R v Coleman HC Wanganui CRI 2009-083-2069

[2010] NZHC 208

IN THE HIGH COURT OF NEW ZEALAND

WANGANUI REGISTRY

CRI-2009-083-002069

THE QUEEN

Appellant

v

CHARLENE ANN COLEMAN

Respondent

Hearing:         23 February 2010 (Heard at Wellington)

Counsel:         L Rowe for Crown

R B Crowley for Respondent

Judgment:      2 March 2010 at 3.15pm

In  accordance  with  r 11.5  I  direct  the  Registrar  to  endorse  this  judgment  with  a delivery time of 3.15pm on the 2nd  day of March 2010.

RESERVED JUDGMENT OF MACKENZIE J

[1]      This is a Crown appeal against  a  sentence  of  10  months  imprisonment

imposed on the respondent on one count of arson, one count of attempted arson and one count of driving with excess blood alcohol (third or subsequent offence).

[2]      The facts relating to the arson  and  attempted  arson  counts  were  that  on

19 August 2009 the respondent went to   a   residential   address   in   which   the

R V COLEMAN HC WANG CRI-2009-083-002069  2 March 2010

complainant, the complainant’s two daughters aged eight and two, and the complainant’s partner (the respondent’s  ex-partner) were asleep. She   placed cardboard cartons under  a vehicle in an open  garage underneath the house and set fire to the cartons.   She also put some cardboard cartons under a vehicle parked on the front lawn and set fire to those.  She then looked back at the garage and saw that the fire had taken hold of the vehicle and was beginning to take hold of the building. She alerted the neighbours to the fire and fled the scene. The neighbours woke the complainant and other occupants who escaped the address unharmed. The car in the garage  was  completely  destroyed and there was substantial damage to the  garage area  underneath  the  house. The car on the front lawn suffered only superficial damage. The respondent admitted lighting the fires.  In explanation she said that she was upset with her ex-partner and lit the fires on the spur of the moment to get back at him and the complainant for being in a relationship.  Damage caused amounted to approximately $45,500.

[3]      The excess blood alcohol count related to an incident on 30 July 2009 when Police were called as a result of erratic driving.   She was apprehended at her home sitting  in  her  vehicle  with  the  keys  still  in  the  ignition. A  blood  test  showed  a proportion of 122 milligrams of alcohol per 100 millilitres of blood.   This was her fourth such offence.

[4]      The respondent first appeared on  the  arson  and  attempted  arson  charge  on

20 August 2009. She subsequently appeared on the excess blood alcohol count on

15 September 2009.She sought  a  sentence  indication,  which  was  dealt  with  on

15 October 2009.    The  Judge  indicated  a  view  that  a  sentence  of  10  months imprisonment was likely.  The respondent subsequently entered guilty pleas and was sentenced on 22 October 2009.

[5]      In sentencing, Judge Radford considered the need to deter the respondent and others and denounce her behaviour, arson being an easy crime to commit but with potentially horrific consequences. He described the offending as very serious with a potential to cause significant harm to the occupants of the house. He regarded the respondent’s behaviour in coming to her  senses  and alerting the  neighbours to the danger she had caused as a mitigating factor, which he took into account in arriving

at a starting point of 17 months imprisonment. He noted that the respondent’s list of previous  convictions  was  not  long but  did  involve  the  use  of  alcohol.  He  did  not consider them an aggravating factor and gave a three month discount for:

The fact that this is the first time that you have been in this kind of trouble. By that I do not mean the first time you have committed arson but the first time for a long long time indeed that you have committed an offence other than drink driving.

[6]      He  then  allowed  a  30  per  cent  discount  for  her  guilty  plea,  which  he quantified at four months, resulting in a final sentence of 10 months imprisonment. The  respondent  was  also  disqualified  from  driving  for  two  years  for  the  EBA offence.  The Judge considered that home detention was not suitable.  He found that the purposes of the Sentencing Act, particularly deterrence,  could not be met by a sentence  short  of  imprisonment  and  that,  as  canvassed  in  the  stand  down  pre- sentence report which he had obtained, the respondent was not considered a suitable candidate  for  home  detention.   Reparation  was  not  ordered  as  the  respondent  was unable to meet any significant order for reparation.

[7]      As this sentence was imposed following a guilty plea entered after a sentence indication, the respondent must, in accordance  with  Sipa and Edwards  v R [2006] NZSC 52 be given an opportunity to indicate whether the respondent would wish to reconsider the guilty plea if the appeal were allowed. Counsel for the respondent indicates that the respondent does not seek to revisit the plea if the appeal were to be allowed.

[8]      The principles to be applied in considering an appeal against sentence by the Crown  are  well-established  and  not  in  issue. They  are  as  set  out  in  the  Court  of Appeal decision in R v Donaldson (1997) 14 CRNZ 537. That case was concerned with an appeal under s 383(2) of the Crimes Act 1961. A similar approach is to be applied   by  this   Court   in   considering  appeals   under   s 115A   of   the   Summary Proceedings Act 1957:  Police v Tapsell HC Dunedin CRI-2004-412-15, 25 August 2004.  The essential points are:

a)        the Court is able to increase a sentence where it appears on the facts and circumstances of the case that it  is  clear  that  a  sentence  is

manifestly inadequate or the Crown is able to point to some error in principle on which the trial Judge acted;

b)considerations  which  justify  an  increase  in  sentence  must  be  more compelling than those which would justify a reduction, and the Court will be more reluctant to increase than it is to reduce a sentence;

c)        a sentence will only be increased in clear-cut cases;

d)the  Court  must  be  careful  that  it  does  not  lightly  override  the discretion  of  the  sentencing  Judge  where  in  appropriate  cases  a rehabilitative sentence is considered beneficial;

e)        even  if  the  Court  considers  a  sentence  is  manifestly  inadequate  or wrong in principle, it will still be reluctant to interfere if this would cause  injustice  to  the  offender,  and  in  particular  will  be  reluctant  to substitute   a   sentence   of   imprisonment   for   a   community-based sentence; and

f)        any  substituted  sentence  must  be  at  the  lower  end  of  the  range available to the sentencing Judge.

[9]      Mr Rowe for the appellant submits that the sentence was manifestly inadequate. He acknowledges that  there  is  no  tariff  case  for  arson  and  that  the Courts  have  repeatedly  noted  that  each  case  will  depend  on  its  own  facts,  with sentences varying from substantial prison terms to non-custodial sentences with an emphasis on rehabilitation: R v Z CA138/00, 27 June 2000. While acknowledging that, counsel submits that typically sentences fall into a range of two to three years imprisonment and that sentences ranging from 18 months to four years imprisonment have been imposed and upheld. Counsel notes that at sentencing the Crown relied on a number of authorities considering retributive acts of arson and submitted that a starting point sentencing range of 34 to 38 months imprisonment was warranted.

[10]     In R v Wonnacott [2009] NZCA 414, the offender had set fire to a van parked near her ex-partner’s house. She waited until she thought the occupants of the house had left before doing so. The fire spread to the exterior of the house and the van was completely destroyed. A victim asleep inside the house at the time escaped unharmed. The offender had no previous convictions, and had a history of abusive relationships, depression and alcohol abuse. A starting point of two years four months was reduced by eight months for mitigating factors, including previous good character and a guilty plea. The final sentence was of six months home detention and reparation of some $27,000. On appeal, the reparation order was quashed on the basis of the offender’s means, and sent back to the District Court for re-assessment.

[11]     In  R  v  Mohi  CA37/07,  19  April  2007,  the  offender  set  alight  two  vehicles belonging to his ex-employer with whom he had had a difference.  One fire did not take  hold,  but  the  other  vehicle  was  completely  destroyed. There  was  clear pre-meditation   but   some   degree   of   remorse. The   Court   considered   that   the sentencing Judge’s imputed starting point of 34 months was excessive and adopted a starting  point  of  30  months. That  was  reduced  by  six  months  in  recognition  of reparation, resulting in a final term of 24 months.  Leave to apply for home detention was refused.

[12]     In Lefebvre v Police HC Christchurch CRI-2008-009-002907, 10 July 2008, the offender had formed a relationship with the complainant. An argument developed while the offender was visiting the complainant, who asked her to leave. She took a petrol container from her car, filled it at a petrol station and used that to

set  fire  to  the  complainant’s  mobile  home. Before  lighting  the  fire,  she  removed garden hoses. She stated all  this  was  done  in  anger  and  revenge. The  fire completely destroyed the mobile home and the complainant’s car, with total damage of  around  $48,000. A  three  year  starting  point  was  reduced  to  two  years  three months for the guilty plea.  That was upheld on appeal.

[13]     In R v Delegat CA406/91, 5 March 1992,  the  offender  set  fire  to  his

ex-girlfriend’s house out of revenge for the fact that she was in a new relationship.

He suspected or knew that no one was in the house at the time.  A starting point (and end sentence) of three and a half years was taken, but was reduced on appeal to two

and a half years under the totality principle, as the arson sentence was cumulative on

an existing two year sentence.

[14]     In R v Protos CA259/04, 19 October 2004, the offender set fire to a vehicle parked close to a house in which people were sleeping. The vehicle was completely destroyed and the house damaged. The sentencing Judge adopted a four year starting point reduced to three years for mitigating factors,  and  imposed  reparation  of

$13,200.   On appeal, the Court found that the combination of the prison term with the reparation was excessive and the sentence was reduced to two years with leave to apply for home detention.

[15]     In R v Cowie  HC  Christchurch  CRI-2006-409-198,  3  November  2006,  the offender was subject to a protection order obtained by his former partner. One night

he purchased a small quantity of petrol and poured that over a vehicle on the front lawn of his former partner’s home.  He unsuccessfully attempted to light the car and

no damage was done. He was intercepted by Police on his way back to the address, having purchased further petrol to try again. A starting point of three years taken by the sentencing Judge was reduced on appeal to two years for attempted arson.  Leave to apply for home detention was denied.

[16]     In the present case,  the  sentencing   Judge   adopted   a   starting  point   of

17 months. He took into account the fact that this was serious offending and had the potential to cause significant harm, if not death, to people living in the house. He took into account as a mitigating factor that the respondent came to her senses part way through what happened and made efforts to alert others as to the danger. He noted that that could be treated as a mitigating factor and said that it did not matter,

in his view, where it was taken  into  account,  as  long  as  it  was.  He  took  it  into account in assessing the starting point.  The well-established approach to sentencing

is to fix a starting point which takes into account the features of the offending, both aggravating and mitigating.  Once a starting point has been determined on that basis,

it is then necessary to determine whether the aggravating and mitigating factors relating to the offender’s particular personal circumstances require that the actual sentence should be higher or lower than the starting point. Here, the  respondent having come to her senses and raised the alarm  might,  on  one  view,  be  seen  as  a

feature of the offending itself.  However, as the change of heart occurred after all the elements  of  the  offence  had  been  committed,  it  might  be  regarded  as  a  very early indication  of  remorse,  and  so  treated  as  a  mitigating  personal  circumstance. The Judge chose to view it as the former. The fact that it might also be viewed as the latter is a factor to be borne in mind when comparing the starting point of 17 months with the  starting  point  in  the  comparable  cases. If that factor is regarded as a mitigating personal circumstance, the implicit starting point, having regard only to the circumstances of the offending, is higher than 17 months.

[17]     The Crown’s submission is that an appropriate starting point on the basis of the authorities would have been in the range of  32 to 36 months. I consider that, having regard to the fact that this is a Crown appeal, a starting point at a lower level than that would be appropriate. Wonnacott is  perhaps  the most similar case and there the starting point was 30 months. That was also the appropriate starting point

in Mohi. The starting point of three and a half years found to be appropriate in Delegat  was not, because of the totality principle, in fact applied. In Cowie, the starting point of three years was reduced to two years. The three year starting point in Lefebvre needs to be seen in light of two aggravating features not present here, namely use of an accelerant and removal of the hoses.

[18]     Taking  into  account  the  comparable  cases,  and  bearing  in  mind  that  the starting point reflected the respondent’s immediate change of heart, I do not consider that the starting point of 17 months is below the available range to an extent which requires intervention on a Crown appeal.

[19]     The  ultimate  concern  on  any appeal  against  sentence  must  be  with  the  end point  rather  than  the  starting  point.   The  potential  difference  between  the  starting point  and  the  end  sentence  is  quite  graphically  illustrated  by  Wonnacott,  where  a starting  point  of  28  months  resulted  in  an  end  sentence  of  six  months  home detention.

[20]     This is not a case where home detention was appropriate. That does not, however, preclude the sentencing Judge from adopting a merciful approach if, in the exercise of his discretion, he considered  such  an  approach  appropriate. On  this

appeal, full recognition must be paid to the discretion available to the sentencing Judge. The starting point which the Judge adopted, and the two discounts which he allowed (in particular the three month discount for her previous record) may be seen

as generous to  the  respondent. Mr Crowley  submits  that  the  sentence  indicates  a merciful approach by the sentencing Judge.   I consider that is an apt description.   It would not be right for this Court, on a Crown appeal, to negate that approach, which was open to the Judge in the circumstances. I do not consider that the sentencing discretion has been exercised on a basis which requires intervention by this Court.

[21]     The second aspect of the sentence was the EBA offending. The Judge imposed a concurrent sentence. That was appropriate  if  the  offences  were  of  a similar kind and a connected series of offences. The only factor which could be seen

as  connecting  was  the  fact  that  all  offences  reflected  the  respondent’s  alcohol problems.  Even if that were regarded as making the offences connected, it cannot be said that they were of a similar kind.  On that basis, cumulative sentences might have been  imposed. However, the  guidance  in  s 84  of  the  Sentencing Act  2002 is just that: guidance, not a rule of strict application. It describes the  circumstances  in which sentences are “generally appropriate”. Second, the guidance must reflect the totality principle in s 85.  For these reasons, I consider that the discretion available to the sentencing Judge must be taken  to  extend  to  the  imposition  of  concurrent

sentences, and this Court should not interfere with that discretion.

[22]     For these reasons, the appeal is dismissed.

“A D MacKenzie J”

Solicitors:

Crown Solicitor, Wanganui for appellant

Counsel:

R B Crowley, Wanganui for respondent