Thomson v The Queen - [2005] NZCA 146

IN THE COURT OF APPEAL OF NEW ZEALAND
CA1/05
THE QUEEN
v
JEREMY KURT THOMSON
Hearing:26 May 2005

Court:William Young, Panckhurst and Doogue JJ
Counsel:B R Green and S A Segaran for Appellant

M N Zarifeh and M T Bradley for Crown

Judgment:14 June 2005

JUDGMENT OF THE COURT

A The appeal against conviction is dismissed.
BThe appeal against sentence is allowed. The sentence imposed in relation to the Wentworth Building is reduced from six years to five years.

REASONS
(Given by William Young J)
Introduction
[1]        The appellant and two other men, Robert Rouse and Harlei Davis, were charged with two counts of arson involving two separate incidents. The first related to the destruction by fire of the Wentworth Building in central Christchurch in the early hours of 18 October 2003 and the second to the destruction by fire of a residential house in Armagh Street, Christchurch on 20 October 2003
[2]        Rouse pleaded guilty to both charges and was sentenced to six years imprisonment. The sentencing Judge (Judge Moran) saw his offending as warranting a starting point sentence of eight years. The appellant and Davis pleaded guilty to the Armagh Street fire but defended the charge in relation to the Wentworth Building. At their first trial the jury disagreed. At the second trial (which was before Judge Crosbie) Davis was acquitted on the charge associated with the Wentworth Building but the appellant was found guilty.
[3]        Subsequently Judge Crosbie sentenced the appellant and Davis to three years imprisonment in relation to the Armagh Street fire and the appellant was sentenced to six years imprisonment in relation to the Wentworth Building fire.
[4]        The appellant now appeals against conviction in relation to the Wentworth Building fire and sentence in relation to both fires.
The conviction appeal
The facts – the Wentworth Building arson
[5]        There was little dispute at trial as to the underlying facts. It was common ground that:
(a)The appellant, together with Rouse and Davis had entered the building.
(b)Rouse was the primarily culpable offender but the appellant and Davis were present in the building when the fire started and they left the building in company with Rouse.
(c)Within 26 hours of the Wentworth Building arson, all three men were involved in the destruction by fire of the Armagh Street building and that the participation by the appellant and Davis was such as to make them guilty of arson.

[6] The appellant and Davis were present with Rouse on a number of occasions in which Rouse had taken a primary role in discussing the Wentworth Building arson with three young people, Nathan Hastie, Aleesha Turnball and Megan Keen. One of the issues at trial, to which we will revert shortly, was whether the participation by Davis and the appellant in those discussions could be treated as being an implied admission of complicity in the Wentworth Building arson.
[7] There was some evidence that was particular to the individual defendants. The appellant and Nathan Hastie had a discussion…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Thomson v The Queen

Details

AGLC: Thomson v The Queen [2005] NZCA 146
Case: [2005] NZCA 146
Decision Date: 14 June 2005

CaseChat Overview and Summary

The appeal against conviction is dismissed. The appeal against sentence is allowed. The sentence imposed in relation to the Wentworth Building is reduced from six years to five years. The appellant was convicted of arson involving two separate incidents. The first related to the destruction by fire of the Wentworth Building in Christchurch on 18 October 2003 and the second to the destruction by fire of a residential house in Armagh Street, Christchurch on 20 October 2003. The appellant pleaded guilty to the Armagh Street fire but defended the charge in relation to the Wentworth Building. The appellant appealed against conviction in relation to the Wentworth Building fire and sentence in relation to both fires. The appeal against conviction was dismissed because there was little dispute at trial as to the underlying facts. The appellant and two other men had entered the building and were present when the fire started. The appeal against sentence was allowed because the six year sentence imposed upon the appellant was undoubtedly severe. The appellant had a serious health condition which had led to him having difficulties at school and with social interactions. The Court reduced the sentence imposed upon the appellant in relation to the Wentworth Building arson to five years.

Orders