R v Van Haaren - [2008] NZCA 91

IN THE COURT OF APPEAL OF NEW ZEALAND
CA389/06
[2008] NZCA 91
THE QUEEN
v
LEE VAN HAAREN
Hearing:30 August 2007

Court:Robertson, Baragwanath and Heath JJ
Counsel:M E Goodwin for Appellant

K B F Hastie for Crown

Judgment:17 April 2008 at 11 am

JUDGMENT OF THE COURT

THE APPEAL AGAINST CONVICTION AND SENTENCE IS DISMISSED.

____________________________________________________________________
REASONS OF THE COURT
(Given by Baragwanath J)
Introduction
[1]       Ms Van Haaren appeals against her conviction by a jury on eight counts of arson and against the sentence of seven years and six months’ imprisonment with a minimum non‑parole period of four years and six months imposed by Judge McDonald. In order to determine the appeal against sentence we required a further psychiatric report upon the appellant. That was received on 3 March 2008 and we have now considered it.
Background facts
[2]       Between 23 November 2004 and 19 May 2005 numerous fires occurred within or adjacent to the Kaitaia central business district. In early 2005 the police determined that the fires were being lit by a serial arsonist and began an investigation. When several more fires were lit over the Easter weekend they began a covert operation, maintaining a nightly surveillance of the business district in Kaitaia at weekends.
[3]       On 3 June 2005 the appellant was arrested on an unrelated matter. At the police station she was interviewed in relation to the series of fires and made numerous confessional comments. She was arrested on 14 counts of arson which gave rise to charges. In a pre‑trial ruling on a defence application for discharge the Judge dismissed three charges. The appellant was acquitted on another three. Convictions were entered on eight counts:
·count 1: on 14 February 2005 a house occupied by the Far North Arts Society;
·count 3: on 24 February 2005 the Far North District Council Service Centre;
·count 5: on 27 March 2005 a building occupied by the Waitomo Papakainga Development Society Ltd;
·count 6: on 28 March 2005 the Far North District Council’s Kaitaia community centre building;
·count 7: between 15 and 17 April 2005 a wall and handrail adjoining a house in Okahu Rd, Kaitaia;
·count 8: on 16 April 2005 a building at the Kaitaia Primary School;
·count 9: on 26 April 2005 the Far North District Council service centre building;
·count 11: on 19 May 2005 the Kaitaia Family Church building.

[4] The grounds of the appeal against conviction are:
a)inadmissible opinion evidence was given by two police witnesses who were not qualified as experts;
b)the trial Judge erred in summing up by referring to their evidence as expert;
c)interjections made by the Judge during the trial were unfairly prejudicial;
d)the evidence of three police witnesses was unfairly prejudicial to the appellant by referring to previous dealings with the appellant.

(a) Inadmissible evidence and Judge’s references to evidence as expert
The evidence
[5] The Crown relied on propensity evidence that all the fires were set in a particular way, described as use…

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 Van Haaren

Details

AGLC: R v Van Haaren [2008] NZCA 91
Case: [2008] NZCA 91
Decision Date: 17 April 2008

CaseChat Overview and Summary

Ms Lee Van Haaren appealed against her conviction by a jury on eight counts of arson and against the sentence of seven years and six months’ imprisonment with a minimum non-parole period of four years and six months imposed by Judge McDonald. The Court of Appeal of New Zealand was required to determine the appeal against sentence, and a further psychiatric report was received on 3 March 2008. Between 23 November 2004 and 19 May 2005, numerous fires occurred within or adjacent to the Kaitaia central business district. The police began an investigation and eventually arrested Ms Van Haaren on an unrelated matter. She made confessional comments and was charged with 14 counts of arson, of which eight resulted in convictions. The grounds of the appeal against conviction were: (a) inadmissible opinion evidence was given by two police witnesses who were not qualified as experts, (b) the trial Judge erred in summing up by referring to their evidence as expert, (c) interjections made by the Judge during the trial were unfairly prejudicial, and (d) the evidence of three police witnesses was unfairly prejudicial to the appellant by referring to previous dealings with the appellant. The Court of Appeal found that the evidence given by the police witnesses was admissible and that the Judge's direction on the matter was justified. The Court also found that the Judge's comments were innocuous and that the evidence of previous police dealings did not entail a miscarriage of justice. The Court of Appeal then proceeded to discuss the sentence. The Judge observed that the offending had had a detrimental effect on the entire township of Kaitaia and took the arson of the Kaitaia Primary School as the lead offence, adopting a starting point of seven and a half years imprisonment. The Court of Appeal found that the term imposed was within the range for very grave and sustained offending. While the psychiatric and psychological evidence showed that Ms Van Haaren suffered from a personality disorder, the Court of Appeal found that there was no legal basis for abating the sentence imposed, which was otherwise within a proper range. Therefore, the appeal against sentence also failed and was dismissed.

Orders