Rowe v Police HC Wanganui CRI 2010-483-51

[2010] NZHC 1556

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI 2010-483-51

CRI 2010-483-52

JAMES PATRICK MARIU ROWE REGINALD RAWIRI TUTAHI Appellants

v

NEW ZEALAND POLICE

Respondent

Hearing:         31 August 2010

Counsel:         M Bullock for Rowe

R B Crowley for Tutahi
L C Rowe for Respondent

Judgment:      1 September 2010

JUDGMENT OF SIMON FRANCE J (Appeal against Sentence)

Introduction

[1]      One evening the two  appellants (aged 21  and  17 respectively) had been drinking at a house.   They wandered off.   They went past the teaching institution where they were studying.   They broke in and Mr Rowe stole a student’s laptop

(subsequently recovered undamaged).

JAMES PATRICK MARIU ROWE AND ANOR V NEW ZEALAND POLICE HC WANG CRI 2010-483-51  1

September 2010

[2]      Further on they came upon the local opportunity shop building which was owned and run by the Christian Welfare Centre.  It operated from a substantial stand alone building.  The two young men wanted food and so broke in here as well.  They loaded up a trolley with food.  In the process Mr Rowe cut himself and bled on the floor.  Fearing detection, they decided to cover their offending by setting fire to the building.  Each lit a fire at either end of the building.  They succeeded and a valuable community facility was lost.  The total damage to building and stock was $292,000. Although insured, there is a shortfall which the Centre will have to meet.   In the interim the effort needed from the volunteers and the community to keep the service operating has obviously been very significant.

[3]      Each  young man  pleaded  guilty early in  the  piece.    For  the  arson  each received a jail term of three years.  Mr Rowe, who alone was charged with the first burglary, received an extra six months for that.  They appeal these sentences.

Sentencing Remarks

[4]      This  was  a  difficult  sentencing  exercise.    Two  young  men,  drunk,  have caused  great  loss  to  a  community by a  senseless  act.    The  Judge  reflected  the sentencing occasion in this way:

The people of the Marton community have come to Court today to see justice, however they perceive it, as applied to this terrible situation of a

17 year old and 21 year old causing untold loss and misery to members of this community ...

[5]      The Judge took as a starting point four and a half to five years.  This was six months above the figure suggested by the Crown.  The Judge considered the Crown had undervalued the aggravating component, namely the impact on the community. The Judge also indicated he considered it a case for deterrence and denunciation. Arson puts lives at risk and here had impacted heavily on the community.

[6]      Next the Court determined that the offenders should be treated similarly. Mr Tutahi was younger (17) but had a more troubled background with a number of appearances in the Youth Court in connection with burglaries and theft from cars. From the starting point the Judge said there should be a one third discount to reflect

their pleas and their extreme remorse.  He noted that the offenders had indicated a desire to help fix things, and considered though it was unlikely in reality to occur, it was a step in the right direction.

[7]      One had then, a starting point of four and a half to five years, two offenders to be treated equally as regards the arson, and a decision that the plea and remorse merited a one third discount.  Accordingly, on the arson each offender was sentenced to three years, with a concurrent one year penalty for the accompanying burglary.

[8]      Each had other offending.  As noted Mr Rowe received an extra six months for  the  laptop  burglary.    Mr Tutahi  had  some  minor  traffic  offences  for  which convictions were entered but no other penalty imposed.

Appellants’ submissions

[9]      Both appellants dispute the starting point of four and a half years to five years.   It is accepted there is no tariff, but a fair reading of other cases is said to suggest three and a half to four years was the most that could be adopted.

[10]     Reliance is placed first on R v Heaney[1].   Heaney had been sacked by his employer.  He and a friend returned and stole property worth $6,377.  Heaney then started a fire, which caused $200,000 damage.  A total of five years was imposed, the accused having pleaded guilty at a late stage.  The Court of Appeal reduced the sentence to four years’ imprisonment.

[1] R v Heaney CA 251/00, 9 November 2000.

[11]     In McWatters v R[2]  Salmon J dismissed an appeal by an offender who was part of a group who threw Molotov cocktails at a house.  The house was known to them to be occupied.  Moderate damage was caused.  The District Court had taken a four year starting point for this offending plus an earlier burglary of a different dwelling resulting in theft of $900.

[2] McWatters v R HC Whangarei CRI 2003-488-2, 6 June 2003.

[12]     Turning to matters of mitigation, both counsel read the sentencing remarks as settling upon a four and a half year starting point.  If that is so, and if it is accepted that the early plea was at the first opportunity thereby entitling the appellants to a full one third  discount,  then  no  credit  has  been  given  for  age  and  remorse.    It  is acknowledged that Hessell[3]  builds remorse into the one third discount, but counsel observe it leaves open further discount for exceptional remorse which the Judge appeared to accept was present here.   Both counsel also submit some discount for youth was appropriate, noting it is a factor specifically identified in the Sentencing

Act 2002.

[3] R v Hessell [2009] NZCA 450, [2010] 2 NZLR 450.

[13]     Mr Bullock  notes   that   Mr Rowe  was  21 years  old  with  no  previous convictions.   He had prospects, had obtained a diploma in Maori studies and had been genuine in his desire to apologise.  He had by the time of sentencing visited the staff and students at the institution and made his peace.   He had written to the Welfare Centre apologising.  He had some building skills and his offer to work to help repair matters was genuine.  Mr Bullock also submits the final outcome of an extra six months is manifestly excessive in the circumstances.

[14]     On behalf of Mr Tutahi Mr Crowley notes he was just 17 at the time of offending.   Further, although there were several Youth Court matters, he had successfully done whatever had been required and obtained discharges.  He should therefore be seen as a first offender.[4]

Respondent’s submissions

[4] This is correct.  However, R v Rongonui [2009] NZCA 279, at [87]–[88], notes that Youth

Court matters may still be taken into account as relevant.

[15]     The Crown notes there is no tariff for arson as circumstances vary so much. Factors to be considered include the amount of damage, the degree of premeditation, and motive, and the physical risk posed to occupants and fire fighters.  Referring to a number of cases it is submitted four and a half years was available.  The loss was great, and devastating for the community.   The fire was deliberately lit to hide evidence of other offending, and although there was no direct risk, fighting a blazing

building always poses dangers.  The most important factor is that it was gratuitous offending  which  caused  harm  and  distress  to  the  community  and  merited  the emphasis on deterrence and denunciation.

[16]     Concerning discount, the Crown notes that if the higher figure of the starting point range, namely five years, was taken, and then one gave a 15% discount for age and remorse followed by a 33% discount to the adjusted figure, the outcome was still

34 months.  On this basis the final sentence is stern but not manifestly excessive.

[17]     As for the six months cumulative sentence for Mr Rowe, it is submitted standing alone the offending could attract 15 months.  The facility and its staff had been working hard to help the appellant, and so the offending involved a breach of trust.  A six month cumulative sentence from such a starting point is submitted to be clearly not excessive, nor was it wrong to cumulate this separate offending.

Discussion

Starting point

[18]     Looking first at the starting point, I consider that four and a half years is unobjectionable.  Whilst there was no great planning, the fire was deliberately lit in order to cover up evidence of a crime.   The stupidity of it all cannot disguise the wrongness of the conduct.

[19]     This was a building of significant size.  It was a terrible thing to set fire to it; add to that the actual purpose of the building and it is not hyperbole to say it is a community tragedy.  The building was used only to help the needy, was staffed by volunteers, and no doubt in large part was provisioned by donations.  As a result of this arson, damage and destruction amounting to nearly $300,000 has occurred.   I agree with Mr Rowe that whilst cases lower and higher can be identified, there is no

tariff and it cannot be said four and a half years was manifestly excessive.  In R v Z[5]

[5] R v Z CA 138/00, 27 June 2000.

seven years was taken as the starting point for the wanton destruction of an historic

Tauranga church.  In the present case, the building was not of such historic value, but served a very significant community role.

[20]     In R v Ollerenshaw[6], the accused broke into the house of his former partner. He set fire to her bedroom causing significant damage.  The purpose was to cause both damage and lasting emotional harm.  The repair cost was $146,000, and there was uninsured loss of personal belongings to the value of $8,000.   The Court of Appeal rejected a challenge to a six year starting point as being out of line.  There was no tariff and there were features that made the case serious and troubling.

[6] R v Ollerenshaw [2010] NZCA 32.

[21]     As Mr Rowe submits, this case is less serious, but four and a half years is a considerably lesser starting point.   Other cases can be referred to but in my view what matters is that the fire was deliberately lit with the intention of destroying the building.   The offenders must have known what it was used for; that is why they went in there looking for food.  It was lit to conceal a crime and it caused $292,000 damage.   A four and a half year starting point is only one third of the maximum penalty for the offence, and in my view it must be, and is, available.

Discount

[22]     It  is  here  that  I  consider  the  appeal  has  more  substance.    The  Court’s approach was not in line with Hessell in that the appellants were entitled to a one third discount solely for their plea.  If one wanted to give credit for the factors such as youth and extreme remorse, more was needed.

[23]     To  be  balanced  against  the  size  of  any  further  discount  is  the  Court’s indication of the need for deterrence and denunciation.   I admit to being less sure about the relevance here of those factors.  It must be recalled that the basic sentence carries an element of such considerations, and the issue is whether there are factors specific to this type of offending or this offence.  The only matter I can identify is the motive, namely to hide crime.  That would normally merit considerable deterrence, but it is hard to ignore that in this case it was such a stupid drunken decision by

young men.   One wonders if one can deter such a momentary departure of all rationality.  The value of the facility to the community is already reflected in the lead sentence.

[24]     Mr Tutahi  was  17  at  the  time  of  sentencing.    He  had  been  involved  in offending previously, having quite a significant list of youth court appearances.  The driving offences for which he was also being sentenced provide an insight.  He was driving in Marton, having some months earlier been warned not to drive as he had no licence.   When pulled over, he momentarily stopped before driving off at up to

60 kph in a residential area, there were three passengers in the car.  Eventually he was stopped and arrested.  He provided a false name, namely his brother’s.  This was only ascertained two days later when police spoke to his mother.

[25]     The Youth Services record dates back to when he was 15 and contains a steady diet of incidents involving burglary, theft and breaches of bail.  To his credit on each occasion he seems to have done whatever was required because ultimately he  has  received  Children,  Young  Persons  and  Their  Families  Act 1989  s 282 discharges.  Mr Tutahi grew up in a large family, raised mainly by his mother.  He left school when 16 and seems to have done nothing much since.   Corrections assessments  say  there  are  alcohol  and  drug  issues;  Mr Tutahi  disputes  this. Mr Tutahi also took some steps to apologise.

[26]     Mr Rowe is 21.  He has no previous offending.  The reports on him are more positive.  He was in Marton till the age of 14 when he went to Australia to finish his schooling.  He returned when he was 17 to visit a dying grandmother.  That seems to have affected him, and alcohol is a problem.  He tried working but was often late to work because of his drinking.  He has attended a course and obtained a diploma in Maori Studies.  His remorse seems very genuine and he has offered to work for the organisation harmed by the fire.  He had taken steps to apologise as outlined earlier.

[27]     I understand why the Judge thought the mitigating features of these men balanced out.   Mr Tutahi is much the younger and that seems to off-set his less meritorious case.  However, if I consider adjustment is needed, in my view Mr Rowe deserves  more  credit.    He  also  is  young;  he  has  an  unblemished  past,  seems

particularly sincere in his remorse and has showed genuine interest in sorting things out.

[28]     Counting against him is the laptop theft.  However, the incidents were close in time, and part of the same short period of mindless drunken conduct.  Very minor damage was caused, and the laptop was returned unharmed.  He has resolved matters with the institution who are willing to have him back.   Standing alone it would certainly have attracted a sanction, but in the scheme of this night’s activities and burglaries generally, it was not so significant.

Decision

[29]     I am of the view that in principle some express credit should have been given to both offenders for their youth and remorse.  The accepted method is to deduct a figure from the starting point.   The guilty plea credit then applies to the reduced figure.

[30]     The Judge settled on four and a half years as a starting point, and I do not disagree.  In terms of extra discount, I am going to equate the two men at this point. My view that Mr Rowe merits more recognition can be otherwise accommodated.  I consider a reduction of nine months is appropriate.  That leaves 45 months.  A one third deduction is 15 months leaving a sentence of 30 months.

[31]     Next I propose to make Mr Rowe’s second burglary charge concurrent.   I consider an extra six months for a person of his age with his offending free background made the overall sentence manifestly excessive.  I am influenced by the fact that in the scheme of that night’s activities it was a rather lesser offence which need not be marked out to that extent.  It is arguable a lesser cumulative term may be more appropriate, but he is a young man who merits encouragement, and I consider a jail term of two and a half years sufficient punishment.

[32]     Accordingly on the arson offence both appellants’ existing sentences of three years are reduced to two years six months.   The length of all other sentences is unchanged.  However, Mr Rowe’s second burglary sentence of six months is made

concurrent rather than cumulative.

Simon France J

Solicitors:

M Bullock, Barrister & Solicitor, PO Box 11, Wanganui 4540

R B Crowley, Barrister, PO Box 11, Wanganui 4540

L C Rowe, Armstrong Barton, PO Box 441, Wanganui 4540 email:  lan[email protected]