The Queen v Damian Joseph Skeens
[2002] NZCA 15
•26 February 2002
IN THE COURT OF APPEAL OF NEW ZEALAND CA341/01
THE QUEEN
V
DAMIAN JOSEPH SKEENS
Hearing : 20 February 2002
Coram: Anderson J
Williams J
Baragwanath J
Appearances: N L Faigan for appellant
K Raftery for Crown
Judgment: 26 February 2002
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JUDGMENT OF THE COURT DELIVERED BY BARAGWANATH J
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This appeal is against a sentence for arson of 3½ years imprisonment imposed by the District Court at Auckland, concurrent with a term of one years imprisonment on a count of threatening to kill.
The appellant had pleaded guilty under s294(a) of the Crimes Act 1961 to wilfully setting fire to his father’s house at Riversdale Road, Avondale on 4 February 2001, and also under s306 (1)(a) to threatening to kill his father. No evidence was offered on an alternative to the former count - of wilfully setting fire to the building when he ought to have known danger to life was likely to ensue, contrary to s294(b). It is to be observed that, by s294(a), wilfully setting fire to a building, ships, aircraft and certain other specified items carries the same maximum 14 year term as s294(b) which, in relation to arson of other property, contains the further element of proof of knowledge that danger to life is likely to ensue. The reason for the distinction is obvious: Parliament has identified the items which of their nature present risk to life if set alight. So the alternative count contained surplusage and was rightly not pursued.
The facts-
The appellant had been staying in the house with his father. Both were considerably affected by liquor and engaged in an argument which led to blows and to the appellant’s expulsion from the house. The appellant was angered when his father put the appellant’s belongings outside the house and set fire to clothing and other items. He returned and repeatedly threatened his father that he would burn down the house and kill him. Having been sent on his way, the appellant returned and spoke to a friend of his father whom he knew to be staying in the house with a woman. He threatened that person that if he wanted to avoid getting hurt, he should get out of the house.
The threats were disregarded and the three occupants went to bed. At about 2 am the appellant set fire to the house by lighting combustible materials beneath the room in which his father was sleeping. Fortunately, the fire was discovered early enough to be extinguished by the appellant’s father and a visitor without assistance from the Fire Brigade. Parts of the floor and sub-floor were burnt and weakened, requiring to be made good through the insurer of the father’s landlord.
The appellant returned and broke windows in the house, which cost his father $400 to repair. The appellant uttered further threats of violence and again threatened to burn the house down before finally departing.
Significant features were the deliberation with which the fire was set, the premeditation by which it was lit after a prolonged period of vehement threats to do so, and the fact that it was ultimately lit covertly at a time when the three occupants were asleep.
The appellant was 22 years of age at the time of the offending. At the time of sentencing he had a list of 53 previous convictions of which eight were violence related, one for aggravated robbery, and others included various forms of dishonesty and cannabis offending.
A psychiatric report disclosed no evidence of mental disorder, but described the appellant as an emotionally immature young man who had entered the subculture of substance abuse and delinquent lifestyle. It was reported that there was no evidence of pre-morbid fire setting behaviour, but a low level of frustration tolerance and poor impulse control, giving rise to a propensity to act out his conflicts without regard to the consequences. It was concluded that the appellant was at high risk of drug and alcohol recidivist behaviour unless there were adequate social and family support.
In a pre-sentence report prepared prior to the present offences in relation to a series of charges including burglary, manufacture of cannabis oil and escaping from lawful custody, it had been concluded that the appellant had low motivation to change and was at high risk of re-offending. Having been admitted to the assessment programme at Odyssey House, he left within 24 hours after fighting with another resident. In May 2000 he was sentenced to 15 months imprisonment. In May 2001, following conviction for burglary and possession of utensils for cannabis use, he was sentenced to a further 8 months imprisonment. In the interim he committed the present offences.
In a victim impact report, the appellant’s father described the offending and observed that while not overly worried for his own safety, he was fearful for his visitors, as he believed the appellant wanted another chance to burn the house down.
The Judge’s decision
The sentencing Judge focused on the risk to human life; the appellant’s previous convictions; and the fact of his addictions to alcohol and drugs. In response to a submission that the appellant had given some warning and provided an opportunity for the occupants of the house to avoid injury, the Judge pointed to the further implication of deliberation with which threats were uttered, and subsequently carried out. He took a starting point for the arson of five years imprisonment, and taking into account the appellant’s relatively young age and his plea of guilty before trial on arraignment at callover imposed the sentences under appeal.
Submissions
Mr Faigan for the appellant accepted that the sentence on count 3 is appropriate, but submitted that in respect of the arson is excessive for a young man who has just turned 24. He placed heavy emphasis as a mitigating factor on what is said to be the very dysfunctional family situation and submitted that the appellant’s father had provoked him. He advised that the appellant asserts that he has attempted since sentencing to reform his lifestyle, and that it would be in the interests of justice for the appellant and his family if a lesser sentence were imposed.
He distinguished R v Gilchrist (CA 429/90, 15 April 1991) where a professional burglar was engaged to break into a commercial building valued at $80,000 to destroy records and burned it to the ground and a sentence of four years imprisonment was upheld. The Court identified three specially serious features that were not present in this case - the value of the damage done, the calculated destruction of business records, and the engagement of a professional burglar. But there there was no immediate risk of injury to persons. We were not assisted by other decisions cited, which were not comparable to the present case.
Mr Raftery for the Crown supported the sentence, emphasising:
[a] The act of building a fire underneath the victim’s house, and then lighting it was deliberate and premeditated;
[b] There was a real risk to human life. The fire was set at 2 am on a Monday morning with three people inside the house. The appellant was aware of their presence inside the house; he was residing there at the time; he had been there that evening; he had given a warning earlier in the evening to the other male present. The seat of the fire was immediately below the bedroom where his father slept.
[c] Damage was sustained to the house in parts of the floor and sub-floor being burnt and weakened;
[d] The act of setting fire to the house was accompanied by repeated threats to the life of the appellant’s father, both before and after the event;
[e] The window smashing after the event as the appellant continued to make verbal threats;
[f] The appellant’s previous offending.
He relied on authorities cited by the sentencing Judge: R v Te Kahu (High Court Invercargill T9904/97 16 June 1999 Hansen J) (6 years imprisonment for one charge of arson involving use of Molotov cocktails inside a house occupied by several people by an offender with a serious previous record), R v Travers (CA 267/96, 14 November 1996) (5 years imprisonment of offender with psychiatric condition for deliberate arson putting at risk the lives of 8 people) and R v Taylor (CA 488/94, 17 July 1995) (4 years for use of Molotov cocktail by offender with previous serious convictions causing damage of over $50,000 and for threatening to kill). As the Judge observed, each involved more serious facts than the present case.
But they demonstrate the gravity with which the Courts regard cases where there is real risk to human life.
We are concerned that the appellant’s history and the current offending presently indicate real risk of further offending upon discharge from prison. We recommend that the prison authorities give careful consideration to how such risks can be minimised. We are satisfied that issues of safety were dominant considerations and that the sentence is a proper one.
Result
The appeal is dismissed.
Solicitors
Crown Law Office, Wellington
N L Faigan, Auckland for appellant
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