Stollery v The Queen
[2020] NZCA 429
•17 September 2020 at 3 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA139/2019 [2020] NZCA 429 |
| BETWEEN | TAMARA DAWN STOLLERY |
| AND | THE QUEEN |
| Hearing: | 24 August 2020 |
Court: | Gilbert, Thomas and Dunningham JJ |
Counsel: | J D Lucas for Appellant |
Judgment: | 17 September 2020 at 3 pm |
JUDGMENT OF THE COURT
AThe application for an extension of time to appeal is granted.
BThe appeal against conviction and sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Thomas J)
Introduction
Ms Stollery was convicted of arson following a trial by jury and sentenced by Judge Garland in the District Court at Christchurch to three years and six months’ imprisonment.[1] She appeals her conviction and sentence.
[1]R v Stollery [2019] NZDC 2619.
Ms Stollery was charged under s 267(1)(c) of the Crimes Act 1961, which provides that every one commits arson and is liable to imprisonment for a term not exceeding 14 years who:
intentionally damages by fire or by means of any explosive any immovable property, or any vehicle, ship or aircraft, with intent to obtain any benefit, or to cause loss to any other person.
Ms Stollery claims there was a miscarriage of justice that has created a real risk the outcome of the trial was affected,[2] as:
(a)she did not intend to “obtain any benefit”; and
(b)the Judge erred in not giving a Papadopoulos direction when the jury indicated they were unable to reach a unanimous verdict.
[2]Criminal Procedure Act 2011, s 232.
Ms Stollery abandoned another ground of appeal, namely that the jury’s verdict was unreasonable.
Ms Stollery also challenges her sentence of three years and six months’ imprisonment on the basis the starting point was too high having regard to the aggravating and mitigating features of the offending, and the discount for personal mitigating features was insufficient.
Ms Stollery’s appeal was filed 14 working days out of time. As the delay was short and there has been no prejudice to the Crown, an extension of time is not opposed and is accordingly granted.
Background
Ms Stollery’s house in Greymouth burned down on 12 November 2015. The property was owned by Housing New Zealand. Ms Stollery lived there with her adult son.
Ms Stollery had wanted to move away from Greymouth to Tauranga. She had family in Tauranga and her son had been the subject of assaults in Greymouth. When she raised this with Housing New Zealand she was told she would need to go on the Ministry of Social Development waiting list.
The evidence at trial was that, on the evening of 11 November 2015, Ms Stollery visited a close friend. Ms Stollery told this friend that she wanted to transfer out of Greymouth and they discussed the proposition that, if Ms Stollery burned her house down, she would receive an immediate transfer to Tauranga. Ms Stollery decided to act on that suggestion. At about 1.00 am on 12 November 2015 she left her friend’s house, carried out the arson, then returned to her friend and told her what she had done.
The house was engulfed in fire and emergency services were called. The house was destroyed beyond repair.
Housing New Zealand provided Ms Stollery with emergency housing in Greymouth, paid for travel costs to Tauranga and provided emergency accommodation there for four weeks.
Ms Stollery denied the arson when spoken to by the police. Her friend had also told Police that Ms Stollery was at her house the whole night when the fire started. However, in January 2017 Ms Stollery’s friend admitted to the police that she had lied for Ms Stollery.
Housing New Zealand sought reparation of $179,667.98.[3]
Jury deliberations
[3]That includes the value of the house, which was totally destroyed, of $148,685.77, the cost of demolition of $30,000, and the temporary accommodation cost of $982.21.
The case proceeded to trial on 30 July 2018. The jury retired at 10.35 am on 3 August 2018 and signalled to the Registrar that they had reached a majority verdict by 1.45 pm. At 2.25 pm the Judge advised the jury he could not take a majority verdict until 3.35 pm (after four hours of deliberations and allowing an hour for lunch) and directed the jury to continue deliberating. The jury advised the Court at 3:49 pm that their verdict had not changed and returned a majority guilty verdict.
Conviction appeal: Did Ms Stollery intend to obtain a “benefit”?
Mr Lucas, for Ms Stollery, submits that Ms Stollery did not receive a financial benefit or pecuniary advantage as a result of the arson and that she did not profit out of it. He cites Adams on Criminal Law in support of the proposition that arson under s 267(1)(c) of the Crimes Act 1961 usually concerns an offender who destroys property with the intention to make a fraudulent claim on an insurance policy.[4]
[4]Simon France (ed) Adams on Criminal Law (online ed, Thomson Reuters) at [CA267.03(2)].
Mr Lucas suggests Ms Stollery actually lost property because her personal items were destroyed by fire. Ms Stollery had a Housing New Zealand house. After the fire, she ended up with another Housing New Zealand house. That means, says Mr Lucas, she has ended up with something that she already had prior to the fire, albeit in a place she wanted to be rather than the place she was in previously.
In Mr Lucas’ submission, Ms Stollery’s desire was not to obtain a privilege, service, monetary gain or be advantaged in any way. It was to move to a similar house in a different area. Therefore, in his submission, she has not benefited in the way required by s 267(4) of the Crimes Act.
Discussion
Ms Stollery was charged with intentionally damaging by fire a house belonging to Housing New Zealand with intent to obtain a benefit from Housing New Zealand or to cause loss to Housing New Zealand. The jury can be taken by its verdict to have accepted the evidence that Ms Stollery deliberately set fire to the house for the purpose of pressuring Housing New Zealand to provide her with a house out of Greymouth. The Crown had relied on expert evidence that the fire was most probably deliberately lit, and the evidence of Ms Stollery’s friend that Ms Stollery told her she wanted to move from Greymouth but had no money and so they discussed burning the house down. Ms Stollery’s friend said, not only did Ms Stollery say she was going to do this, but she left her friend’s house and returned later to say she had done it, shortly followed by confirmation from others that the house was indeed alight.
In his question trail, the Judge summarised the Crown case as follows:
The [C]rown alleges that the defendant [Tamara] Stollery set fire to a house owned by Housing New Zealand in Greymouth, of which she was a tenant, with the intention of obtaining for herself a transfer out of Greymouth, or of causing loss to Housing New Zealand.
The first page of the question trail explained the meaning of the term “benefit” by quoting from s 267(4) as follows:
Benefit – means any benefit, pecuniary advantage, privilege, property, service or valuable consideration.
In his summing up, the Judge suggested to the jury that the primary issue in the case was whether Ms Stollery had deliberately set fire to the house. There can be little dispute with that.
Questions 1 and 2 of the Judge’s question trail asked the jurors if they were sure Ms Stollery intentionally damaged by fire a house in Greymouth owned by Housing New Zealand. If they were, they moved to question 3:
Are you sure that the defendant [Tamara] Stollery did that with the intention of obtaining a benefit, namely, a transfer to another house out of Greymouth, from Housing New Zealand?
·If “Yes”, find the defendant Guilty on this charge
·If “No”, go to question 4
Question 4 asked:
Are you sure that the defendant [Tamara] Stollery did that with the intention of causing a loss to Housing New Zealand?
·If “No”, find the defendant Not Guilty on this charge
·If “Yes”, find the defendant Guilty on this charge
There can be no complaint about the way the jury was directed. The Judge carefully explained both in his summing up and in the written question trail given to the jury the elements of the offence and what had to be proved.
As Mr Lucas acknowledged, the definition of “benefit” in s 267(4) is a wide one. It includes any benefit, privilege or valuable consideration. It extends beyond financial benefits alone.[5] Had Parliament intended the definition of “benefit” to be confined to financial benefits, it would have made this clear. Section 237(3) of the Crimes Act uses the same definition of “benefit” as s 267(4) in respect of the offence of blackmail. This Court in Watchorn v R approved the following passage in Adams on Criminal Law:[6]
The word “benefit” is defined in wide terms in [s 237(3) of the Crimes Act]. Of the words in that extended definition, only “property” is further defined in the Act … While “property”, “pecuniary advantage” and “valuable consideration” all have the connotation of things of financial value, the same is not necessarily true of “benefit” itself, nor of “privilege” or “service”. It is unlikely the words in the extended definition form a genus, so that a privilege, service or benefit not defined in monetary terms may come within the definition, as with a reduction in sentence for an offence … or refugee status … or a work permit …
[5]See R v D J A HC Wellington CRI-2007-485-95, 19 October 2007 at [6]; R v HDSN [2013] NZHC 2747 at [20]–[28] for a discussion on the same definition of “benefit” in s 237(3) of the Crimes Act; and Police v Le Roy HC Wellington CRI-2006-485-58, 12 October 2006 at [7]–[21] for a discussion on “benefit” in s 249(1)(a).
[6]Watchorn v R [2014] NZCA 493 at [72]–[73], citing Adams on Criminal Law, above n 4, at [CA237.06] (albeit in consideration of the blackmail provision of the Crimes Act rather than the arson provision).
Whether or not Ms Stollery herself lost items in the fire, it was clear from the evidence, which the jury accepted, that Ms Stollery set fire to the house with the intention of fulfilling her wish of leaving Greymouth and having Housing New Zealand provide her with another property elsewhere. There can be no doubt that motivation meant she intended to obtain a benefit.
In any event, there can be no dispute that Ms Stollery intended to cause loss to Housing New Zealand and was therefore guilty of the charge.
Conviction appeal: Papadopoulosdirection
Mr Lucas submits that a Papadopoulos direction should have been given to the jury at the time the jury first told the Judge they had a majority verdict.[7] The Judge’s failure to give such a direction was an error and there was a real risk the verdict was affected by the error.
[7]Referring to R v Papadopoulos [1979] 1 NZLR 621 (CA).
He cites the Supreme Court’s decision in Hastie v R, where the Court said:[8]
[14] Without limiting that discretion, we observe that, generally speaking, we think it desirable to keep an informational direction about the mechanics and requirements of majority verdicts separate from any Papadopoulos direction or its equivalent. It would be rare, we think, for a judge to give a Papadopoulos direction prior to giving a majority verdict direction. Probably the only occasion when that might be appropriate is when the indication of deadlock arises before the jury has been deliberating for four hours, at which point a jury cannot be discharged.
(Footnote omitted.)
[8]Hastie v R [2012] NZSC 58, [2013] 1 NZLR 297.
Mr Lucas says the last sentence of that paragraph is appropriate here. The jury indicated that it was deadlocked 11:1 and wanted a majority verdict to be delivered. That occurred approximately two hours of the jury retiring to consider its verdict (minus an hour for lunch).
It is reasonable to infer, in Mr Lucas’ submission, that the jury, having come to an 11:1 verdict and having been told that it could not be taken until 3.35 pm, would likely do no more real deliberation, but merely sit on their hands and wait for the time when a majority verdict could be taken. The Judge’s suggestion that the jurors keep working was insufficient. It did not emphasise the need to persevere towards unanimity, to listen to other jurors’ points of view and to be open-minded.
Ms Hamill for the Crown says the Judge’s approach to directing the jury on a majority verdict was orthodox and appropriate. In Ms Hamill’s submission, there was no evidence to suggest the jury did not continue deliberating. She says there is no suggestion in the authorities that the absence of a Papadopoulos direction in such circumstances could amount to a miscarriage of justice. The Supreme Court in Hastie set out general guidance that indicated the usual course would be for a majority verdict direction to precede a Papadopoulos one.
The law
What is commonly referred to as a “Papadopoulos direction” is outlined in the following passage from R v Accused (CA87/88):[9]
Members of the Jury:
I have been told that you have not been able to reach a verdict so far. That sometimes happens, and it is no reflection on any of you. I have the power, after you have been in retirement for four hours, to discharge you from giving a verdict, but not unless and until I am satisfied that it should be done. Judges always hesitate to discharge a jury, because it usually means that the case has to be tried again before another jury and experience has shown that juries are often able to agree in the end if given more time.
Each of you has sworn or affirmed that you will try the case to the best of your ability and give your verdict according to the evidence. It is important that you do your best to accept that responsibility and not pass it over to another jury. You are here as representatives of the community, with the responsibility on behalf of the community of trying to reach a collective decision of all of you.
One of the strengths of the jury system is that each member takes into the jury room his or her individual experience and wisdom, and is expected to judge the evidence fairly and impartially in that light. You are expected to pool your views of the evidence and you have a duty to listen carefully to one another. Remember that a view honestly held can equally honestly be changed. So within the oath, there is scope for discussion, argument and give and take. That is often the way in which in the end unanimous agreement is reached.
But of course no one should be false to his or her oath. No one should give in merely for the sake of agreement or to avoid inconvenience. If in the end you honestly cannot agree, after trying to look at the case calmly and objectively and weighing carefully the opinions of others, you must say so. If regrettably that is the final position, you will be discharged and in all probability there will have to be a new trial before another jury.
Therefore I am asking you, as is usual in such cases, to be good enough to retire again and see whether you can reach a unanimous verdict in the light of what I have said.
[9]This is the current model direction found in R v Accused(CA 87/88) [1988] 2 NZLR 46 at 59. It is still referred to as a Papadopoulos direction because it originated from R v Papadopoulos, above n 7.
As will be apparent from the wording, a Papadopoulos direction came into use prior to the change in law allowing for a majority verdict. It is fair to say that it has somewhat gone out of fashion. Judges use it sparingly. Critics of the Papadopoulos direction express concern that it places undue pressure on jurors to conform to the views of the majority. More recently, this Court has observed that there should be specific reference in the direction to the need for jurors to be true to their individual conscience and that jurors should not allow themselves to be intimidated or bullied.[10]
[10]R v C [2005] 3 NZLR 92 (CA) at [41]–[42]; and Wong v R [2009] NZCA 440 at [22].
Majority verdicts became possible on 29 June 2009.[11] The legislation still emphasises the desirability of a unanimous verdict. A jury may only bring in a verdict that is less than unanimous if the jury has deliberated for at least four hours, the jurors have not reached a unanimous verdict, and the foreperson of the jury has stated in open court that there is no probability of the jury reaching a unanimous verdict and that the jury has reached a majority verdict. As well, the judge must have considered that the jury has had a period of time for deliberation that is reasonable, having regard to the nature and complexity of the trial.
[11]Juries Act 1981, s 29C.
Jurors are generally not given full instructions about a majority verdict until they have been deliberating for at least four hours and have indicated that they are having difficulty achieving unanimity. Nevertheless, it is standard for the judge to tell the jury in summing up that majority verdicts are now part of the law and will require all but one of the jury to agree.
Discussion
At 1.45 pm, the Judge received a communication that the jury had reached a verdict of 11:1. The Judge noted that the jury had retired at 10.35 am, taken one hour for lunch and that the four-hour period expired at 3.35 pm. He saw counsel in chambers and agreed on the message to go to the jury. At 2.25 pm the Judge sent the following message to the jury:
MADAM FOREPERSON/MEMBERS OF THE JURY
Thank you for your message indicating that you are making progress towards verdict.
We have not reached the time when I can receive a majority verdict. If you are still in the same position at 3.35 pm please let me know.
In the meantime please carry on with your deliberations.
Mr Lucas contends that, rather than simply instruct the jury to carry on with their deliberations, the Judge should have given the Papadopoulos direction. We cannot see any difficulty with the instruction to the jury to carry on with their deliberations. In his summing up, the Judge gave the orthodox direction on unanimity and flagged the possibility of a majority verdict. He said:
The first is that the law requires you to try and reach a unanimous verdict on the charge. “Unanimous” means you must all be agreed on the verdict, whether it is guilty or not guilty. You probably know that it’s sometimes possible these days to bring in a majority verdict. That can only happen if various circumstances exist which will not arise for some time. If and when the time arises I will explain it further. You should be aware that a majority verdict, if we do get to that point, will still require at least 11 of you to agree. For now, your task is to seek a unanimous verdict.
The jury was therefore well aware that their task was to seek a unanimous verdict and, by his communication to the jury, the Judge instructed them to continue with their deliberations. We can see no error. It is pure speculation to suggest that the jury did not continue with their deliberations but, as Mr Lucas suggests, simply waited until the four hours had expired.
While this Court, in Q (CA63/2010) v R, approved the giving of a Papadopoulos direction in similar circumstances, that was not to say a Papadopoulos direction was or is required.[12] The issue in that case centred on the terms in which the direction was given.
[12]Q (CA63/10) v R [2010] NZCA 487, [2011] 1 NZLR 328 at [71]–[84].
Similarly, while the Supreme Court in Hastie suggested that it “might” be appropriate to give a Papadopoulos direction if a jury indicated deadlock prior to expiry of four hours’ deliberations, the Supreme Court did not say such a direction was required.
It is a matter for the trial judge to determine the appropriate response to the jury if there is an indication of a lack of unanimity before they have been deliberating for four hours. Some judges might give the Papadopoulos direction (or a modified version of it) while others would simply tell the jury to continue deliberating. There is no right or wrong approach.
Finally, any concern would have to be supported by what in fact occurred. Given the jury had already indicated it had reached the position where all but one agreed with the verdict, it is difficult to see how a Papadopoulos direction could have had any real impact. That is, there is nothing to suggest an acquittal would have been likely.[13]
[13]12 Angry Men notwithstanding.
For these reasons, we are satisfied there was no miscarriage of justice. The appeal against conviction must accordingly be dismissed.
Sentence appeal
Mr Lucas submits the end sentence of three years six months’ imprisonment was manifestly excessive as the starting point was too high and insufficient credit was given for Ms Stollery’s personal circumstances. He submits that the appropriate starting point was three years’ imprisonment.
District Court sentencing
The Judge considered a number of factually similar cases in setting the starting point. These cases suggested a starting point of around three years’ imprisonment was appropriate where the offending involved an arson of a vacant house causing loss and damage of approximately $50,000.[14]
[14]R v Stollery, above n 1, at [15].
The Judge found the most comparable case to be Grindrod v R, where an arson resulted in loss of over $120,000.[15] The defendants in that case were youths aged 17 to 19 years old. They broke into an unoccupied house and took petrol from a shed, pouring it inside the house and setting fire to it. The home and its contents were extensively damaged and the house became uninhabitable. Aggravating factors included premeditation and use of the petrol acquired from the burglary of the shed. In discussing Grindrod, the Judge said that the starting point of four years’ imprisonment was upheld but described on appeal as towards the upper limit of the available sentencing range.[16]
[15]Grindrod v R CA263/99, 20 October 1999.
[16]R v Stollery, above n 1, at [16].
The Judge found Ms Stollery’s offending to be similar to Grindrod because the property damage and loss was much more extensive than in the other cases cited, and because the degree of premeditation, the dishonest motive and the consequential deprivation caused to other Housing New Zealand clients in need of accommodation was obvious. He adopted a starting point of three years and nine months’ imprisonment.[17]
[17]At [18]–[19].
The Judge did not uplift the sentence for previous convictions. When considering mitigating factors, he observed an absence of remorse as reported by the pre-sentence report writer. He also observed Ms Stollery was not able to pay reparation. The Judge did reduce the sentence by three months to take account of Ms Stollery’s difficult background, the problems she was experiencing with her son in Greymouth, and her motivation being to get him away from there.[18]
Discussion
[18]At [20]–[22].
There is no guideline judgment for arson. Sentences will vary as each case is dependent on its own facts.[19]
[19]See Gilchrist v R CA429/90, 15 April 1991 at 3; and Z v R CA138/00, 27 June 2000 at [6].
Mr Lucas says Grindrod is much more serious than Ms Stollery’s case. There were multiple offenders who committed a burglary and burned down someone else’s home. He submits that the level of offending is closer to Erickson v R than Grindrod. In Erickson, the defendant, after being evicted by a Tenancy Tribunal order, deliberately set fire to a farmhouse in which he had lived as a tenant for 10 years.[20] The fire was lit using a number of old tyres placed at the rear of the farmhouse. The damage meant that repairs were not feasible and the owner received an insurance payment of $47,000. The sentencing Judge adopted a starting point of three years’ imprisonment.[21]
[20]Erickson v R [2012] NZCA 449.
[21]At [7].
While the cases cited do not specify whether they concerned s 267(1) or (2) of the Crimes Act (the difference being a maximum term of 14 years’ and seven years’ imprisonment respectively), given the facts of the cases, they likely all concerned s 267(1). The cases of Duncan v Police[22] and Erickson were cited in support of a three-year starting point being appropriate for the arson of a vacant dwelling house.[23] In Duncan, Gendall J fixed a three-year starting point with reference to the appellant’s personal mitigating features, suggesting the starting point would have been higher if calculated in isolation from his personal circumstances.[24] This Court in Erickson acknowledged a three-year starting point was available in the circumstances of that case, having regard to the range of starting points (three to five years) commonly adopted in arson sentencings.[25]
[22]Duncan v Police HC Palmerston North AP 31/99, 30 August 1999.
[23]R v Stollery, above n 1, at [15].
[24]Duncan v Police, above n 22, at 5.
[25]Erickson v R, above n 19 at [11].
Grindrod concerned an appeal against a four-year sentence on the grounds that the sentence failed sufficiently to take into account the age and circumstances of the appellants and, to a lesser extent, the offence.[26] This Court considered the aggravating features of the offending — deliberate burning of the house accompanied by a burglary, substantial effect on the victims and absence of significant remorse — and personal mitigating factors of youth and a disadvantaged background. This Court concluded that, having regard to the circumstances of the offences and offenders, the sentences, while towards or at the upper limit of the sentencing range, were available and could not be said to be manifestly excessive. Four years’ imprisonment was not the starting point. It was the end point after taking into account youth and a disadvantaged background. No starting point was articulated and must logically have been higher than four years.
[26]Grindrod v R, above n 15, at [6].
When all the circumstances, including premeditation and the value of the loss are taken into account, we consider the case closer to Grindrod but, in any event, the cases show that starting points between three to five years are not uncommon.[27]
[27]See Howarth v R [2010] NZCA 523 at [51].
We are satisfied the starting point of three years and nine months’ imprisonment was within the available range.
Mr Lucas then turns to personal mitigating factors. He notes that Ms Stollery is a mother whose son was violently assaulted shortly before the offending which caused her great stress. Due to the assault, Ms Stollery felt an overwhelming need to get away from the West Coast and this led directly to her committing the offending. In his submission, Ms Stollery is at low risk of further offending, the offending was out of character and it only happened due to a badly thought through plan to extricate herself from a situation in which she felt trapped.
Mr Lucas submits that the three-month discount was insufficient to recognise Ms Stollery’s personal circumstances, which directly led to the arson. Instead, he says, a five-month discount for personal circumstances was appropriate.
Ms Stollery’s previous offending (six offences, including traffic and (minor) violent offences) removed the availability of credit for previous good character. We agree with Ms Hamill that a three-month discount for personal mitigating factors was appropriate. Ms Stollery’s “desperation” must be tempered by recognition that her wish to move included her desire to be with her former partner who lived in Tauranga, with whom she had reconciled. Furthermore, her son about whom she was so concerned was an adult who did not want to leave Greymouth. Ms Stollery had legal alternatives available to her to achieve her desired move, that is, going through the proper channels and placing herself on the Ministry of Social Development waiting list.
The final sentence cannot be considered manifestly excessive.
Result
The application for an extension of time to appeal is granted.
The appeal against conviction and sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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