R v Turner

[2016] NZHC 754

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-090-004160 [2016] NZHC 754

THE QUEEN

v

MITCHELL TURNER

Hearing:	21 April 2016
Appearances:	B Northwood for Crown P Boylan for Defendant
Judgment:	21 April 2016

SENTENCING NOTES OF VENNING J

Solicitors:           Crown Solicitor, Auckland

Copy to:            P Boylan, Auckland

R v MITCHELL TURNER [2016] NZHC 754 [21 April 2016]

[1]      Mitchell Turner you are for sentence having pleaded guilty to one charge of

arson. The maximum penalty for that is 14 years’ imprisonment.

[2]      Some time prior to 1 May last year you, together with a number of other associates, formed a common intention to carry out an arson at 2 Trading Place, Henderson.  Henderson Mechanical and Tyres Limited operated from the premises. On the summary that you have pleaded to, and that I have to sentence you on, it was not your idea.   You only became involved on the basis you would receive some payment for being involved in and committing the arson.

[3]      At about 5.00 am on Friday, 1 May 2015, you and an associate went to the address at 2 Trading Place, Henderson.  You and your associate smashed a door at the rear of the address and went in and poured petrol inside the building.  You then set the petrol alight. A large fire engulfed the building causing significant damage to it.   The damage has been assessed at costing between $380,000 and $425,000 to repair.  Inside the mechanic’s shop at the time were 10 cars or vehicles belonging to the customers of Henderson Mechanical and Tyres Limited, all of which were destroyed in the fire.  In addition four vehicles belonging to the company itself were destroyed. The value of the vehicles destroyed is unknown at present.

[4]      In explanation you admitted to knowing about the arson but you initially denied committing it.  The total loss caused by your actions, including the damage to the insured and uninsured vehicles, is in the hundreds of thousands of dollars.  There is no realistic prospect of you making any meaningful reparation at all.  You have acknowledged you have no financial means to pay any reparation.

[5]      Mr Turner although you are only 28 years old you have regularly been before the Courts since a first conviction in 2004.  You have a concerning and significant history of burglary and breaching Court release conditions.   Your explanation for your offending in this case is that you were heavily addicted to methamphetamine. You said you agreed to commit the arson for money to fund your methamphetamine addiction. You said you were offered $5,000 to burn the premises down.

[6]      Apart from a brief period of work as a labourer in Christchurch you have not recently been in employment.  You were an associate of a gang.  On a positive note, as Mr Boylan has submitted, you have taken some steps to address your methamphetamine habit since arrest and have completed some courses whilst you have been in custody on remand.

[7]      In  addition  to  denunciation  and  deterrence  the  principal  purposes  in sentencing you are to hold you accountable for the harm done by your actions and to protect the community.  The victim impact statement makes it clear just what impact your actions have had on the owner of the building and the business.

[8]      The particularly relevant principles of sentencing are:

(a)       to  take  account  of  the  gravity  of  the  offending,  including  your culpability in the offence;

(b)      the  seriousness  of  the  type  of  offence  which  is  recognised  by

Parliament imposing the 14 year maximum term; (c)   the extent of the harm suffered by the victims;  and (d)       consistency with other sentences.

[9]      The Crown submit a starting point for sentence in the vicinity of five years’

imprisonment with a small uplift for personal aggravating factors is appropriate.

[10]     Mr Boylan submits a starting point closer to four years might be available with a reduction for your personal mitigating factors and he argues for a full discount of 25 per cent for a guilty plea.

[11]     Mr Turner there are a number of aggravating factors in this case.  First there is  the  pre-meditation  and  planning  associated  with  the  arson  itself.    You  were engaged in the arson for monetary gain for yourself.  The arson was planned.  You and your co-offender carried out the offence in the early hours of the morning in

order to  avoid  detection.   You  took  accelerant,  namely petrol  to  the  scene  and deliberately set it alight.

[12]     The extent of the damage caused by the offending is also a relevant factor. As I have said the amount of insured and uninsured vehicles damaged or destroyed is in the hundreds of thousands of dollars and the building was substantially damaged.

[13]     There  was  also,  as  there  always  is  in  the  case  of  arson,  risk  to  the accompanying buildings and other people.  Although I accept that 5 o’clock in the morning in an industrial area the risk of harming members of the public may be limited, such offending always poses a risk to emergency services such as firemen who may be called to the fire.

[14]     As counsel have submitted there is no tariff case or guideline judgment for offending of this nature.  Each case depends on its own circumstances.  As the Court of Appeal has observed, however:1

Arson is always serious.  It is easy to commit but difficult to sheet home and has the potential to place lives in danger.

[15]     The most relevant cases are R v Gilchrist and R v Grindrod and Christie,2 but apart from those authorities I have also had regard to a number of other cases that counsel have cited.3

[16]     Having regard to the facts of this case and the role you played Mr Turner I take as a starting point for your offending five years’ imprisonment.  I accept on the summary of facts that you were not the instigator of the arson in this case.   The ringleader or instigator might well attract a significantly higher starting point than that.   I uplift the starting point by three months for the fact that this offending occurred while you were subject to a sentence of supervision.

[17]     I then turn to your personal mitigating personal factors.

1      R v Gilchrist CA429/90, 15 April 1991 at [3].

2      R v Gilchrist, above n 1; and R v Grindrod and Christie CA263/99, CA268/99, 20 October 1999.

3      R v Honan (1988) 3 CRNZ 532; and R v Thompson (1992) 9 CRNZ 173.

[18]     Although Mr Boylan makes the point you regret the offending and suggested a restorative justice conference, such a conference in these circumstances would have been pointless.  There is really nothing further that can be made available to you for remorse.

[19]     However, having regard to your guilty plea and other mitigating factors of the case, in this case a reduction of two years, 11 months is appropriate.

[20]    Mr Turner please stand.   On the charge of arson you are sentenced to imprisonment for two years, four months.  Stand down.

Venning J