R v Marson-Wood
[2018] NZHC 610
•6 April 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-070-1870
[2018] NZHC 610
THE QUEEN v
CORY MARSON-WOOD
Hearing: 6 April 2018 Appearances:
K A Lummis for Crown
P E Dacre QC for Defendant
Sentence:
6 April 2018
SENTENCING REMARKS OF PETERS J
Solicitors: Meredith Connell, Crown Solicitor, Auckland Counsel: P E Dacre QC, Auckland
R v MARSON-WOOD [2018] NZHC 610 [6 April 2018]
[1] Mr Marson-Wood, you appear for sentence on five charges of arson and one of burglary, all of which you pleaded guilty to on 9 February 2018.1
Offending
[2] You committed all of the offences in the first week of May 2017. You were 19 at the time. Taking them in order, the first offence arises from 16 scrub fires you lit along a walking track in Piha. Most of these fires caused little damage, with the largest consuming an area of approximately 10 metres by 10 metres.
[3] The second offence was similar, in that you lit 12 fires in and around another Piha track. The largest consumed an area of approximately 30 metres by 30 metres. The fire service was required to come and extinguish this.
[4] Next, you lit a fire in a paper recycling bin that was near the Viaduct Events Centre, where you were working at the time. Again, the fire service had to be called. The rubbish bin was located next to the Centre and apparently immediately adjacent to gas cylinders used for cooking. More than 900 guests were attending a function at the time, as well as catering and security staff. This was serious offending because the proximity of the recycling bin to the cylinders, and to the Centre, raised the clear prospect of danger to life.
[5] The fourth charge arises from another fire you lit on a Piha walkway. This developed into a large forest fire, threatened homes and required at least one resident to evacuate. The fire service had to go to considerable effort to bring this fire under control, including using helicopters carrying monsoon buckets. This fire destroyed more than seven hectares of nature reserve and endangered life and property.
[6] The fifth charge arises from the fire you lit the same evening at Adey’s Place, the takeaway shop in Piha. You broke into the building or entered it, hence the burglary charge, and lit a fire. This fire largely destroyed the shop, and is said to have threatened neighbouring properties and their occupants. Shortly I shall refer to the
1 Crimes Act 1961, ss 231 and 267.
statements I have from the owners of the shop and of the business as to the effect of your actions on them.
[7] The last three arson offences are the most serious because by pleading guilty to them you have admitted intentionally damaging property – the recycling bin, the land adjacent to the walkway and the takeaway shop – when you knew or ought to have known that your actions were likely to put life at risk.2 The maximum term of imprisonment for these three offences is 14 years. The first two offences are less serious and have a maximum term of imprisonment of five years. And, as I understand it, you have spent the best part of the last year at Mt Eden Remand Centre.
Victim impact statements
[8] I have victim impact statements from Mr May, on behalf of his mother Dorothy May, from Mr and Mrs Doggett, and from Sandra Coney.
[9] The May family have owned the Marine Parade property on which the takeaway business was located for almost 50 years and Mr and Mrs Doggett ran the takeaway business from that property for 10 years before the fire.
[10] The fire you lit destroyed the building and, with it, Mr and Mrs Doggett’s business.
[11] Your actions have affected the May family financially and emotionally. The May family has let the building on the property since the mid-70s. The rent provided Mrs May with income on which she relied. Mr Matthew May expects it will cost more than $500,000 to rebuild and, as it turns out, the previous building was not insured. On top of that, Mr May says that the family has spent an enormous amount of time on matters such as cleaning up the site and investigating the various options open to them.
[12] As I have also said, the fire ended the business Mr and Mrs Doggett worked so hard to establish. The business gave them an income but was also an asset which they might have sold in the future. The fire has been disastrous for them financially and
2 Crimes Act 1961, s 267(1)(a).
the cause of huge stress and worry. The closure of the business also meant that 14 people lost their jobs.
[13] This morning I have received and read Sandra Coney’s victim impact statement. She, with her partner, Mr Hosking, have made restoration of land Ms Coney inherited from her mother, a labour of love, for the benefit of the entire community. It is apparent from the statement that they have invested countless hours and no doubt a huge sum financially in turning this land into an asset of benefit to all.
[14] This victim impact statement talks about various fires that have been lit on that land in the period of their ownership, which is now more than 20 years. Yours is the latest in a series and has been very damaging and demoralising and dispiriting for them. They are now 20 years down the track and wondering if they have got the energy and the enthusiasm to start this yet again when needless, senseless acts can so easily destroy their hard work.
Personal circumstances
[15] Let me come to your personal circumstances. I have a report from Dr Karl Jansen, an expert and eminent forensic psychiatrist, dated 8 September 2017; a report from the Department of Corrections dated 14 March 2018; your letter of apology; and various letters that have been written in support of you.
[16] Dr Jansen says you have long been diagnosed as autistic, have attention deficit hyperactivity disorder (“ADHD”), obsessive-compulsive disorder and a history of depression and anxiety. He says that although you were 19 at the time of the offending, there is widespread agreement that you were psychologically about 15 or 16, emotionally immature, and still very much an adolescent.
[17] Dr Jansen says that you expressed your remorse to him and that you started the fires to alleviate boredom, which Dr Jansen attributes to your autism and ADHD. Dr Jansen says you have cannabis and alcohol use disorders, that is you use too much of both and you need to address this, with expert assistance if required. Despite treatment in your childhood, you were entirely without assistance from the appropriate agencies during your late adolescence with obvious consequences for you and, as is
now apparent, for the community. Dr Jansen recommends various steps to the prison authorities including asking that you be followed up by a multi-disciplinary team, referred to the prison psychiatric team and placed on a waiting list for psycho-therapy. I am sure that Corrections will take note of this and do their very best to make sure the required arrangements are made.
[18] Dr Jansen’s ultimate view is that you are not any form of pyromaniac but, rather, the fire setting behaviour can be attributed to stimulation needs related to adult ADHD, high functioning ASD, impaired judgment due to harmful use of cannabis, emotional immaturity and some anti-social personality vulnerabilities.3
[19] Coming to the Corrections Department’s report, the Corrections Officer said you were fully co-operative but markedly immature for your age and described your parents as deeply concerned for you. You told the Officer that on each occasion you had smoked a lot of cannabis and that you lit the fires because you found the flurry of activity they caused exciting, even though you knew your actions were – in the Officer’s words – “seriously wrong”. The Officer has recorded you as disagreeing with parts of the summary of facts to which you have pleaded guilty. For instance, the summary says that you used an accelerant, at least for the fires along the tracks, but you deny using any accelerant. Such as they are, these differences are not material to the sentence I shall impose and so I say no more about them.
[20] The Corrections Officer also says that it was only during your second interview that you said that you were very sorry for what you had done but did not appear to show any empathy for the victims, something your mother attributed to your ADHD. Your mother said to the Officer that you routinely act impulsively and without thinking of the possible consequences.
[21] All in all, the Officer says you need to be treated or you will continue to present a risk to public safety.
[22] In your letter of remorse, you say you are very sorry for the trouble and loss you have caused, thank the local firefighters and assure everyone that this will never
3 Expert Witness Report of Dr K Jansen dated 8 September 2017 at [362].
happen again and say that you now realise just how fortunate it was that no one was hurt. You also say, and Mr Dacre QC has confirmed this morning, that you will not be returning to Piha given the smallness of the community and the effects of your offending.
[23] I also have letters from your parents, grandparents, and those who know you whether through work you have done for them or your surfing activities or otherwise. Your parents’ and grandparents’ letters refer to the various difficulties you have faced but they believe you can do very well if given the chance. Mr Wallis, a family friend, says that you do not have a malicious bone in your body, can be extremely kind and caring and that, when “on task”, you pay careful attention to what you are doing but are easily distracted. Shortly before this offending, you assisted Mr Wallis on a matter and his view is that your behaviour was impeccable. The other references speak equally highly of you and are very supportive.
Starting point
[24] Now, let me come onto the sentencing process proper Mr Marson-Wood and, as I have said to you, you will not know your sentence until I get to the very end so I want you to bear with me.
[25] In sentencing you I am required to undertake a three-step process. First, I have to identify what we refer to as the starting point, which requires me to assess the gravity of your offending. The second step requires me to adjust that starting point to make allowance for matters that relate to you personally. The third step is to reduce your sentence because you have pleaded guilty.
First step
[26] So, as to the first step both lawyers agree that the sentence I impose should hold you accountable for the harm that you have caused; protect the community; deter you from ever doing this again; and facilitate your rehabilitation. I must also take into account the gravity of your offending; the general desirability of sentencing you consistently with others guilty of similar offending; impose the least restrictive
sentence appropriate in the circumstances; and take into account the information from the May family, Mr and Mrs Doggett and Ms Coney and Mr Hosking.
[27] The Crown and Mr Dacre agree that the fire you lit in the recycling bin at the Events Centre was the most serious because of the potential risk it caused to those in and around the centre.
[28] The Crown submits that the appropriate starting point for the Viaduct fire is five years’ imprisonment, and that this offending was premediated in the sense that it was your third offence that week and you were seen to approach the recycling bin twice before you lit the fire.
[29] Mr Dacre submits the starting point for this offence is “significantly” less than five years. No serious damage was caused and although you should have realised that what you were doing was extremely dangerous, in fact you did not think about it. Mr Dacre also submits the fire was not premeditated but more opportunistic.
[30] The primary considerations in determining an appropriate starting point for arson offending are the degree of property damage, the degree of danger to any occupant or firefighter and the mental state of the offender.4 Of the many cases I have considered, including those to which counsel referred me, only a few have been directly relevant.5 Many are very different from your case because they were offenders setting fire to homes or buildings for revenge and causing various degrees of damage.
[31]The cases to which counsel referred me were R v Lucas-Edmonds, R v Turner,
McDowell v R, French v R and Howarth v R.6
[32] In R v Lucas-Edmonds, the offender lit three fires within 45 minutes. The first was inconsequential. He then set fire to a mattress that he found in a garage underneath
4 Meha v R [2014] NZCA 307 at [9].
5 R v Rameka CA426/04, 16 June 2005; R v Mohi [2007] NZCA 139; R v van Haaren [2008] NZCA 91; R v Rikiriki [2009] NZCA 217; Ollerenshaw v R [2010] NZCA 32; R v Webb [2013] NZHC 746; Cox v R [2013] NZCA 194; R v Meha [2013] NZHC 2957; Meha v R, above n 4; and Reed v New Zealand Police [2016] NZHC 3097.
6 R v Lucas-Edmonds [2009] NZCA 193, [2009] 3 NZLR 493; R v Turner [2016] NZHC 754; McDowell v R [2014] NZHC 3310; French v R [2014] NZCA 297; and Howarth v R [2010] NZCA 523.
an apartment. The three tenants fled when they noticed heat and smoke coming up through the floorboards. The fire caused some damage to the interior of the property. Mr Lucas-Edmonds then broke into a historic church, set fire to an item in the church, all in all causing damage of up to $750,000. The Court of Appeal upheld a starting point of seven years’ imprisonment.
[33] The starting point in Turner was five years. In that case there was very clear premeditation, Mr Turner was involved in the offending for financial gain, the fire caused massive damage, and the offending was committed whilst Mr Turner was serving a sentence on another offence.
[34] In McDowell, the offender made several attempts to set a house and car on fire for which the Court adopted a starting point of four years.
[35] The starting point in French was six years. Having separated from her husband, Ms French had custody of their nine and seven-year-old children. She lit a fire, using an accelerant, in close proximity to the children’s bedroom having blocked one means of their escape. The children managed to get out of the bedroom window. All of these factors make Ms French’s offending more serious than the fire you lit in the recycling bin.
[36] The starting point in Howarth was five years. Mr Howarth set fire to the home of his former partner following what appears to have been a period of harassment of her. He entered into his partner’s home at night and the offending was premeditated. The Court of Appeal said, and this is important, that many cases it had reviewed had adopted starting points in the three to five-year range and starting points of more than seven years are rarities.7
[37] Having compared your Viaduct offending to these, I think the appropriate starting point on that charge is three and a half to four years’ imprisonment. This is largely to reflect the risk the offending posed. There was minimal damage to property.
7 Howarth v R, above n 6, at [49] and [51].
[38] I then have to increase that starting point to take account of all other offending. The fires that you lit on 7 May 2017, both on the walkway and at the takeaway shop were serious for all the reasons mentioned. I think the other offending warrants an increase of, say, 12 to 18 months. Looking at everything in the round, I shall take a starting point for all of the offending of five years’ imprisonment.
Second step
[39] The second step is then to adjust the starting point to make allowance for matters that are personal to you. There are no personal aggravating features and these are your first offences.
[40] As a matter of law I am required to take into account your age at the time of the offending and any diminished intellectual capacity or understanding.
[41] The Crown acknowledges that a discount is appropriate to reflect both of these matters, of between 10 to 20 per cent in total.
[42] Mr Dacre has submitted I should discount the starting point by 20 to 30 per cent for the matters raised by Dr Jansen’s report and the conclusion to which he has come, and then another 10 per cent for youth. So, he says 30 to 40 per cent in total.8
[43] I have already referred to the main points to come out of Dr Jansen’s report – the impulsiveness, the difficulties that beset you, and the consequences this has had for your development. All of these matters reduce your culpability.
[44] But aside from reducing your culpability, your youth is relevant because there is a good prospect for rehabilitation on the basis of those letters in support and if you do the things required of you. A lengthy stint in prison can be crushing for a young person let alone one who is afflicted by personality disorders. All of these factors lead me to reduce the starting point on account of your diminished understanding and youth by 25 per cent.
8 E (CA689/10) v R [2011] NZCA 13, (2011) 25 CRNZ 411; Meha v R, above n 4; and Ruebe v R
[2015] NZHC 2553.
Third step
[45] I am then required to give a discount for your guilty pleas. The Crown proposes a reduction of 15 to 20 per cent and Mr Dacre does not disagree.
[46] A guilty plea is always to be encouraged because it spares the community the significant expense of a trial and the inevitable stress caused to civilian witnesses. I allow a discount of 20 per cent. This reduces the sentence to three years’ imprisonment. The consequence of that sentence is that you are not eligible to serve a sentence of home detention.
[47]Mr Marson-Wood, please stand:
(a)on charge three, being the fire you lit in the recycling bin at the Viaduct Events Centre, I sentence you to three years’ imprisonment;
(b)on charges one, two, four and six I sentence you to 18 months’ imprisonment, to be served concurrently with the sentence I imposed on charge three;
(c)on charge five, being the burglary, I sentence you to three months’ imprisonment, also to be served concurrently.
[48] That means, Mr Marson-Wood, your end sentence is three years’ imprisonment.
[49]Please stand down.
Peters J
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