ASHBY v NEW ZEALAND POLICE [2023] NZHC 2869

ASHBY v NEW ZEALAND POLICE [2023] NZHC 2869 [13 October 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2023-409-160[2023] NZHC 2869BETWEEN DARREN JAMES ASHBYAppellantAND NEW ZEALAND POLICERespondentHearing: 5 October 2023Appearances: P N Dyhrberg for AppellantG E R Alloway for RespondentJudgment: 13 October 2023JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 13 October 2023 at 3.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateIntroduction[1] Darren Ashby was sentenced to two years and two and a half months'imprisonment by Judge Couch1 for one charge of dishonestly taking a vehicle,2one charge of dishonestly and without claim of right using a debit card,3 one charge ofintentionally damaging property,4 one charge of arson,5 one charge of contravening hisdriving prohibition,6 and one charge of failing to stop.7Facts[2] The victim of the offending was the owner of two adjacent farm properties. On29 January 2023 around 11 pm, Mr Ashby was locked out of the victim's property byhis partner due to his drunken and aggressive state. Mr Ashby proceeded to smash awindow to gain entry. He then left the property and walked to a farm property ownedby the victim. He proceeded to pour petrol on the ground three metres in front oftwo elevated fuel tanks, one containing petrol and the other diesel. He then set fire tothe poured petrol.[3] Mr Ashby broke a glass filter and poured diesel onto the ground from one ofthe tanks, although it did not reach the lighted petrol. At this time, a neighbour sawthe fire and extinguished it with water from a dog bowl. The victim's home wasaround 200m from the blaze. Mr Ashby then ran toward the victim's house and yelledabuse. Mr Ashby got into the victim's vehicle and, using the keys which were in theignition, drove to a petrol station. Mr Ashby was banned from driving on12 November 2016 because he never held a licence.[4] Around 2:28am on 30 January 2023, Mr Ashby used the victim's debit card,located in his car, to spend $121.90 on cigarettes and petrol. He then purchasedanother item at $4.50.1 Police v Ashby [2023] NZDC 16092.2 Crimes Act 1961, s 226(1); maximum penalty seven years' imprisonment.3 Section 228(1)(b); maximum penalty seven years' imprisonment.4 Summary Offences Act 1981, s 11(1)(a); maximum penalty three months' imprisonment.5 Crimes Act s 267(2)(a); maximum penalty seven years' imprisonment.6 Land Transport Act 1998, s 52(1)(c); maximum penalty $10,000 fine.7 Sections 52A(1)(a)(ii) & 114(2); maximum penalty $10,000 fine.[5] Around 4:19 am Mr Ashby ignored a road detour in Rakaia and drove throughChertsey. He drove through a police crash cordon. He ignored the direction of firemento turn around and took off at speed. He ignored flashing lights when approached bypolice in Ashburton and took off once again. He eventually stopped at Ealing and wassubsequently arrested.District Court Decision[6] The Judge noted the serious nature of an arson charge, saying it was clearly thelead charge. The Judge also noted the potentially catastrophic consequences ofMr Ashby's conduct; it was a matter of luck that the fire did not spread to the dieselwhen Mr Ashby poured it out. The occupants of the dwelling 200 m away were verylikely asleep and it was even more fortunate someone was around to extinguish thefire.[7] Considering the offending was at least somewhat pre-meditated, the Judge tooka starting point of two years and three months' imprisonment for the arson charge. Astarting point of ten months' imprisonment was adopted for the unlawful taking of amotor vehicle charge. An uplift of four months was applied for the other offences.This led to an end starting point of three years and five months' imprisonment. TheJudge then made a totality adjustment, saying it was from 43 months to 38 months.[8] A full 25 per cent reduction was allowed for Mr Ashby's early guilty plea,entered promptly following the arson charge amendment. A five per cent reductionwas allowed for Mr Ashby's relative youth and immaturity at the time of the events.The end sentence was two years, two months and fourteen days imprisonment and$121.90 in reparations.Principles on appeal[9] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011 and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.8 As the Court of Appeal mentioned in Tutakangahau v R quoting the lowercourt's decision, a "court will not intervene where the sentence is within the range thatcan properly be justified by accepted sentencing principles".9 It is only appropriate forthis Court to intervene and substitute its own views if the sentence being appealed is"manifestly excessive" and not justified by the relevant sentencing principles.10SubmissionsAppellant's submissions[10] Mr Dyhrberg, counsel for Mr Ashby, first notes that the Judge's true startingpoint totalled to 41 months' imprisonment (not 43), meaning the totality discount wasonly three months rather than five.[11] Mr Dyhrberg then points out that there are some clear distinctions betweenarson offences charged under s 267(1) and those charged under s 267(2), as here.Because Mr Ashby is charged under s 267(2), actions which involve damage by fireto "any property if he or she knows or ought to know that danger to life is likely toensue" or any "immovable" or specifically identified forms of property referred to ins 267(1), are actions which are excluded from the charge Mr Ashby faces.[12] In terms of the Judge's assessment of the seriousness of the offending,Mr Dyhrberg notes the distance of 200m from the dwelling place (being equivalent totwo football fields) is significant. To that end, he suggests the Judge's statement thatMr Ashby "chose to go [to the victim's] house and no other place to light this fire" isnot accurate. Mr Dyhrberg submits there is a relevant difference between going to aperson's house and going to an open area which is 200 m away from that house.[13] Mr Dyhrberg cites R v Smith as involving a significantly more serious exampleof arson that saw the Court of Appeal reduce a sentence of three and a half years'imprisonment to two years' imprisonment.11 He additionally cites R v Gemmell, a casewhere, when mitigating and unusual external factors were considered, 17 months'8 Criminal Procedure Act 2011, ss 250(2) and 250(3).9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].10 Ripia v R [2011] NZCA 101 at [15].11 R v Smith CA31/82, 13 May 1982.imprisonment was not viewed by the Court of Appeal as manifestly excessive.12 Healso refers to Police v Murray, where a 30 month starting point was taken for muchmore serious offending.13 Considering these cases, Mr Dyhrberg submits anappropriate starting point would have been between 17 and 21 months' imprisonment.He finally notes the Crown's submissions are flawed in their reliance on cases thatinvolve attempted arson (which addresses offending involving immovable property orany ship, vehicle or aircraft), which is not the case here, and where the maximumpenalty is 10 years not seven years.[14] Mr Dhyberg concludes that if an appropriate starting point of between 17 and21 months' imprisonment was taken, with the same uplifts imposed and the samepercentage discounts, the end sentence would not have been more than 23 months'imprisonment.Respondent's submissions[15] For the Crown Mr Alloway submits the sentence was within range and theappeal should be dismissed. Mr Alloway was unable to find any analogous decisionsunder s 267(2)(a) but cites Hazeldine v Police as an example of retributive action(involving arson) by the appellant in the context of a relationship.14 A starting pointof two years and four months' imprisonment was adopted in that case, accounting forthe fact the defendant was motivated to emotionally harm his partner. Mr Allowaysubmits Mr Ashby's case is even more serious because the person who extinguishedhis fire was put in mortal danger.[16] Mr Alloway cites Dawson v Police,15 George v Police,16 Wilson v Police17 andShufflebotham v Police18 where starting points of 12–14 months were imposed forunlawfully taking or using a motor vehicle, in support of the Judge's ten-month upliftfor the unlawful taking charge. Mr Alloway submits the four-month uplift for the12 R v Gemmell CA 257/96, 2 October 1996.13 Police v Murray [2017] NZDC 17691.14 Hazeldine v Police [2016] NZHC 1132.15 Dawson v Police [2021] NZHC 3441.16 George v Police [2020] NZHC 1725.17 Wilson v Police [2021] NZHC 402.18 Shufflebotham v Police [2015] NZHC 3114.balance of the charges was not out of range and notes Judge Couch could justifiablyhave uplifted the sentence for Mr Ashby's previous relevant convictions. Finally,Mr Alloway noted that considering Mr Ashby was only four days away from his25th birthday at the time of offending, a five per cent discount for immaturity wasgenerous.Analysis[17] The key issue on appeal is whether the starting point, on the lead charge ofarson, was too high, leading to a manifestly excessive end sentence. The first issue toconsider is whether the Judge accurately identified the aggravating factors havingregard to the summary of facts and the charge laid. I accept Mr Dhyrberg's submissionthat the Judge overstated some of the risks associated with the offending, particularlywhen it is noted that this was not a charge which involved an allegation that theoffender knew, or ought to have known, that danger to life was likely to ensue. In myview, the risk to the house on the adjacent property, which was 200 m away, wasoverstated. The real risk was of catastrophic damage to the two fuel tanks on the farm.[18] However, even then, it was incorrect to say, as the Judge did, that Mr Ashby litthe fire "under" the tanks. He lit it three metres away from the tanks and that is why,it appears, the fire was able to be put out with nothing more than the water from thedog bowl. Thus, I accept that there was a risk to the two fuel tanks (and a potentialrisk to anyone attempting to put out the fire had it advanced any further), but there wasno obvious risk to people or the dwelling house, nor, as it transpired, was there anyproperty damage beyond some fuel being burnt, and the damage Mr Ashby caused tothe glass filter.[19] Accordingly, I consider the starting point of two years and three months'imprisonment was too high. While the cases cited by Mr Dyhrberg were of some age,and so were less transparent in terms of the true starting point, it is clear that lessersentences were imposed for more serious offending. I am fortified in that view by thecase cited by the respondent, Cowie v Police, albeit that was attempted arson involvingtrying to burn the car of the appellant's former partner's male acquaintance.19 A19 Cowie v Police HC Christchurch CRI-2006-409-198, 3 November 2006.starting point of only two years was imposed, when the maximum was 10 years'imprisonment. As in this case, the attempt to use fuel to damage another's propertydid not work. The difference here is that the fuel was that of the victim.[20] In Hazeldine v Police, involving a charge of attempted arson which carries amaximum sentence of 10 years' imprisonment as opposed to seven here, the defendanthad an argument with his partner, and when she left the property with the children, heset fire to one of the curtains. Upon being told by the defendant that he had done this,his partner went back inside and extinguished it. The starting point of two years andfour months was held to be at the top of the range, although not manifestly excessivehaving regard to the fact the defendant was motivated to emotionally harm hispartner.20 While there are some parallels with this case, there is a difference betweenattempting to damage a domestic home and attempting to damage structures in an openfield. The former is more serious.[21] In Johnstone v Police, the defendant lit a cardboard box next to a laundromat.When he could not extinguish it, he left it and the fire spread to the laundromat causingexternal damage in the sum of $5,000. While the charge he faced under s 267(3) ofthe Crimes Act carried a lower five year sentence of imprisonment, the High Courtadopted a starting point of nine months' imprisonment.21[22] In Stone v R, two defendants who planned to set fire to a house they weretenants in, and indeed, 10 days prior had taken out $95,000 worth of insurance coverfor their contents, and caused damage in the region of $150,000, received a startingpoint of three years' imprisonment for charges under s 267(1).22 By comparison,Mr Ashby's case was an impulsive act and which caused no real damage.[23] I also consider it is less serious than the offending in Lilo v R, where theappellant with her co-offender planned and carried out an arson attack on a cell tower,rendering it inoperable and requiring the fire service to extinguish the fire.23 Theappellant then bragged about the offending in text exchanges with her co-offender the20 Hazeldine v Police, above n 14, at [31].21 Johnstone v Police [2021] NZHC 1560.22 Stone v R [2016] NZHC 1289.23 Lilo v R [2021] NZCA 642.following morning. The starting point for her offending was two years' imprisonment,upheld by the Court of Appeal. Overall, given the impulsive nature of the offending,the lack of damage, and, on balance, the potential risk to property, I consider a startingpoint of 20 months' imprisonment should have been adopted.[24] No issue is taken with the other adjustments to sentence. I agree the 10 monthuplift applied for the unlawful taking charge was appropriate as was the four monthuplift for the other offending. I agree a modest uplift could have been imposed forprevious relevant convictions, the most recent including:(a) failing to stop (2020)(b) unlicenced driver fails to comply with prohibition (2020);(c) unlawfully takes vehicle (2019);(d) unlicenced driver fails to comply with prohibition (2019); and(e) wilful damage (2019).[25] Like the District Court Judge, I would have given a full credit for theappellant's guilty plea. While I accept five per cent for "immaturity" might beconsidered unusual for someone who is almost 25, in reality, the label "immaturity"could well refer to personal factors identified in the pre-sentence report, including thetraumatic experience of discovering his mother deceased when he was 10, his strainedrelationship with his father and unspecified "substance abuse". A discount for thesefactors is appropriate.[26] To summarise, the cumulative total of the sentences imposed is 34 months,which I would adjust to 32 months for totality. To that, I need to apply the five percent uplift for prior convictions and the 30 per cent credit for guilty plea and otherfactors, meaning a net discount of 25 per cent. That comes to an end sentence of24 months. That sentence allows a sentence of home detention to be considered.There is no home detention address formally proffered, however, I am advised thereis the possibility of a home detention address. Accordingly, I reserve leave forMr Ashby to apply for home detention. Given the issues Mr Ashby has withcompliance and self-control, the address would need to be carefully vetted, but that isa matter for the District Court Judge, if and when such an application is made.Result[27] The appeal is allowed, the sentence of two years two and a half months'imprisonment on the arson charge is quashed and in its place, a sentence of two years'imprisonment is imposed. The sentences on all the other charges are unaltered,including the order to pay reparation.Solicitors:Crown Solicitor, ChristchurchCopy to:P N Dyhrberg, Barrister, Christchurch