R v Mohi

[2007] NZCA 139

IN THE COURT OF APPEAL OF NEW ZEALAND

CA37/07
[2007] NZCA 139

THE QUEEN

v

BRENDON SHANE MOHI

Hearing:13 March 2007

Court:Wilson, Baragwanath and Venning JJ

Counsel:Appellant in person

K Raftery for Crown

Judgment:19 April 2007  at 10.30 am

JUDGMENT OF THE COURT

A        The appeal is allowed.

B        The term of imprisonment is reduced to two years.

C        Leave to apply for home detention is declined.

D        The sentence is otherwise confirmed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Baragwanath J)

[1]       Mr Mohi appeals against a sentence of two years and four months imprisonment imposed together with an order to pay reparation of $6000 following his conviction by a jury in the District Court at Invercargill on one count of arson and another of attempted arson of motor vehicles.

Background facts

[2]       Mr Mohi was employed by Superior Firewood Ltd of Queenstown as a contract cutter.  On 27 June 2006 he told the proprietor that he was resigning his job, complaining that he was unable to make money because a truck he thought he should have access to was unavailable.  He drank a good deal of vodka and then took a taxi to Superior Firewood’s premises and set alight a Toyota vehicle, the subject of the count of attempted arson, and a Nissan Terano owned by a Mr de Koning.  The owner of the Toyota managed to put out the fire but the Nissan was totally destroyed.

[3]       In his sentencing remarks Judge Phillips found that the appellant wrongly attributed the termination of his work to his employer rather than to himself and that if his plan had succeeded a number of vehicles would have been set alight and that would have placed people at risk.  He was satisfied that to collect, spread and light the diesel would have taken concentrated effort, which was evidence of clear pre‑meditation.  He recognised some degree of remorse and saw reparation as of importance.

[4]       The Judge found that the appellant had an alcohol problem.  It was not that he drank every day, because the Judge found without hesitation that when employed he is a hard worker.  But when he decides to drink he does so to excess.  The Judge considered that the appellant fails to recognise that any problem exists and that until he gets treatment for his alcohol problem and issues of anger management he is at high risk of re-offending.

The first ground of appeal

[5]       At a hearing on 11 July 2006 Chisholm J considered and dismissed an appeal by Mr Mohi against the District Court’s refusal of bail.  Having found no error in the District Court’s decision the Judge concluded:

[7]       It should be added, however, that the appellant’s trial needs priority.  If the trial cannot be heard before Christmas it is difficult to see how continued refusal of bail could be sustained.  Beyond that point any remand in custody is likely to exceed the sentence that he would have to serve if convicted.  If the trial cannot be heard before Christmas another bail application is likely to be successful…

[6]       Mr Mohi argued in written submissions that the sentence imposed by the District Court renders him ineligible for consideration for parole until 8 April 2007 and would in fact not allow his release until 25 October 2008.  He submitted that there was a discrepancy between the observation of Chisholm J and the actual sentence and therefore the learned District Court Judge must have fallen into error.

[7]       In the first step of his argument, which is that this Court will not permit sentences at variation with sentence indications, Mr Mohi was on strong ground. In R v Anderson CA199/05 2 November 2005 this Court cited its two earlier decisions R v Gemmel [2000] 1 NZLR 695 and R v Edwards (2000) 17 CRNZ 604, in each of which there had been a sentence indication acted upon by a plea of guilty by the defendant and a subsequent more severe sentence.  In each case the sentence and the plea of guilty was set aside on appeal and the opportunity was given for the defendant to replead.  Similar principles apply in England.

[8]       But there are two further essential steps before this Court will interfere with an inconsistent sentence: that there is in fact a sentence indication and that the defendant has acted in reliance upon it.

[9]       Mr Mohi clearly appreciated in the course of oral argument that neither the second nor the third step was made out.  Chisholm J was not providing any kind of sentence indication for the purposes of its being acted upon by Mr Mohi, but simply expressing anxiety that there should be a prompt trial so as to ensure that Mr Mohi did not serve on remand a greater period than might be justified by a subsequent sentence.  It was not necessary for the Judge to turn his mind to the specifics of an appropriate sentence.  Further, and of equal importance, Mr Mohi did not rely upon the Judge’s observation and enter a plea of guilty.  On the contrary, he pleaded not guilty and required his case to go to trial. 

[10]     There can in these circumstances be no possible basis for an allegation of unfairness in the way Mr Mohi was treated by the learned District Court Judge in forming his opinion as to the appropriate sentence without reference to what had earlier been said by Chisholm J.

The second ground

[11]     The second ground was that the sentence imposed was unduly severe. It was the subject of submissions which we record in a different sequence:

a)The consequences of conviction include difficulties both in travelling overseas and in securing the insurance, especially in relation to public liability, that is needed for him to be self-employed as a painter.

b)Because Mr Mohi lives alone and prior to his arrest was living in a caravan he is likely to be required by the Parole Board to serve his full sentence.

c)The actual penalty imposed is, on the authorities, excessive even without the consequences just mentioned and with them is clearly excessive so as to require the intervention of this Court.

Discussion

[12]     We first clear away a problem that was identified in argument.  In a Parole Assessment report the author stated that Mr Mohi is not motivated to address his offending by attending a criminogenic programme in Christchurch as he did not consider the programme to be relevant to his needs.  When members of the Court took Mr Mohi through his six motoring convictions in which alcohol was a factor, Mr Mohi told us that he now recognised the reason for the criminogenic proposal and said that he would willingly accept the first opportunity to undertake such course.  It is of course for the Department of Corrections and the Parole Board, rather than this Court, to consider what should be the consequence.

[13]     The first submission as to penalty relates to a potential consequence of the inevitable prison sentence.  The second is a matter exclusively for the Parole Board.   But we bear them in mind when appraising the third: the challenge to the penalty.

[14]     The sentence imposed by Judge Phillips, a prison term of two years and four months (28 months) plus reparation of $6000, imports a higher starting point before allowance is made for reparation.  The Judge accepted and the Crown did not dispute Mr Mohi’s bona fides and capacity to pay the full $6000 which had been the subject of correspondence with the Department of Labour that was put before us.  So the starting point must have been something like 34 months.

[15]      While there is no tariff for arson sentences (R v Gilchrist CA429/90 15 April 1991) Mr Raftery considered that the most helpful authority is R v Golding CA329/96 17 October 1996.  There the appellant, who had an extensive record of prior offending, drove to the victim’s property and set fire to a barn and a haystack causing $2350 worth of damage.  The offending was an act of retribution and the appellant was drunk at the time.  The trial Judge set the starting point at three years (36 months) imprisonment although ultimately imposing a sentence of 18 months imprisonment because of the appellant’s plea of guilty and co‑operation with the police and the prosecution against the co‑offender.  The Judges of this Court considered that 36 months might have been too high as a starting point but endorsed the net term of 18 months.  Given the mitigating factors of the plea of guilty and co‑operation with the police this Court’s appraisal of the correct starting point must have been no more than 30 months.

[16]     In R v Farrell CA303/86 22 May 1987 Farrell was party to the arson of a hayshed in revenge for some alleged grievance against the employer of him and his co-accused Curtis, who was the ring-leader.  The damage amounted to some $22,000 in 1986 dollars.  Curtis was sentenced by the High Court to 36 months imprisonment and gave evidence against Farrell at the depositions hearing.  Farrell then changed his plea to guilty.  Farrell was described by the employer as a good worker whom he would willingly employ again.  Farrell was initially sentenced to 36 months imprisonment, the High Court judge putting restitution to one side.  This Court formed the view that Farrell might be able to keep out of trouble and adjourned the hearing, indicating that if he paid $4000 in compensation it would be minded to reduce his sentence to one of 18 months imprisonment.

Decision

[17]     In view of this Court’s approach in Golding, where a 36 month starting point was substituted by one of about 30 months, and the significantly greater damage in Farrell where a 36 month term was adopted for the principal offender, we consider that the notional 34 month starting point in this case was unduly stern.  We consider that the starting point should have been 30 months with a deduction of six months for the reparation, so as to result in a net sentence of 24 months (two years) imprisonment.

[18]     We substitute that term for the original sentence of two year and four months which is set aside.

[19]     The character of the offending and Mr Mohi’s past record require us to decline leave to apply for home detention.

[20]     The District Court sentence is otherwise confirmed.

Solicitors:
Crown Law Office, Wellington