R.[14]  The depression and anxiety taken into account in that case was extraordinary.

   [13]R v Findlay [2007] NZCA 553.

   [14]Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612 at [14].

6. The Judge had, moreover, to balance against each of these possibly mitigating factors the need to impose a specifically deterrent sentence on Ms Meha, recognising how deliberate her offending was, and the risk to which she put her victim, on the face of it intentionally.

Conclusions

1. Ms Meha’s sentence is not manifestly excessive.  The Judge made no error in the starting point she took for Ms Meha’s lead offence, or on the discount she allowed Ms Meha for personal mitigating features.  A deterrent sentence was called for.  We dismiss Ms Meha’s appeal.

Solicitors:
Public Defence Service, Auckland for Appellant
Crown Law Office, Wellington for Respondent