The Queen v Trevor Raymond Craig

IN THE COURT OF APPEAL OF NEW ZEALAND

CA142/02

THE QUEEN

TREVOR RAYMOND CRAIG

Hearing:	26 November 2002
Coram:	Glazebrook J Baragwanath J Randerson J
Appearances:	N Levy for Appellant J C Pike for Crown
Judgment:	11 December 2002

JUDGMENT OF THE COURT DELIVERED BY RANDERSON J

Introduction

After a trial in the District Court on 21 March 2002, the appellant was convicted of two counts of arson under s 294(a) of the Crimes Act 1961 and three counts of wilfully setting fire to other property under s 296. He was sentenced on 2 May 2002 to a total of eight years imprisonment and now appeals against both conviction and sentence.

Background facts

Counts 1 to 5 all related to fires at the same factory premises in Palmerston North. Count 1 alleged that the appellant wilfully set fire to the factory itself on 7 January 2000. The premises were severely damaged with repairs costing more than $750,000. Counts 2 to 5 inclusive alleged that the appellant wilfully set fire to the contents of a skip bin on four separate occasions between 25 February 2000 and 26 October 2000. The last bin fire (to which count 5 related) allegedly occurred after the appellant had been interviewed by the police in relation to the 7 January fire.
Count 6 charged the appellant with a separate arson in relation to the burning down of a residential property at Bunnythorpe on 20 November 2000. The appellant was found guilty on all counts except count 5 on which the jury’s verdict was one of not guilty.
At trial, the Crown relied in part upon admissions allegedly made by the appellant to a Mr Lyons who was investigating the Bunnythorpe house fire on behalf of an insurance company. As well, the Crown relied on more extensive admissions made by the appellant in a video interview conducted by Detective J McKenzie at Whakatane in March 2001 while investigating other suspicious fires in that area.
The appellant gave evidence at his trial. He denied responsibility for any of the fires and maintained that the evidence of Mr Lyons and his admissions to Detective McKenzie were false. He explained that the detailed information he had given to the police about how the fires had started was derived from other sources after the event.
There was evidence at trial concerning alcohol consumption by the appellant (the detail of which will be considered further), but the appellant did not rely at trial on consumption of alcohol as a factor relevant to his ability to form the necessary intent to establish the crimes at issue. Indeed, trial counsel expressly disavowed reliance on a defence of lack of intent. Rather, the defence was that the appellant did not light the fires. Given the appellant’s admissions, this defence clearly had some difficulties. But defence counsel had his instructions and no criticism of him was made before us.

Grounds for appeal

The appellant, now represented by different counsel, submitted:

As to conviction

[a]There was sufficient evidence of intoxication to be relevant to the issue of intent.
[b]The trial Judge wrongly directed the jury that intoxication was not available as a defence and should not be considered as a matter of justification or excuse.
[c]Notwithstanding that the defence raised for the appellant at trial was one of identification, a correct direction on intoxication was required.

As to sentence

[d]The sentence was excessive.

Evidence relating to intoxication

The factory fire was first noticed about 8.15 p.m. on 7 January 2000. It had caught fire after someone had lit flammable material in immediate proximity to the building. Detective Constable Ross interviewed the appellant at around 9.30 pm the same day. The officer gave evidence that she smelt alcohol on the appellant’s breath. He told her he had been at home all evening and had consumed about one dozen cans of beer. Defence counsel sought to establish that the appellant remained alert and put to her that the appellant remembered the conversation well. Detective Ross agreed that the appellant was not rolling drunk and that he was having a conversation with another person when she arrived. She said he was sufficiently coherent to have a short conversation with her and to answer her questions directly. As well, the appellant was sufficiently sober to have walked the distance of about 2.7 kilometres between the factory and the place where he was living.
Later, a video camera was installed at the factory and the appellant was observed at the property on the evening of 18 April 2000, shortly before a fire was noticed in a bin there. That led to Detective Ross interviewing the appellant on video on 9 June 2000. Accompanying the appellant at the interview was a trustee of the Genesis Trust. The Trust had been providing work to the appellant for at least a year prior to the date of the interview.
The appellant readily admitted that he had been in the habit of regularly visiting the factory premises at least once a week and sometimes twice a week. He said he went there to get cigarette butts, which were left on a table outside. When asked specifically about the evening of 18 April, the appellant admitted going to the factory premises late that evening. He obtained some cigarette butts and, before leaving, had a cigarette. He initially denied lighting rubbish lying beside the bin, but when pressed with the evidence from the video surveillance, admitted it was possible he could have thrown a cigarette into a pile of rubbish as he left. However, he denied seeing any fire and said he walked home afterwards, taking thirty to thirty‑five minutes. He denied having any alcohol that evening and said he had been free from alcohol for fifty-one days prior to the interview. He specifically denied being at the factory premises on the night of the main fire on 7 January or at the time of the bin fires on 25 February and 1 March.
Apart from some generalised evidence given by the appellant in an interview in March the following year, there was no evidence as to the appellant’s state of sobriety in relation to the fires at the factory premises other than the uncontroverted evidence of Detective Ross already mentioned. That evidence fell far short of establishing a state of intoxication. Indeed, in his evidence at trial, the appellant denied he was drunk at the time of the factory fire and confirmed how well he remembered the discussion with the detective.

The fire at Bunnythorpe

The owner of the Bunnythorpe property, a Mr Hill, gave evidence about the fire on 20 November 2000. On previous occasions, he had observed the appellant and others from the Genesis Trust working on the section adjoining his home. He and his former partner had spoken to the appellant from time to time. He recalled that it was about 4.30 p.m. when smoke was noticed at his home. His son and stepson were playing about the property at the time. The fire brigade was called and he then went over to the nearby section, finding the appellant in a small shed on the property. He was staggering as though he were drunk and was crying. He was not able to obtain any coherent response from him.
Two Fire Service witnesses also gave evidence of having seen the appellant at the scene of the fire. He seemed distressed and it was reported he had been drinking. A flagon matching the description of one taken from the Hill household that day was found in the small shed on the adjoining section. It was about one-third full and smelt like sherry or port which fitted with Mr Hill’s evidence that it contained home-made wine. The appellant was seen at the Palmerston North Hospital for assessment as he had collapsed at the scene. The evidence did not make it clear whether this was due to alcohol or other causes.
The appellant was spoken to by the private investigator, Mr Lyons, on 27 November, eight days after the house fire. The appellant confirmed he had been working at the section adjoining the Hill property on the day in question and that the house fire had occurred about 4.30 that afternoon. The wind was strong and the house was destroyed in about twenty minutes. The appellant explained that the fire brigade had taken a long time to arrive and he referred to the route the fire engine had taken. The next day, 28 November, Mr Lyon took a detailed written statement from the appellant. The appellant gave a detailed account of what he said happened on the day in question. There had been a rubbish fire on the adjoining section started by Mr Hill’s partner and he had added rubbish to it as he cleared a portion of the section. It was not a large fire. Sometime between 4.30 and 4.45 p.m. he noticed smoke from the Hill property. He described the nature and location of the flames in detail and how he had checked to see if Mr Hill and the two boys were safe. He then tried to operate the Hills’ garden hose but the pump was not working. He did not wait for the fire brigade but went back to Palmerston North on his bicycle. He had no idea how the fire started.
Mr Lyons then made further enquiries and spoke to the appellant again on 7 December. The appellant admitted he had lied about his attempt to put the fire out and about biking home. He said he had begun drinking beer around midday and, by the time the fire had taken place, he was “quite drunk”. He said it was not uncommon for him to drink on the site in the shed and, once he started, he could not stop. He said he had had a life-long drinking problem which was “almost uncontrollable”. Notwithstanding this, Mr Lyons said the appellant had told him on two occasions during the interview that no matter how drunk he was, he could always remember what he had done. He said he was able to recall the next day exactly what had happened. He denied he was responsible for the fire. He again stated he had no knowledge as to how the fire had started, although he admitted going to the property that day and having a conversation with Mr Hill’s partner.
Mr Lyons asked the appellant if he had noticed beds stacked on the front porch of the doorway of the house and he confirmed he had. This was significant because the expert evidence was that the fire probably started in the vicinity of the beds. According to Mr Lyons, the appellant agreed he believed the fire had started in the front porch area, although he could not explain how it might have started. He denied going inside the house that day and denied touching the contents of the rum bottle taken from it. When Mr Lyons put it to the appellant that the fire was extremely dangerous and could have caused the death of the Hill children, the appellant said that Mr Lyons would not have to worry about interviewing him any further because he would have taken his own life if that had happened.
On 25 March 2001, the appellant was interviewed by police at Whakatane about three suspicious fires at a campground. He was spoken to first by Detective Lewer and, at the end of the interview, the appellant said he wanted to “sort out” some matters relating to arsons in Palmerston North. He suggested that the detective should contact Detective Ross. He mentioned specifically the factory arson and fires in the bins at the same property. He also stated in relation to the Genesis Trust, “I got drunk one night and burnt their house down to the ground …”. When Detective Lewer had first spoken to the appellant the day before, he requested to see a doctor, telling the detective he was an alcoholic. In cross-examination, the detective said he had smelt alcohol on the breath of the appellant at about 9.30 a.m. on 24 March. He was not overly drunk but told the detective he had drunk three bottles of wine the night before. He also told the detective he had been having problems with depression over a period of about six weeks beforehand.
We pause here to note that defence counsel did not at any stage pursue at trial the issue of alcohol consumption at the time of the fires. His questions of the Whakatane detectives were aimed at establishing that the appellant was in no fit state to be interviewed in March 2001, long after the events at issue in this appeal.
Detective McKenzie gave evidence of conducting a video interview with the appellant on 27 March 2001. At the commencement of the interview, the appellant confirmed general discussions with the detective to the effect that he had been involved in a number of fires in Palmerston North. The appellant volunteered the name of the company which occupied the factory site and identified the house adjacent to the section where he had been working for the Genesis Trust. He admitted going into the Bunnythorpe house and described in detail how he entered. He admitted taking a flagon of wine and drinking about three-quarters of it in the shed on the section before returning to the house and burning it. He had no idea why he had gone back to the house. He used his cigarette lighter to light the mattresses on the porch. He then went back to the shed and drank more wine and stayed there until the fire brigade came. He said he was taken to hospital because he was suffering from smoke inhalation. The hospital people had told him he was drunk.
In relation to the factory, he told the detective he had lit fires there on five separation occasions. The first time had been over twelve months before. He said he had been drinking and just lit a fire with a cigarette lighter “in a doorway or something like that”. He had not entered the building and thought he had lit “paper or something like that”. He had walked from his home to the factory and back. He said that he had “never set out to light a fire” but “it always sort of happens along the way somehow”. He thought he had probably got paper from one of the skip bins on the property. He confirmed that, after the factory fire, there had been four other fires which he had lit in the bins.
The appellant was asked whether it was fair to say that “even though you might be a little bit hazy on some of the details, you know personally that you did it?” The appellant replied, “Oh, without doubt.” He said that when he left the scene on the occasion of the first fire at the factory, it was well underway. He then went on to describe in more detail the four fires in the bins and the following exchange then occurred:
C.See most of this has done in an alcoholic blackout and all I’ve done is basically try to piece it together in the cold light of the day and some of it would be um, some of it, some of the timing will be a little bit out
M.Okay
C.Some of the occasions might be, I mean it might have been 6 times, but um I [k]now they’ve got a pretty detailed account of Palmerston North, which puts it beyond all doubt that it was me
M.Okay aside from what anybody else may think, you, you talked about going through these and you know giving me the best that you remember, these fires that your telling me about, your telling me because, I, I, my understanding is because you know you did them
C.Yeah
M.Do you have any doubt about that
C.No.
A discussion then ensued about the appellant’s concerns as to what he was capable of when he had been drinking. The appellant felt he was getting worse and then stated:
C.Ooh um, well I think I might be able to um, I mean they’re hanging over my head and I’m just wondering why, that’s why I’m drinking more and lighting more fires, I don’t know, I don’t know, but the thing is I did them and um, I don’t really want to be carrying around that sort of um legacy with. Cause it isn’t, it isn’t good to carry around that sort of legacy because you know that um, you’ve hurt a lot of people. And there’s no question in my mind that I could continually get away with this, but I mean there must come a time when enough’s, enough, even for me.
Counsel for the Crown submitted to the jury that the appellant’s interview was consistent with someone who wanted to get the matter off his chest and to break the cycle of drinking and lighting fires.
In evidence at his trial, the appellant specifically denied involvement with any of the fires except the bin fire on 18 April in respect of which he accepted he may have discarded a lighted cigarette. As to the house fire at Bunnythorpe, he said he had got drunk at work on beer and wine. He admitted he had taken wine from the Hill property without permission. He also admitted telling a lie to Mr Lyons about going home on his bike and explained that he did not wish his boss to know he had been drinking at work. He could not really recall a statement about whether he had tried to help put out the fire. He denied telling Mr Lyons he would take his own life if he had thought the children might have been hurt in the fire.
As to the video with Detective McKenzie on 27 March 2001, he stated that his confessions were untrue. It was “because of my chronic alcoholism it was an opportunity for me to get sanctuary and I got it”. When asked to elaborate, he said he was referring to sanctuary “from the outside and the drinking”. He explained that, at the time of that video interview, he was suicidal and homicidal. He had made up the entire confession because he would have pleaded guilty to anything at that time. When asked to explain the detail of his various statements, he said he had obtained information from others about how the fires had started. He then stated he had been an alcoholic since he was about eight years of age and had been treated on fourteen separate occasions. He said there was no limit to his drinking. He would drink as long as the money lasted.

The summing up

The Judge correctly directed the jury on the first two of the three essential elements of the charges which were that the appellant set fire to the building or property and that he did so wilfully. The third element the Crown must prove arises by virtue of s 293(2) which provides:
Nothing shall be an offence against any of the provisions of those sections unless it is done without lawful justification or excuse, or without colour of right.
The facts of the case did not give rise to any issue under s 293(2) and the Judge correctly advised the jury to that effect. However, under this heading, the Judge raised the issue of alcohol consumption. While referring on a number of occasions in his summing up to the issue of alcohol and what he described as the appellant’s “obvious alcohol difficulties”, the Judge directed the jury that the circumstances of the case did not warrant the introduction of any defence or excuse based on consumption of alcohol. In three key passages, the Judge said:
There is, can I say to you, a third element that needs to be established. But again, it is an element that I am going to tell you about, but again, I’m going to say to you I don’t think you need to consider it too much in this case. The element is this, that you have to be satisfied beyond reasonable doubt that the Accused did not have any lawful justification or excuse for what he did. He didn’t have what’s called a colour of right. It really means you’ve got to be satisfied that he had no reason for doing what he did in law or as the law would recognise it as an excuse. I mention it because there has been much evidence in this case about this issue of intoxication. I need to say something about it because you will well understand Mr Cameron, on behalf of the Accused, does not put to you that drunkenness was an excuse or a justification for this offending. You can’t, as a Jury, and as a matter of law I am directing it, say to yourselves, well he might have got so drunk he couldn’t remember what he was doing, didn’t know what he was doing.
The reason for that, is that it is often the case that people do things when intoxicated that they wouldn’t do if they were sober. There are few of us who probably can say that we haven’t been in that position I would imagine. But the law is that an act that is intentionally done, even if the intent was fuelled by booze, is something that a person is responsible for. A drunken intent, when you do something, what you mean when you perform an act, is still an intent. There are some rare occasions when someone can bring to the Court the fact that intoxication meant that he was incapable of forming an intent to carry out some act.
I say to you as a matter of law, those circumstances don’t exist here and that you cannot consider that as a matter of justification or excuse. Having said it, I ask you just to leave that aside and not allow your thinking to be clouded by the prospect that oh well, perhaps that is an excuse. It is not. (emphasis added)

We accept that the effect of this direction was to take away from the jury the issue of whether the alcohol consumed by the appellant may have resulted in his not having acted wilfully in the sense required.

Appellant’s submissions

Ms Levy for the appellant submitted that, even if the jury rejected the appellant’s evidence that he did not carry out the acts in question, it remained for the Crown to prove all the elements of the offences, including wilfulness. In support, she relied upon the following passage from the well known decision of this Court in R v Kamipeli [1975] 2 NZLR 611, 616:
“… the common law … requires the prosecution to prove all the elements in a definition of an offence, including any mental elements such as intention or recklessness. Drunkenness is not a defence of itself. Its true relevance by way of defence, so it seems to us, is that when a jury is deciding whether an accused has the intention or recklessness required by the charge, they must regard all the evidence, including evidence as to the accused’s drunken state, drawing such inferences from the evidence as appears proper in the circumstances. It is the fact of intent rather than the capacity for intent which must be the subject matter of the inquiry.”
The issue in Kamipeli was whether the Judge had left the jury free to decide whether on the whole of the evidence, there was a reasonable doubt that the Crown had proved murderous intent under s 167(a) or (b) of the Crimes Act. At p 617, this Court stated:
The appellant says that he did not, because of the Judge’s direction that unless they believed that the appellant had reached the stage when his mind was no longer functioning at all and he was acting as a sort of automaton, they must reject the defence of lack of intent; whereas in truth it was open to the jury, even if the evidence fell short of establishing that degree to conclude on all the evidence that the Crown had failed to discharge its onus. We think that this submission is unanswerable for the vice of which the appellant complains is inherent in what was said.
We also note the following passage from R v Sheehan [1975] 1 WLR 739, 744, [1975] 2 All ER 960, 964 cited with approval in Kamipeli at 619:
… in cases where drunkenness and its possible effect upon the defendant’s mens rea is an issue, we think that the proper direction to a jury is, first, to warn them that the mere fact that the defendant’s mind was affected by drink so that he acted in a way in which he would not have done had he been sober does not assist him at all, provided that the necessary intention was there. A drunken intent is nevertheless an intent. Secondly, and subject to this, the jury should merely be instructed to have regard to all the evidence, including that relating to drink, to draw such inferences as they think proper from the evidence, and on that basis to ask themselves whether they feel sure that at the material time the defendant had the requisite intent.
The issue of the effect of drugs or alcohol on the formation of intent was raised in the later decision of this Court in R v Munro (1986) 2 CRNZ 249. The Judge had directed the jury that if the consumption of cannabis had progressed to a point where the appellant was “acting like a robot, then it could become a defence because of the inability to formulate an intention of mind”. The Judge further directed the jury that if the actions of the accused were referable only to the consumption of cannabis and not to any underlying disease, then that would not amount in law to a defence. This Court observed at 250-251:
There may be a case where cannabis or some other drug or alcohol may have had an effect upon the mind of the accused resulting in his not forming an intention essential for proof of the crime charge. And even if the evidence does not go to the length of establishing that such an effect did exist in fact, the evidence may still raise a reasonable possibility that such was the position. If that reasonable possibility remains, in the opinion of the jury, then the Crown has not discharged the onus of proof of intent that lies upon it. Had there been in the present case a sufficient evidential foundation along the lines just indicated, the direction given by the learned Judge would not have been adequate. In particular it would have failed to bring home that upon the establishment of such an evidential foundation the onus is on the Crown to prove the necessary intent despite the evidence of drug use or consumption. A bare reference to a defence would not be sufficient in our view to make the position as to onus clear to a jury.
In that case, the appellant admitted stabbing the complainant and there was nothing in the evidence to suggest that his intention was other than deliberately to stab and inflict harm upon her. Accordingly, the Court decided that there was no sufficient evidential foundation to require the Judge to say more. The Court concluded at 251:
On no view of the evidence is it reasonably possible that the drug taking meant that he was unable to form that intent or, more importantly, did not form that intent. On the contrary it was his intent, although the consumption of cannabis may have contributed to his forming it.
Ms Levy submitted there was a sufficient evidential foundation in the appellant’s case to require the Judge to leave the issue of drunkenness to the jury in the manner contemplated by Kamipeli and Munro. In support of the submission that the Judge had an obligation to do so, notwithstanding that the issue had not been raised on behalf of the appellant, Ms Levy cited the decision of this Court in R v Tavete [1988] 1 NZLR 428; (1987) 2 CRNZ 579 and R v Bedi (1993) 68 A Crim R 539, a decision of the Court of Criminal Appeal of South Australia.

Crown submissions

Mr Pike for the Crown submitted that the obligation on the Judge to direct a jury on possible offences, even if not raised by the defence or even expressly disavowed by the defence, was not absolute and depended on the circumstances. He submitted, that on the facts of the case, the evidential foundation was not such as to require the Judge to leave the issue to the jury and pointed to the potential for a judicial direction of the kind advocated, to undermine the appellant’s defence that he did not carry out the acts in question.

Discussion

As this Court stated in Tavete at 431, 581:
A trial according to law requires an adequate direction by the Judge to the jury of all matters, whether of fact or of law, which, upon the evidence are reasonably open to the jury to consider in reaching their verdict. In a trial for murder this includes matters of defence such as self defence, provocation, manslaughter, or accident, notwithstanding that such matters are not raised or are even expressly disavowed on behalf of the accused.
We do not accept the Crown’s submission that leaving the issue of drunkenness to the jury would have undermined the appellant’s defence. This was a case where it was plainly open to the jury to reject the appellant’s evidence that he did not light the fires in question. In that event, the standard jury direction would require the jury nevertheless to consider whether the Crown had proved all elements of the crimes in question, including any mental element. We are satisfied that the real questions in this case are whether there was a sufficient evidential foundation to require the Judge to leave to the jury the issue of drunkenness and, if so, whether it was inevitable that the jury would have concluded in any event that the Crown had proved the necessary mental element beyond reasonable doubt.
The starting point is to identify the mental element required to be proved. In relation to the two major fires, the charges were brought under s 294(a) of the Crimes Act which simply requires proof that the appellant wilfully set fire to any building. In this context, the use of the expression “wilfully” requires the Crown to establish deliberate conduct, i.e. conduct which is not accidental. Although the Judge also directed on the extended definition of wilfulness under s 293(1), that section is not relevant to the present case where the Crown alleged that the appellant had set fire to the building by lighting inflammable material with a cigarette lighter to start the fires in question.
In terms of the charges brought under s 296, the same mental element had to be proved by the Crown, namely, wilfully setting fire to a property of a type other than that mentioned in s 294(a).
Apart from conduct which is accidental (and therefore not wilful), there may be such a disassociation between an accused person’s physical actions and his mind as to render him not responsible in law for his actions. That may occur through a state of automatism as discussed by this Court in R v Burr [1969] NZLR 736 or, as Sir Alexander Turner put it in the same case at p 747, an accused person “can claim that his drunkenness precluded the formation of any conscious intention such as is necessary for a verdict of guilty”.
However, cases falling into that category are likely to be rare. Criminal conduct frequently occurs in circumstances where an accused is under the influence of drink or drugs. There is no need to repeat what was said by this Court in Kamipeli on that subject. In most cases, the consumption of alcohol or drugs is unlikely to preclude the formation of intent. It is much more likely, in the general run of cases, simply to inflame passions or to cause an accused to act in a way in which he or she might not have done if sober.
Whether the circumstances of the case are such as to require the issue of intoxication to be left to the jury in the way envisaged by Kamipeli and Munro, is a matter of judgment for the trial Judge. Where there is evidence of consumption of alcohol or drugs in a case requiring proof of mens rea, a positive direction to exclude consideration of the possible impact of intoxication on the formation of intent should be undertaken only with caution and usually after discussion with counsel.
Judges should be alert to the essential responsibility of the jury to determine all factual issues relevant to the case. The following passage from the speech of Lord Edmund‑Davies put it in Director of Public Prosecutions v Stonehouse [1997] 2 All ER 909, 934 is apposite:
… as Lord Oaksey said in Joshua v R ([1955] 1 All ER 22 at 25, [1955] AC 121 at 130)–
It is a general principle of British law that, on a trial by jury, it is for the judge to direct the jury on the law and, in so far as he thinks necessary, on the facts, but the jury, whilst they must take the law from the judge, are the sole judges on the facts.
…
My Lords, the erroneous direction in the instant case is but one example of a prevalent (though fortunately not universal) tendency in our courts in these days to withdraw from the jury issues which are solely theirs to determine. … Whether this tendency springs from distrust of the jury’s capacity or from excessive zeal in seeking to simplify their task, it needs careful watching, and there are welcome signs that judges are awakening to that fact: … [I]t has to be said that, while the possibility of a perverse verdict cannot be wholly eliminated, the risk that directions to convict may lead to quashings can be obviated by clarity in identifying the contested issue, by commenting on the evidence (maybe even in strong terms, provided that they fall short of a direction, … and by then trusting the jury to play their constitutional part in the criminal process.
It is not necessary to give a direction as to the effect of alcohol or drugs in every case where there is evidence of some such consumption, however slight. But, in a case where there is evidence of substantial consumption of alcohol or drugs which could have deprived the accused of the capacity to form intent or could give rise to a possibility that a reasonable jury could conclude that the accused did not in fact form the relevant intent, it will normally be appropriate to give a direction along the simple lines envisaged in Sheehan. It is desirable in such cases to add, that if the jury considers, on the basis of all the evidence, that the accused was so seriously affected by alcohol or drugs that he or she did not in fact form any conscious intent at the time of the act in question, then he or she is entitled to be acquitted. Alternatively, if the jury considers there is a reasonable possibility of that being the case, then the Crown would not have proved the mental element of the crime beyond reasonable doubt and, again, the accused would be entitled to an acquittal.

Was there a sufficient evidential foundation in the present case such as to require the Judge to leave the issue of intoxication to the jury?

We consider first the factory fires. It was not suggested that the fires occurred by accident. They could only have happened by deliberate conduct on the part of the perpetrator by lighting the fires in question. The only direct evidence as to the state of the appellant’s sobriety at the time of the first fire on 7 January is that of Detective Ross and the appellant himself. As indicated, that evidence fell far short of establishing a state of intoxication to the extent required to establish that the appellant did not act wilfully. Nor was it such as to give rise to the possibility of a reasonable doubt in the mind of a reasonable jury as to the proof required for that element. There was no specific evidence before the Court as to the appellant’s state of sobriety at the time of the bin fires, other than his own evidence that he had abstained from alcohol for a period of fifty-one days prior to the interview on 9 June 2000. That evidence suggests that the appellant’s drinking bouts were episodic in nature.
We have considered Ms Levy’s submission based on the appellant’s generalised statements in his interview with Detective McKenzie in March 2001 referring to alcoholic blackouts. However, that evidence was so unspecific in nature that we do not consider a reasonable jury could have given it any significant weight, particularly in the absence of any expert evidence bearing upon the effects of alcohol consumption on the formation of intent in the appellant’s case. We also observe that the level of detail given by the appellant in this interview and on prior occasions tells strongly against a submission that he did not know what he was doing at the time of the fires or that, in some way, his mind was not accompanying his physical actions. On the face of his interview, he admitted lighting the fires and there was no suggestion of any kind that they had occurred accidentally. Such a proposition would be difficult, given the physical act required to operate the cigarette lighter alleged to have been used and then to apply the lighter to the flammable material in each case. These steps were such as to require conscious action by the perpetrator and were most unlikely to have occurred involuntarily or without the necessary coincidence of mind and action.
We conclude in relation to the factory fires that there was insufficient evidence to require the Judge to direct the jury on the intoxication issue and its possible effect on the formation of the relevant intent.
But we take a different view on the house fire at Bunnythorpe. There was independent evidence of the consumption of a substantial volume of homemade wine and of the appellant’s collapsed state when found shortly afterwards. In the face of that evidence, it was a bold step for the Judge to take away from the jury the issue of alcohol consumption in relation to the house fire.
It would have been preferable for the Judge to have left the jury to consider the evidence of alcohol consumption along with all the other evidence relevant to the issue of wilfulness. However, we are satisfied it was inevitable that the jury would conclude on the basis of all the evidence that the appellant’s actions were wilful in the sense of conscious or deliberate conduct. We refer particularly to his detailed accounts of his actions at the time; his knowledge of the circumstances which could only have been derived from being involved; the deliberate actions required to start the fire; the absence of evidence that the fire started accidentally; the absence of any evidence as to the effect his alcohol consumption could have had on his ability to act consciously; and the absence of any expert evidence to explain his ability to recall detail if he were acting involuntarily or without conscious volition.
Applying the proviso to s 385(1) of the Crimes Act, there has been no miscarriage of justice and the conviction appeal fails.

Sentence appeal

The Judge drew attention to the substantial damage caused to the factory, which took eight months to rebuild. As well, there was substantial disruption to the business of the factory owners. The Judge was particularly concerned about the effects on the owners of the house which was completely destroyed. He noted that the family had lost irreplaceable items of sentimental value and had suffered serious emotional harm. The Judge observed that it was only a matter of luck that there were no injuries or deaths caused. While the burning of commercial premises may sometimes not be regarded as seriously as the burning of a residential home (having regard to likely risks), it cannot be overlooked that fire fighters put themselves at risk when attending fires in premises, regardless of the nature of their use. As well, in this case, there were young children living at the home of Mr Hill and his partner who could potentially have been at risk. That fact was known to the appellant.
Most importantly, the Judge referred to the lengthy and serious criminal record of the appellant. Noting that the appellant had more than seventy previous convictions for dishonesty, escaping from lawful custody, attempted murder and indecent assault, the Judge rightly treated the appellant’s seven previous convictions for arson as being the most significant. Those convictions had commenced in 1983 and the last was in 1995 when Greig J had imposed a sentence of five years imprisonment. It is not clear whether that involved a guilty plea but the sentencing Judge on that occasion observed that imprisonment was required to protect the public at large.
We agree that the protection of the public had to be a major element in the appellant’s sentencing. Plainly, he is in the category of a recidivist in respect of the crime of arson. He is unable to control his conduct and the consumption of alcohol has played a major role in the offending. However, as the Judge noted, the appellant was not mentally disordered and was not psychotic.
The Judge considered that a sentence of six years imprisonment was appropriate for count 1, before a reduction for the totality principle. After deduction on that account, the Judge arrived at a sentence of four and a half years imprisonment. He imposed concurrent sentences of six months each for the bin fires. On count 6, the Judge considered a sentence of five years was appropriate but, after allowing for the totality principle, he reduced that sentence to three and a half years imprisonment. The Judge ordered that the sentences on counts 1 and 6 be served cumulatively to arrive at a sentence of eight years.
Ms Levy submitted that, overall, a sentence of six years would have been appropriate. She rightly submitted that there is no recognisable tariff in arson cases and drew our attention to a number of decisions of this Court where sentences ranging from three to nine years have been imposed. Perhaps of most relevance for present purposes is the R v Carter (CA.160/96; 31 July 1996) where a sentence of nine years on two counts of arson was upheld. Fires had been lit at two pensioner flats occupied by elderly widows. The Court was concerned about the high risk of injury to the occupants but noted that neither had suffered any personal injury. There had nevertheless been a substantial degree of emotional upset. The principal mitigating feature was the appellant’s pleas of guilty. The sentence was regarded as severe but not excessive.

While we accept that the sentence of eight years was towards the upper end of the range for this type of offending, we are not persuaded that it was excessive, having regard to the extent of the damage, the risk to human life, the appellant’s regrettable prior history and the need to protect the public.

Result

The appeals against conviction and sentence are dismissed.

Solicitors

Crown Law Office, P O Box 5012, Wellington

[2002] NZCA 299

11 December 2002