R v Daniels

[2017] NZHC 2805

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2017-019-989 [2017] NZHC 2805

THE QUEEN

v

COLLEEN KATHLEEN DANIELS

Hearing:	15 November 2017
Counsel:	R G Douch for Crown M Sturm for Prisoner
Judgment:	15 November 2017

SENTENCING NOTES OF WHATA J

Solicitors:           Crown Solicitor, Hamilton

R v DANIELS [2017] NZHC 2805 [15 November 2017]

[1]      Ms Daniels, you have pleaded guilty to one charge of arson.  The maximum penalty for arson is 14 years’ imprisonment.

Summary of facts

[2]      The following is based on the summary of facts to which you have pleaded guilty.

[3]      On Thursday 26 January 2017, you and the victim, James Meighan, travelled to Auckland together.   After visiting a friend and doing some shopping, you left Auckland and Mr Meighan asked you to drive so that he could drink beers in the passenger’s seat.  You arrived home at about 2.00 pm.  You had some beers together. Mr Meighan lay down on the couch to watch TV and drifted off to sleep.  While he was sleeping, you went into one of the bedrooms and deliberately set it on fire.  You then locked the back door, which is used as the main entry and exit point for the house, and placed the key inside your pocket. You then returned to the lounge and woke the victim and began yelling, “I’m going to burn the fucking house down”.  Mr Meighan attempted to stomp out a fire that was burning under the dining table and, at that point, noticed more flames and smoke down the hallway.   The fire then increased with severity and Mr Meighan knew he had to get out.  He tried the door handle, to find it was locked and the key missing.  He hurriedly searched for the other key.  You then took the door key from your pocket, unlocked the door and you and the victim went outside.

Personal circumstances

[4]      In terms of your personal circumstances, I have the benefit of a PAC report and psychiatric reports.

[5]      Ms Daniels, you are a 53-year-old single Maori woman of Tuhoi.  You had a brief marriage but have been separated from your husband for about 30 years now. You have four adult children. Prior to your offending, you were living with the victim and had been his caregiver for about eight months.   You have been a sickness beneficiary since 2012.

[6]     You attended mainstream schooling and you describe your academic performance as average.  It does not appear that you have any learning difficulties or that you required special assistance at school.  When employed it has been, for the most part, manual-type work, though, at the age of 43, you completed a certificate in mental health. You have worked as a community support worker in respite homes and hospitals.  But you have been unemployed at least since 2014, when you described having a mental breakdown.

[7]      You are not well.  You have been receiving treatment for hypertension since

2008 and you were diagnosed with a heart murmur in the same year.  You reported a receiving a head injury in 2008 and you also reported suffering seizures from 2008 to

2015.  You suffer from chronic alcohol abuse, with an escalation in alcohol use since

2014.

[8]      You have received 11 convictions, one of which included an assault charge and multiple convictions for dishonesty crimes. These convictions are, however, largely historical.

[9]      In terms of your mental health, you have been diagnosed with an alcohol use disorder and you have a history of panic disorder and agoraphobia from the age of about 50. You have also suffered depressive symptoms in the context of substance use disorder.    One  of  the  reports  also  noted  that  you  have  a  history of  significant developmental disadvantage, including socio-economic deprivation, poor parental control, parental neglect, paternal deprivation, and physical, emotional and sexual abuse.   It is noted that you have longstanding effects of dysregulation, leading to frequent conflict, altercations and physical aggression. You were diagnosed as having a major depressive disorder that is in partial remission.  The problems with alcohol dependence, alcohol abuse, social dysfunction and a mixed personality disorder are also noted.

[10]     You do not, however, have a significant criminal history of violent behaviour and you have expressed significant remorse at what you have done. You also have an excellent compliance record with all community-based sentences that you have been subject to.

[11]     The PAC report, however, recommends imprisonment.

Victim impact statement

[12]     I have read a victim impact statement.  Mr Meighan is 65 years of age.  He notes that he met you through a friend and that you would come to his house to help out then eventually moved in. He says it was good to start off with but then you started to take advantage of him, his house and his car. He says he is not currently in the best of health and he suffers from emphysema.  He notes that on the day of the offending, your “personality changed a bit” and that you “didn’t seem quite right”. He notes that as a result of the fire, his house is completely destroyed.   At first the insurance company was not going to pay, which caused him a great deal of stress.  He says he ended up in hospital and the whole incident is etched into his brain.  He says that the one thing that really upsets him is that he lost his dog in the fire, his best mate for nearly 12 years.  He says that fortunately the insurance company has had a change of heart and is arranging a replacement for his house.

Approach to sentencing

[13]     I now turn to my assessment for sentencing purposes.   I have to take into account the purposes and principles of sentencing outlined in ss 7 and 8 of the Sentencing Act 2002. There is a need to denounce your offending and to hold you accountable for the harm that you have caused. The sentence I will impose is intended to promote a sense of responsibility in you for that harm. There must be deterrence, both against future offending by you and against others who might act similarly. I also have to consider the protection of the public, together with your rehabilitation.

Starting point

[14]     Ms Daniels, I commence my sentencing proper by fixing a starting point for your offending. I have been taken to a range of comparable cases where starting points in the range of four-and-a-half years to six years have been adopted.

[15]     In Ure v R,1 the offender entered a two-storey dwelling, after ensuring no one would be at home, broke into the house and removed items of sentimental value before lighting fires in three locations throughout the address.  A starting point of four-and- a-half years was adopted by the High Court.

[16]     In Meha v R,2  the defendant faced three charges of arson and one charge of attempted arson. The first attempt involved setting fire to a mat outside the back door. The second attempt related to a fire to the hedge at the front of the house.  The third attempt involved setting fire to the front door while the victim was sleeping. The final attempt, being the most serious, the defendant slid a rubbish bin lid filled with petrol under the base weatherboards of the exterior wall of the bedroom.

[17]     The trial judge in that case took a starting point of five years, six months.  On appeal, the Court of Appeal noted there was no tariff for arson, but the facts of this offending, which put the victim at serious risk and that in cases of arson involving homes in which occupants were asleep, properly attracts a starting point of five years and above.

[18]     Finally, the case cited by the Crown, Ruebe v R.3   In that case, the particular arson was motivated by fraud.   A starting point of six years was deemed to be appropriate.

[19]     Against this backdrop, while the Crown submits that a starting point in the range of six-and-a-half years to seven years is appropriate, I consider a starting point of five years is commensurate with the starting points adopted in other cases just mentioned.  I am conscious that there are aggravating features, including, as pointed out by the Crown:

(a)       the level of danger to the victim;

(b)      the level of loss, both material and emotional; and

1      Ure v R [2014] NZHC 948.

2      Meha v R [2014] NZCA 307.

3      Ruebe v R [2015] NZHC 2553.

(c)       the impact on the victim.

[20]     But  I am not satisfied beyond reasonable that there was a high level of premeditation. Plainly there was some forethought. But equally there is also a suggestion by the victim that you were not yourself – that you didn’t seem right. This suggests to me that rather acting as part of some long-term plan, there is a least a reasonable possibility that you acted on impulse and/or in an addled state. This finding aligns with your reported mental health issues.   Further, a curious feature in this case is that you stayed with the victim and then assisted the victim in leaving the premises. While there was an element obviously of self-preservation in what you were doing, this is not the most serious kind of case where the arson victim is left to suffer the full consequences of the arson.

[21]     Accordingly, as noted, I therefore adopt a starting point of five years.

[22]     In terms of mitigating factors, you are entitled to a discount for your genuine remorse and for your offer to engage in restorative justice.  I also acknowledge that you have had a very difficult upbringing, which in a broad sense is likely to have contributed to the offending, especially when viewed in light of your fragile mental health. Furthermore, your mental health disorders, including depression will likely mean that a lengthy term of imprisonment is going to be difficult for you.

[23]     While, as the Crown notes, this does not excuse your offending, they are mitigating circumstances, both to the offending and to you personally.  I note in this regard that Brewer J in Ruebe v R allowed a discount of 18 per cent to take into account similar factors.  I think a similar combined discount of 18 per cent in the current case, with the separate discount for your guilty plea of 15 per cent, is appropriate.

[24]     On that basis, I sentence you to three years four months from a starting point of five years and a total discount of 33 per cent.

[25]     I reject the Crown’s request for a minimum sentence. While serious offending, there is nothing to suggest to me that you have a propensity or present an ongoing risk to the community that might warrant a minimum sentence. I take into account the fact

that you are very remorseful. I also consider that your offending is linked, at least in part, to her mental health, which is something that is capable of being addressed and managed.

[26]     On that basis, Ms Daniels, please stand. On one charge of arson, I sentence you to three years, four months’ imprisonment. You may stand down, Ms Daniels.