Shingleton v Police HC Christchurch CRI 2010-409-72

[2010] NZHC 1128

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-409-000072

ROBERT JAMES SHINGLETON

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         1 July 2010

Counsel:         P J Butler and N J Hansen for Appellant

L C Preston for Respondent

Judgment:      1 July 2010

ORAL JUDGMENT OF PANCKHURST J

[1]      The appellant was sentenced to three years and nine months’ imprisonment in relation to two offences of arson and four offences of intentional damage.   That sentence is challenged in this court upon a variety of grounds.

[2]      Most of the offending occurred on 9 July 2009.   Mr Shingleton had been drinking in a restaurant bar.  At about 2.00 am he was walking home and went to the vicinity of the Westfield Mall.   He first went into an alleyway where there were plastic wheelie bins containing rubbish.  He lit a fire in one of the bins with the result that two bins were destroyed and there was damage to the extent of $326.

[3]      He  then  went  to  another  accessway  adjacent  to  the  mall  and,  more particularly, to premises occupied by Farmers Limited.  Here there were metal skips

containing cardboard.  On three occasions he endeavoured to light cardboard in one of the skips.  The fires petered out.  On the fourth attempt he went to a different skip and the fire took hold.  It spread first to the rear wall of the mall and eventually there was smoke ingress into the building itself, which caused the activation of sprinklers and the combination of smoke and water occasioned extensive damage.

[4]      The appellant’s actions had been captured on surveillance cameras.   In the result he faced two charges of arson, one referable to the building owned by the Westfield Riccarton Mall to which there was damage of $235,000.   The second charge related to the damage to Farmers, essentially to stock which was assessed at a value of $1.3m or thereabouts.

[5]      Although the appellant at first left the scene he returned to the vicinity in order to observe the fire and the actions of the fire brigade.  While there he spoke to a police officer and, indeed, gave his personal details which were recorded in a police notebook.

[6]      Later at about 5.00 am the appellant was in Hagley Park.  Here he set fire to another rubbish bin.   This bin was also destroyed causing damage to a value of approximately $600.  The third charge of intentional damage then occurred, also in Hagley Park.  The appellant set fire to padding around the rugby posts on a playing field and caused damage to the value of about $250 to property belonging to the rugby union.

[7]      The   fourth   and   final   intentional   damage   occurred   in   Westport   on

22 November 2009.   Again the appellant had been out for the night this time to a hotel.   At about 3.25 in the morning he was alone in the main street.   He lit the contents of a rubbish bin with similar results.

[8]      On 15 December he was spoken to by the police in Westport and admitted his involvement in all of these offences.   Pleas of guilty were entered on request in relation to the arson charges on 5 February and likewise in relation to the summary charges that same day.   The appellant was then sentenced by Judge Crosbie on

30 April.

[9]      The Judge adopted a starting-point of five years’ imprisonment for the arson offending.     He  considered  this  term  was  required  in  order  to  recognise  the seriousness of the matters, what he termed the premeditation involved, the loss that was caused, the inherent danger from the major fires and the impact upon victims. In terms of sentencing principles he considered accountability, denunciation and deterrence were paramount.

[10]     He then turned to personal aspects and said this:

[30]       There  are  no  aggravating  features  relating  to  you.    You  have expressed remorse.   That at this untreated stage in my assessment, would appear to be rather superficial.  You do have some obvious emotional and psychological issues, but while that entitles you to some discount that should not  be  great.    At  your  age  you  are  not  so  young  that  that  should  be considered a mitigating factor.  So you are entitled to a substantial discount for  your  guilty  pleas.     They  were  not  entered  at  the  first  available opportunity but could be seen to have been entered at the first reasonable opportunity and therefore a discount of around 30 percent should be allowed.

[11]     Hence, in the end result, the Judge applied a 30 percent reduction to the starting-point and arrived at an end sentence of three  years nine months.   It is common ground, however, that there was a miscalculation.  A 30 percent reduction should have reduced the end sentence to three and a half years, some three months more than the Judge allowed.   I note that the sentence was structured so that the effective end term was imposed in relation to the arsons, while the wilful damage offences attracted one month imprisonment which was imposed concurrently.

[12]     A number of grounds of appeal have been advanced.  These can, for present purposes,  be  reduced  to  two;  that  the  starting-point  was  excessive  and  that insufficient or no credit was given for personal mitigating factors.

[13]     With reference to the starting-point Mr Butler first of all dealt with the two arson charges; then with whether this was deliberate offending in the sense that the Judge described it; whether the risk to life had been over-emphasised and, finally, whether a victim impact statement had been properly admitted in the District Court.

[14]     The first point concerning the two arson charges is one of some subtlety. There was one act of setting fire to rubbish in the metal skip.  Yet two charges of

arson resulted.  This, in my view, was permissible, given that the gist of the offence of arson is causing damage by fire.  Here the appellant did cause damage to both the building owned by the mall company and to property belonging to Farmers, in the main trading stock.  Hence, I do not accept - not that Mr Butler suggested as much – that the two charges were inappropriate.

[15]     However,  there  is  a  second  point.    Both  charges  were  brought  under s267(1)(b) of the Crimes Act 1961.   This subsection deals with damage caused to immovable property, whereas it appears that only the building owned by the mall company should have been the subject of a charge under this subsection.   On a reading of the summary of facts at least, it seems that the property belonging to Farmers  Limited  was  movable  property  and  that  the  charge  should  have  been brought  under  s267(2)(a)  which  relates  to  any  property  (not  just  immovable property) in which the offender has no personal interest.  This is significant to the extent that, whereas the two charges preferred carried a maximum penalty of 14 years, a charge under subs (2) carried only a seven year maximum.

[16]     Mrs Preston accepted that the appropriate course did seem to be one charge under subs (1) and one under subs (2) of s276.  I agree with that stance.  But the real question must be whether this imperfection had any impact upon the sentencing outcome and, in particular, upon the starting-point adopted by the learned Judge.  I shall return to that aspect in a moment.

[17]     The next criticism was that the Judge treated the offending as deliberate rather than reckless.   I do not think that this was in fact the case.   The relevant observations  made  by  Judge  Crosbie  were  at  paragraph  [19]  when  he  was considering a case which had been cited to him.   It involved young men who had flicked matches into cardboard boxes which had been ignited, leading to a catastrophic loss of some millions to the affected commercial premises.   What the Judge said was that he thought the appellant’s actions in this case were more deliberate than those of the men in the other case.   To my mind, on a sensible reading of his remarks, I think he was making the point that there was greater persistence on the part of the present appellant in that he deliberately lit fires and,

indeed, in relation to the major property damage, set the fire no less than four times before it took hold.

[18]     The next point concerned the risk of danger to life.  Mr Butler submitted that this had been overstated.  Again, on a reading of the sentencing remarks as a whole, I am doubtful that this is so.  The Judge deliberately referred to the risk as “inherent” in nature.  This, as I apprehend it, was to signify that it was a case where there was the ever present risk of harm to fire fighters as opposed to actual risk.  I do not think it can be said that this element was over emphasised.

[19]     A further point concerned the reception of a victim impact statement prepared by a manager of Farmers.  The statement spoke in quite emotive terms of the impact both upon him and upon his workers.  It is accepted that the person who made this statement was not a victim as defined in s4 of the Victim Rights Act 2002.  For the statement to be received it had to be via s20 of the Act where non victims, who are nonetheless disadvantaged by the offending, may provide a victim impact statement, subject to leave being granted.  That was not done in this case and it is accepted that it should have been before the statement was received.

[20]     The real question is, again, whether this made any difference to the starting- point.  The Judge did refer, at para [6] to a profound effect upon a large number of people, but I doubt that this observation translated into any meaningful increase in the starting-point.   I also consider that, had leave been sought in relation to the statement, it would inevitably have been granted.

[21]     Having considered the individual criticisms of these various aspects of the sentencing remarks, I return to the fundamental question: was the starting-point of five years without the available range?   This was undoubtedly serious arson.  The value of the property loss is unquestionably high at about $1.5m.  So in my view was the level of recklessness involved and, therefore, the culpability of the offender. While I accept Mr Butler’s point that this was not a case of setting fire to rubbish within premises, but rather in a skip adjacent to the premises, nonetheless it was a very reckless act and committed in circumstances where the risk to large commercial premises  was  obvious.    To  his  credit  Mr  Shingleton  accepted  the  recklessness

involved in his actions when he pleaded guilty to the two arson charges.  Despite the matters which I have discussed in response to Mr Butler’s submission I am not brought to the point where I am persuaded that the starting point can be regarded as out of range.

[22]     I turn then to the credit given for mitigating factors.  The criticism here is that not only was there a miscalculation of the 30 percent discount which the Judge intended to apply, but that this was a case where a full one-third discount was appropriate for the plea alone, with something more required for other personal mitigating aspects.

[23]     Mr Butler drew attention to s8(h) of the Sentencing Act which provides that if there are particular circumstances pertaining to an offender which will make a sentence disproportionately severe for that person, then this should be brought to account.   He referred as well to s9(g) which mandates the need to have regard to previous good character, and to s9(f) which deals with remorse.

[24]     The appellant had no previous convictions.   In addition, Mr Craig Prince provided a lengthy psychological report.   It dealt with the appellant’s birth, his childhood, his schooling and adult history.   In short, he has had problems at all stages of his life.  I shall not enumerate these various difficulties or their causes.  I shall,  however,  read   paragraph  12.1   which   contains  the  commencement  of Mr Prince’s opinion as follows:

Mr Shingleton has numerous psychological difficulties secondary to neurological insults, psychological trauma, and adverse life events.  He has bottled up his emotions, leaving him with ineffective ways to deal with stresssors.  He has not received any help with his psychological difficulties. It is unclear why he set fires recently, but [the history] indicates a form of displaced anger.  Since his alleged offending, he has begun to open up more and appears willing to accept help.

[25]     Elsewhere in his report Mr Prince made the point that the appellant will “struggle immensely” in a prison setting.  He is very likely to be perceived as weak and different on account of certain physical problems from which he suffers and he will, in my view, be vulnerable indeed within a prison.

[26]     It seems to me that the content of the psychological was not capable of serious dispute.   However, in the District Court the Crown submitted that the psychological difficulties may have to bow to the need for protection of the public. The case of R v Lucas-Edmonds CA585/2008, 21 May 2009 was cited.  In that case the Court said at [34]:

...   Counsel pointed to R v Clarke CA225/98 3 September 1998 and R v Taueki [2005] 3 NZLR 372 at [45] where this Court stressed the need for caution when a sentencing court was faced with any suggestion of diminished responsibility as a result of psychiatric or behavioural disorders. The need for deterrence and protection of the public might well affect the weight to be given to personal circumstances of that type.

And at [41] the Court said this:

A guilty plea a week after offending would normally justify a discount of one-third by itself.   We consider in the unfortunate circumstances of this case, the Judge was justified in limiting the discount to one-third to reflect both the guilty plea and the appellant’s personal circumstances.  More than a third discount would result in an unjustified diminution of the need to consider public risk.

[27]     It appears that Judge Crosbie adopted the approach taken in Lucas-Edmonds. At [22] of his remarks he referred to the Crown’s submission on this point as “careful and correct”.   Nonetheless at [30] he said that the emotional and psychological issues affecting the appellant entitled him to some discount, but it should not be great.  However, when the discount was applied, the Judge adopted the figure of 30 percent which, on any view of it, was required in relation to the guilty plea and hence the appearance is that no recognition was given to other personal mitigating factors.

[28]     The first question is whether the principle discussed and applied in Lucas- Edmonds was equally of application in this case.  In my view it plainly was not.  Mr Lucas-Edmonds  was  only  22  years  of  age.    He  suffered  from  foetal  alcohol syndrome and in the result had profound psychological problems.  But he was not a first offender.  He had numerous convictions for burglary, wilful damage and being unlawfully on premises.  The Court of Appeal noted that despite his having served prison sentences, they had not discernibly modified his behaviour.   It was against this  background,  effectively  that  he  was  beyond  rehabilitation;  that  the  Court

endorsed the approach taken in the District Court to make no or little allowance for personal circumstances.   Nonetheless, I note that the Court of Appeal did in fact reduce the sentence imposed for three arsons and a burglary, being a term of five years and four months which was reduced to four years and eight months (and a minimum period of imprisonment was also quashed).

[29]     Returning  to  this  case,  what  I  have  already  said  demonstrates  why  the principle applied in Lucas-Edmonds was not applicable.   Mr Shingleton has no previous convictions.  He has, therefore, not served a sentence of imprisonment.  A proper evaluation of his circumstances was required before it would have been appropriate to consider him in light of the principle applied in Lucas-Edmonds. There is also the point that Mr Prince considers that there had been a turnaround in his insight and receptiveness to treatment, after he was apprehended in relation to these matters.  All in all this was a markedly different case and not one where, in my view,  it  was  appropriate  to  make  no  allowance  for  the  absence  of  previous convictions and the psychological difficulties which are discussed in Mr Prince’s report.

[30]     For that reason I consider that it is necessary to intervene and review the sentence to some degree.    As already discussed the starting-point was unimpeachable.  However, a third discount should have been allowed for the guilty pleas which were entered at the first reasonable opportunity, given the circumstances which have been outlined by Mr Butler.

[31]     To my mind the overall discount, allowing for the absence of convictions and the psychological factors, should have been of the order of 45 percent.  That reduces the sentence to two years and nine months.  Even a term of that order is going to be substantial for this appellant, given his vulnerability.  But no lesser sentence would be appropriate, given the seriousness of the offending, including the extent of the damage which was caused to property.

[32]     I therefore allow the appeal, quash the sentence imposed in the District Court in relation to the two offences of arson and substitute a sentence of two years and

nine months’ imprisonment.

Solicitors:

Patrick J Butler, Barrister, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch for Respondent