R v Hooper
[2021] NZHC 62
•3 February 2021
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE
CRI-2020-016-1093
[2021] NZHC 62
THE QUEEN v
MANDY GENESIS YVETTE HOOPER
Hearing: 3 February 2021 Appearances:
S B Manning for the Crown
V L Thorpe/A W Clarke for the Defendant
Judgment:
3 February 2021
SENTENCING OF COOKE J
[1] Ms Hooper you are in Court today to be sentenced following your guilty plea to the charge of arson under s 267(1)(a) of the Crimes Act 1961. That guilty plea follows the withdrawal of the additional charge of attempted murder which you originally faced.
[2]In addressing what sentence should be imposed I take the following steps:
(a)I will first describe the facts of your offending;
(b)I will then assess what sentence of imprisonment would usually be imposed for that offending with reference to other similar cases — that is an assessment of what the starting point would be;
R v HOOPER [2021] NZHC 62 [3 February 2021]
(c)I will then consider whether there should be any upward or downward adjustment to that starting point because of factors personal to you;
(d)I will then impose a discount to recognise your guilty plea, and assess what that discount should be; and
(e)I will then address whether the sentence of imprisonment should be converted to a sentence of home detention.
[3] I can say to you from the outset that I agree with the submissions that have been made by the Crown and your counsel that the sentence I should impose should be one of home detention. The final step that I will take will be to set the period of home detention taking into account the time you have already spent in custody, and on EM bail, and also what conditions concerning rehabilitation programmes should be involved and for how long.
Facts of the offending
[4] So the first step is to describe the facts of your offending. The events occurred on 22 June 2020 at your father’s home in Tologa Bay. You had been living with your father for about nine months at that time.
[5] The victim was your uncle, and he was also living at the property at the time in his tent. You did not like that. The formal advice I have received in the reports record that you and he have some history, and that you indicate you have reason to resent him. You had told him to leave your father’s address on numerous occasions as you perceived that he was not paying his way. That was often when you were aggressive and intoxicated.
[6] At 6.30 am on 22 June your uncle was alone asleep in his tent. You went out to his tent taking a full container of petrol from a shed with you. You called out to see whether he was inside, and when he replied that he was you told him “this is your final warning, pack your swag and get out of here or I will kill you”. He yelled back at you that you were drunk and that you should leave. He told you to fuck off on about six occasions. You responded by yelling that he was on your land.
[7] You then poured petrol on his tent and lit it with a cigarette lighter. The tent became fully engulfed in flames. He managed to get some clothes and get out of the tent. The jacket he was wearing was scorched in the process. You ran off. All of your uncle’s possessions, including the tent were destroyed.
[8] In his victim impact statement your uncle says that he was terrified and that he believes he only survived because he kept calm when reacting to what you had done.
Starting point
[9] The first step in assessing the appropriate sentence is to consider the starting point for your sentence in light of the facts of the offending itself. The maximum penalty for the charge of arson you face is 14 years’ imprisonment.
[10] The Court of Appeal has said in a number of cases that there is no standard tariff for arson offending because the circumstances of cases differ so widely.1 This is demonstrated by the present case. Arson can often be regarded as serious offending because of the potential for a fire to cause harm to many people, and to damage a significant amount of property. The reason why the person engages in arson can also be varied.
[11] Both the Crown and your counsel have referred to a number of cases in order to provide me with some guidance. Your case is one of those where the arson does not really risk widespread harm to people and property, or the community at large, but rather can be described as a targeted act directed at a particular person. There are arson cases involving such targeted acts. But your case is a little different from even those cases as the property that you set fire to was a tent, rather than a house or other building. The value of the property involved, which is usually a relevant consideration, was comparatively low although from your uncle’s point of view it was very high because the tent contained his worldly possessions, and it was where he was living.
1 See, for example, Ollerenshaw v R [2010] NZCA 32 at [17], R v Z, (CA 138/00), 27 June 2000 at [6].
[12] To the extent that the authorities provide guidance I focus on those which involved such targeted acts. In R v Skeens the Court of Appeal upheld a sentence of three and a half years’ imprisonment without specifying the starting point where the defendant pleaded guilty to setting fire to his father’s house in the early morning after they had earlier argued.2 The facts of that case can be seen as very similar, including because the defendant also pleaded guilty to a charge of threatening to kill, a charge which you do not face. That case can be compared with other cases of targeted actions regarded as less serious. For example in Hazeldine v The New Zealand Police the defendant set fire to the home in which he lived with his partner and children after having an argument, but only after they had gone outside first, so it is less serious than Skeens and your case given the reduced risk of harm to them. Here the High Court regarded a starting point of two years and four months at the top of the available range.3
[13]Amongst the relevant factors in the present case are the following:
(a)Your offending was premeditated. You went to get the petrol first then took it out to the tent, and then set fire to it when you established that he was there and would not leave.
(b)Secondly there was a very real risk to him arising from your actions, and the charges that you could have faced as a consequence could have been much more serious.
[14] I accept however, as I already have explained, the value of the property affected was much lower than in many arson cases and there was no risk to people other than your uncle. I also accept that whilst your actions were premediated, there was a degree of impulsiveness arising out of your mental state and the history of your relationship with your uncle.
[15] The Crown suggest a starting point of three years’ imprisonment. Your counsel suggests a starting point of two and a half years to two years nine months. I see your
2 R v Skeens [2002] NZCA 15.
3 Hazeldine v The New Zealand Police [2016] NZHC 1132.
case as involving similar seriousness as R v Skeens. In my view a starting point of three years’ imprisonment is appropriate. Anything lower than that would fail to recognise the real danger that you placed the victim of your offending in. It is very fortunate that he managed to escape without any serious injury.
Aggravating and mitigating circumstances
[16] The next step is to consider circumstances that are personal to you. That is circumstances that may suggest that the starting point should be increased, or decreased for personal reasons.
[17] The only factor that might be relevant to suggest that the sentence should be increased is that you have some previous convictions including against the same victim. They include convictions for wilful damage and assault. But the Crown accepts that there should be no increase because of this prior offending, and I agree. I see your prior convictions as being associated with your general struggles in life, which is the matter I next address. I am also of the view that the repetition of offending against your uncle is not best addressed by increasing a sentence, but by an approach that focuses on your rehabilitation.
[18] In terms of personal circumstances that suggest there should be a discount, I have the advantage of having psychiatric reports from Dr John Jacques and Dr Kyros Karayiannis. These reports were obtained in order to assess whether you were fit to stand trial. Whilst they assessed that you were, and the Court reached that conclusion, their careful assessment of your circumstances are relevant to understand what has led you to the offending.
[19] They both describe the struggles that you have had with your mental health since adolescence involving a pervasive and persistent pattern of emotional instability, abnormal style of thinking, impaired interpersonal functioning and poor adaptive behaviour. Both indicate that you present with features that are consistent with you having borderline personality disorder, and also fit the criteria for alcohol dependence disorder.
[20] In E (CA 689/10) v R the Court of Appeal has confirmed that such mental disorders can moderate the culpability involved in particular offending.4 It is always difficult to know how to assess such factors in individual cases, but I accept that the struggles you have had with your mental health show why your actions were as much a product of the difficulty you have with forming appropriate judgments and knowing how to behave, particularly when interacting with your uncle. They can be seen to make you less culpable for the actions you engaged in compared with persons who do not face such struggles.
[21] The Crown acknowledges that these difficulties played some role in contributing to the offending and that some discount would be appropriate. Your counsel suggests a discount of between 15 and 20 per cent.
[22] I accept a discount from the starting point of around 15 per cent is appropriate in the circumstances of your case.
Guilty plea discount
[23]The next step is to take into account a discount to reflect your guilty plea.
[24] The Crown and your counsel are agreed that there should be a 25 per cent discount for your guilty plea. Whilst the plea comes later in the process, it follows promptly from the withdrawal of the charge of attempted murder and I agree with that assessment.
[25] That means that you get a discount of 25 per cent for your guilty plea, and approximately 15 per cent for your personal circumstances, being a total of approximately 40 per cent from the starting point of three years’ imprisonment. In my view that would involve an end sentence of imprisonment of one year ten months’ imprisonment.
4 E (CA 689/10) v R [2010] NZCA 13 at [68].
Home detention
[26] The next step involves assessing whether that sentence should be commuted to home detention under s 80A of the Sentencing Act.
[27] Again there is no dispute between the Crown and your counsel that home detention is appropriate in the current circumstances, and I agree. That is the case not only because of your personal struggles, but because of the overriding importance of your rehabilitation. You have demonstrated through your time on EM bail at your mother’s address that you are able to meet the requirements of a sentence of home detention, and that sentence will also provide the best environment to facilitate your rehabilitation. Your mother and your mother’s partner are very supportive of you, and have been involved in your period on EM bail. That address remains an appropriate address for serving a sentence of home detention.
[28] Particular programmes to assist in your rehabilitation are recommended to accompany that sentence. They are the Te Ao Mārama facilitated by Kōkiri Marae. There is also to be a referral to Te Paepae Arahi to deal with drug and alcohol use.
[29] I need to assess the period of home detention, and in particular to make some adjustments to reflect periods of time that you have already spent in custody and at this address as part of EM bail. I also need to determine the period that the special conditions concerning rehabilitation programmes will apply.
[30] I take as a starting point a period of home detention of 11 months. You have spent five months and three weeks on EM bail, and in addition you have had a total of approximately three months in custody. Different approaches have been applied by the Court to the question of the credit to be applied for pre-sentence detention and periods on EM bail.5 In the circumstances of this case it seems to me that the question is directly associated to whether home detention should be directed under s 80A at all, and also the period the rehabilitation conditions will apply. I am guided not by a precise mathematical calculation of how to assess the ultimate period of home detention, but by the sentencing objectives, and particularly the needs of rehabilitation.
5 See discussion in Slade v New Zealand Police [2020] NZHC 3396 at [26]–[33].
There needs to be a meaningful period of home detention to apply in association with the recommended rehabilitation programmes. So although the period of home detention could have been a little lower given the previous periods in custody and on EM bail it seems to me that the ultimate period of home detention should be five months. That home detention will be on the standard conditions, and to apply to the current address to which you are bailed and on the following special conditions:
(a)To travel directly back to the relevant address following the sentencing without stops or deviations.
(b)To attend the Te Ao Mārama programme at Kōkiri Marae as directed by a probation officer.
(c)To attend any programme deemed suitable following an assessment at Kōkiri Marae as directed by a probation officer.
(d)To attend an assessment and any treatment deemed necessary at Te Paepae Arahi to address drug and alcohol use.
[31] In addition these conditions should extend beyond the period of five months’ home detention under s 80N of the Sentencing Act in order that the rehabilitative needs are satisfied. They should apply through to the end of the year. So they are to last until 31 December 2021.
[32] Ms Hooper would you please stand. On the charge of arson I sentence you to five months’ home detention on the conditions I have just specified, with the special conditions to apply until 31 December 2021.
Cooke J
Solicitors:
Elvidge & Partners, Gisborne for the Crown AW Clarke Legal, Gisborne for the Defendant
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