R v Cartwright HC Auckland CRI 2009-092-2198
[2010] NZHC 438
•18 March 2010
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CRI 2009-092-2198
THE QUEEN
v
MICHAEL CARTWRIGHT
Hearing: 18 March 2010
Appearances: G Kayes for Crown
G Gotlieb for Cartwright
Judgment: 18 March 2010
SENTENCING REMARKS OF ALLAN J
Solicitors:
Crown Solicitor Auckland G Gotlieb, Auckland
R V CARTWRIGHT HC AK CRI 2009-092-2198 18 March 2010
[ 1 ] Mr Cartwright, you appear for sentence having pleaded guilty on 18
December 2009 to two counts of arson and one count of manslaughter. The maximum penalty for arson is 14 years imprisonment and for manslaughter is life imprisonment.
Factual background
You committed these offences together with a young woman who is yet to be tried. Because your role was a limited one, it is important to outline the part you yourself played in what occurred.
You are now 19 years old. At the time of these unfortunate events you were 18. You had known your co-offender for about three weeks. She was simply one of a number of friends; there was no special relationship between you. During the evening of 19 January 2009, you were at your co-offender’s house along with several other friends. There, the group drank codies, which are a whisky and cola mix. There was also a bottle of absinthe, a drink which contains a very high proportion of alcohol and was being drunk with water.
During the evening there was a certain amount of coming and going among the group. For a time you were not in your co-offender’s company. But later in the evening you encountered her once more with a group of friends and made your way back to her place. As you walked, she complained about the behaviour of her former boyfriend, Brad. In particular she was critical of one incident which she described to you. After you had been back at her house for a time, she devised the idea of burning a t shirt belonging to Brad, which she had found on the floor. By this time you were both significantly intoxicated.
She first asked her boyfriend to accompany her outside in order to burn the t shirt, but he declined. When you were asked to go with her you agreed. You went out with her to the patio in front of her house; you were carrying the bottle of absinthe, from which you were drinking. Your co-offender had the t shirt and a
lighter. You understood the t shirt was to be lit outside her house, but instead your co-offender led you across the road towards Brad’s house. Although there was a car in the driveway you did not see any lights on in the house and did not know if anyone was home.
At her invitation, using the lighter, you lit the t shirt which your co-offender had placed on the front door mat. The flame simply flickered and died. Your co-offender told you to pour the absinthe onto the t shirt. You accept that you knew you were increasing the fire risk by doing that, but believed at that point you could have put the fire out if it looked like causing significant damage.
The t shirt burned readily, but the fire again went out rapidly. Both of you then went back across the road to her house. You were only there briefly when your co-offender produced a sweatshirt. You both went back across the road; again you were holding the absinthe bottle and your co-offender had the lighter and the sweatshirt.
When you reached the bottom of the driveway of Brad’s house you declined to accompany her further. You gave your co-offender the bottle of absinthe and she walked up the driveway out of sight. From where you were standing you could not see the front door. Your co-offender was out of your sight for between five and ten minutes. Eventually she returned and you made your way back to her house.
Within a short time, alerted by the barking of dogs, you noticed that a great deal of smoke was pouring from the house across the road, and that there was an orange glow from the property. You decided that you could not stay with your co-offender and you left her house, making your way across the back fence and through neighbouring properties. You say you did so because you realised, once there were signs of a large scale fire, that your co-offender had done something serious and you did not want to be associated with it.
[ 10] It is now known of course, that while you waited at the end of the drive your co-offender had gained access to the house and had set a fire at the foot of the stairs. The house was destroyed, and Lynette Chapman’s body was discovered in the ruins.
[ 11 ] Although initially you minimised your role, on 18 December 2009 you pleaded guilty to manslaughter, on the basis that you were a party to culpable homicide by reason of the lookout role you effectively adopted at the end of the drive and by reason also of the risk you accept you were taking that there could be resultant harm to anybody who was in the house at the time.
[ 12] You are to give evidence for the Crown at the trial of your co-offender next month. I will come back to that a little later.
Victim impact statements
[13] As is inevitable, the tragic events of the night in question have affected the lives of those who were close to Lynette. In their victim impact statement her parents have described how the death of their only daughter has ruined their lives. They say that not a day goes by when she is not in their thoughts. Lynette’s father, Mr Hunkin, movingly read out their statement this morning.
[ 14] Then there was Lynette’s partner. He and Lynette had been together for three years and had planned to marry. Their hopes for shared happiness in later life were wrecked by this incident of unfathomable stupidity.
Each of these people speak of the particular pain inherent in the delay of getting Lynette back from the identification and post mortem process. That, they say, added to their stress and grief.
Lynette’s three boys have made a joint statement. I do not propose to read it out but note that it contains from each of them points of domestic detail that serve to underscore the immeasurable loss they have suffered. Plainly this was a close-knit family which will never be the same again. The statements of Lynette’s partner and her three boys were read out in open Court by victim support officers this morning.
Sentencing principles
[ 17] Manslaughter carries, as I have mentioned, a maximum sentence of life imprisonment and is among the most serious of criminal offences, ranking second only to murder. It is important therefore to recognise, in the course of the sentencing process, the need to hold you accountable for the harm you have done to Lynette and her family, as well as the wider community. I am obliged to endeavour to promote in you a sense of responsibility for, and acknowledgement of, that harm. And I am bound to impose a sanction that will deter you and others from like behaviour. The community expects offending of this sort to result in a sentence that properly recognises these factors.
[ 18] Having said that, the Court is obliged to consider your interests as well. In particular, I must do whatever I can in the circumstances to promote your rehabilitation and your reintegration into the community.
Personal circumstances and pre-sentence report
[ 19] You are of Maori and European descent and in your early years were raised in Pakuranga. You were the middle child of three. Unfortunately your father passed away before you were born and you were brought up by your mother and stepfather. When you were about 13 the family moved to a Pukekohe farm, where you spent your teenage years. Although for a while your progress seems to have been unremarkable, there were evident problems by the time you had reached 15. By then you had come to the attention of Child Youth and Family Services, and had run away from home for a period.
[20] A further difficulty arose from your mother’s involvement with Class A drugs, for which she recently attended the Odyssey House programme. Your stepfather does not apparently use drugs.
[21 ] It appears that your grandfather has been a predominant and beneficial
influence. When you left school without significant qualifications he employed you
as a construction worker and for much of your time on remand awaiting trial, you were bailed to live with him.
During the period leading up to this offending it seems you were living a somewhat aimless life, characterised by cannabis use and an association with a group of friends who likewise seemed to be drifting.
The report writer suggests that alcohol has not played a particularly large part in your life, although it is accepted you were substantially intoxicated during the present offending.
The pre-sentence report indicates that you are remorseful for what occurred. I accept by reason of your youth and perhaps lack of maturity, you have some difficulty in articulating the depth of the remorse you feel. It seems that much of your role can be put down to alcohol and your preparedness to go along with what was suggested by your co-offender. The report suggests that your youth and naivety may lie somewhere near the heart of your decision-making. You have no previous adult convictions.
The starting point
The established approach to sentencing requires the Court to select the lead offence, here plainly the manslaughter charge, to fix a starting point in respect of that offence and then to make adjustments for aggravating and mitigating factors, first relating to the offence itself and then in relation to the offender in order to reach an end sentence. Then the Court must consider what to do about the remaining charges – here the two counts of arson. In this case I consider that these charges are so closely connected to the charge of manslaughter that they properly fall within the overall culpability caught by that charge. There will therefore be concurrent sentences in respect of the arson counts. That means your effective sentence will be the end sentence I impose on the manslaughter count.
Sentencing for manslaughter often causes problems. That is because the circumstances of cases which end in convictions for manslaughter vary widely. At
one end are those cases in which the maximum sentence of life imprisonment is justified; at the other end of the scale there have been cases in which it has been proper to impose a non-custodial sentence. Because cases vary so much, there is no tariff or guideline case to assist the Court.
Among the worst cases was R v Lory [2005] 1 NZLR 462. There the appellant had been acquitted of murder but convicted of six counts of manslaughter following the destruction of a hotel by fire. The appellant had set fire to a sofa inside the hotel. In addition to the six people killed, many patrons were seriously injured. The hotel was destroyed. The appellant had a bad previous record and the offending was considered, in New Zealand terms, uniquely serious. An appeal against a sentence of life imprisonment was dismissed.
That case is useful because it provides an illustration of arson leading to manslaughter at its most serious.
In R v Singh CA317/99, 7 December 1999, the appellant, a first offender, had been responsible for the explosion of a petrol fed fireball within the matrimonial home. His wife died of grievous burns. It seems there was a financial motive. An appeal against an end sentence of eight years imprisonment was dismissed.
At the other end of the scale are cases such as R v Schofield HC Auckland S5/01, 24 April 2001, which I discussed with Mr Kayes earlier. There, the prisoner had, as a Christmas party prank, and while intoxicated, set alight a grass skirt at a Hawaiian themed party. The guests treated it as a practical joke, but the victim died of his burns. The end sentence was two years imprisonment and leave was granted to apply for home detention.
The Crown has helpfully referred to two other decisions. The first is R v Davies HC Hamilton CRI-2007-019-8269, 18 December 2008. The prisoner had been found guilty of manslaughter by a jury. He had pleaded guilty to arson at the commencement of the trial. He had confronted his stepfather in the middle of the night, with respect to the stepfather’s sexual abuse of the prisoner’s three sisters. He rained a number of blows on his stepfather, and one particularly heavy blow to the
chest was shown to have brought about the victim’s death. The prisoner then burned down the house.
The starting point of eight and a half years imprisonment was reduced by three years to reflect the prisoner’s willingness from the outset to plead guilty to a charge of manslaughter, the original charge having been that of murder. Lang J took into account the prisoner’s remorse and the circumstances that had led to the offending. The end sentence was five and a half years imprisonment for manslaughter, with a concurrent sentence of two years imprisonment for the arson.
The other case is R v Clayton & Ors HC Wellington CRI-2006-054-557, 22 June 2007. There the lead offender, Clayton, was convicted of murder. The remaining two were convicted of manslaughter. Each was also convicted of arson. Clayton had developed an obsessive belief that her partner was having affairs with two women. The prisoners hatched a plan to fire bomb the house in which those women lived. All joined in firebombing the house. At the time there were five people in the house. An elderly family member was unable to escape and perished in the fire. Clayton’s co-offenders maintained that they were unaware that the house was occupied, and that Clayton had told them it was vacant.
Of relevance for present purposes are the sentences imposed on the co-offenders who were convicted of manslaughter. Pearce was 22 years old, had expressed remorse, and had been willing to plead guilty to manslaughter. From a starting point of nine years imprisonment the Court imposed an end sentence of seven years imprisonment, along with a concurrent sentence of four years imprisonment on the arson charge.
The remaining offender, Edgerton, became involved at a late stage. He was also young (21 at the time), was remorseful, lacked serious previous convictions, and had been willing to plead guilty to manslaughter. Again, a starting point of eight years imprisonment was selected, and an end sentence of six years imprisonment reached.
Today the Crown accepts that your responsibility was lower than was the case in Davies and Clayton. I accept that there is a significant point of distinction in your case – namely that you were entitled to anticipate that your co-offender would simply do with the sweatshirt what had previously been done with the t shirt, that is, lighting it on the mat at the front door. I am satisfied that what transpired was beyond your actual contemplation, although by encouraging and assisting your co-offender you were aligning yourself with her and thereby taking the risk that something more serious might happen.
Mr Kayes submits the appropriate starting point lies in the range of five to six years imprisonment; Mr Gotlieb argues for four to five years. In my opinion, the appropriate starting point is five years imprisonment; that takes into account the relatively limited role you played
Aggravating and mitigating features
There are really no aggravating features, either of the offending, or in relation to you. But there are several mitigating factors. First there is your relative youth, and coupled with that the absence of any adult convictions. I note there were several Youth Court matters, but it is not appropriate to take those into account. I deduct six months for those two factors combined.
I allow a further six months for the fact that you have spent most of the period on remand on strict bail terms, which have included a 24 hour curfew. That regime lasted for about 10 months. In R v Nepe [2008] NZCA 98, the Court of Appeal confirmed that compliance with a restrictive bail regime, including EM bail, may be taken into account in mitigation of sentence. In my view a 24 hour curfew is largely equivalent to a remand in custody.
Then there is your guilty plea, which did not come at the first available opportunity. Depositions took place on 12 June 2009 and first callover was 5 August 2009. You pleaded guilty on 18 December 2009. In accordance with the scale mandated in R v Hessell [2009] NZCA 450, Mr Kayes suggests a discount of 20%. Mr Gotlieb however advises the Court this morning that there were serious
negotiations over a significant period prior to the entry of your eventual guilty plea. I have insufficient detail to make an arithmetical assessment of that consideration, but deal with the matter simply by allowing a discount of 25%.
[41 ] Finally, I come to the question of police assistance. The Crown
acknowledges that you have agreed to give evidence at the trial of your co-offender, which commences on 12 April 2010, and accepts that you will be a principal Crown witness. Having regard to your central role in what occurred, I am satisfied that you are in a position to provide evidence that lies close to the heart of the case. For that you are entitled to an additional discount.
The relevant principles are set out in R v Hadfield CA337/06, 14 December 2006. There, the Court confirmed that in appropriate cases, a discount should be allowed for promised future assistance. The Court considered that it will be legitimate, where there is cooperation with the authorities, to allow a discount for all mitigating factors of up to 60%. Obviously a figure of that order will be justified only where the proffered assistance is substantial, and where significant discounts are also warranted on other separate grounds.
In my opinion a total discount of 60% is appropriate here. I have already identified the separate mitigating factors. I am satisfied also that your evidence at the forthcoming trial will substantially assist in the due administration of justice.
Accordingly, there will be a total discount of 60% which produces an end sentence of two years imprisonment.
Home detention
In theory that outcome raises the possibility of home detention because a sentence of two years imprisonment amounts to a short term sentence pursuant to the provisions of the Sentencing Act. The home detention report itself raises multiple objections both to the proposed address on technical and geographical grounds, and to the suitability of the present occupants of that address.
This morning Mr Gotlieb has advised the Court that he is engaged in making further detailed inquiries with a view to identifying another address which might be suitable. However, he indicates that an address which he believed to have been suitable may also be in the geographical area to which the police take objection, because it is close to other persons connected to those involved in the trial.
Of course home detention only becomes viable if the Court is satisfied that you are a person upon whom it is appropriate to impose that sentence. I must say I have had some difficulty with that point. There is material in the reports which suggests you are taking some considerable time to come to terms with approaching adulthood, and that you still have much to do before you can be said to be acquiring a degree of maturity.
On the other hand, I am told that, for the most part, your term on curfewed bail with your grandfather was spent satisfactorily, and that the circumstances in which ultimately you surrendered to your bail in January of this year, had as much to do with factors over which you had no control, as they had to do with you.
I have also had regard to the circumstances in which this offending occurred. Your role in these awful events was very limited, and it may be, at least on a moral basis, the greater blame can be laid upon you for running away when the fire had become obvious, rather than for simply standing out on the road as a lookout. I take into account the fact you pleaded guilty when it may be that a viable defence was available to you. I do not say it necessarily was available; you have had the benefit of the advice of one of the most experienced criminal counsel in the country, and the entry of the plea, on any view, can properly be regarded as appropriate.
Nevertheless, all of those issues suggest to me that you are taking an approach to this case which allows room for optimism about your future. Collecting up all those points, I have reached the view that you are someone upon whom a sentence of home detention might properly be imposed. The difficulty the Court has is that presently there is no satisfactory home detention address, and it is impossible therefore to consider imposing such a sentence today.
That predicament is the subject of s 80I of the Sentencing Act 2002 which provides that where the Court comes to the conclusion that a sentence of home detention is appropriate, but there is no suitable address, the Court should instead impose the short term sentence of imprisonment which was the foundation for the availability of home detention, and then grant leave for a further application to be made at a later date when an appropriate address became available.
That is the course I propose to follow. It will be for you and Mr Gotlieb to make an appropriate application to the Court if a suitable address becomes available. It goes without saying of course, that the result is that for a time at least you will serve your sentence in custody, as you have already commenced to do, from January of this year. Even if home detention is ultimately imposed, you will have served some of the sentence I am about to impose in prison, and to that extent it will form part of the overall penalty imposed upon you by the Court.
Sentence
Mr Cartwright, on the count of manslaughter you are sentenced to two years imprisonment. On each of the two counts of arson you are sentenced to 12 months imprisonment to be served concurrently with the manslaughter sentence. The effective sentence is therefore two years imprisonment.
The attention of the authorities is drawn to the desirability of your participation in anger management and drug/alcohol counselling programmes, together with such other courses as may assist you in developing a degree of maturity.
Pursuant to s 80I of the Sentencing Act, I make an order granting you leave to apply to this Court for cancellation of the sentence of imprisonment, and the substitution of a sentence of home detention if a suitable residence becomes available at a later date.
C J Allan J
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