The Queen v Lory

[2004] NZCA 190

IN THE COURT OF APPEAL OF NEW ZEALAND

CA472/03

THE QUEEN

v

ALAN WAYNE LORY

Hearing:22 July 2004

Coram:Anderson P
William Young J
Chambers J

Appearances:  C J Tennet for Appellant

S P France for Crown

Judgment:19 August 2004 

JUDGMENT OF THE COURT DELIVERED BY WILLIAM YOUNG J

Introduction

[1]       This is an application for leave to appeal out of time against a sentence of life imprisonment imposed by Hammond J as long ago as 3 October 1996 in respect of six counts of manslaughter. 

The facts

[2]       During the mid-1990s, the appellant resided for some time at the Empire Hotel in Hamilton.  He was required to leave and this made him resentful.  In the early hours of 4 February 1995 he returned to the hotel.  He obtained access through a rear door that was unlocked.  He went upstairs and pounded on the door of a particular resident.  Another resident asked him to leave.  On his way out he set alight to a sofa which was on the ground floor.  He then left the hotel.

[3]       As a result of the fire the hotel was destroyed and this led directly to the deaths of six people and serious injury to many others.

[4]       A considerable amount of time passed before the appellant was arrested.  Eventually he was prosecuted for murder (in respect of the six people who died) and arson.  At trial, the jury acquitted him of murder but found him of guilty of manslaughter. He was also found guilty of arson. 

[5]       The appellant has convictions going back to 1971.  Some of his offending is particularly worthy of note in the present context.  In 1988 he was convicted of causing death through driving with excess proportion of alcohol in his blood.  In the same year he was convicted of wilfully setting fire to a property and thereby endangering life.  He was sentenced to three years imprisonment for this offence.  In August 1995 (ie six months after the fatal fire) he deliberately drove his car through the front entrance of the Hamilton Police Station.  In respect of this behaviour he was prosecuted for wilful damage, reckless driving, driving while disqualified and driving under the influence of alcohol and he was sentenced to a total of 21 months imprisonment.

[6]       In his sentencing remarks, Hammond J noted R v Wickliffe [1987] 1 NZLR 55 where a life sentence was imposed, in unusual circumstances, when a conviction for murder was reduced to manslaughter. The Judge also referred to two cases in 1915 and 1916 where sentences of life imprisonment had been imposed for manslaughter and other cases in which finite sentences of up to 20 years had been imposed. The Judge then indicated that he saw a life sentence for the appellant as appropriate. In his view such a sentence was necessary to protect the public from the appellant to whom he referred as a “walking time bomb”. He identified the harm the appellant had caused - six deaths and injuries to those who survived and the heavy economic loss of the hotel proprietors (who were not fully insured). The appellant’s culpability was high and, given that culpability, the Judge saw the difference between murder and manslaughter as being “of little moment”. A life sentence was seen as consistent with sentencing practice, particularly by reference to English cases. The Judge paid particular attention to R v Mansfield [1978] 1 All ER 134. Finally he noted that the appellant would be eligible for parole after 10 years which he saw as giving the appellant an incentive to address the reasons for his offending. The Judge also imposed a sentence of 12 years imprisonment on the arson charge.

[7]       The appellant took legal advice as to whether he should appeal against sentence.  Having taken that advice, he elected not to appeal. In an affidavit in support of his application for leave to appeal out of time, the appellant said that his recollection was that he was told that if he appealed he might receive a more severe sentence.  Hammond J could have imposed an extended non-parole period under s 80 of the Criminal Justice Act 1985 but did not do so.  Had the appellant appealed against his sentence in 1996, it would have been open to this Court to have imposed an extended non-parole period (as indeed we could do now): see s 385(3) of the Crimes Act 1961.  So it was at least theoretically possible that an appeal by the appellant might have resulted in a heavier penalty than the life sentence imposed by the Judge.  On the other hand, it is not common for this Court to increase sentences other than on Crown appeals.  Accordingly we have some reservations whether the appellant’s recollection of the advice he was given is entirely accurate.

[8]       The appellant did not seek to revisit his decision not to appeal until late last year.  At that time he discussed his sentence with a fellow prisoner, and, as a result of what that prisoner said, took legal advice.  The present application for leave to appeal was then filed.

[9]       Time objections to sentence appeals are seldom taken in this Court.  It is, however, not usual for an offender to wait seven years before seeking leave to appeal.  This seven year delay is no light matter.  We say this particularly given the likely feelings of those who were injured in the fire but survived and the relatives and loved ones of the six people who died.  Given the tragic consequences of the appellant’s offending, the finality principle is of high importance and we would require much persuasion before allowing the case to be re-opened.

[10]     As to the merits of the challenge to the life sentence, Mr Tennet, for the appellant, contended that Wickliffe was an exceptional case where an appeal against a murder conviction was allowed 14 years after trial.  Leaving that case aside, a life sentence for manslaughter was unprecedented.  In motor manslaughter cases involving multiple fatalities, life sentences have not been imposed.  Mr Tennet also complained that the Judge effectively over-rode the verdicts of the jury.  He maintained that the English cases referred to by the Judge were irrelevant and suggested that the Judge ought not to have taken parole eligibility into account.

[11]     We see no merit in any of these arguments. 

[12]     The legislature has provided for life sentences in manslaughter cases.  The appellant’s offending is right at the top end of conceivable culpability.  Indeed it is reasonable to consider his culpability to be at least comparable to that of many who are convicted of murder.  Further, the safety of the public is a relevant consideration.  Hammond J was entitled to call the appellant a “walking time bomb”.  He has now killed seven people. On other occasions, he has endangered human life.  A finite sentence would, as Hammond J noted, provide insufficient incentive for the appellant to address the reasons for his offending.  The appellant’s offending was, in New Zealand terms, uniquely serious and in such circumstances it was understandable and legitimate for the Judge to have regard to sentencing practice in the United Kingdom.  The case the Judge particularly referred to – R v Mansfield – involved offending which was uncannily similar to that of the appellant and the life sentence imposed on the offender in that case was not challenged on appeal. Had a finite sentence been imposed, it would have been 15 years or more (as Mr Tennet accepted) and, under s 89 of the Criminal Justice Act, the appellant would have been required to serve 10 years which is the minimum term he is required to serve under the life sentences imposed.  The Judge was understandably concerned that at the expiry of 10 years the appellant was likely to still be a danger to the public and that an entitlement to release at that point (which he would have had with a long finite sentence) would give him insufficient incentive to address his offending behaviour.  In this context, it was plainly open to the Judge to consider parole eligibility when deciding whether to impose an indeterminate sentence. 

[13]     So the application for leave to appeal against sentence is declined.

Solicitors:
Crown Law Office, Wellington