The Queen v Andrew Carl Heaney

IN THE COURT OF APPEAL OF NEW ZEALAND

CA251/00
CA260/00

THE QUEEN

ANDREW CARL HEANEY
NIGEL COLIN SAUNDERS

Hearing:	1 November 2000
Coram:	Gault J Anderson J Penlington J
Appearances:	T W Fournier for Heaney J F M Eaton for Saunders J R Rapley for Crown
Judgment:	9 November 2000

JUDGMENT OF THE COURT DELIVERED BY PENLINGTON J

On 7 July 2000 in the District Court at Christchurch the appellant Heaney was sentenced to cumulative sentences of three years imprisonment for arson and two years for burglary, a total of five years imprisonment. On the same day the appellant Saunders was sentenced to cumulative sentences of two years imprisonment for burglary, six months for threatening to kill, and one year for attempting to dissuade a witness from giving evidence, a total of three and a half years imprisonment.
Earlier, on 28 June 2000, both appellants were arraigned in the District Court on the burglary and arson charges. They pleaded guilty to the burglary charge and not guilty to the arson charge. After the jury had been empanelled the trial was adjourned to enable counsel to confer. Subsequently Heaney was re-arraigned and pleaded guilty to the arson charge. The prosecution elected not to call any evidence against Saunders on that charge and he was thereupon discharged.
Additionally Saunders pleaded guilty to the threatening to kill charge which was in a separate indictment. He had already pleaded guilty in the summary jurisdiction of the District Court to the charge of attempting to dissuade a witness from giving evidence.
Heaney now appeals against both sentences imposed on him. Saunders now appeals against the sentences for burglary and threatening to kill. Because the plea of guilty to the attempting to dissuade a witness charge was entered under s 153A of the Summary Proceedings Act 1957 there is no right of appeal to this Court against that sentence on that charge.
As to the facts. Both appellants were former employees of a sawmill business in Hornby near Christchurch. They were aware of the layout of the timber yard and the contents of the export building. Heaney’s employment ended by dismissal. When this occurred he threatened that he would return to burn the building down.
In the early hours of the morning of 27 August 1998, after a considerable amount of drinking, the appellants drove to the timber yard and parked outside. They lifted a cyclone gate off its hinges and gained access to the yard. They then went to the export shed which contained dry timber which was packed for export. Two compressors, a chainsaw, and a banding tool were stolen. The total value of this property was $6377. Saunders accepted that he was the originator of the burglary, while Heaney conceded that he burgled because he needed money.
Heaney, using an accelerant which was on the premises, then started a fire. In the meantime Saunders remained in the car with the stolen property. Following the starting of the fire, the appellants drove off to the house where Heaney and his girlfriend lived. The stolen property was placed in a bedroom where it was seen by visitors to the house later in the day. During the evening, the property was moved again and disposed of. None of it was recovered.
After the appellants left the scene the fire service responded to a fire call. When the first fire unit arrived the export building was well alight. The building and its contents were almost completely destroyed. The estimated loss was approximately $200,000.
Both appellants were interviewed by the police in late December 1998 but arrests were not effected. Saunders admitted an association with Heaney, but denied any involvement. He hinted that he might be able to lead the police to the offender. The appellants were again interviewed by the police in early November 1999. Both of them exercised the right to silence and were subsequently arrested and charged with arson and burglary.
In the meantime, on 17 July 1999 Saunders visited an address in Christchurch. Two of his cousins were present. There was discussion about Saunders’ last appearance in Court. He then claimed that his aunt, one Diane Watson, had narked on him. He became aggressive and said to the daughter of Diane Watson, “you tell her that if I see that fucking bitch again or if she narks on me again I will kill her”. The threat appeared to have been made seriously and was taken seriously. It was later passed on to Diane Watson who in turn reported the matter to the police.
Diane Watson was a prosecution witness on the burglary and arson charges. Her intended evidence was to the effect that in late August 1998 she overheard Saunders and Heaney bragging about the burglary and the fire. She then saw two compressors and a chainsaw in one of the bedrooms of the house where she overheard the conversation.
Diane Watson made a victim impact statement. She said that she feared for her life and her property at the hands of Saunders. Because of these fears she and her husband shifted away from Christchurch to live elsewhere. She found herself unable to sleep and became alarmed at any noise at night time. She suffered a minor stroke in early February 2000 which she attributed to the stress caused by this matter. She indicated that she was scared about giving evidence at the trial although “totally relieved when the guilty pleas were entered”.
Saunders was granted bail in the District Court. The depositions were taken on 24 February 2000. Bail was renewed. A condition of the bail was that Saunders should not have any contact with certain named prosecution witnesses including one Tanya Watson. She was a witness on the threatening to kill charge. The appellant was warned about the consequences of breaching his bail.
On 1 May 2000, Saunders called at Tanya Watson’s home in Christchurch. He was uninvited. She was present there with her partner. Saunders accused both Tanya Watson and her mother, Diane Watson, of being narks. Saunders said to Tanya Watson, “how would you like it if a firebomb came through that window, whoosh”. While Saunders was at Tanya Watson’s home he gave her the telephone number of the officer-in-charge of the case and he made some unusual comments about the recent death of a relation. Saunders then left. She was frightened by what the appellant had said to her and later reported the matter to the police. In the meantime, Saunders voluntarily called at the Central Police Station in Christchurch stating that he had had eight Diazepam tablets during the day and could not remember what he had done. The police officers handling the matter were unaware at that time of the bail conditions. They allowed the appellant to go home. Two days later Saunders was arrested for attempting to dissuade a witness from giving evidence. Again he relied on the right to silence.
At the time of the sentencing Heaney was aged 27 years. He had 30 previous convictions. They were principally for crimes involving dishonesty – burglary, theft, and unlawfully interfering with motor vehicles – cannabis offending and breach of Court orders. Since 1988 he had had a range of non custodial sentences. As well he was sentenced to corrective training in 1992 and to two years imprisonment on two charges of burglary on 13 August 1999. He was released from this sentence on 6 March 2000.
Heaney is married but separated. Following his release from prison in March 2000 he lived with his mother and was employed as a timber worker. He was said to be a good employee. Certainly until the prison sentence in August 1999 Heaney had had an alcohol problem and that was a factor in the Hornby burglary and arson.
At the time of sentencing Saunders was aged 31 years. He too had a long list of previous convictions – 40 in all – for a wide range of offending including numerous crimes involving dishonesty. On 4 March 1993 he was sentenced to an effective term of two years three months imprisonment for aggravated robbery and other offending. On 10 April 1996 he was sentenced to nine months imprisonment suspended for 18 months, and nine months supervision, for forgery and false pretences. On 14 January 1999 he was sentenced to one years imprisonment suspended for 18 months and eight months periodic detention for theft, unlawfully taking a motor vehicle and cultivating cannabis. Shortly before, in December 1998, he received three months periodic detention for shoplifting and in August 1999 he again received three months periodic detention for being disguised for burglary.
Saunders separated from his wife and four children not long before the Hornby arson and burglary. Since late 1998, until he went into custody in May 2000, he was in a stable de facto relationship with a woman and her six year old daughter. The probation officer favourably reported that Saunders’ de facto partner had had “a major influence” on him. Until his present incarceration, Saunders was working in two jobs and was said to be a very competent employee. Over the years Saunders had had a drinking and drug problem, especially at the time of his separation. As well, in August 1999 when he required psychiatric treatment for depression.
At the sentencing Saunders’ counsel placed a number of letters before the Judge, which tended to confirm the favourable opinion formed by the probation officer. The letters suggested that Saunders, as the result of the influence of his de facto partner, had modified his lifestyle for the better.
On sentence the Judge regarded the appellants as equally culpable on the burglary charge. He considered that the burglary was “not a large scale” one in terms of burglaries of commercial premises. He held that it was premeditated, deliberate, and spiteful, and that these features, along with the previous convictions of both appellants for assaults and dishonesty, aggravated the offending. And as to Saunders’ other offending of threatening to kill and dissuading a witness, the Judge considered that his behaviour had been in the nature of stand-over conduct which struck at the heart of the justice system and that it should attract condign and cumulative penalties. As to the arson, the Judge considered it had to be a very serious one given the substantial financial loss and the high potential for danger to both the surrounding buildings and the fire fighters. He isolated a number of aggravating factors:-
[i]The threat when Heaney was dismissed to return to burn the building down.
[ii]The conjunction between the arson and the burglary.
[iii]The aspect of revenge.
[iv]Premeditation.
[v]The extent of the damage.
Again, in Heaney’s case he was of the opinion that cumulative sentences were called for.
We now turn to each appeal.

Heaney’s appeal

Mr Fournier, counsel for Heaney, attacked the cumulative sentence of five years on the basis that it offended the totality principle. Overall he submitted that a proper sentence should have been four years.
Before the sentencing Judge, Mr Fournier relied on R v Gilchrist CA429/90, 15 April 1991 – a case of arson and burglary of premises housing a debt collection agency business. Gilchrist engaged a professional burglar to neutralise the alarms for a fee plus a percentage of anything stolen. Gilchrist was paying off a debt to the agency and wanted to destroy the records. Some items were taken to the value of just over $4000, of which property worth just over $3000 was recovered. The fire caused extensive damage. The building had to be demolished. It was worth about $80,000. Gilchrist was found guilty by a jury on both counts. He had an extensive record of offending over a period of 25years. He was sentenced to four years on the arson charge and a concurrent term of 18 months on the burglary charge.
In Gilchrist this Court reviewed the sentences imposed in a number of earlier arson cases – R v Jarden CA132/78, 11 April 1979; R v Smith CA31/82, 13 May 1982; and R v Cupples CA106/88, 10 August 1988. Richardson P, in delivering the judgment of the Court in Gilchrist, said:-
The Court in Cupples prefaced its statement that most serious charges had been dealt with in the range of 2-3 years imprisonment with the observation that it may be doubtful whether any readily discernible tariff could yet be said to have emerged, and did not undertake a review of the whole field. Nor is it necessary to do so for the purposes of this appeal. In terms of the range of sentences it is sufficient to note that sentences in this Court have ranged from probation (R v Welsh CA246/81, judgment 10 August 1981) to eight years imprisonment (R v Honan and Brown CA34 and 36/88, judgment 22 July 1988).
The Court in Gilchrist isolated three “specially serious features”:-
[i]The amount of the damage done.
[ii]The deliberate destruction of business records by an offender who stood to gain from the loss.
[iii]The engagement of a professional burglar to facilitate entry to the premises.
For these reasons the Court considered a condign sentence was called for and the appeal was accordingly dismissed.
In the present case the sentencing Judge rejected Mr Fournier’s submission based on Gilchrist because:-
[i]Gilchrist was decided in 1990, 10 years ago, and arsons have continued.
[ii]The revenge motive.
[iii]Premeditation.
[iv]The extent of the loss.
[v]Heaney’s substantial list of previous convictions.
Before us Mr Fournier again relied on Gilchrist and the later case of R v Thomson 9 CRNZ 173 (CA) – a case involving arson of two schools and four burglaries by an 18 year old offender. He pleaded guilty to all charges. He was sentenced to five years imprisonment on one of the arson charges; three years on the other; and 18 months on each of the four burglary charges. The sentences were made concurrent. On appeal, this Court reiterated the point that there is no readily discernible tariff for arson sentences. It held that there was a need for a deterrent sentence. Nevertheless, after it compared the sentences imposed in other cases, and after proper regard to the mitigating factors, the Court reduced the sentence to four years. In delivering the judgment of the Court, Thomas J said:-
In all, we consider that the learned Judge was correct in deciding that a substantial term of imprisonment was required to serve as a deterrent to others who might be of a like mind to the appellant. The community is entitled to a sentence which will protect it from this kind of dangerous and damaging criminal behaviour. A severe sentence was also justified having regard to the totality of the appellant’s offending.
We differ from the learned Judge, however, in that we consider the sentence imposed was longer than necessary to serve those purposes. Reference to such cases as R v Smith unreported, 13 May 1982 CA31/82 and R v Gilchrist unreported, 15 April 1991, CA429/90 in which a number of cases are reviewed and R v Nikora unreported, 10 November 1988, CA271/88 and R v Keen unreported, 27 February 1990 … indicate that a sentence of five years is excessive.
Mr Fournier conceded that in this case there had been a serious arson involving substantial damage and loss; that it was related to the threat made at the time of Heaney’s dismissal; and that it was preceded by a burglary. He nevertheless contended that when the totality of Heaney’s offending was compared with the cases cited above, the total sentence imposed on the appellant was manifestly excessive.
Mr Rapley for the Crown, on the other hand, contended that while a total sentence of five years was a stern penalty, it was nevertheless within the Judge’s discretion. Mr Rapley was, however, unable to point us to any comparable cases where such a stern sentence had been imposed.
In our view Mr Fournier made good his submission that the totality principle was contravened. Plainly in order for the Judge to have arrived at an overall sentence of five years he must have had a higher starting point – 5½ to 6 years. We consider that that starting point was out of line with Gilchrist and Thomson, and the other cases cited herein. Thomson was a worse case than the present one. There was considerably more damage and loss in that case. It also involved a number of burglaries and yet the sentence, after adjustment on appeal, was four years. We are therefore bound to find that the overall sentence of five years imposed on Heaney was manifestly excessive. In our view the proper overall sentence ought to have been four years. In order to achieve this result, and at the same time maintain a parity of sentencing on the burglary charge – Mr Fournier having accepted the Judge’s finding of equal culpability – we propose to reduce the sentence on the arson from three years to two and a half years, and on the burglary from two years to 18 months.
It is the end result for the total offending which is the crucial matter. The substituted individual sentences here are not to be taken as an indication of the justifiable level of punishment which each offence would individually attract.
Before leaving Heaney’s case, we make some further comments. They concern the Judge’s observation in relation to Mr Fournier’s submission on Gilchrist. The Judge said:-
Your counsel accepts the offending is serious. He refers me to the well-known principal sentencing case of R v Gilchrist. It is his submission effectively that for the reasons he submits your culpability here is less than was the prisoner in that case. Regrettably for you I do not agree for the following reasons. That was a case which occurred in 1990. Here we are sentencing you in respect of a 1998 case in 2000, some 10 years on, and arson cases continue. Prison sentences, in other words, do not seem to act as a deterrent.
First, we detect in the Judge’s observation an indication that a case which was binding on him was being put to one side on account of the fact that it was decided some 10 years ago. Mere effluxion of time does not diminish or erode the authority of an appellate decision. There is no justification for increasing the level of sentencing for any offence on that basis alone. Secondly, we have noted the Judge’s comment “arson cases continue”. It is difficult to understand what relevant implication the Judge intended by that remark. If he was suggesting that a more severe approach to sentencing was warranted because the offence of arson still occurs, we would be concerned in at least two respects. First, the fact that existing sentencing approaches have not extinguished offending of a particular type, or even generally, is of itself not a justification for a Court to depart from established sentencing principles. Sentencing cannot guarantee a crime-free society. Second, although a Judge may sometimes be able to draw from experience when dealing with obvious local conditions, sentencing patterns should not be departed from without some objective material justifying that response.

Saunders’ appeal

Mr Eaton, counsel for Saunders, likewise attacked the cumulative sentence of three and a half years imprisonment on the basis that it offended the totality principle. Overall he submitted that a proper sentence in all the circumstances should have been two years.
First, Mr Eaton submitted that the sentence of two years for burglary was manifestly excessive having regard to the following matters:-
[i]There was no invasion of privacy or risk of physical attack.
[ii]The modest value of the goods stolen.
[iii]The absence of any damage to the burgled premises associated with the burglary.
[iv]The appellant’s lack of convictions for similar offending.
[v]The passage of time since the offending.
[vi]The minimal degree of premeditation.
[vii]The absence of any connection between Saunders and the arson.
[viii]The plea of guilty.

Mr Eaton submitted that the Judge must have taken a starting point of two and a half to three years, which was beyond the range for the kind of burglary perpetrated by Saunders. Rather, so Mr Eaton submitted, sentences of that length were reserved for serious commercial burglaries, multiple burglaries, and residential burglaries, and where there had been a gross invasion of privacy and a risk to the owner of the dwelling house invaded. Mr Eaton accepted that, given all the circumstances, a sentence of imprisonment was justified but not one of two years.
Secondly, on the threatening to kill charge, Mr Eaton relied on the Judge’s error in regarding as an aggravating factor that the appellant was on bail at the material time, when in fact he was not subject to any charge at all at that time. Further, Mr Eaton sought to minimise this offence on the basis that the threat did not relate to the incidents at the sawmill on 27 August 1998 and was in a situation of ongoing family conflict.
Thirdly, Mr Eaton emphasised in respect of the attempting to dissuade a witness charge that the witness involved was concerned with the threatening to kill prosecution and was not a critical witness in that prosecution. Mr Eaton also emphasised the odd nature of Saunders’ behaviour – his invitation to the occupants of the address to call the police; his supply of the telephone number of the officer-in-charge of the case the reference to the death of a family relation; and his voluntary appearance at the Police Station within half an hour. Mr Eaton also relied on the appellant’s consumption of a prescription drug, which the police confirmed that he had obtained from the Christchurch hospital emergency department on the previous day as medication for a back injury. Mr Eaton submitted that this offending also had to be seen in the context of the ongoing family conflicts and that the Judge had over-emphasised the effects of the offending on Tanya Watson which were, in the event, not longstanding.
Fourthly, Mr Eaton submitted that overall the Judge had given too much weight to Saunders’ record of past offending – which he conceded was extensive – and insufficient weight to the dramatic “turnaround” in Saunders’ lifestyle since he commenced his present de facto relationship and, as well, his recent good work record.
Mr Rapley, for the Crown, sought to uphold the sentence of two years for burglary. He emphasised the aggravating factors identified by the Judge. Initially Mr Rapley submitted that Saunders' knowledge of the building and the use of that inside information amounted to a breach of trust. Finally, however, counsel accepted that that overstated Saunders’ use of past knowledge.
On the threatening to kill charge Mr Rapley conceded that the Judge was in error when he stated that Saunders was on bail at the time that the threat was made. He contended, however, that the error was of minimal significance in the overall sentencing of Saunders.
Mr Rapley also accepted that Saunders’ behaviour in relation to the attempting to dissuade offence was quite bizarre. Nevertheless, the Crown position was that Saunders’ remark caused Tanya Watson to be fearful, that it could well have achieved its object, and that that kind of offending strikes at the roots of the justice system.
Finally, in response to Mr Eaton’s argument on the turn around in Saunders’ lifestyle, Mr Rapley pointed to the two 1999 offences, and contended that the Judge had not given insufficient weight to these changes.
We return to the point made earlier in this judgment, that it is the end result for the total offending which is the crucial matter. Viewing the total sentence of three and a half years on the basis of totality we have reached the view that it was outside the Judge’s sentencing discretion and was manifestly excessive.
First, though the plea to the burglary charge was late, we agree with Mr Eaton’s submission that the Judge must have taken a starting point of at least two and a half years. This was a single burglary of commercial premises, and the value of the goods taken was not large. Further, Saunders’ plea to the charge, along with the other pleas of guilty, caused significant mental and emotional relief for both Diane Watson and Tanya Watson.
Secondly, while we are constrained by the sentence on the attempting to dissuade charge not being subject to appeal, we are, nevertheless, entitled to take into account the circumstances. Saunders’ conduct on this occasion we agree was irrational and verged on the bizarre. He had taken an excessive amount of the medication prescribed for a back condition by a doctor at the Christchurch Hospital (a point which was later confirmed by the Police). The call on Tanya Watson was in a setting of family discord. The attempt was curiously jumbled up with the reference to recently deceased relations, and information as to the Officer in Charge’s telephone number was then followed by Saunders’ voluntary call at the Police Station. Having regard to these circumstances, we think that the degree of culpability was at the lower end of the scale.
Thirdly, while Saunders’ past record of offending told against him, we consider that insufficient weight was given by the Judge to the appellant’s turn around in lifestyle. It was a change which the Judge described as ‘mellowing with the passage of time’. We think that auguries for Saunders are good – a stable de facto relationship which has already produced positive benefits and good work prospects. These trends deserved recognition and tended to off set to some extent the effect of the bad criminal record.
We accordingly conclude that the proper total sentence ought to have been two and a half years imprisonment. Given the constraints mentioned above, we, therefore, make the following adjustments:
(i)The sentence on the burglary is reduced from two years to eighteen months;
(ii)and the sentence on the threatening to kill is made concurrent with the burglary sentence instead of being cumulative.

Result

Both appeals are accordingly allowed on the terms set out in paragraphs 32 and 50 hereof.

Solicitors
Raymond Donnelly & Co, Christchurch, for Crown

[2000] NZCA 316

9 November 2000