R v Hayball

[2013] NZHC 2543

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI 2012-042-1697 [2013] NZHC 2543

THE QUEEN

v

COLIN GEOFFREY HAYBALL

Hearing:	30 September 2013
Counsel:	J M Webber for Crown T Bamford for Accused
Sentence:	30 September 2013

SENTENCE OF SIMON FRANCE J

[1]      Mr Hayball you were convicted, following a jury trial, of five counts of arson. You are also to be sentenced on firearm and possession of cannabis charges. You were unrepresented at trial but I record I am satisfied of the matters in s 30 of the Sentencing Act.  I also note for the record that Mr Bamford was appointed last week as amicus to assist you concerning sentencing and has presented submissions today.

Facts

[2]      Fires were lit in a forest area 40 km south west of Nelson.  The fires occurred on three separate days; being 4 February, 10 March and 6 April 2012.  In total there

were five fire scenes and 36 fires were lit or intended to be lit.

R v HAYBALL [2013] NZHC 2543 [30 September 2013]

[3]      Similar devices were used on each occasion.  Following the first set of fires a member of the public discovered one of the devices which had not been destroyed. This enabled investigators to build up a picture of what to look for and where. Eventually by the time of the third outburst of fires many devices were located before they could ignite, or set fire to foliage.

[4]      The actual damage  caused  was  thankfully quite limited.    It  had  been  a dampish late summer, and the conditions on the particular days were not conducive to fire spreading. The total cost of damage and fire fighting was $131,000.

[5]      A troubling aspect of the case was the manner in which the fires were set. The  devices  were  able  to  be  timed  in  a  crude  manner. Whilst  not  capable  of precision, the person setting the fires, you Mr Hayball, would have been aware that some devices would ignite several hours after other devices.

[6]      Against that background, two facts emerged which caused great concern at the time, amongst those who were fighting these fires:

(a)      first, the devices were set either side of access ways, so if all the fires successfully ignited, the likelihood was that the access way would be rendered unusable;

(b)second, the earlier igniting fires were set at the far end of one way roads. The later igniting devices were set towards the entrances.

[7]       The risks arising from this pattern are obvious.  This is a forest area, a key economic driver of the community and also a constant source of danger should fire occur.   Consequently there is always high alert, and fire scenes are attended with some speed.  Had on any occasion all the fires succeeded, the fire fighters attending the first scenes would inevitably have been cut off by the later fires.

[8]      There was evidence at trial of this reality in two different ways.   One was when investigators were examining a scene only for other devices to erupt nearby. The second was from members of the public, young men who saw smoke and went

to investigate. They came upon one relatively small fire, went past it and around the corner discovered a much bigger fire, one they described as raging.  They testified how quickly it became apparent to them the danger they were in if they became trapped on the one way road with fires ahead and behind and they quickly got out of there.

[9]      Investigators said at the trial they considered this was deliberate.1   This was not an afterthought on their part, but a concern they felt at the time as they were experiencing and investigating what was happening.  The victim impact statements repeat  these  assertions  and  highlight  that  this  pattern  made  the  firefighters particularly anxious at the time.

[10]     I have reflected at some length about this.    On  balance, and  it may be generous to you, I am not sure it was your intention to trap these people.   It may have been, but I am not sure.  However, it was a very real risk created, one that you were  at  best  indifferent to  and  it  is  in  my view an  aggravating feature  of  the offending.  Over and above the normal dangers to people that come with this task of fighting fires, you created serious extra risks by the way you set these.  The factors I have mentioned were both known to you – you deliberately put the fires on both sides of the road. You knew full well of the timeframes for ignition.

[11]     To summarise, therefore:

(a)       on three separate days you lit or tried to light 36 fires;

(b)the effect had you succeeded would have been massive damage to the forest, and would have caused the usual dangers to firefighters, members of the public and livestock inherent in such activity;

(c)      the pattern in which you lit the fires was such as to create a specific very serious danger to firefighters by risking trapping them at the end

of a one way road.

1            NOE 161/5 and 167/4. See also 178/15.

Victim impact statements

[12]     I have received victim impact statements from the owners of the blocks of forestry.  These range from large corporate entities to the smaller investment owner. Each states the dangers inherent in such activity, and the real financial risks to which forest fires expose them.   The largest enterprise estimates that had these fires succeeded, the cost could have been as much as $20 million.  I realise of course that is an estimate, but it highlights the potential impact of this offending.

[13]     I have also heard from the chief rural fire fighter who speaks on behalf of all those who worked on these fires.  He includes quotes from many and it is clear the potential risk your fires exposed them to affected many quite deeply.

[14]     It is I think right for me to express gratitude on behalf of the community for the efforts and courage of those who carried out this work and who did so on this occasion.  I was thoroughly impressed at the trial at the professionalism of the many firefighters who testified, and at the investigative and analytical skills that saw the investigators work out what was happening with a consequence that greater damage was prevented and threats to safety minimized.

Offender

[15]     Mr Hayball you are 72 years old.  You were born in England and came to New Zealand in 1999.  You have three old convictions in relation to firearms.  You are in good health.  In addition to the arsons you are being sentenced for today, you have been sentenced for possession of cannabis, 1,364 grams.  You accept you are a long time user and you say you grow your own supply.

[16]    You are also being sentenced for illegal possession of guns.  There was a Remington rifle with a bullet loaded in it and two semi-automatic style firearms together with more than 16,000 rounds of ammunition.  You lost your licence many years ago as a result of the earlier convictions.  You say the guns were for hunting and hadn’t been used for some time but it was illegal for you to have them.  Given what you have been convicted of in relation to the arson, your possession of guns and this amount of ammunition is a concern.

[17]     You deny your offending, and it appears that you consider yourself the victim of police misconduct and lies.  You raised some of these matters at trial. Concerning your denials of offending, I observe for the reasons of determining the need for public safety, that I consider the case against you was overwhelming.  I have no idea why you did this. You are obviously a well read intelligent man; you obviously have theories about government and corporate activity, some of which you shared at trial. In the end, as I say, why you did this is a mystery to me, but do it you undoubtedly did.

[18]     The  pre-sentence  report  says  you  are  a  low  risk.     And  Mr Bamford emphasises that aspect on your behalf.  My concern is that the lack of any motive means one can’t really be sure about that.

Starting point

[19]     In terms of starting point the Crown has identified five factors from a case called Gillespie which are relevant to sentencing – the degree of pre-meditation, the damage caused, the endangerment caused, the offender’s motive and the offender’s mental state.

[20]     Dealing with the latter two, there is no issue about your mental state and as I

say why you did this is unknown.

[21]    The offending was totally pre-meditated.  You obtained the inflammable materials you used, you modified the igniters, you did this on three separate days and that is a very important factor – you knew the first time you hadn’t succeeded and you tried again and then again.   The third time you tried a different fuel.   The damage  caused  was  not  great;  the  cost  of  dealing  with  the  fires  was  around

$100,000; the potential damage was huge.   I have commented already on the endangerment and it troubles me the risk that the pattern you used exposed these mens to.

[22]     I  have  looked  at  the  other  cases.    I  consider  that  what  makes  this  a particularly serious case are these factors:

(a)       repeated offending on three separate days over two months; (b)         36 fires;

(c)      a high level of pre-meditation involving preparing 36 devices, setting them and ultimately changing the mix.  I have avoided detailing the devices and suppressed any description of them but each required considerable effort;

(d)there was comparatively moderate actual damage but reasonably high suppression costs;

(e)       there was great potential for damage given you were targeting forests;

and

(f)       a serious specific risk to the safety of firefighters due to your use of accelerant and the pattern in which you set them, meaning a real risk that firefighters would be trapped.

[23]     The Crown suggests a starting point of seven years.  That is consistent with the starting point in several other cases in the sentencing remarks or note those cases.2     On your behalf Mr Bamford highlights the relatively low level of actual damage and the lesser dangers in a rural setting compared to an urban setting where there are inevitably a lot more people around.   He submits that the appropriate starting point should be lower than the seven years suggested by the Crown.

[24]     Given the serious factors that I have identified I consider seven years to be the lowest available figure.  I have indeed considered whether deterrence requires a higher figure but in the end consider that the lack of actual damage makes this figure

appropriate.

2      R  v  Rikiriki [2009] NZCA 217; R v  Webb  [2013] NZHC 746; R v  Lucas-Edmonds [2009]

3 NZLR 493 (CA).

lead sentence of seven years I might not have added more but there there were a loaded  gun,  and  then  two  semi-automatic military  style  firearms  together  with

16,000 rounds of ammunition.

[26]     You have advised me today that you bought those guns and the ammunition as a job lot for a good price, the point of that being ammunition wasn’t separate sought but came with the guns. And that you haven’t used them for two years.

[27]     Notwithstanding that, their presence cannot go unremarked.  Your guilty plea deserves some credit albeit that, given the situation in which they were found, you had little option.  I think more would have been normally required but given this is being added on to a lengthy sentence for a man of your age, I intend to add six months.

[28]     There is no mitigation.   You have some previous offences some time ago. You are a bit of a recluse so haven’t contributed to the community.  I recognize you are 72 years old but you are fit and able, have lived perfectly well and happily on your own; you have maintained a large tract of land and your age does not seem to me to be a reason to reduce the sentence.

Reparation

[29]     Turning to reparation. Reparation is sought. You say you have no capacity to pay. At the time of your arrest $30,000 in cash was found but you advised today that that has since been disbursed in repayment of debts.

[30]     At trial there was evidence that you owned a large block of land but that this was  put in  trust.   Your  fellow trustee testified; the trial seemed to be the first occasion that he was aware the trust owned the land.  It all seemed very odd to say the least.

the  circumstances there  is  no  capacity  otherwise  for  you  to  meet  an  order  of reparation and I do not agree in principle with making orders where there is, at this point, no realistic chance of recovering it.

[32]     Accordingly, I decline to make a reparation order although I record that the sum sought which I would have made had there was any capacity to meet it was

$131,320.  Whether the property in trust is a potential source or not will have to be left to any civil remedies that are sought.

[33]     I turn now Mr Hayball to the formal sentencing:

(a)	on the five counts of arson you are sentenced to concurrent terms of seven years.  I do not impose any minimum period of imprisonment.
None was sought but I did think about it.  However, it will be a matter
for the Parole Board to decide your ongoing risk.   They will have access to advice that I presently lack;
(b)	on the firearms charges I sentence you to six months’ imprisonment on  each.     Those  sentences  are  concurrent  with  each  other  but cumulative on the arson sentences;
(c)	on the cannabis charge I convict you but otherwise discharge you
without penalty;
(d)	I make no reparation order.  I make orders for the destruction of the
firearms and ammunition that was seized as well as the cannabis.
[34]	The	outcome of this is a total final sentence of seven years and six months’

imprisonment.

Simon France J