R v Neal - [2008] NZCA 327

IN THE COURT OF APPEAL OF NEW ZEALAND
CA279/2008
[2008] NZCA 327
THE QUEEN
v
MARIE JOY NEAL
Hearing:25 August 2008

Court:O'Regan, Chisholm and Ronald Young JJ
Counsel:S G Bailey for Appellant

P K Feltham for Crown

Judgment:28 August 2008 at 2.30 pm

JUDGMENT OF THE COURT

A The appeal against sentence is allowed.
BThe sentence of six years’ imprisonment and a minimum period of imprisonment of four years is quashed.
CA sentence of five years’ imprisonment with a minimum period of imprisonment of three years is substituted.

REASONS OF THE COURT
(Given by Ronald Young J)
Introduction
[1]       In December 2007 Ms Neal set fire to a kitchen rubbish bin in a house she was living in in Christchurch. The fire substantially damaged the house and an occupant came close to serious injury. The appellant says the sentence of six years’ imprisonment imposed by Judge Erber in the District Court was manifestly excessive and the Judge should not have imposed a minimum period of imprisonment of four years.
Facts
[2]       We take the summary of facts from Judge Erber’s sentencing notes:
[2]       The facts appear to be these. Mr Steven Olin occupied a house owned by the Housing Corporation in Ashburton. You and he met up and [sic] on 14 December. You both went out in the evening and returned home early on the morning of 15 December. Mr Olin had a son who was asleep in his room at the time. The son had a friend, Mr McKenzie, who had been drinking with the son and Mr McKenzie was staying overnight at the house. While you and Mr Olin senior were not drunk, it would appear that the son and Mr McKenzie had had a very great deal to drink. Mr McKenzie went to sleep on the couch in the lounge. Everyone went to sleep except you, and you went down to the kitchen and set fire to the contents of a rubbish bin.
[3]       At a little before 5 o’clock in the morning, you gave the alarm of fire. At first Mr Olin junior could not see where the fire was but shortly afterwards a 111 call was made and fire people came along. The fire had got hold by this time and you and the two Olins were outside and it was suddenly realised Mr McKenzie was still outside [sic] and Mr Kevin Olin tried to get in to rescue his friend and eventually he was rescued, as far as I can tell from the facts, by Mr Olin senior because the son had got a cut arm trying to get into the house.
[4]       It is perfectly clear that had Mr McKenzie not been rescued at that time it is likely he would have lost his life. The kitchen was very greatly damaged and there was some structural damage and the cost of repairs is over $47,000. A lot of Mr Olin senior’s affects were damaged or consumed in the fire. He had had some…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Neal

Details

AGLC: R v Neal [2008] NZCA 327
Case: [2008] NZCA 327
Decision Date: 28 August 2008

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of R v Neal (CA279/2008) was heard on 25 August 2008, with judgment delivered on 28 August 2008. Marie Joy Neal, the appellant, was appealing against the sentence imposed on her by Judge Erber in the District Court for setting fire to a kitchen rubbish bin in a house in Christchurch, which resulted in substantial damage to the property and almost caused serious injury to an occupant. Neal, who had a history of 19 convictions for arson, was sentenced to six years' imprisonment with a minimum period of four years. She argued that this sentence was manifestly excessive, and that the minimum period was unjust.

The Court of Appeal was required to decide whether the sentence imposed by the District Court was manifestly excessive and if the minimum period was appropriate. The Court examined the appellant's criminal history and the circumstances of the offence, including the fact that she had lit the fire while knowing that there were other occupants in the house and that some of them were affected by alcohol. The Court also considered the appropriate starting point for the offence, whether the uplift for the appellant's past offending was justified, and the appropriate discount for the early guilty plea.

The Court of Appeal found that the sentence of six years' imprisonment was indeed manifestly excessive. The starting point for the offence was determined to be six years' imprisonment, to which an uplift of one and a half years was added due to the appellant's past convictions and the fact that the offence occurred shortly after her release from prison for similar offences. The Court also found that a discount of one-third was appropriate for the early guilty plea. However, the Court did not consider a further reduction in the term of imprisonment justified for the appellant's psychological condition. The Court agreed with the District Court's approach that protection of the public, given the appellant's past, was now paramount.

As for the minimum period of imprisonment, the Court of Appeal found that eligibility for parole after one-third of the five-year sentence was insufficient in this case. The Court was satisfied that a minimum period of three years was appropriate, taking into consideration the purposes of holding the offender accountable, denouncing the conduct, deterring the offender and others from committing similar offences, and protecting the community from the offender.

The Court of Appeal allowed the appeal against sentence, quashed the original sentence of six years' imprisonment and a minimum period of four years, and substituted a sentence of five years' imprisonment with a minimum period of three years.

Orders