Solicitor-General v Lyell

[2009] NZCA 137

IN THE COURT OF APPEAL OF NEW ZEALAND

CA784/2008
[2009] NZCA 137

SOLICITOR-GENERAL

v

CRAIG LYELL

Hearing:10 March 2009

Court:Robertson, Rodney Hansen and MacKenzie JJ

Counsel:T Epati and K Laurenson for Crown

P J Norcross for Respondent

Judgment:28 April 2009 at 9 am

JUDGMENT OF THE COURT

A        LEAVE TO APPEAL IS GRANTED TO THE SOLICITOR-GENERAL.

BThe sentence imposed in the District Court in Christchurch is quashed.  On each of the charges, Mr Lyell is sentenced to six months’ home detention, the terms to be served concurrently subject to the conditions in [43] and [44] of this judgment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1]       The Solicitor-General seeks leave to appeal against a sentence of 250 hours community work imposed on the respondent in the District Court at Christchurch on a charge of arson contrary to s 267(1)(c) of the Crimes Act 1961 and on a charge of using a document contrary to s 228(b) of the Crimes Act.

[2]       Leave is sought on the basis that the sentence imposed was manifestly inadequate and that Judge Neave erred in law in holding that he could not impose different sentences on the respondent and his co-accused.

The facts

[3]       The respondent and his wife, Mrs Lyell, owned a Honda car registered in Mrs Lyell’s name and insured with AMI Insurance for $6,000.

[4]       In November 2007 the car was stolen from outside Mr and Mrs Lyell’s home.  It was found in a damaged condition with its mag wheels missing by Mr Lyell, (who went looking for it) on a railway track service road.  Mr Lyell subsequently retrieved the wheels from associates.

[5]       When Mr Lyell reported to his wife that he had found the car, she told him to get rid of it, and he subsequently set fire to it.  The following morning Mrs Lyell rang the police and reported the car missing.  About two hours later the police rang her to say the burnt out car had been located.

[6]       Later that week, a claim was made to the New Brighton branch of AMI.  There was a signed claim form stating that the car had been stolen and subsequently burnt out.

[7]       The Lyells had purchased a de-registered wreck of a car for $150 and had rebuilt it at a further cost of about $2,000.  They believed that the revamped car would sell for up to $6,000 and so had insured it for that sum, and claimed accordingly.

[8]       The insurance claim was declined.

[9]       When spoken to by the police, Mrs Lyell admitted having made a false insurance claim.  She said, however, that if the theft had been reported to the authorities, there might have been questions about who the Lyells suspected had stolen the car and she was afraid of retribution if she provided names.

[10]     Mr Lyell denied to police that he had burnt out the car and said it was already alight when he located it.  He said he did not contact police as he thought they would suspect him of damaging it for insurance purposes.  He denied that the insurance claim was fraudulent and said that he had left that up to his wife to sort out.

[11]     Mrs Lyell is a 20 year old mother who had not previously appeared.  Mr Lyell is a 22 year old self-employed gib fixer with a substantial list of previous convictions.  The bulk of these are in the Youth Court, although he was sentenced to four years’ imprisonment in September 2002 on a charge of rape.  Shortly prior to this present sentencing, Mr Lyell had been convicted and sentenced to intensive supervision in respect of burglaries which occurred after the date of the current offending.

The District Court proceedings

[12]     Mr Lyell was arrested and first appeared in Court on 10 April 2008 on the current charges, which were laid indictably.  He was initially remanded to 24 April and then to 29 May.  There was a depositions hearing on 16 September 2008 in respect of the charges against both him and his wife.  After pleading not guilty, Mr and Mrs Lyell were remanded to the District Court on 21 November 2008 at 2.15pm which appears to have been a pre-trial call-over.

[13]     At the pre-trial call-over, counsel for the respondent sought a sentencing indication and Judge Neave indicated a sentence of community work.  He did not seek Crown submissions before giving that indication.

[14]     The matter was recalled later that day and, prior to pleas being entered, Mr Lange for the Crown addressed the Court as to the Solicitor-General’s position on sentence indication hearings.  The subsequent sentencing notes include the following:

[7]       Mr Lange has quite rightly brought to the Court’s attention and yours that the solicitor general is not bound by any sentencing indication, I having indicated that I thought community work was appropriate.  He has also drawn to my attention the decision of the Court of Appeal in R v Coker 21 April 2005 CA421/04, where a term of 12 months imprisonment for a similar sort of offence was imposed.  However he has equally brought to my attention correctly that there is no tariff for arson in the circumstances that vary enormously.

[15]     It was the Crown’s submission to Judge Neave that a sentence of 18 months’ imprisonment was appropriate.  The Judge proceeded, however, to sentence Mr Lyell and his wife to 250 hours community work with an authorisation to convert those hours of work to training.

The District Court sentencing

[16]     Specifically in respect of Mr Lyell, Judge Neave said:

[3]       When you advised your wife [that the car had been located in its original state with its mag wheels missing] … she told you to ring the police to report the theft.  Indeed, there may even be some room for argument as far as Mr Lyell was concerned as to whether or not he even intended to defraud at the time that he burnt it, which is relevant to my overall assessment of culpability.

…

[5]       … you admitted fairly promptly that you had made a false insurance claim. 

[17]     The Judge considered Mr Lyell’s offending to be “opportunistic” and said that although Mr Lyell had a ten-year record of offending, it was mainly in the Youth Court and had been dealt with by intensive supervision and community detention.  He considered that Mr Lyell’s arson had been only a preliminary step for the dishonest use of the document, which he considered to be both the “key aspect” of the offending, and in itself “towards the lower end of the scale”. 

[18]     He noted R v Coker in which a sentence of 12 months’ imprisonment had been imposed for similar offending.  He noted in addition, however, that the offender in Coker had faced an inevitable term of imprisonment because of other charges he faced, and that had he faced a sole charge of arson he would, under the current sentencing regime, have been eligible for home detention. 

[19]     Judge Neave considered it inappropriate to sentence Mrs Lyell to a term of imprisonment, and that in the circumstances of Mr Lyell’s offending, there would be an appearance of injustice if there were a marked disparity in the penalties imposed.  The Judge did not identify a starting point.  He sentenced both Mr and Mrs Lyell to 250 hours of community work.

[20]     Although he acknowledged that Mr Lyell had a history of offending, the Judge made no mention of Mr Lyell’s conviction for rape leading to four years’ imprisonment in 2002.  Mr Lyell has also been convicted of breach of home detention and release conditions, in 2004 and 2005.

Crown submissions on appeal

[21]     The Crown submitted that Judge Neave’s assessment of Mr Lyell’s offending was inconsistent with authority and resulted in a manifestly inadequate sentence.  Ms Epati emphasised that although there is no tariff for arson given the range of circumstances in which it can occur (R v Thompson CA 383/95 23 November 1995), this Court in R v Gilchrist CA 429/90 15 April 1991 characterised arson as a serious offence stating that:

Arson is always serious.  It is easy to commit but difficult to sheet home and has the potential to place lives in danger… where the arson is a means of destroying incriminating or commercially valuable evidence the deterrent aspect of punishment will be an important consideration. 

[22]     Ms Epati emphasised the factual parallels between Mr Lyell’s offending and that in Coker where the offender had set fire to a car so as to fraudulently claim insurance.  The Court in Coker adopted a starting point of 18 months’ imprisonment for the arson, which was reduced to 12 months’ imprisonment so as to prevent the cumulative sentence for the arson and other offending being excessive.  Further, in R v Gray HC WN AP 139/99 27 July 1999 Wild J identified 16-18 months as an appropriate starting point for a single offence of deliberately setting fire to a car. 

[23]     Ms Epati submitted that on the basis of these authorities the sentence of community work was not open to Judge Neave.  Other than the plea of guilty, there were no mitigating factors in Mr Lyell’s favour, and he had a history of serious offending. 

[24]     In respect of the Judge’s concern not to create a disparity between the sentences imposed on Mr and Mrs Lyell, Ms Epati noted simply that sentences are properly described as disparate when offenders in the same position are treated differently.  That is not, she submitted, the case here.   Mr Lyell had a significant list of previous convictions, which is an accepted sentencing differential (see Police v Egden [1977] 1 NZLR 123).

[25]      Ms Epati submitted that a sentence of 12 months’ imprisonment (with the possibility of home detention contingent upon the availability of an appropriate residence) would have been a proper starting point.

[26]     Ms Epati accepted that, as this was a Solicitor-General’s appeal, a merciful approach should be adopted.

Respondent’s position

[27]     Mr Norcross submitted that, as there is no tariff for arson, the full range of sentences was available to the Judge.  He argued that the Judge was correct to suggest that Mr Lyell may not have intended the fraud offending at the time of the arson.  He also emphasised the Judge’s characterisation of Mr Lyell’s actions as foolhardy, influenced both by his concern of possible retribution from the people who had stolen the car, and probable police incredulity, because of his background, at his narrative of events.

[28]     Mr Norcross noted the way in which Mr Lyell’s wife had been dealt with and argued that Coker was of limited application because the facts were so different to those here.

[29]     It was submitted that if Mr Lyell and his wife were dealt with differently, there would be a perception of injustice.

Assessment

[30]     In the course of the hearing, it became apparent to us that the approach  adopted by Judge Neave was unsustainable. This was serious offending and an essential element of the arson charge was an attempt to obtain a benefit which was confirmed with the plea of guilty to the second count.  Where there is not a tariff, it does not mean that a sentencing Judge has an open-ended discretion.

[31]     We were aware that on 2 April 2008 a sentence of 12 months’ intensive supervision had been imposed and we needed information as to how successful that sentence had been.

[32]     Although we were satisfied that had Mr Lyell’s offending attracted a term of imprisonment of 12 months it would not have been interfered with by this Court had he appealed, we were faced with the different circumstances of a Solicitor-General’s appeal.

[33]     Accordingly we adjourned the matter part-heard to allow for a full pre-sentence report on Mr Lyell to be prepared. 

[34]     The pre-sentence report indicated a degree of optimism with regard to Mr Lyell’s present personal position, and recommended home detention.  It indicated an appropriate address at which that sentence could be served.

[35]     We have read two letters of support from contractors with whom Mr Lyell has been employed.  Both express regret at the possibility of losing Mr Lyell as an employee and emphasise his positive work ethic and the pride he takes in his work.

[36]     Because Mr Lyell’s sentence was imposed following a sentencing indication, Mr Lyell had the right to vacate his plea: R v Sipa (2006) 22 CRNZ 978 (SC); R v Edwards [2006] 3 NZLR 180 (CA). We have now been advised that Mr Lyell does not wish to vacate the guilty pleas he entered on 23 November 2008, notwithstanding that the Court has indicated that it will grant leave to the Solicitor-General, and allow the appeal.

[37]     Mr Lyell needs to understand that he cannot coat-tail on his wife.  There is no reason why offenders involved in a common enterprise should be treated in the same way where their background history and other relevant circumstances are markedly different.  No reasonable observer, knowing all the facts, would think something had gone wrong with the administration of justice if a person with Mr Lyell’s list of previous convictions was dealt with differently than his wife who had no prior convictions.

[38]     Mr Lyell has had the benefit of many opportunities and concessions, and if he offends further he will undoubtedly face a substantial term of imprisonment.  He is extraordinarily fortunate that he was not imprisoned for this offending.

[39]     Mr Lyell is now provided with a last opportunity to prove that he can live within the community in a law abiding manner.

[40]     The least possible interference we could make to Mr Lyell’s sentence is to substitute the sentence of community work for a term of home detention.  We take into account the fact that he has already undertaken 41 hours of the sentence of community service, and impose the minimum sentence possible for this offending.

Result

[41]     Leave to appeal is granted to the Solicitor-General.

[42]     The sentence of community work imposed in the District Court at Christchurch is quashed.  On each of the charges Mr Lyell is sentenced to six months’ home detention, the terms to be served concurrently.

[43]     Mr Lyell is to be subject to the standard home detention conditions set out in s 80C(2) of the Sentencing Act 2002. 

[44]     In addition, the following special conditions apply.  Mr Lyell is to reside at 727 Main South Road, Islington, Christchurch (which is the address approved for serving his sentence), and is not to move from that address without the prior approval of the supervising Probation Officer.  He is only to undertake employment that has been approved by the supervising Probation Officer, and he is permitted to undertake limited absences from the approved residence to fulfil his parental responsibilities, as approved by the supervising Probation Officer.

Solicitors:
Crown Law Office, Wellington