The Queen v Innes

[2009] NZCA 407

IN THE COURT OF APPEAL OF NEW ZEALAND

CA325/2009
[2009] NZCA 407

THE QUEEN

v

SEAN WILLIAM RUSSELL INNES

Hearing:8 September 2009

Court:Chambers, Rodney Hansen and Fogarty JJ

Counsel:C M Ruane for Appellant

B D Tantrum for Crown

Judgment:15 September 2009 at 11 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

REASONS OF THE COURT

(Given by Rodney Hansen J)

Introduction

[1]       After trial in the District Court at Nelson before Judge McKegg and a jury, Mr Innes was convicted on one charge of arson.  He was sentenced to three years imprisonment.  He appeals against sentence, principally on the ground of the disparity between his sentence and the sentence imposed on a co-offender.

Facts

[2]       The victim of the offending lived in a campervan with his two pet dogs.  On 20 June 2008, he was asleep in the campervan, which was parked outside the house of a friend he had been visiting.  At about 2.00 a.m. the friend looked out the window and noticed the campervan was on fire.  He recognised Mr Innes and his co-offender, Nigel More, in the vicinity.  They ran off when he yelled at them.  He was able to wake the victim and extinguish the fire.

Co-offender

[3]       Mr More pleaded guilty to attempted arson and also to a number of unrelated driving offences.  He was sentenced by Judge Zohrab to a total of two years seven months imprisonment.  On the charge of attempted arson the Judge adopted a starting point of two years imprisonment which he reduced to 18 months to take account of the guilty plea.

Mr Innes’ sentence  

[4]       In sentencing Mr Innes, Judge McKegg acknowledged the sentence received by his co-offender.  He noted that a charge of attempted arson carried half the maximum penalty prescribed for the substantive offence.  He adopted a starting point of three years having had, as he said, the advantage of hearing the evidence at trial.  He noted, in particular, that what had occurred was effectively an attack on a home.  There being no mitigating circumstances, the final sentence imposed was three years.

[5]       Mr Ruane argues that the sentence was manifestly excessive.  He maintains that, although Mr More was sentenced for the less serious offence of attempted arson, there was nothing to distinguish the culpability of the two offenders.  He submits the same starting point should have been adopted.

[6]       We do not agree.  Mr More was sentenced on the basis that he had attempted to set fire to the campervan and no more.  Mr Innes was convicted on evidence which showed that he had actually set fire to the campervan.  Whatever Mr Innes may now assert the true facts to have been, the co-offenders were sentenced on entirely different bases.  The disparity in starting points was fully justified.  Both sentences are unimpeachable.

Result

[7]       The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington