R v Walker

[2017] NZHC 2303

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2015-090-4160 [2017] NZHC 2303

THE QUEEN

v

TAMATI TUREITE WALKER

Hearing:	22 September 2017
Appearances:	S McColgan for Crown Q Duff for Defendant
Sentence:	22 September 2017

SENTENCING NOTES OF TOOGOOD J

R v Walker [2017] NZHC 2303 [22 September 2017]

[1]      Tamati Tureite Walker:  you appear for sentence having pleaded guilty to one

charge of arson, which carries a maximum penalty of 14 years’ imprisonment.1

Facts

[2]      Some time prior to 1 May 205 you formed a common intention to set fire to premises occupied by Henderson Mechanical and Tyres Ltd, a car mechanic’s business at 2 Trading Place, Henderson.  You were involved purely for the money you were to be paid.

[3]      On 1 May 2015, at around 5.00am, your associates and you travelled to the business and smashed in a door at the rear of the address.  One of you - and I accept it was not you - then poured petrol inside the building and set it alight, causing a large fire to engulf the premises.  This caused significant damage and it destroyed all of the 14 vehicles inside the mechanic’s shop at that time, 10 of which were owned by customers of the business.

[4]      The damage caused to the premises and the loss suffered by the owner of the business has been estimated in the order of $1 million.  The victim also says that the business has lost most of its customers and it has caused a great deal of stress and strain to him and to his family.  The business had no income for some period after the  fire  and  yet  they  were  required  to  continue  to  pay  employees.  So  the consequences of what you did were profound.

Submissions for the Crown

[5]      It is submitted for the Crown, that an appropriate starting point is in the

vicinity of  five  years’ imprisonment,  with  no  uplift  for  personal  factors,  and  a discount of up to 20 per cent for your early guilty plea.

1      Crimes Act 1964, s 267(1)(c).

[6]      The Crown argues that significant premeditation, the extent of the damage, and risk of harm to other businesses and people going to work at that time, are all aggravating features.   The Crown emphasises the need for parity with your co- offender, Mr Turner, who I understand accepted that he had lit the fire, and who has been sentenced.  It is accepted that none of your previous convictions are relevant to this sentencing.

Submissions for Mr Walker

[7]      Mr Duff has argued on your behalf on the basis of decisions in other cases that a starting point of four and a half years’ imprisonment is appropriate.  You have heard me say to him, however, that there was significant damage to the victim's premises.  And while I accept that this was an industrial area, there is no greater risk to fire fighters than is inherent in any fire.  This was a major blaze and it did impose risks to those whose duty it was to put out the fire.

[8]      Mr Duff has also submitted that in addition to the discount for a guilty plea you are entitled to a further discount because of the effect that imprisonment will have on your children, and I know you are close to them and they will be feeling the loss of your relationship with them very keenly.

Purposes and principles of sentencing

[9]      The relevant purposes of sentencing that I have to take into account include the  need  to  hold  you  accountable  for  the  harm  done  to  the  victims  and  the community; to denounce your conduct; to deter you and others from committing similar offending, and protecting the community.  I must also consider the purpose of promoting in you a sense of responsibility for, and an acknowledgment of, the harm your offending caused, but also to assist you in your rehabilitation and reintegration. I have to  consider the gravity of  your offending,  your culpability, the need for consistency in sentencing, the obligation to impose the least restrictive outcome appropriate in the circumstances, and your personal circumstances.

[10]     The Court of Appeal has said that the critical factors to consider in sentencing for arson are the degree of property damage, the degree of danger to any occupant or fire fighters, and the mental state of the offender.2   All of these require assessment

and will have differing significance depending on the facts of each case.3

[11]     I accept Mr Duff’s submission that it can be useful to contrast the present offending with arson cases involving homes in which occupants were asleep. Offending  in  those  circumstances  is  treated  as  being  in  the  upper  range  of seriousness and it properly attracts a starting point of five years or above for a single

offence.4    The authorities tend to suggest that, before other aggravating factors are

applied, the arson of business premises will not have as high a starting point as that of private homes which are occupied.5

[12]     Parity  with  co-offenders  is  also  a  central   consideration,  to  maintain consistency across sentencing levels.6  Taking a starting point of five years, the Judge who sentenced Mr Turner, Venning J, allowed a total discount of 44 per cent, or two years and 11 months, for the guilty plea that he entered; but more significant for his assistance  to  the  police.    That  resulted  in  an  end  sentence  for  Mr Turner  of imprisonment  for  two  years  and  four  months.7      I  do  not  distinguish  between Mr Turner and you in terms of your roles in the offending.   Mr Turner may have been the one to actually set the building on fire but, although you did not instigate this arson, you recruited him and you were both motivated by the offer of money.

[13]     Since the prospect of commercial gain is an element of the particular offence of  which  you  were  convicted,  I  do  not  regard  that  as  an  aggravating  factor.

Nevertheless, the extent of the damage to the premises and the contents, including

2      Meha v R [2014] NZCA 307 at [9].

3      R v Z CA138/00, 27 June 2000 at [6].

4      Meha v R, above n 2, at [11]; French v R [2014] NZCA 297 at [10].

5      Ollerenshaw v R [2010] NZCA 32; Howarth v R [2010] NZCA 523; Ure v R [2014] NZHC 948 at [24]; R v Heany CA251/00, 9 November 2000; R v Thomson (1992) 9 CRNZ 173 (CA); R v Gilchrist CA429/90, 15 April 1991.

6      Sentencing Act 2002, s 8(3).

7      R v Turner [2016] NZHC 754.

the 10 vehicles, and the serious consequences for the owner of the business and for his family mark out this offending as serious.

[14]     The timing and location of the arson, 5am in an industrial area, did carry a reduced likelihood of members of the public being present and at risk8 but the danger to fire fighters is what justifies arson as being regarded, in and of itself, as meriting a maximum penalty which is on a par with that for serious violent offending.

[15]     Were it not for the extent of the damage I might have been inclined to fix a starting lower point, but I agree with Venning J that the appropriate starting point in this case is one of five years’ imprisonment.

Personal circumstances

[16]     You were on bail for unrelated matters when you committed this offence. That increases the need for deterrence so an uplift of the starting point of three months’ imprisonment is appropriate.

[17]     You believe you were set up to take the fall in this case, but you are aware that you face a substantial sentence and you have said you are determined to use your  time  in  prison  to  complete  available  programmes.     You  have  already participated in a number of relevant prison-based courses, and I commend you for that.   You say you are resolved to be a good father, free of crime and drug dependency.  You will need to end your associations with gang members if you hope to achieve those objectives, Mr Walker.

[18]     Counsel have agreed that a discount of 20 per cent is appropriate for your early guilty plea and I accept their view.  You have written to the Court expressing your remorse for the effect of your offending on your children.  You are right to feel bad about that, but I must say I do not see the same degree of insight into the severe risk to life, and the serious and distressing effect of this arson on the many other victims, justifying a further discount for special remorse.   You are the father of

young children, however, and up to the time of your arrest and detention, you shared

8      R v Bissoti [2015] NZHC 77 at [6].

principal care-giving responsibilities.  I do not doubt that they are suffering the loss of your involvement in their lives. I also want to encourage you to continue your rehabilitative programmes.  So out of compassion for your children and to provide you with some encouragement, I consider a further discount of 10 per cent to your sentence is warranted.9

[19]     That means that the sentence will be reduced by 30 per cent, after the uplift for the offending on bail, to three years and eight months' imprisonment.   That is longer than the end sentence imposed on Mr Turner, but there were other factors in his favour which do not apply in your case.   It is unrealistic to consider that you could meet an order for reparation.

Sentence

[20]     Would you please stand, Mr Walker.

[21]     On the charge of arson to which you have pleaded guilty I sentence you to

three years and eight months’ imprisonment.  Please stand down.

……………………

Toogood J

9      Heta v R [2012] NZCA 267 at [38].