Tabak v The Queen

[2004] NZCA 285

IN THE COURT OF APPEAL OF NEW ZEALAND

CA208/04

THE QUEEN

v

ANDREW MARK TABAK

Hearing:25 November 2004

Court:McGrath, Glazebrook, O'Regan JJ

Counsel:R Neave for Appellant

S McKenzie for Crown

Judgment:25 November 2004 

(On the papers)

JUDGMENT OF THE COURT

This appeal against sentence is dismissed.

REASONS

(Given by McGrath J)

Introduction

[1]       Mr Tabak appeals against a sentence of four years imprisonment which, together with a reparation order for $33,535.01 and an order disqualifying him from driving for two years, was imposed on him by the District Court at Christchurch.  He had been convicted of ten charges of wilfully setting fire to property, one charge of arson of a building, sixteen charges of wilful damage, one charge of knowingly making an explosive substance and one charge of causing damage by the use of explosives.

[2]       This appeal has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001.  The relevant materials, including written submissions which have been received in accordance with r 29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

Background facts

[3]       Between February and December 2002 the appellant, who is aged 22 years, was involved in deliberately lighting fires in shelter hedges both in Christchurch city and in the country area nearby.  Two others were involved with him in the offending.  The fires were usually lit either late in the evening or in the early hours of the morning.  They resulted in losses particularly to farms some of which had their shelter belts destroyed.  In almost every case a local volunteer fire brigade was called out and attended to the fire.  The fires also gave rise to a state of general apprehension in the local community.  This conduct was the basis of the ten charges of wilfully setting fire to property that were brought against the appellant.

[4]       On 4 September 2002, and over a ten day period following, the appellant and the same associates engaged in acts of wilful damage to the electricity network of the area.  The appellant, who had studied electrical maintenance and networks, was the instigator of the offending.  The pattern was that the appellant and his associates would go to a particular location by car, the appellant usually driving.  They would use bolt cutters to remove padlocks from air brake isolator switches, the appellant normally doing the cutting.  Then either the appellant or an associate would change the switch from the “on” to the “off” position, cutting the supply of power to a local area or sometimes from “off” to “on”, thereby feeding power into an area through an unauthorised switch.   In incidents that took place on 9 November 2002 three further switches were vandalised.  These activities gave rise to the 16 charges of wilful damage brought against the appellant.

[5]       On the evening of 19 November 2002 there was a large explosion in the Tai Tapu area.  A hole of approximately 12 centimetres in diameter was blown in a 5000 litre water tank owned by the Selwyn District Council.  There was a consequent impact on the sewerage system for the area.  The appellant worked with the same two associates and was the instigator of this offending.  He had manufactured explosives by mixing ammonium nitrate and nitro methane.  This incident was the basis of the charge of causing damage by the use of explosives.

[6]       In the early hours of 10 December 2002 the appellant went to the Ellesmere Small Bore Rifle Clubrooms at Tai Tapu.  He stuck papers under the building and set them alight.  In the resulting fire the clubrooms were completely destroyed.  This led to the charge of arson of a building.  The clubrooms were not insured and the club was disbanded as a result of the fire. We infer from the reparation report that the society has not been wound up but is no longer active.

[7]       The appellant pleaded not guilty to the arson charge relating to the Ellesmere Gun Club building but was convicted by a jury.  He had earlier pleaded guilty to the 13 counts of wilful damage and defended the three other charges on which he was also convicted by the jury.  He pleaded guilty to eight counts of wilfully setting fire to property and was likewise convicted at trial on the other two counts.  He pleaded guilty to the count of making explosives (and another count of arson).

[8]       His two co-offenders were charged, pleaded guilty and were sentenced separately.  One was sentenced to 18 months imprisonment with leave to apply for home detention.  He had pleaded guilty to 11 counts of wilfully setting fire to property and 11 of wilful damage.  The second co-offender was convicted of much less serious offending and was sentenced to 270 hours community work.  His sentence was nevertheless described by the Judge who sentenced the appellant as unduly lenient.  Appropriate reparation had been ordered in both cases. 

Sentencing remarks

[9]       Judge Erber, the sentencing Judge, distinguished the situation of the co‑offenders, who had pleaded guilty to all charges, from the more extensive offending of the appellant. The appellant had also made comprehensive admissions to the police and in the Judge’s view some of his not guilty pleas simply reflected the fact that he was in denial.  The Judge accepted that the appellant was a young man who prior to this offending had demonstrated good character.  He was undertaking a course of education in which he had been prospering and, overall, was making a pretty good fist of life. The Judge took into account that some $10,166 was available for reparation. He agreed with an observation in the probation officer’s report that the appellant was participating in the offending for thrills.  The medical report did not suggest he had pyromaniac tendencies.  He was, however, a prime party to the offending who had encouraged and motivated the group in what had occurred.

[10]     The losses that were caused by the offending were significant, particularly in relation to the premises of the gun club.  The offending in relation to the electricity supply had compromised the important safe working procedures, which was also a very serious matter.  The act had been premeditated in that bolt cutters were used for the purpose.  Overall, the actions had caused stress and apprehension and a great sense of unease to the staff of the electricity supplier and throughout the rural areas outlying Christchurch.

[11]     The Judge sentenced the appellant to four years imprisonment on the wilful damage charge and on the charge of arson of a building. That involved a discount of 12 months, from a starting point of five years, to reflect the guilty pleas.  The sentences on other charges were of two years imprisonment, except on the charge of making explosives which was of six months imprisonment.  These terms were to be served concurrently.

[12]     In addition the Judge imposed a disqualification order preventing the appellant from driving for two years.  He also ordered the appellant to pay reparation on the basis of information before the Judge that the property damage to the Ellesmere Gun Club’s building was of the order of $20,000, to the electricity supply company $9341.39, to the New Zealand Fire Service $2597 and to the Selwyn District Council $1596.

Submissions

[13]     The first ground of appeal is that the sentence was manifestly excessive in relation to the disqualification from driving.  No such order was made in respect of the other offenders.  Mr Neave argues that the appellant was not the only participant who had been driving in the course of commission of the offences and said that disqualification had not even been sought for the others.  He submits that the appellant has been singled out unfairly for additional punishment.  Counsel also pointed out that the sentence might well hinder the appellant’s ability to get work and pay reparation on release.

[14]     The Crown response, in Ms McKenzie’s submissions, was that disqualification was only one element of a severe sentence required by the particular circumstances of the offending.  The appellant had been involved in additional offences to the other parties one of which had been arson of the Gun Club’s building.  He had been a prime party and had used his experience with electrical maintenance and networks to commit the offences.

[15]     The second ground of appeal was of a technical kind.  It is argued that as the Ellesmere Small Bore Rifle Club has been disbanded there was no entity in favour of which a reparation order could properly be made by the District Court.  Accordingly, although there was a successor gun club, there was no “victim” in terms of s 4 of the Sentencing Act and no “person” in terms of s 32 in favour of whom a reparation order could properly be made.  Mr Neave’s argument was that the Act contemplated reparation for a person caused to suffer presuming, and thus requiring, the person to still be in existence. It also required that reparation be paid to the person who suffered harm or their insurer and there was no one meeting that requirement.  The Crown’s response is that the original club legally remains in existence, even though it is no longer operating, and that is sufficient for the section to operate.  The provisions are broadly drafted to prevent people relying on technical arguments concerning the jurisdiction of the Court.

[16]     Mr Tabak has written to us saying that any delay in his guilty pleas was as a result of legal advice he had received prior to engaging his present counsel.  He also expresses remorse, accepting that he has to be punished although wanting the length of his sentence reconsidered as well as the points made by his counsel.

Decision

[17]     We start with the appellant’s expressed concern over the length of his sentence.  He was, however, sentenced for multiple serious and sophisticated offending of three different types, each being highly disruptive of and stressful to members of the community and involving either danger or substantial property loss.  The fire at the gun club was an escapade on his own and put the appellant’s offending into a more serious bracket than that of his co-offenders.  He did not admit that charge and was accordingly unable to get any credit for a guilty plea in respect of it.  We are satisfied that the five years starting point was appropriate and that, despite his concerns, the discount allowed for the matters to which he pleaded guilty was a fair reflection of that acknowledgement of his culpability.  The sentence of 4 years imprisonment must accordingly stand.

[18]     The argument concerning the imposition of disqualification from driving is principally founded on the disparity of that aspect of the appellant’s punishment in relation to that of his associates.  The Crown did not seek and the Court did not impose disqualification from driving on either of them.  It was however only one aspect of a sentence which had to be more severe than those received by his associates because of the more serious nature of his offending.

[19]     The disqualification order will have real effect if the appellant is released on parole at or soon after the date he becomes eligible.  Seen in that light, it was open to the Judge to decide that, given the seriousness of his offending, a period of disqualification that was effective while he is on parole would bring home to him, and the wider public, that those who use their cars in the course of serious criminal offending are likely to be disqualified from driving for a period after their release.  We accordingly also reject this ground of appeal.

[20]     The appeal against the reparation order is based on a highly technical ground.  The short answer to it is that, as Ms McKenzie submitted, the original society legally remains in existence, although it is not active.  This is clear from the reparation report.  As such the body that has suffered the loss, whether an incorporated or an unincorporated society, exists and can be identified and be the recipient of reparation which in due course will pass on a winding up to those entitled to receive it.  This means that it is unnecessary to explore in detail the Crown’s response to the appellant’s argument and in particular the powerful submission that the statutory provisions in relation to reparation are not drafted in a restrictive way that lends itself to the very technical argument that Mr Neave has put forward.  We are accordingly satisfied that there is no technical impediment to the reparation order and also reject this ground of appeal.

[21]     In conclusion we note that the appellant’s offending was out of character and it is clear that he has both the attitude and the ability to put what has happened behind him on his release and to become a good citizen.  He already has good insight into the highly irresponsible nature of what he has done.  Nevertheless for the reasons we have given we are satisfied that the punishment imposed on him was a fair and appropriate sentencing response to his offending.

[22]     The appeal against sentence must accordingly be dismissed.

Solicitors:
Crown Law Office, Wellington