Shaw v Police HC Timaru CRI 2008-473-000020

[2008] NZHC 2519

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI 2008-473-000020

MARK RICHARD SHAW

Appellant

v

POLICE

Respondent

Hearing:         31 July 2008

Counsel:         S A Saunderson-Warner for Appellant

C A O'Connor for Respondent

Judgment:      21 August 2008

JUDGMENT OF FOGARTY J

[1]      The appellant appeals against a sentence of 15 months imprisonment imposed in  the  Timaru  District  Court  on  11  June  on  one  charge  of  intentional  damage pursuant to s 269(2)(a) Crimes Act 1961, for which the maximum term of imprisonment is seven years.

[2]      The appellant was, at the time of the offending, an employee of the victim working on his dairy farm.   On  3  March  the  appellant,  along  with  three  other employees, went to the cowshed and smashed electrical equipment, milking plant and milking controls, rendering the cowshed inoperable.  The appellant opened taps

on milk silos draining over 2,500 litres of milk. Direct and consequential damage

SHAW V POLICE  HC TIM CRI 2008-473-000020  21 August 2008

amounting to $58,325.21 was caused.  The reparation amount of $19,641.74 is not appealed.

[3]      Supported by submissions from the Crown, the Judge took a starting point of two and a half to three years.  He then gave the offender credit for both an immediate plea of guilty and co-operation with the police and reduced the sentence to a term of

15 months.

[4]      Counsel for the appellant submits this sentence is excessive.

[5]      All counsel agree that case law for sentencing on a charge of intentional damage is extremely limited.   Ms Saunderson-Warner drew the attention of the Court to the case of R v Harper (CA) 387/07 12 October 2007.  That case was of offending under a different statutory provision of damaging property with intent to obtain a benefit.  The facts were that fibre optic and copper cables were cut on three occasions.  The costs of repairing the damage was around $40,000.  The cables were part of railway signalling systems and cutting them potentially endangered life.  The appeal against nine months imprisonment was dismissed.  The Court described the sentence as merciful.  Endangering or potentially endangering life is rightly seen as an extremely aggravating factor in sentencing.   Counsel submitted, however, that that factor was not present in the current offending.   Counsel also submitted that damaging property on three separate occasions as in Harper was not present here. Counsel also noticed that the nine months was imposed following trial and therefore likely close to the starting point for the offending.  Based principally on that case, she argued that a starting point of two and a half to three years was manifestly excessive. Originally counsel for the Crown did not rely on any authorities justifying the starting point of two and a half to three years.

[6]      After hearing counsel I adjourned the appeal to receive further submissions. I was concerned at the lack of authority offered to indicate an appropriate sentence. Part of this concern was reinforced by my knowledge of earlier offending in the case of Police v Dor DC Christchurch CRI 2005-003-000329 3 February 2006.  I had first considered that case on the occasion of an appeal against refusal of bail.  There, a dairy worker had been arrested on 7 June 2005 on two serious matters, both laid

indictably:  one, that he did contaminate food, namely, milk, without lawful excuse; and that without reasonable excuse supplied information to an immigration officer. He was an Israeli who lived with his wife and child on a farm in Canterbury.  He fell out with his employer and in breach of trust contaminated milk on the farm which was in storage pending collection.   As it happens he did not receive a significant sentence because his wife fell seriously ill, had moved to Israel and quite appropriately the sentencing Judge took account of the fact that he had already lost his liberty on earlier occasions and had spent time in custody and would leave the country the following day to join his wife in Israel.

[7]      In further submissions from the Crown, Mr O’Connor relied on two Court of Appeal decisions: R v Mohi [2007] CA37/07 NZCA 139 and R v Golding CA329/96. He submitted that while both involved the offence of arson there are similarities to the present matter in that both involve damage to an employee’s property motivated by an employment dispute.   Mr O’Connor said that arson is a significantly more serious offence.  I do not necessarily agree with that, inasmuch as it suggests greater culpability.  Section 267 divides arson cases into two parts.  Some attract a potential penalty of 14 years, the others seven years.   This provision s 269 in respect of intentional  damage  comes  immediately  after  the  two  sections  on  arson.    The quantum of damage in Mohi was $6,000 and in Golding was $2,350, vastly smaller than here.   Mr O’Connor also drew my attention to another case:   R v Farrell CA303/86  which  involved  arson  of  an  employer’s  hayshed.    He  submitted  the starting point for these three cases (after allowing for the Court of Appeal’s adjustments in Mohi and Golding) fell within the 30-36 months range.  In the case of Golding a 50% reduction was allowed in recognition of the appellant’s guilty plea and  co-operation  in  prosecution  of  the  co-offender,  which  was  similar  to  the reduction allowed in the present case and also for similar reasons.

[8]      In  her  further  submissions  counsel  for  the  appellant  drew  attention  to  a decision of the Court of Appeal of the Supreme Court of Victoria in the case of R  v Cincotta  103/1997  BC9705533  15  October  1997.    This  involved  a  case  of criminal damage by fire which was charged as arson.  The maximum penalty for that offence was 15 years.  The offending had a similar motive by a disgruntled employee but there were three incidents in six counts.   The Court reduced the sentence on

appeal to one of three years and six months with a minimum period of one year six months.  Ms Saunderson-Warner submitted that case was far more serious than the present involving a number of incidents involving arson and significantly more loss than the current case.   In respect of Mohi Ms Saunderson-Warner submitted that because it was a case of arson it was more serious than wilful damage.

[9]      I had invited counsel to consider whether the Australian authorities were of any assistance in a context where I thought there may be no assistance to be gained from New Zealand authorities.  I am satisfied that the three authorities proffered by the Crown of Golding, Mohi and Farrell are of assistance to the Court.  There is no need to take the extraordinary step of looking to Australian Courts for guidance.  It is always difficult to look at decisions from another jurisdiction which, as well as having slightly different offending provisions, may well have differences of sentencing policy.  Therefore, I disregard the Australian decision.

[10]     I do think that for the reasons I have already indicated that there is, both by the scheme  of  the  Crimes  Act,  and  in  fact,  a  close  relationship  between  arson offending and intentional damage.

[11]     I acknowledge that the arson offending is more serious in principle than intentional damage but that can be offset, as in this case, by the quantum of damage done.   Employees of rural properties are often in a position to cause damage of a serious kind which is all the more distressing to the victims because of the breach of trust and the remote locations of farms.

[12]     Sentences in cases of such offending do have a role of providing deterrence to other offending.  Other potential employee offenders are likely to be people who are disgruntled with the treatment they are receiving from their employer.  Because of their skills and the fact they have gained employment they are more likely to be influenced by the sentences that have been passed on this kind of offending and thus deterred from offending in the future.  By comparison unemployed unskilled youths in big cities who vandalise property are not likely to give any thought at the time to the sentence, should they be apprehended.

[13]     For these reasons I am not persuaded that the sentence of the sentencing Judge was excessive.   On the contrary I agree with the sentence.   The appeal is dismissed.

Solicitors:

Aspinall Joel, Dunedin, for Appellant

Gresson Dorman & Co, Timaru, for Respondent