R v Meha

[2013] NZHC 2957

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2012-077-1100 [2013] NZHC 2957

THE QUEEN

v

JUDITH MEREL ANE MEHA

Hearing:                   8 November 2013

Counsel:                  N Tahana for the Crown

H S Edward for Ms Meha

Sentence:                 8 November 2013

SENTENCING REMARKS OF MALLON J

Introduction

[1]      Ms Meha, you appear for sentencing today having been convicted following trial of three counts of arson1 and one count of attempted arson.2

[2]      I know that you maintain your innocence.  But you are to be sentenced on the basis  of the jury’s  verdicts  and  the convictions  I entered  on  the basis  of those verdicts.

Circumstances of offending

[3]      The charges against you arose from the lighting of four fires at the home of

Mr Gillard, your former partner.  You met Mr Gillard through an internet dating site.

In February 2012 you moved into Mr Gillard’s home in Tokoroa.  Your relationship

1      Crimes Act 1961, s 267(1)(b) and (c) with a maximum penalty of 14 years’ imprisonment.

2      Section 268 with a maximum penalty of 10 years’ imprisonment.

R v MEHA [2013] NZHC 2957 [8 November 2013]

was initially good but it deteriorated, and in July 2012 Mr Gillard asked you to move out.  He helped you move to another address in Tokoroa.  Soon after you moved out Mr Gillard began receiving a number of text messages from a number that was unknown to him.  They were purportedly from a friend of yours, although it seems that they were in fact from you, and were about Mr Gillard getting back together with you.

[4]      On 2 September 2012 Mr Gillard made it clear to you that you would not be getting back together.  After this the text messages from the unknown number were of a more threatening nature.   Again it seems these were all from  you.   On 5

September 2012 you sent a text message from this number saying “Wally you could have had it all.  All you needed to do was support her and be there and now you’ve thrown it all away”. You sent more text messages later that evening: at 8.25 pm “I’m going to make your life hell”, at 8.36 pm “You have hurt Judy for the last time and now it’s my turn to make your life hell”, at 8.57 pm “How safe is your home”, at

9.01 pm “Are you shitting yourself”, and at 9.02 pm “You’ve got a very nice house. I know where you live”.

[5]      It was after this that you embarked on setting fires at Mr Gillard’s house.  His house is of wooden construction with exterior weatherboard cladding.   The house and grounds are kept very neat and tidy as was evident from the photos produced at trial.  As Mr Gillard says, his house was his pride and joy.  After you moved out of the house in July 2012 he lived there alone.

[6]      The first fire at Mr Gillard’s home occurred on 7 September 2012.   Mr Gillard’s usual routine was to set the alarm for 6 am, put the jug on, go to the bathroom and sit on the deck and have a coffee and a smoke before getting ready for work.  This morning he recalls hitting the snooze button and getting up at 6.12 am. When he was putting on the jug he could smell smoke.  He opened the back door to see that his door mat was on fire, with the flames up to about his knees.  He put out the fire with a bucket of water from the laundry which is by the back door.  The deck and doormat sustained damage from the fire.   The paint on the back door also blistered.

[7]      Mr Gillard reported this incident to the police.  He also told them of the text messages he had received. As a result the police spoke to you later that day. At 9.16 pm you sent another text message using the same number as the previous texts saying “Talk to Ian Park about your house being set alight.  He’s the one who knows about that.”

[8]      I note at this point that there was evidence at the trial that Mr Park was a person with whom you had previously been in a relationship.   He too received a number of text messages from a number he did not recognise and other communications after that relationship ended which led him to make a complaint to the police.  At around that time his former wife also received a phone call late at night telling her that Mr Park’s house was on fire (although this was not in fact the case).

[9]      Returning to the events in relation to Mr Gillard, after the first fire at his house  he  purchased  and  installed  on  the  outside  of  his  house  dummy  security cameras, on the basis that people would think they were real cameras.   On 11

September 2012 you sent a text message to Mr Gillard on the same unknown number

saying “you must be scared. You put up cameras.”

[10]     On 12 September 2012 at around 12.30 am, you attempted to set fire to the hedge at the front of Mr Gillard’s house.   Mr Gillard was in bed sleeping.   Mr Gillard’s neighbour noticed the fire and alerted police.  The neighbour and the police managed to extinguish the fire before it took hold.  After the fire had been set Mr Gillard received a text message from you, on the same unknown number, saying “check your house”.   He got up and walked around the house but couldn’t see anything.    He  called  the police  and  was  informed that  police had  attended  the property earlier and extinguished a fire.  The next day, you sent another text message from the same unknown number which said “How is your hedge?”

[11]     On 14 September 2012 at about 1 am, you set fire to the front door of Mr Gillard’s house, again while he was sleeping.  Mr Gillard was alerted to the fire by the sound of the smoke alarms in his house – by this time, on the advice of other people, Mr Gillard had installed three smoke alarms.  When Mr Gillard got to the

fire the flames were as high as he was.  Mr Gillard managed to extinguish the fire with a fire extinguisher which he kept in his kitchen.  The fire caused damage to the door and deck area of his home.  He received a text message later that day from the same unknown number saying “did you like your wakeup call”.  Following this fire Mr Gillard installed a security surveillance system, comprising four cameras and a hard drive for recording, which he sourced from China.

[12]     The last fire was on 21 September 2012.  At about 2.53 am you drove to Mr Gillard’s home. The person you were then living with alerted the police that you had left the house.  You attempted to set fire to a plastic deck chair on the deck.  You grabbed a large black plastic rubbish bin lid and placed it on the ground directly outside Mr Gillard’s bedroom and under the wooden weatherboards.  Using petrol as an accelerant you set fire to the lid.  Some of your movements are captured on the surveillance  recording,  which  showed  a  person  walking  onto  and  around  Mr Gillard’s property, flashes of bright light and the person leaving the property.  You were located by the police climbing over the front hedge.  When spoken to by the police you denied any wrongdoing but declined to comment further.

[13]     At around 3 am Mr Gillard was woken by the police knocking on his door and telling him his house was on fire.  By this time the flames were well up the side of the house.  Mr Gillard helped with trying to put the fire out before the fire brigade arrived.  The fire caused charring to weatherboards, and scorching and blistering to the paint.  The scorch marks extended for about two metres up the wall with a width of approximately one metre.

Victim impact statement

[14]     I have before me a victim impact statement from Mr Gillard.  He says that you and him got on really well at the start of your relationship but problems later arose which led to him ending your relationship.   He said that he has never been harassed by anyone before and he felt “completely helpless” to prevent the attacks on his home.  He says that his home is his “pride and joy” and he “used to feel safe there”. Mr Gillard says that since the fires he had been an “emotional and mental wreck”. He points out that the last fire was set at a point on the wall of the house

where his head rests when he sleeps.  He is concerned that when you are released you will continue to target him as you did your former partner.  He believes you are not mentally well and need help.   He says that when  you are released he will seriously consider leaving Tokoroa.

Circumstances of the offender

[15]     I turn now to your personal circumstances.   I have information about you from  your pre-sentence report and the report  prepared pursuant to the Criminal Procedure (Mentally Impaired Persons) Act 2003 prior to your trial.  You have also written letters to me.

[16]     You are 49 years old.  You have five children and six grandchildren. You and your children have had a difficult life with a background which includes harmful relationships and abuse.  The psychiatrist notes that in these relationships you made “poor choices about the men with whom you lived”.   Subsequent to these relationships you have had several short term relationships, which included your relationship with Mr Gillard.  You described being devastated when that relationship ended. The psychiatrist reports as follows:

Ms Meha presents with a long history of very traumatic experiences and indications that she has experienced significant difficulties in aspects of her own personality function, her social relationships and interactions and her general sense of self-worth.  This notwithstanding, whilst she does describe some chronic indication of dysphoric mood, I cannot detect any clear signs or symptoms of formal psychiatric disorder, per se.

[17]     You are on medication for depression.  You have a number of other health issues.  You have previously been employed in various roles, but you have been on an invalid’s benefit since your second husband passed away some years ago, as a result of what you describe as “exhaustion, stress and heart problems”.  You report having a good relationship with your siblings and good support from one of your sisters and one of your daughters and her partner.   I have a number of letters of support from your family and friends which I have read and I see that you have good support today in court.   This support contrasts with the comments of both report writers who say that you appear to have little support.  I accept as your counsel says that  these  comments  need  to  be  seen  in  context  and  may be  more  about  your

willingness to accept help than whether you have people who are willing to provide you with help.  The psychiatrist commented that you appear to be very lonely and unable to access any independent support or counselling for the many traumatic problems experienced in your past and in relation to the present stressful position you are now in.

[18]     As I have already noted, you maintain your innocence.  You have therefore not offered any insights into your offending nor shown any remorse, although you do say that you are happy that Mr Gillard is alive.   You are assessed as being at a medium risk of reoffending and of medium risk of harm to others.   You have no previous convictions.

Starting point

[19]     The appropriate starting point for your sentence is primarily guided by cases comparable to yours.3   The Crown submits that based on comparable cases a starting point  of  between  five  and  six  years’ imprisonment  is  appropriate  to  reflect  the aggravating factors of the offending.  It submits a starting point at the upper end of this is appropriate given in particular the number of fires involved.  Counsel on your behalf acknowledges that the courts have adopted seven year starting points in cases where the offending has involved multiple arson attacks but submits that your offending “does not fit in the most serious categories of arson”.  He emphasises the small amount of damage that was done on each occasion.

[20]     I agree with their submissions about the starting point.  The relevant features of your offending are that:

(a)       you set fire to Mr Gillard’s property on four separate occasions;

(b)      an accelerant was used in respect of the fourth fire;

3      The purposes and principles of sentencing set out in the Sentencing Act 2002.   There is no particular issue about them in this case.  There is no tariff case for arson: R v Munro CA132/02,

24 July 2002 at [11]; R v Protos CA259/04, 19 October 2004 at [8].

(c)       there was a degree of premeditation as the texts sent on 5 September

2012 indicate;

(d)the fires were accompanied by threatening or somewhat sinister text messages;

(e)      the fires were to Mr Gillard’s home, a place where a person should be able to feel safe;

(f)       two of the fires were lit directly to the house at a time when Mr

Gillard was asleep4 putting him in a vulnerable position;

(g)as well as the risk to his safety, as with any fires there are risks to others attending the fires, although here through a combination of the safety precautions of Mr Gillard and the actions of third parties the fires were put out before any serious damage was caused;

(h)      the property damage was at the low end (totalling around $10,000);

(i)associated other losses were also at the low end (Mr Gillard had to take eight days annual leave from his work at this time, for which he was paid, although he would rather not have had to use up his leave at that time);

(j)the emotional harm was high – Mr Gillard was put under great stress because his house, a place in which he ought to have been able to feel safe was being set alight as he slept and over a period of two weeks.

He continues to be affected by what you did.

4      It seems that the first fire was lit at around the time that Mr Gillard was waking and I infer that Ms Meha may have known that Mr Gillard would be awake at this time as this was his usual routine.

[21]     In light of these factors I consider that a starting point of five and a half years’ imprisonment is appropriate.5    In fixing that starting point, I take the view that the offending is not as serious as cases of multiple arsons with very significant property damage and/or very serious risk to others.6      It is more comparable to other cases where offenders have set fires to the homes of their former partner or relative, or other places where people live or frequent, noting however that in most of those cases there was one arson rather than the four that occurred here or were attempted.7

Aggravating and mitigating factors

[22]     There are no aggravating personal circumstances.  Your counsel submits that there are mitigating personal circumstances.  He submits that you should receive a discount in your sentence for your diminished understanding and your lack of previous convictions and good character.

[23]     I accept that your previous good character, in that you are a first offender, is mitigating.8   The letters of support talk of your many good qualities and how out of character this  offending  is.   You  have not  been  diagnosed with  any psychiatric disorder and there is no evidence to support that you did not understand what you were doing.   However the report from the psychiatrist does refer to personality

functioning difficulties.   The nature of your offending here is indicative of that.

5      Concurrent sentences are appropriate. The starting point for the lead offence (which I take to be count four) is uplifted to reflect the totality of the offending.  The overall starting point of five and a half years’ imprisonment is derived in this way.

6      R v Webb [2013] NZHC 746 (starting point of seven years’ imprisonment); R v Lucas-Edmonds [2009] NZCA 193, [2009] 3 NZLR 493 (starting point of seven years’ imprisonment); R v Rikiriki [2009] NZCA 217 (starting point of seven years’ imprisonment but Court of Appeal said

this was at the top of the range); R v Van Haaren [2008] NZCA 91 (starting point of seven and a

half  years’ imprisonment) Ollerenshaw v  R  [2010] NZCA 32 (starting point of six years’ imprisonment); R v Christie CA268/99, 20 October 1999 (end sentence of four years’ imprisonment).

7      See Howarth v R [2010] NZCA 523 (starting point of five years’ imprisonment); R v Skeens CA

341/01, 26 February 2002 (starting point of five years’ imprisonment); R v Taylor CA488/94, 17

July 1995 (starting point of three years’ imprisonment); R v Munro, above n 3 (starting point of five years’ imprisonment); R v Rameka CA426/04, 16 June 2005 (starting point of five years’ imprisonment); R v Thomson (1992) 9 CRNZ 173 (CA) (starting point of five years’ imprisonment); R v O’Sullivan HC Whangarei CRI-2007-088-5182, 19 August 2008 (starting point of three years’ imprisonment).  The Crown also referred to Coxon v New Zealand Police

HC Dunedin CRI-2011-412-9, 7 April 2011 (starting point of three years’ imprisonment) but I do

not consider this to be comparable because Ms Coxon was sentenced for a number of other charges and there is little detail in this judgment about the nature of the arson for which she was sentenced.

8      Sentencing Act 2002, s 9(2)(g). See also Manawaiti v R [2013] NZCA 88 at [15]-[20]; Davidson v R [2011] NZCA 356 at [15]-[19].

Whilst possibly not amounting to mental impairment, in my view it does mitigate your culpability to some extent.9     Balanced against that is that, without help to address your difficulties, you remain a risk of further offending.10     I note that a psychological assessment is recommended at the earliest opportunity to help you and I hope that that is made available to you at the earliest opportunity.   Taking into account  these  matters  I  reduce  your  sentence  to  four  years  and  six  months’

imprisonment.    I regret  to  say that  this  means  I cannot  sentence  you  to  home detention as you and your family ask.   That can only be considered if the end sentence I had reached was no more than two years’ imprisonment.   Given the sentence that I have concluded is appropriate, home detention is simply not an option that is available to me to impose.

Sentence

[24]     Ms Meha, you are sentenced to a term of imprisonment of four years and six months.   I allocate that as four years six months’ imprisonment on count 4.   A concurrent sentence of three years imprisonment on count 3.  A concurrent sentence of one year’s imprisonment on each of counts 1 and 2.  I do not impose a minimum period of imprisonment.  None was sought and, noting the recommendation in the pre-sentence report recommending a psychological assessment, the parole board will be best placed to consider your release in the light of any such assessments and your response to any treatment that may result from them.  No reparation is sought and none is ordered.

[25]     Stand down Ms Meha.

Mallon J

9      E v R [2010] NZCA 13, (2011) 25 CRNZ 411 at [68]-[70]; R v Haare HC Wellington CRI-2009-

085-6053, 8 April 2011 at [29]-[30].

10     R v Tapueluelu CA172/99, 25 July 1999 at [15]; E v R, above n 9, at [69].