R v O'Sullivan HC Whangarei CIV 2007-088-5182

[2008] NZHC 2512

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2007-088-5182

THE QUEEN

v

LEIDEN CHEYNE O'SULLIVAN

Charges:         Arson (2) Plea:   Guilty

Appearances: Alice Hyndman for Crown

Arthur Fairley for Prisoner

Sentenced:     19 August 2008

6 months home detention; ordered to pay reparation $1,000

SENTENCING NOTES OF HARRISON J

SOLICITORS

Marsden Woods Inskip & Smith (Whangarei) for Crown

Thomson Wilson (Whangarei) for Prisoner

R V O'SULLIVAN HC WHA CRI 2007-088-5182  19 August 2008

Introduction

[1]      Mr O’Sullivan, you appear for sentence today having pleaded guilty to two charges of arson – one of the public toilet facility at Barge Park; the other of a portable  toilet  unit  at  or  near  Pompallier  Estate.     The  maximum  term  of imprisonment  which  could  be  imposed  is  14  years.     That  term  reflects  the seriousness of your offending.

[2]      Originally you pleaded guilty following a preliminary hearing in the District Court.  You were then remanded in custody following your fourth or fifth breach of curfew, a term of your bail conditions.  You spent the next two months in prison. During that time you instructed Mr Fairley to apply to the High Court for leave to vacate your plea of guilty.   I heard that application in Auckland.   Shortly after it started,  and  after  discussions  with  me,  Mr Fairley  obtained  your  instructions  to abandon the application to vacate your plea.  Accordingly, I am sentencing you on the basis of your pleas of guilty to the two charges.

[3]      What  is  significant  is  that  on  that  occasion  Mr Philip  Smith,  the  former Crown  Solicitor,  accepted  that  in  your  case  leniency  was  appropriate.     He responsibly took that step.  He advised that your co-offender, and the young woman whom I accept was the leader in this criminality, had been dealt with with some leniency also in the Youth Court.   That indication has set the scene for following events.  It means that the prospects for you for mercy are good.  I will discuss them later.

[4]      I should say that I have also had the benefit of an extremely compelling submission, both written and oral, from Mr Fairley.  Also I have read your mother’s letters.   This is an extraordinary case. You are very fortunate.   You have the absolutely committed support of your mother and sister.  It says a lot about them but it also, in your favour, says much about you.  Again their involvement will have a significant impact on the final sentence to be imposed.

[5]      I must deal first with the facts.   You have heard Mr Fairley this morning confirm your acceptance of the police summary.

[6]      In outline, Mr O’Sullivan, you were at home after work on 13 November

2007.  You were visited by a group of young females who arrived in their own car. Following a brief conversation you drove away with them.  You spent the next few hours with the three young women in Whangarei city and its environs.  It is common ground that you consumed some alcohol.

[7]      At about 11.30 pm you drove your car to Pompallier Estate Drive in Maunu. By then you had picked up two other female friends and you had dropped one of their friends off.  Somebody, one of the girls, saw a portable toilet.  She asked you to stop the vehicle so that she could use that facility.  At some time you and another young woman left the vehicle and using newspaper which was piled on top of the toilet seat set the toilet alight. You then returned to the vehicle.   The toilet was completely destroyed.   The cost of repairing the damage to the toilet was $1,800. Also as a measure of the intensity and heat of the blaze, a four metre long section of steel fence on the neighbouring property was destroyed.  Repairs to the fence cost

$1,845.

[8]      You then drove with the three girls to the public toilets at the Barge Park Show Grounds which were nearby.   One of the girls who was with you used that facility.  You and your co-offender entered the block. You followed the same course as before.  You used toilet rolls instead of newspapers, though, to set fire to the toilet cubicles.  There was a risk to the young woman who was using the cubicle nearby. She fled the scene.

[9]      As a result of that fire the female section of the toilet block was destroyed. The fire service staff were called.  The damage was about $70,000.  You drove away with the girls.  You were apprehended some time later.  Importantly, Mr O’Sullivan, I accept that you were not the primary mover.  It is consistent with your personality

that at the time you were a follower, not a leader.  The young woman who has been dealt with in the Youth Court was without doubt the instigator of this offending.

Starting Point

[10]     Against that background I must set what is called the starting point for your sentence.   The starting point is the penalty, in this case a term of imprisonment, appropriate for the circumstances of the offending before I take into account your own personal features, particularly your plea of guilty and other issues.

[11]     I do not need to dwell at great length  on  the  starting  point.    The  three principal aggravating features are these.   First, I have mentioned the nature and extent of the damage caused.   Your offending led to a significant commitment of public resources in extinguishing the fires.   The financial cost was very high. Secondly, and most importantly, there was the risk to life.  Fortunately your young companion was able to escape from the facility.   But you know that any fire deliberately lit exposes the lives and safety of others.  Third, of course, is the fact that you offended twice, not just once.

[12]     Against that, though, I accept that your offending was opportunistic. You did not plan what happened.   Also, as I have said before, you were not the primary offender.

[13]     The starting point, Mr O’Sullivan, reflects many things.  But particularly it is a sign of society’s requirement that you be held to account for your actions, that you are deterred, and that your activity is denounced.  I agree with both counsel.  Not a great deal of assistance can be gained by looking at other cases.  The starting point is always fact-dependent.   In my judgment an appropriate starting point here on the lead offence is three years imprisonment.

[14]     However, against that I must take into account your personal circumstances. First and foremost, as Mr Fairley has emphasised in his written synopsis, there is your plea of guilty.   I agree with him that it is a sign of genuine contrition and remorse.   There has been from all accounts a substantial change, and one for the better, in your behaviour as a result of the plea.  You are on the road to rehabilitation. Of course, by pleading guilt you have saved the state from having to commit its resources to running a trial and you have saved the witnesses the distress and embarrassment of having to give evidence against you.  That is a major factor.

[15]     Also,  Mr  O’Sullivan,  you  are  a  person  of  otherwise  excellent  character. Before these events you had no previous convictions.  You were at the time of the crimes 19 years of age.  By all accounts you are an impressionable young man.  You are naïve.  But you are a hard worker; you are loyal; you have many great qualities. The sentence that I impose will be designed to assist you.

[16]     The experienced probation officer confirms those impressions.  He says that you are motivated to change.  The time that you spent in prison was a rude and cold awakening for you.   In my judgment you present little prospect of re-offending in this way again.   Furthermore, it is important that whatever sentence is imposed is one which encourages you to pursue career opportunities.

[17]     Bearing those factors in mind, and they are in combination extraordinary, they justify a reduction against the starting point of three years of one-and-a-half years.  On that basis the appropriate end sentence on the most serious charge is one- and-a-half years imprisonment.

[18]     However, I must take into account the alternative sentence of home detention. If I did not impose home detention I would sentence you to a short term sentence of imprisonment.  In your case I am satisfied that home detention, which is not an easy option, will satisfy all the purposes of sentencing; that is, of denunciation, deterrence

and  accountability.    Most  importantly,  I  am  satisfied  that  a  sentence  of  home detention will assist in your rehabilitation.

[19]     The home detention report is most favourable.  You are able to continue to reside at your sister’s address.  You have lived with her since being granted bail just over a month ago.   By all accounts that has been a very satisfactory arrangement, both for her and particularly for you.   Your sister understands the terms and conditions of home detention.  So do you.

[20]     The issue then is this.  How long should you be sentenced to a term of home detention for?  Mr O’Sullivan, the Courts recognise that every month served of home detention is equivalent to two months of imprisonment.  The reason is that you are not eligible for parole while you are on home detention.   In the normal course of events  the  appropriate  term  of  home  detention  for  you  would  be  nine  months. Against that, though, I take into account the two months you have already spent in custody  and  the  fact  that  you  have  effectively  been  serving  a  home  detention sentence while on EM bail at your sister’s house in the last month.

[21]     Accordingly, the final sentence on both charges is one of six months home detention, on the terms and conditions provided in the home detention annex report, subject to deletion of the prohibition against consumption of alcohol or illicit drugs. You heard what I said to Mr Fairley.  If you consume illicit drugs you are guilty of a discrete criminal offence for which you will be charged.   You also, I hope, now know how to control the effects of alcohol consumption.

[22]     There are two other issues.  One is reparation.  By consent I order you to pay the sum of $1,000.  The other issue is your motor vehicle.  Before I came into Court I was minded to make an order for confiscation.  Having heard from Mr Fairley and your mother, I have changed my mind.  Your motor vehicle will not be impounded. But you know as well as anybody else that if you abuse the privilege of ownership or use again the consequences will be severe.  For what it is worth, Mr O’Sullivan, I am confident that you are a changed young man and that there is no prospect of you being drawn into the past abuses of your motor vehicle that have caused you some grief.

[23]     There you are.   Before you stand down I wish you and your family well. This is an unusual occasion.  But if you continue on the track that you have shown, you will do well.  In particular I hope that you are able to find a vocation that brings

you satisfaction and reward.  Please stand down.

Rhys Harrison J