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 insurance recovery but that does not nearly far enough replaced what has been lost.

Six years manifestly excessive?

[3]       This offending occurred 17 days after the appellant’s release from prison for previous convictions for arson.  In all, the appellant has 19 convictions for arson.

[4]       Rather than take a starting point for the offending and increasing this to reflect the appellant’s previous criminal record, the Judge conflated these two steps to reach a starting point of eight years’ imprisonment.  He then deducted two years (25%) for the appellant’s guilty plea.

[5]       The appellant submits that the proper starting point for the offending alone was five years’ imprisonment based on such cases as R v Craig CA142/02, 11 December 2002, R v Rameka CA426/04 16 June 2005 and R v Munro CA132/02, 24 July 2002.

[6]       The appellant’s counsel accepts an uplift for the appellant’s past offending is appropriate but says that should be no more than one year.  From the resulting six years’ imprisonment, she says a full one-third deduction should have been given for the early guilty plea and a further reduction for the appellant’s psychological vulnerability.  This would give an end sentence of three to four years’ imprisonment.

[7]       We are satisfied the sentence of six years’ imprisonment was manifestly excessive.  We consider the appropriate starting point for this offending was six years’ imprisonment.  In contrast to Craig, Rameka and Munro, the appellant lit the fire knowing there were other occupants in the home and knowing some were affected by alcohol.  On the other hand, the appellant raised the alarm with the occupants and herself rang the emergency number.

[8]       The appellant’s past convictions and the fact that this offending occurred 17 days after her release from prison for similar offending justified an uplift from the starting sentence of one and a half years, to seven and a half years’ imprisonment.

[9]       The appellant pleaded guilty some six weeks after her initial appearance, including the Christmas holiday break.  This was therefore a plea at the first reasonable opportunity and justified a discount from the starting sentence of one-third.  Applying this discount leaves a sentence of five years’ imprisonment.

[10]     We do not consider a further reduction in the term of imprisonment is justified for the appellant’s psychological condition.

[11]     As to this, the Judge said:

I have weighed the submissions of Ms Bailey and I have come to the view that the time has come when leniency because of personal deficits must be put aside and that paramount regard must be had to the safety of the public.

[12]     We agree with the Judge’s approach that protection of the public, given the appellant’s past, is now paramount.  A psychiatric report prepared prior to plea, states that the appellant has a severe personality disorder but not a mental disorder.  Essentially, the appellant is a dangerous recidivist arsonist.  We consider the public are therefore entitled to protection from her and on the facts of this case, a reduction for her psychological vulnerability was not appropriate.

Minimum non-parole period

[13]     In the District Court the Crown did not seek a minimum period of imprisonment nor did counsel for the appellant make submissions on any minimum period.  In those circumstances, we indicated to counsel that we would consider afresh the question of whether to impose a minimum period and if so its duration.

[14]     The appellant submitted that the community and the appellant would be better served by early eligibility for release and the possibility of close monitoring of the appellant over an extended period through the parole system.  She said also relevant was the fact that this was by far the appellant’s longest prison sentence.  She stressed the appellant’s vulnerability given her personality disorder.

[15]     Section 86(2) of the Sentencing Act 2002 provides as follows:

The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:—

(a)holding the offender accountable for the harm done to the victim and the community by the offending:

(b)      denouncing the conduct in which the offender was involved:

(c)deterring the offender or other persons from committing the same or a similar offence:

(d)      protecting the community from the offender.

[16]     We are satisfied that eligibility for parole after one-third of her sentence of five years’ imprisonment is insufficient in this case.  Of particular importance here are subs (b), (c) and (d).  The appellant must have a clear message that further convictions for arson will bring very long sentences.  As we have said, given the appellant’s past, the community is entitled to protection from her recidivist criminal conduct.  We set the minimum period at three years’ imprisonment.

Result

[17]     The appeal against sentence is allowed and the sentence of six years’ imprisonment and four years’ minimum imprisonment are quashed.  A sentence of five years’ imprisonment with a minimum period of imprisonment of three years is substituted.

Solicitors:
Crown Law Office, Wellington