Woodward v Police
[2022] NZHC 2774
•26 October 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-000312
[2022] NZHC 2774
BETWEEN EDWARD WOODWARD
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 25 October 2022 Appearances:
N R Williams for Appellant
W Fotherby and J Gibson for Respondent
Judgment:
26 October 2022
Reissued:
20 October 2023
JUDGMENT OF WYLIE J
(Appeal against sentence)
This judgment was delivered by Justice Wylie On 26 October 2022 at 3.30 pm
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar
Date:…………………………
Solicitors/counsel:
N R Williams, Auckland
Meredith Connell, Office of the Crown Solicitor, Auckland
WOODWARD v NEW ZEALAND POLICE [2022] NZHC 2774 [26 October 2022]
Introduction
[1] The appellant, Edward Woodward, appeals a sentence of two years’ imprisonment and a reparation order of $12,000 imposed by Judge A M Manuel in the District Court at Auckland on 15 August 20221 in respect of a representative charge of arson, contrary to s 267(1)(b) of the Crimes Act 1961.
[2] Mr Woodward appeals the sentence. He says it was manifestly excessive, wrong in principle and that a different sentence should have been imposed.
[3] The Crown submits that the Court should dismiss the appeal because the end sentence was well within the available range and was not manifestly excessive.
Summary of offending
[4] During September 2021, Mr Woodward was residing at a residential property occupied by his mother in Whangārei. It had adjoining neighbours and there were boundary fences on the common boundaries.
[5] At approximately 5.20 am on Sunday 19 September 2021, Mr Woodward was at home. He was angry with the neighbours, as he believed (mistakenly) that they had been onto his mother’s property without permission. His intention was to create fear amongst the neighbours, given his perception that they had wronged him.
[6] To this end, Mr Woodward made some Molotov cocktails using glass bottles which he filled with petrol and sealed with a rag. He put on a mask so that he would not be recognised. He then stood on the deck of his mother’s property and took one of the Molotov cocktails. He lit the protruding rag and threw the Molotov cocktail onto the adjoining fence between his mother’s property and the property owned by one of the neighbours. He watched as the fence caught fire. He then took another Molotov cocktail, set it alight and threw it onto the fence between his mother’s property and that of the other neighbour. He also watched the second fence as it caught fire. Mr Woodward then ran to his vehicle and left the scene.
1 Police v Woodward [2022] NZDC 15478.
[7] The fires were extinguished. Both fences sustained blackening and some charring as a result of the fires but it appears that the damage was modest.
[8] The following night, on Monday 20 September 2021 at around 1.45 am, Mr Woodward returned to his mother’s property. He looked at the fences and saw that there did not appear to be any significant damage to either of them. Mr Woodward was not satisfied with this so he made a further Molotov cocktail. He then approached the driveway of one of the neighbouring properties in his car, pulled up alongside a boat which the neighbour had parked in his driveway, lit the Molotov cocktail and threw it onto the boat. He saw the boat go up in flames and that there was damage to it. He then drove off.
[9] As a result of the fire, the boat cover melted and some of the fibreglass structure of the boat cabin was destroyed. The total value of the boat and cover was approximately $12,000.
[10] Later on in the evening of 20 September 2021, the neighbour who owned the boat was outside. He was approached by Mr Woodward. Mr Woodward asked the neighbour whether he wanted to talk about the matter, pointing towards the damaged boat. Mr Woodward then made a number of cryptic comments about the boat and about the neighbour’s family. The neighbour asked Mr Woodward if he had set fire to the boat. Mr Woodward simply shrugged his shoulders.
[11] On 4 October 2021, Mr Woodward presented himself to the Henderson Police Station, stating that he wished to confess to the arsons. He was interviewed about the matter and he admitted the facts as outlined above.
[12] Once the charge had been finalised, Mr Woodward promptly entered a guilty plea.
District Court decision
[13] The Judge noted that Mr Woodward appeared for sentencing on one charge of arson under s 267(1)(b) of the Crimes Act. She noted the maximum available penalty
– namely, 14 years’ imprisonment – and she recorded that the charge was a
representative charge because it covered the arsons that occurred on both 19 and 20 September 2021.
[14] The Judge then noted that Mr Woodward is in his mid-30s, that he lives in Whangārei and that he does not have an extensive criminal history. She noted that, in September 2021, he was living at his mother’s address. She outlined the underlying facts, noting the damage to the boat. She recorded that she had been provided with a reparation schedule that indicated that repairs to the boat would cost in excess of
$30,000. She noted that because the owner of the boat had originally stated that the boat was worth about $12,000, reparation was being sought in that sum only to compensate the owner.
[15] The Judge, after summarising the submissions which had been put to her, noted that there is no tariff case for arson. She referred to other cases where sentences have been imposed for arson by the Courts. She commented that in Mr Woodward’s case there was a degree of premeditation – an accelerant was used and, on 19 September 2021, a mask was used. She noted that Mr Woodward left the scene after he started the fires and that he had committed arson on three separate occasions. She noted that one arson was accompanied by sinister statements and that one of the fires was at the neighbour’s residence, where the neighbour should have been able to feel safe. She noted that this fire was lit when the neighbour was asleep, putting him in a vulnerable position. She said that the resulting damage was at the “mid end of the range”. She observed that she had not received any victim impact statements and that there was no physical damage to the neighbours themselves. She nevertheless commented that what occurred must have been a terrifying experience for them.
[16] Taking these various matters into account, the Judge adopted a starting point of four years’ imprisonment. She allowed Mr Woodward a 25 per cent discount for his guilty plea, a five per cent discount for remorse and his efforts at rehabilitation, a 10 per cent discount for drug and addiction issues which Mr Woodward faces and a further 10 per cent discount to recognise time which Mr Woodward had spent either in custody or on restrictive bail pending sentencing. This amounted to a 50 per cent discount and resulted in an end sentence of 24 months’ imprisonment.
[17] The Judge did consider whether home detention might be appropriate. She agreed with the officer who prepared the pre-sentence report that the addresses proposed were not suitable. She nevertheless gave leave under s 80I of the Sentencing Act 2002 for Mr Woodward to apply for home detention if a suitable address could be found.
[18] She imposed a sentence of 24 months’ imprisonment with release conditions to run for a further six months thereafter, as set out in the pre-sentence report. She ordered Mr Woodward to pay reparation to the boat owner of $12,000, observing that he would not be in a position to commence such payments until after his release from custody.
The appeal
[19] The appeal is brought pursuant to s 244 of the Criminal Procedure Act 2011. To succeed, Mr Woodward must demonstrate that there was a material error in the sentence imposed and that a different sentence should be imposed. The appellate Court does not start afresh, nor simply substitute its own opinion for that of the original sentencer. Rather, it must be shown that there was an error “whether intrinsically, or as a result of additional material submitted” on appeal.2 If there is an error of the requisite character, the Court will form its own view of the appropriate sentence. The focus is on the sentence imposed and whether it is within range, rather than the process by which the sentence was reached.3
The submissions
[20] Mr Williams, for Mr Woodward, advanced the appeal on a number of grounds. I summarise them as follows, namely that the Judge:
(a)erred in her classification of the seriousness of the offending;
2 R v Shipton [2007] 2 NZLR 218 (CA) at [139] as cited in Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
3 Tutakangahau v R, above n 2, at [36].
(b)failed to give proper weight to mental health issues which Mr Woodward suffers from;
(c)failed to give sufficient weight to the fact that Mr Woodward voluntarily reported his offending to the police and made a full confession; and
(d)failed to give any consideration to Mr Woodward’s ability to pay reparation and to give him any discount from the starting point adopted for the reparation that was imposed.
It was submitted that as a result of these various errors, the sentencing miscarried and that the resulting sentence was both manifestly excessive and wrong in principle. A sentence of supervision without any reparation order was suggested as the appropriate outcome.
[21] Mr Fotherby, for the Crown, submitted that Mr Woodward’s complaints went to the weighting the Judge gave to the various factors resulting in the end sentence and that Mr Woodward cannot point to any error made by the Judge. It was submitted that each case depends on its own facts. Mr Fotherby referred to a number of other cases it was suggested were comparable and it was submitted that the Judge’s starting point of four years’ imprisonment and end sentence of two years’ imprisonment were comfortably within the available range.
[22] The issue of reparation was dealt with by Mr Gibson for the Crown. He noted that a reparation schedule was referred to by the Judge, although he acknowledged that no reparation report was obtained under s 33(1) of the Sentencing Act. It was argued that the reparation ordered was discounted and my attention was brought to a passage in the pre-sentence report recording that Mr Woodward owns some 54 hectares of bush, which he wishes to use to start a firewood business when he is released from custody. It was acknowledged that the evidence suggests that Mr Woodward is unemployed, but it was submitted that the land is a valuable asset, which can be used to meet or fund the reparation payment ordered.
Analysis
[23] There is no guideline judgment dealing with sentencing for arson. Each case depends on its own facts and typically involves a consideration of the property damaged, whether there was danger to life (both of occupants and of fire fighters) and the mental state of the offender.4
[24] Here, there were a number of aggravating factors to Mr Woodward’s offending. There were three separate arsons, culminating in the representative charge. The damage to the fences between Mr Woodward’s mother’s property and the adjoining properties was relatively slight but there was significant damage to the neighbour’s boat. The cost of repairing that damage was estimated to be in excess of $30,000 (although the value of the boat was said to be $12,000). While there was no immediate danger to life, the arson to the adjoining fences occurred in the early hours of the morning and the arson to the boat occurred in the middle of the night. It is likely that the neighbours were at home asleep on each occasion. Further, there must have been a possibility that any fuel stored on the boat might ignite. There was a risk to anyone endeavouring to put out the fire. The fire could have spread to the house. There is also the inherent danger of the offending. Molotov cocktails were thrown to start fires in a suburban area during the hours of darkness. It was clearly relatively serious offending of its kind.
[25] Mr Williams argued that the Judge erred in her consideration of the seriousness of the offending. He observed that Mr Woodward was charged under s 267(1)(b) of the Crimes Act which deals with arson that damages property, in which the offender has no interest; he was not charged under s 267(1)(a), which deals with arson where the offender damages property in circumstances where he or she knows or ought to know that danger to life is likely to ensue.
[26] I am not persuaded that the Judge erred. She expressly stated that Mr Woodward was before the Court for sentencing on one charge of arson under s 267(1)(b). She referred to Meha v R,5 and commented that Mr Woodward’s case was
4 Erickson v R [2012] NZCA 449 at [11].
5 Meha v R [2014] NZCA 307.
different because he did not set fire to his neighbours’ homes, but rather set fires close to their homes and to a boat that was parked in the driveway of one of the neighbour’s homes. She noted that that neighbour was asleep at the time when the boat went up in flames.
[27] At no point in her judgment did the Judge say that there was a danger to life. The Judge’s comments that the fire involving the boat occurred when the neighbour was asleep, thus putting him in a vulnerable position, and that all three fires must have been terrifying experiences for the neighbours, were in my view simply a summary of the offending and the effect it must have had on the neighbours. They do not suggest that the Judge mischaracterised the offending or regarded it as more serious than was warranted by the charge.
[28] Mr Woodward did face some mental health issues at the time and I accept Mr Williams’ submission that a mental disorder, falling short of exculpating insanity, is capable of mitigating a sentence, either because, if causative of the offending, it moderates culpability or because it renders less appropriate and more subjectively punitive a sentence of imprisonment.6
[29] It was argued that the offending was substantially contributed to by [REDACTED].
[30] The Judge acknowledged the submissions made by counsel in this regard. She also noted that less than three weeks after the offending, [REDACTED].
[31] There were other [REDACTED] materials which were available, although I do not know whether they were before the Judge. In particular, there was a report dated
28 October 2021, addressed to the presiding Judge, recording Mr Woodward’s background and noting that, [REDACTED].
[32] I was told from the bar that some consideration was given to obtaining the required reports so that an assessment of Mr Woodward’s mental health could be made
6 E (CA689/10) v R [2010] NZCA 13, (2011) 25 CRNZ 411 at [68]–[69].
under the Criminal Procedure (Mentally Impaired Persons) Act 2003, but that in the event, this did not proceed.
[33] As I have noted, the Judge acknowledged that Mr Woodward had mental health issues at the time of the offending. She referred to the evidence suggesting that those issues were caused by substance abuse and she allowed a 10 per cent discount from the sentence she would otherwise have imposed to allow for Mr Woodward’s drug and addiction issues. On the limited materials which were available to her (and which were available to me on appeal), it seems to me that this discount was appropriate. There is no evidence which permits any greater discount. In particular, there was nothing to suggest that Mr Woodward suffered cognitive difficulties or from any loss of understanding. There was no evidence that his mental health difficulties were causative of the offending or that they moderated his culpability.
[34] There are similar cases which assist in determining whether or not the four-year starting point adopted by the Judge was appropriate.
(a)In Hall v R, the offender set fire to bedding materials and caused approximately $38,000 of damage.7 He suffered from mental health issues. A starting point of four and a half years’ imprisonment was adopted in the District Court. This Court on appeal found that a starting point of four to four and a half years’ imprisonment was appropriate. It also held that the end sentence of two years and seven months’ imprisonment imposed was not manifestly excessive. The appeal was dismissed.
(b)In Cox v R, the offender pleaded guilty to two charges of arson.8 One arson involved the offender stuffing some paper under the wheel arch of a vehicle and setting it alight. This caused damage to the vehicle of some $2,100. The second arson arose when the offender pushed a baby’s pram up against a doorway before setting the pram alight. The fire caused damage totalling some $12,300. There was no immediate
7 Hall v R [2020] NZHC 2552.
8 Cox v R [2013] NZCA 194.
threat to life but the level of danger was moderate. The District Court adopted a starting point of three years’ imprisonment. This was uplifted by six months to reflect previous convictions for arson. There was then a discount to allow for guilty pleas. The end sentence was two years and eight months’ imprisonment. The appeal against sentence was dismissed by the Court of Appeal.
(c)In Meha v R, the offender set fire to a mat outside the victim’s back door, attempted to set fire to a hedge in front of the victim’s house, set fire to the victim’s front door and then slid a rubbish bin lid filled with petrol under the base boards of the exterior wall beneath the victim’s bedroom.9 The victim was asleep inside. The offender then lit the petrol in the rubbish bin lid. The High Court took as its starting point a sentence of five years and six months’ imprisonment. The end sentence imposed was one of four years and six months’ imprisonment. This was upheld on appeal.
[35] Considering these various cases and the aggravating features of Mr Woodward’s offending, I am satisfied that the Judge’s initial starting point of four years’ imprisonment was well within the available range.
[36] In addition to the discount allowed for drug and addiction issues discussed above, the Judge allowed Mr Woodward a five per cent discount for his remorse and for his rehabilitative attempts. This discount seems appropriate. Mr Woodward had expressed remorse and he had shown a willingness to engage in rehabilitation. He had graduated from Te Whare Tapa Whā on 3 February 2022. He had completed a further course at the Mana Atua Recovery Home and he had attended Narcotics Anonymous meetings and the Salvation Army Bridge programme. The discount allowed by the Judge recognised these various matters.
[37] It was argued that insufficient weight was given for the fact that Mr Woodward voluntarily reported his offending to the police and made a full confession.
9 Meha v R, above n 5.
[38] While Mr Woodward pre-empted matters by going to the police and making a full confession, I agree with the Crown that, in the circumstances, there is little that can be taken from this. Mr Woodward’s interaction with the boat owner on the day of the arson did not leave too much doubt as to who was responsible for the damage to the boat and from there, it was but a short step to ascertain who had thrown the Molotov cocktails at the fences. The 25 per cent discount for the guilty plea was the maximum discount normally allowed for guilty pleas, where the plea was entered at the first reasonably available opportunity after the charge was finalised. In the circumstances, I am not persuaded that any additional discount for the voluntary reporting and confession was required. It is not as if the offences would otherwise have remained undetected.
[39] There was no challenge to the discount allowed by the Judge for the time Mr Woodward spent on restrictive bail or in custody pending sentencing.
[40] I turn to the issue of reparation. As noted, the Judge ordered Mr Woodward to pay reparation of $12,000.
[41] The Judge’s reasoning leading to the reparation order is sparse. She recorded that she had been provided with a schedule setting out what it would cost to repair the boat. She noted that photographs attached to that schedule showed that the boat was very badly damaged, but nevertheless said that because the victim had originally stated that the boat was worth about $12,000, reparation was only being sought for $12,000 to compensate the victim. She did not order a reparation report under s 33(1) of the Sentencing Act. She did not explain why she considered that it was not necessary to obtain a report. Nor did she set out the basis on which reparation was to be paid after the sentence of imprisonment is served.
[42] In Howarth v R, the Court of Appeal overturned a reparation order made in relation to arson offending in circumstances where the sentencing Judge had no information about the offender’s means to pay.10 The Court said as follows:
10 Howarth v R [2010] NZCA 523.
[47]Despite acknowledging that she had little information about Mr Howarth’s financial circumstances, the Judge made an order for reparation of $50,000 noting that an arrangement for payment over time could be made upon the prisoner’s release as part of his parole conditions. Payment would be suspended during the term of his imprisonment. She allowed a reduction of one year’s imprisonment in recognition of the imposition of reparation to arrive at an end sentence of eight years on the arson count with a concurrent three year term for the intentional damage charge.
…
[55]We do not consider the reparation order ought to have been made. The Judge acknowledged that there was little information before the Court about Mr Howarth’s financial capacity. The pre-sentence report stated that he had no income and owed $8,000 to WINZ. As far as we are aware, no reparation report was obtained under s 33 of the Sentencing Act 2002. This Court has recently reiterated in R v Wonnacott that care must be taken before a reparation order is made.11 In terms of s 33(2), the Court may decline to seek a reparation report and impose a sentence of reparation without further inquiry in three circumstances:
(a)if the Court is satisfied as to the amount of reparation that the offender should pay; or
(b)the type of information referred to in a reparation report is available through other means (including, without limitation, a declaration made following a declaration made under s 41); or
(c)in all the circumstances the Court considers that a report is unnecessary.
[56]In Wonnacott this Court made it clear that the availability of adequate information about the financial capacity of the offender was important in order to establish whether the making of an order would result in undue hardship under s 12(1); for the purpose of determining under s 35(1) the amount of reparation or whether payment should be made by instalments; and for the purpose of determining the conditions of the reparation sentence under s 36(1). This Court also said it was for the sentencing judge to determine the frequency and amount of any instalment payments. It was not open to the Judge to leave that for others to decide.
[57]In the present case, it is not clear on what basis the Judge decided to make an order for reparation notwithstanding the absence of any information as to Mr Howarth’s financial capacity. Such information as there was suggested Mr Howarth had no financial capacity. The Judge did not provide any basis for her conclusion that reparation should be fixed at $50,000 other than to observe that this was less than
11 R v Wonnacott [2009] NZCA 414.
one-quarter of the amount of the damage sustained. It was not open to the Judge to leave it to the Parole Board to establish a programme for repayment of the amount of reparation over time as a condition of Mr Howarth’s release. That was for the Judge to determine. While the imposition of a substantial prison term does not preclude the making of a reparation order as well, there was nothing before the Court to suggest that Mr Howarth would be in any better position to pay reparation at the end of his sentence than his apparently parlous state at the time of sentence.
[58]For these reasons, we are satisfied that there was no proper basis for a reparation order to be made.
[43] Mr Williams suggested that I should take a bold approach and set aside the reparation order made by the Judge. Mr Gibson suggested that if I concluded that the reparation order should not have been made, I should remit the matter to the District Court to reconsider the appropriate reparation order and its effect on the end sentence imposed.
[44] I have very little information about Mr Woodward’s financial means. His mother has sworn an affidavit for the appeal hearing, in which she deposes that he has no money and no job. The boat owner in his reparation schedule states that Mr Woodward has a Harley Davidson motorcycle. He expresses the hope that at the very least, Mr Woodward’s property should be seized in order to pay reparation. I do not know whether the owner was insured, whether the boat was repaired or whether it was written off. This could affect who should receive any reparation payment ordered by the Court. When the possibility of reparation was raised with Mr Woodward by the reporter preparing the pre-sentence report, Mr Woodward commented:
I’ll do what the Court says I have to do but I’ll have to pay it off.
He also stated that he is pretty healthy, that he likes to keep fit and that he runs. When he was discussing his future employment goals, he advised that he wants to start a firewood business in Whangārei. The report states as follows:
He said he owned 54 acres of bush, so had a good start in terms of accessing the wood.
As against this, I was told from the bar that Mr Woodward no longer owns a motorbike and that the bush property is owned by his mother and not Mr Woodward. There was however no evidence of either of these matters.
[45] Given this evidential void, I am not prepared to simply set aside the reparation order.
[46] While I would not otherwise be minded to interfere with the sentence of imprisonment imposed, a reparation order is a relevant consideration when determining the length of a prison sentence.12 It seems to me that the appropriate course is to allow the appeal, remit the sentence to the District Court, direct that it obtain a reparation report under s 33(1) of the Sentencing Act and direct that it then reconsider, first, whether a reparation order should be made and, secondly, if such an order is made, whether that order should affect the sentence which should otherwise would be imposed. Remitting the matter to the District Court will preserve Mr Woodward’s and the Crown’s appeal rights in the event that one or other party is dissatisfied with the end result.
[47] Accordingly, I allow the appeal and remit the matter to the District Court pursuant to s 251(2)(c) of the Criminal Procedure Act. I direct that the District Court is to obtain a reparation report under s 33(1) of the Sentencing Act and then reconsider whether a sentence of reparation should be imposed, if so, in what amount and then what sentence should be imposed for the offending.
[48] Issues of bail, if the same is sought pending resentencing, are to be considered in the first instance by the District Court.
Wylie J
12 R v Protos CA259/04, 19 October 2004 at [11].
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