R v Manuel HC Rotorua CRI 2009-077-1102

[2009] NZHC 2593

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2009-077-1102

THE QUEEN

v

SANDRA MYRA MANUEL

Hearing:         16 December 2009

Appearances: C Macklin and M Wright for Crown

K Ewen for Manuel

Judgment:      16 December 2009

SENTENCING REMARKS OF ALLAN J

Solicitors:

Crown Solicitor Rotorua

S J Ewen, Hamilton [email protected]

R V MANUEL HC ROT CRI 2009-077-1102  16 December 2009

[1]      Ms Manuel, you appear for sentence this morning on several charges.  There are  charges  of  attempted  murder  and  arson,  each  of  which  carries  a  maximum penalty of 14 years imprisonment.   There are also two quite separate charges of assault, one of common assault and one of assault with intent to injure.  The first of those carries a maximum penalty of 12 months imprisonment, and the second a maximum penalty of three years imprisonment

Factual background

[2]      On 6 June 2009, your  16  year old son was at the address of friends  in Tokoroa.   You disapproved of his relationship with those people and indeed, they were the targets of the later incident which gave rise to the other more serious charges against you.

[3]      You went to the address concerned, and removed him from the house.  You dragged him down a small flight of stairs to the driveway and punched him twice about his cheek with a closed fist.  You continued to assault him by punching his back, shoulderblades and neck.  That behaviour continued until you reached your car at the end of the driveway.

[4]      Following that incident you were arrested and charged with common assault. A condition of your bail was that you were not to enter Kiwi Street, Tokoroa (the address from which you removed your son), and you were not to associate with a named adult person.  In your opinion that person had led your son into a lifestyle that included unlawful drug use.

[5]      Over the following weeks you brooded on that person’s influence over your son and determined to carry out a revenge attack.  You decided to kill your target by burning down her house.  Early in the morning of 2 July 2009 you took a bottle of methylated spirits from your laundry to use as an accelerant and loaded supplies into your car because you intended to go on the run from the police after the fire.   In breach of the bail condition you drove to the victim’s house, but the lights were still

on and you drove away, intending to return when the occupants were asleep.  There was one further abortive visit when the lights were still on.

[6]      At about 1.20 am you returned, and using surrounding trees as cover, you splashed the methylated spirits over a wooden wall of the house and set it alight. You left the scene, but then anonymously rang the Fire Service in order to report the fire.  When the Fire Service attended they found nothing.  It seems that the first fire was put out by water running from a hose or pipe which had been fractured by the heat generated from the fire.

[7]      A little later you returned to the scene, applied further accelerant, and started a second fire.  This time you were more successful.  The fire took hold and caused significant damage.  Fortunately, a pet dog inside the house was woken by what had occurred and alerted the occupants of the house who were able to escape.  On this occasion both the Fire Service and the Police were called and the fire was extinguished.

[8]      The next day you attended at the Tokoroa police station and admitted your role in what had occurred.   The second fire  caused considerable damage to an exterior wall and the kitchen floor, but fortunately none of the occupants of the house suffered injury.

[9]      Following your apprehension for that offending, there was a further incident. On the morning of Monday 20 July you and a further complainant were both on remand at the Rotorua police station.   You were placed together in a holding cell awaiting transport to the Rotorua District Court.   The summary of facts discloses that, without any warning, you attacked the other prisoner, unleashing a flurry of punches to her face and head.  There were at least a dozen such blows before the police could separate you.   You bit one of the officers on the wrist when he was endeavouring to assist, although it seems to have been a relatively minor attack in that your teeth did not break the skin.   As a result of the assault the complainant received bruising and swelling to her forehead, left eye and left side of her face. Fortunately, the officer suffered no ill effects.  That incident supports the charge of assault with intent to injure.

[10]     It is as well perhaps to explain now the background to that offending.   Ms Ewen has said today you had spent all night, contrary to your wishes, in the same cell as the complainant, who was mentally disordered, and who chattered to you all night.  To that extent there might be thought to have been a degree of provocation, although that cannot possibly serve as an excuse for what occurred.

Personal circumstances

[11]     You are 43 years old, and although born in London, you identify as Maori. You  came  to  New  Zealand  at  the  age  of  nine,  attending  schools  in  Tokoroa. Although your upbringing appears to have been satisfactory, you encountered problems during your schooling.  In England you were subjected to bullying and you were expelled from Tokoroa College for punching a staff member.  Indeed, for much of your life you appear to have had problems with anger management issues.  I will return to that shortly.

[12]     At the age of 18 years you married.  That relationship continues and has been largely a happy one.  Your only son is now 16 years of age.  You acknowledge you have been somewhat over-protective of him.  That may have had something to do with the anger that generated your assault on him.

[13]     The  other  significant  problem  in  your  life  has  been  your  battle  with depression, for which you have been on medication for a considerable period.   It seems just prior to the present offending the medication was discontinued for a time. There may be a link between that and the principal incident for which you are now before the Court.

[14]     The probation officer considers you to present a relatively low risk of re- offending, except in circumstances where you may react to stress by engaging in acts of considerable violence.  That reflects the anger management problem of which I earlier spoke.  It seems not to be derived from any psychiatric difficulties.  There is a report dated 13 August 2009 before the Court from Dr Howie of Regional Forensic Psychiatry Services at the Waitemata District Health Board.   He has detected no

significant psychiatric indicia, but considers you are suffering from a major depressive disorder.

[15]     The probation officer notes that there is little evidence of remorse, and that you appear to justify your behaviour on the basis that your victims were simply getting their just deserts.

[16]     It is important to record however that you have no previous convictions and are entitled to be dealt with on that basis.

Victim Impact Statements

[17]     I need to refer briefly to the victim impact statements made available to the Court this morning.  I do not propose to read from them, but simply indicate there is a statement from each of the three occupants of the house which you set on fire. They are an adult couple and their teenage daughter.  The statements are largely to the same effect;  namely that a great deal of damage was done to the house, although much of that was  covered by insurance.   More particularly,  they have suffered emotionally and are concerned about what might occur in the future.   They fear a recurrence of what happened in July, and harbour significant concerns about what you might do when you leave prison.

[18]     As to that, the Court has had an assurance this morning that you will leave them alone, and I am sure your instructions to your counsel about that are intended to be taken seriously.  I take that as an assurance you will offer no further harm to the victims.

[19]     But the victim impact statements reveal the reality of what happened.  These people were enormously lucky in that the dog which fortuitously happened to be in the household made sufficient nuisance of itself to wake those who were sleeping, and maybe that circumstance saved these people from death.  It is a commonplace where a fire is set in a residential household, that victims die not from burns, but from smoke inhalation before they are even aware of what is happening.  That could

easily have happened here, and in many respects you are very fortunate you are not facing three charges of murder.

[20]     All of that is reflected in the victim impact statements, and must be reflected in the ultimate outcome of this morning’s hearing.

Sentencing principles

[21]     Under our Sentencing Act I must take into account the need to hold you accountable for the harm done to the occupants of the house, as well as the community generally.  I must consider their interests as far as I can.  Any sentence must be sufficient to denounce your conduct and to deter both you and other persons from committing offences of this type.  I must also do what I can to promote in you a sense of responsibility for, and an acknowledgement of, the harm you have done, a matter  of  particular  significance  in  this  case,  where  it  seems  you  have  yet  to appreciate the true seriousness of what occurred.  I have endeavoured to set that out in words of one syllable.  I am required also to take into account the gravity of your offending, and the seriousness of the offence in comparison with like offending. There is a general principle which requires any sentence imposed upon you to be consistent with that imposed in like cases.

[22]     Finally,  but  not  last  in  importance,  I  am  required  to  facilitate  your rehabilitation insofar as I am able to do so.

Aggravating and mitigating factors

[23]     There are several aggravating features of this offending.  There is the fact you went unlawfully onto the victim’s property in breach of an existing trespass order. There were multiple victims who were vulnerable, because as you well knew, they were asleep in the house at the time you set fire to it. Moreover, there is a significant degree of premeditation involved.   This was not opportunistic offending.   You admitted planning this offence for some days.    You selected the particular night because you considered the weather to have been appropriate.  You stocked up your

car in order to go on the run.  Having arrived at your victims’ house when they were still awake, you simply left the area and bided your time.  You took an accelerant with you in order to ensure the success of your plans, and perhaps most important of all, you returned and set a second fire after the first had fortuitously been extinguished.

[24]     There is really no mitigating factor in respect of the offending itself.  The fact you made a 111 call after setting the first fire loses much of its significance in the light of the second episode.

Personal factors

[25]     At a personal level the only aggravating factor would appear to be that this offending occurred in breach of the bail condition which was aimed at preventing you from being in this particular street at all.

[26]     However there are a number of mitigating features.  There is your voluntary confession to the police and your subsequent co-operation with them;   your early guilty plea;  the fact that you may have been in a somewhat depressed state at the time of the offending, and your previous unblemished record.   There is also an expression of remorse on your part with respect to the teenage daughter of the household where the offence occurred.  You have no quarrel with her.  Against that however, is the complete absence of remorse in respect of the other occupants of the house.  You seem to regard them as fair game by reason of your suspicions about their drug related activities and their influence over your son.  Whether or not your suspicions are well founded, there cannot be any justification for what happened.

Discussion

[27]     I accept the submission of Mr Macklin to the effect that the lead offending here is the charge of attempted murder.   Such a charge must be regarded as very serious, since it necessarily involves the formation of an actual intention to kill:  R v Steeman CA105/03 5 June 2003 at [18].  There is no fixed range of sentences for

attempted murder because the circumstances in which the offence is committed will differ greatly from case to case.

[28]     In R v Finau (2003) 20 CRNZ 333, the Court of Appeal noted that the seriousness of the offence can often be gauged by reference to the physical consequences to the victim, and the degree to which the offending approached the actuality of a murder.

[29]     Here,  of  course,  no-one  was  actually  harmed.     That  is  a  fortunate circumstance both for your victims and for you, but everyone knows that house fires routinely  give  rise  to  tragic  consequences,  and  you  expressly concede  that  you intended to cause the death of your adult victims at least.

[30]     I have been referred to three cases in particular, although none is on all fours with this case.  In R v Brown [2002] 3 NZLR 670, the prisoner, who lived elsewhere, attacked his mother while she was asleep with a hammer brought to the house for the purpose. Her skull was shattered; she suffered very serious injuries which left her permanently impaired. He then endeavoured to set fire to the house, but the fire extinguished itself without causing major damage.

[31]     The prisoner pleaded guilty to attempted murder and arson and was sentenced to nine years imprisonment, the Judge having chosen a starting point of 12-13 years. No minimum period of imprisonment was imposed.  The Solicitor General appealed against the failure of the High Court to impose a minimum period of imprisonment. The appeal was allowed.   The Court of Appeal directed that there be a minimum term of five years.  There was no challenge on either side to the finite sentence of nine years imprisonment.

[32]     In R v S CA369/00 15 February 2001, the Court of Appeal dismissed in short order a sentence of 10 years imprisonment imposed following conviction at trial for attempted murder and wilfully setting fire to a dwelling house, knowing that danger to life was likely to ensue.  There, the appellant had set fire to his own house with his wife and four children inside.  There is evidence that he had used accelerant in three separate parts of the house.   He himself rescued three of his sons, and his wife

removed the fourth.  Ultimately no person was injured.  There was a suggestion that the prisoner had been in financial difficulties and he may have sought a financial advantage through a successful insurance claim.  The Court of Appeal described the offending as “a dastardly crime directed to the appellant’s wife of many years, without it would seem the slightest degree of overt animosity or extenuating circumstances”.

[33]     Finally, in R v Timlin HC DUN CRI 2007-012-6561 17 April 2008, the prisoner had pleaded guilty to charges of arson and attempted murder.  She was on unauthorised leave from hospital where she had been detained under the Mental Health legislation.   She set fire to a house in which two occupants were sleeping, intending to kill the male occupant who had been her supplier of codeine tablets, to which she had become addicted.   She placed rubbish bags in the male victim’s bedroom and set fire to them and to the curtains.   She then left the address and locked the house as she pulled the door behind her.  There, the prisoner had promptly reported her actions to a neighbour who alerted the police.   The occupants awoke and escaped from the house uninjured.  Damage to the house was estimated at about

$50,000.   The prisoner had a number of previous convictions, including four for arson, although they appeared to relate to relatively trivial incidents.  She accepted however, that she intended to kill the male occupant of the house.

[34]     Panckhurst  J  took  a  starting  point  of  six  years  imprisonment,  which  he reduced to three years after taking into account mitigating features that included the prisoner’s self-report to a neighbour, her early guilty plea and a level of diminished responsibility by reason of a mental disorder.  Ultimately she was sentenced to three years imprisonment on each charge, and directed to be detained in hospital as a special patient under the Criminal Procedure (Mentally Impaired Persons) Act 2003.

[35]     None of these cases is quite like this one.  Brown was plainly more serious. It  involved  a  horrendous  attack  that  would  ordinarily  have  been  fatal.    The subsequent arson was something of an afterthought.

[36]     Timlin  was  I  think  less  serious  than  the  present  case  because  there  the prisoner immediately alerted a neighbour to what she had done, in sufficient time to

ensure the victims were rescued.   Despite that factor, the starting point chosen in

Timlin might be regarded as somewhat generous.

[37]     This case is perhaps most similar to R v S.  Although in that case the prisoner did assist in rescuing members of his family from the burning house, the evidence was he had made even more concerted efforts to set fire to the building than occurred in the present case.

[38]     Here of course there is the aggravating factor that you returned to the scene and set a second fire when your first attempts failed.

[39]     In my opinion the appropriate starting point on the attempted murder charge is eight years imprisonment.  From that figure you are entitled to a one-third discount to reflect your very early guilty plea.  That produces a sentence of five years four months imprisonment.   I am going to allow a further discount of four months in order to reflect your problems with depression and the possibility that at the time you were going through a period when you were without your medication.  Some aspects of this offending are  consistent with that situation.   I cannot allow  any further discount, because I have to take into account that you returned to the property and set a second fire.

[40]     On the arson charge, I consider a starting point of three years imprisonment to be appropriate, reduced to two years imprisonment, after taking into account your guilty plea:  R v Lefebvre HC CHCH CRI 2008-009-2907 10 July 2008.

[41]     Then there are the two assault charges.  It is unnecessary to discuss them in detail.  I propose to impose concurrent sentences, as I do on the arson charge.  The result is the sentences will all run concurrently with the attempted murder sentence.

[42]   On the common assault charge you will be sentenced to one months imprisonment, and on the assault with intent to injure charge, to two months imprisonment.

[43]     The  Crown  seeks  the  imposition  of  a  minimum  period  of  imprisonment pursuant to s 86 of the Sentencing Act.  Under that section the Court has a discretion to impose a minimum period that must not exceed the lesser of two-thirds of the full term of the sentence, or 10  years.   Minimum sentences are imposed where the offending is so serious that release after one-third of the sentence would plainly constitute an insufficient response in the eyes of the community, even though there may be no on-going safety risk.  In that way the Court may confer a degree of reality on the sentence and the overall outcome.

[44]   The proper approach is set out in R v Brown.   A minimum period of imprisonment may be imposed where the minimum non-parole period provided for in  s 84  of  the  Parole  Act  is  insufficient  for  the  purposes  of  accountability, denunciation, deterrence and protection of the community.

[45]     In my opinion there ought in this case to be a minimum non-parole period. Although the risk of further offending of this type is perhaps not particularly high, the remaining considerations in s 86(2) apply.   Crimes of this character are very serious indeed.  Those who attempt to burn down a dwelling house for the purpose of killing the occupants strike at the very fabric of society.

[46]     As is submitted by the Crown, this offending was aggravated by the high degree of premeditation involved, and by the fact that you returned to set a second fire when your first attempt failed.  The requirements of s 86 are met.  You will serve a minimum period of imprisonment equivalent to one half of the sentence imposed in respect of the charge of attempted murder.

Result

[47]   On the charge of attempted murder you are sentenced to five years imprisonment.  On that charge you will serve a minimum period of imprisonment of two years six months.

[49]   On the charge of common assault you are sentenced to one months imprisonment;  on the charge of assault with intent to injure you are sentenced to two months imprisonment;   all the sentences are to run concurrently, so the effective sentence is therefore five years imprisonment with a minimum term of two years six months.

[50]     Finally, I need to say something about the assistance to which I believe you are entitled during your sentence.  The authorities are asked to take into account your special needs, and to do so if at all possible at an earlier rather than a later stage of your sentence.  Your needs appear to be two-fold, but they are related.  First there is your problem with depression and secondly, your anger management difficulties, which no doubt stem from the first factor.

[51]     I refer to the report dated 13 August 2009 furnished to the Court by Dr Howie.  In particular, at p.11 at the end of the report, there is a recommendation from him that you should be monitored by the prison GP with a view to being referred to Forensic Psychiatric Services, and also a recommendation that you be assessed in respect of psychological skills, including emotional regulation, distress tolerance, assertiveness, mindfulness, anger management, and communication and relationship skills.

[52]     In my opinion much of this offending must be put down to the difficulties under which you have been labouring, and I endorse Ms Ewen’s submission to the effect that these problems ought to be addressed in prison sooner, rather than later. But of course, that will ultimately be a matter for the prison authorities and the Parole Board.

C J Allan J