The Queen v Jason Robert Munro
[2002] NZCA 176
•24 July 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 132/02 |
THE QUEEN
V
JASON ROBERT MUNRO
| Hearing: | 22 July 2002 |
| Coram: | Tipping J |
| Ellis J | |
| Appearances: | R A Peters for Appellant |
| B J Horsley for Crown | |
Judgment: | 24 July 2002 |
| JUDGMENT OF THE COURT DELIVERED BY PANCKHURST J |
For an offence of arson the appellant was sentenced to three and a half years imprisonment. The present appeal is against the length of that term. The appellant contends that the sentence is both clearly excessive and disparate when compared to the like sentence imposed upon his co-offender.
Background
The facts of the case are straight-forward and, despite the circumstance that the appellant denied his guilt and was only convicted following a jury trial, were never seriously in dispute. The appellant and his co-offender, Mr Mallock, were acquaintances. On the night of 22-23 June 2001 they met at a night club. Both consumed a significant quantity of alcohol. In the early hours they returned to the appellant’s home at Bealey Avenue, Christchurch. More alcohol was consumed. Approaching 6 am in the morning of 23 June the two walked to a service station to purchase cigarette papers. As they returned to the appellant’s home Mr Mallock suggested that they set fire to flat 1, 292 Bealey Avenue, which was a few doors away from the appellant’s home.
The subject property was occupied by a young couple who were asleep in an upstairs bedroom. Cardboard and newspaper was retrieved from refuse awaiting collection on the footpath and placed against the front door of flat. The appellant lent a cigarette lighter to Mr Mallock who set the material alight. The appellant further assisted by blowing the flames to promote ignition of the fire. Once this was achieved the offenders returned to the appellant’s address and observed developments, including the arrival of firemen who doused the blaze.
The occupants of the flat were awakened by the presence of smoke in their bedroom. Egress from the front door was not possible. Fortunately, however, an adjacent door gave access to a garage and the occupants made their escape following the successful operation of an automatic garage door. Had the fire spread so as to prevent access to the garage the occupants would have been forced to jump from an upstairs balcony in order to escape.
The damage occasioned by the fire cost $5,029.67 to repair. In addition the fire service charged $748 for its attendance.
The Sentences Imposed
Mr Mallock pleaded guilty to the charge of arson. On 9 August 2001 he was sentenced to three and half years imprisonment in the District Court. The sentencer adopted as a starting-point a sentence of five years imprisonment, from which an allowance of eighteen months was made in recognition of the prompt guilty plea and the offender’s personal circumstances. It will be necessary to examine Mr Mallock’s situation in somewhat more detail and in the context of the disparity submission, in particular the circumstances that he was the instigator of the offence and had a previous conviction for arson.
Unwisely the appellant denied the charge despite the fact he had made an incriminating statement to the police soon after the event and the actions of the offenders had been captured on a security video camera mounted near to the entrance of the flat. After a twenty minute retirement the jury found the appellant guilty. On 7 March 2002 he was sentenced by the trial Judge (who was a different Judge from the one who sentenced Mr Mallock six months earlier). In careful and comprehensive sentencing remarks the Judge observed:
Having had the opportunity to observe Mr Mallock give evidence as a witness for the Crown, I have no doubt whatever that the fire was his infantile, alcohol-induced way of getting a kick.
Nonetheless he also commented that although the appellant was “the follower” the fact remained that he had every opportunity to disassociate himself from the offending and elected not to.
After extensive reference to the sentencing of the co-offender the Judge continued:
[34] Against that aggravating factor (the risk to life) must of course be taken into account the clear evidence that you were less culpable than Mr Mallock, both in respect of your involvement in the offence and in respect of previous similar offending.
[35] Deterrence and denunciation must be the two principal factors when a judge sentences an offender who has been involved in the commission of a serious arson which resulted in risk to life. This was a wanton, senseless and grossly dangerous criminal act. In those circumstances, and really for the reason which I have already identified, Mr Mallock may count himself fortunate that Judge Kerr fixed imprisonment for five years as the starting point. That point of course relates to the degree of the risk to (the occupants).
In the end result an identical sentence of three and a half years imprisonment was imposed, the Judge apparently being satisfied that the appellant’s lesser culpability and better record warranted recognition to the same extent as had the credit allowed Mr Mallock for his plea of guilty. It was this evaluation which provided the essential basis for counsel’s argument in support of the appeal.
In addition and although Mr Mallock was not ordered to make reparation, the appellant was ordered to pay $2,500 at the rate of $30 per week, the first payment due six weeks after his release from prison. However, the Judge also directed that because the reparation sentence may be “impracticable” it should be the “subject of review, both as to the quantum of the sentence and the rate of payment, following your release”.
The Arguments
Mr Peters advanced two principal submissions, that the sentence was clearly excessive by comparison to those imposed in other arson cases and, alternatively, that the sentence was disparate when compared to the identical sentence of imprisonment imposed in the case of Mr Mallock.
We are unable to accept the first submission. Some authorities were referred to in support of the contention that three and half years was outside the available range but this is not the occasion to review sentencing levels for the crime of arson. As this Court has noted previously, there can be no fixed tariff for arson offending since the facts and seriousness of such cases can vary inordinately. Where, as here, the offence involved domestic premises which were occupied at the relevant time and where as a result there was a risk to life, we are satisfied that a starting point of five years imprisonment was well justified. That said it is impossible to say that a final sentence of three and a half years imprisonment was clearly excessive.
As to disparity it is necessary to refer to Mr Mallock’s personal circumstances in a little more detail. We accept that his record was significantly worse than that of the appellant. It included numerous convictions for offences of dishonesty (including aggravated robbery), a conviction in 1993 for arson for which a sentence of eighteen months imprisonment was imposed, and a conviction in 1997 for wilful damage which also attracted a short term of imprisonment. Mr Mallock was aged 32 years when sentenced and his pre-sentence report was not an optimistic one.
The appellant, aged 28 years, had comparatively few previous convictions, none of direct relevance and he had not previously been sentenced to imprisonment. His pre-sentence report contained assessments that there was a low risk of reoffending in a similar manner and that he was genuinely remorseful in relation to the present offence.
We also accept the assessment of the trial Judge (paragraph [7]) in relation to the relative culpability of the appellant and Mr Mallock. He was obviously well-placed to make that judgment having heard both give evidence at the trial.
Against this background Mr Peters urged us to the view that there was an unacceptable disparity involved in the imposition of like sentences of imprisonment once one brought to account the factors : that Mr Mallock was the instigator of and principal offender in the arson, that his criminal record was significantly worse (including a prior offence of arson), and that the appellant had not previously been sentenced to imprisonment. In short counsel contended that these factors more than outweighed any credit to which Mr Mallock was entitled for his plea of guilty, such that the identical terms imposed must be characterised as disparate. That is that any fair-minded and dispassionate observer, aware of the relevant circumstances of the two cases, would conclude that something was amiss in relation to the administration of justice upon a comparison of the sentences.
Conclusion
After full consideration of the matters advanced we are not persuaded that disparity sufficient to warrant intervention on appeal is made out. We agree with the submission of Crown counsel that the sentence received by the appellant was stern, but within the available range for what was plainly a serious offence of arson. We have already set out our conclusion that a starting-point of five years was appropriate for this crime. If anything, Mr Mallock was fortunate to receive the discount he did on account of his prompt plea of guilty. Equally, it was most unfortunate that the appellant did not face up to the reality of the situation and also enter a plea of guilty to the charge. Had he done so there would have been obvious scope to differentiate between the two offenders in recognition of their different past records and levels of involvement in the subject offence. But we cannot say that the appellant’s sentence of three and a half years imprisonment, in the absence of a plea of guilty, was clearly disparate by comparison to Mr Mallock’s sentence.
In the course of submissions we raised with counsel the appropriateness of the order for reparation. One was not made in Mr Mallock’s case, but that is not the source of our concern. Although the Judge ordered future payments at the rate of $30 per week he was concerned whether performance of that obligation would be attainable following the appellant’s release. It is not clear on what basis a direction was made for the future review of the order (presumably by the Registrar in terms of the provisions of Part III of the Summary Proceedings Act 1957).
But in any event we are satisfied that it was inappropriate to order reparation to follow such a significant sentence of imprisonment. In this regard we note the comments in the pre-sentence report that the appellant since leaving school has seldom been in employment and has received a sickness benefit, and that he suffers from chronic depression. Despite his offer to pay reparation at the ordered weekly rate, we consider that there is no realistic indication of his ability to do so.
Accordingly the appeal against the sentence of three and half years imprisonment is dismissed, but the reparation order is quashed.
Solicitors:
Thompson & Morgan, Christchurch, for Appellant
Crown Law Office, Wellington
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