WOODWARD v NEW ZEALAND POLICE [2022] NZHC 2774

WOODWARD v NEW ZEALAND POLICE [2022] NZHC 2774 [26 October 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-000312[2022] NZHC 2774BETWEEN EDWARD WOODWARDAppellantAND NEW ZEALAND POLICERespondentHearing: 25 October 2022Appearances: N R Williams for AppellantW Fotherby and J Gibson for RespondentJudgment: 26 October 2022Reissued: 20 October 2023JUDGMENT OF WYLIE J(Appeal against sentence)This judgment was delivered by Justice WylieOn 26 October 2022 at 3.30 pmPursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors/counsel:N R Williams, AucklandMeredith Connell, Office of the Crown Solicitor, AucklandIntroduction[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 theDistrict Court at Auckland on 15 August 20221 in respect of a representative charge ofarson, 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 endsentence 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 propertyoccupied by his mother in Whangārei. It had adjoining neighbours and there wereboundary fences on the common boundaries.[5] At approximately 5.20 am on Sunday 19 September 2021, Mr Woodward wasat home. He was angry with the neighbours, as he believed (mistakenly) that they hadbeen onto his mother's property without permission. His intention was to create fearamongst the neighbours, given his perception that they had wronged him.[6] To this end, Mr Woodward made some Molotov cocktails using glass bottleswhich he filled with petrol and sealed with a rag. He put on a mask so that he wouldnot be recognised. He then stood on the deck of his mother's property and took oneof the Molotov cocktails. He lit the protruding rag and threw the Molotov cocktailonto the adjoining fence between his mother's property and the property owned byone of the neighbours. He watched as the fence caught fire. He then took anotherMolotov cocktail, set it alight and threw it onto the fence between his mother'sproperty and that of the other neighbour. He also watched the second fence as it caughtfire. 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 somecharring 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 thatthere did not appear to be any significant damage to either of them. Mr Woodwardwas not satisfied with this so he made a further Molotov cocktail. He then approachedthe driveway of one of the neighbouring properties in his car, pulled up alongside aboat which the neighbour had parked in his driveway, lit the Molotov cocktail andthrew it onto the boat. He saw the boat go up in flames and that there was damage toit. He then drove off.[9] As a result of the fire, the boat cover melted and some of the fibreglass structureof the boat cabin was destroyed. The total value of the boat and cover wasapproximately $12,000.[10] Later on in the evening of 20 September 2021, the neighbour who owned theboat was outside. He was approached by Mr Woodward. Mr Woodward asked theneighbour whether he wanted to talk about the matter, pointing towards the damagedboat. Mr Woodward then made a number of cryptic comments about the boat andabout the neighbour's family. The neighbour asked Mr Woodward if he had set fire tothe boat. Mr Woodward simply shrugged his shoulders.[11] On 4 October 2021, Mr Woodward presented himself to the Henderson PoliceStation, stating that he wished to confess to the arsons. He was interviewed about thematter and he admitted the facts as outlined above.[12] Once the charge had been finalised, Mr Woodward promptly entered a guiltyplea.District Court decision[13] The Judge noted that Mr Woodward appeared for sentencing on one charge ofarson 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 arepresentative charge because it covered the arsons that occurred on both 19 and20 September 2021.[14] The Judge then noted that Mr Woodward is in his mid-30s, that he lives inWhangārei and that he does not have an extensive criminal history. She noted that, inSeptember 2021, he was living at his mother's address. She outlined the underlyingfacts, noting the damage to the boat. She recorded that she had been provided with areparation 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 theboat was worth about $12,000, reparation was being sought in that sum only tocompensate the owner.[15] The Judge, after summarising the submissions which had been put to her, notedthat there is no tariff case for arson. She referred to other cases where sentences havebeen imposed for arson by the Courts. She commented that in Mr Woodward's casethere was a degree of premeditation – an accelerant was used and, on 19 September2021, a mask was used. She noted that Mr Woodward left the scene after he startedthe fires and that he had committed arson on three separate occasions. She noted thatone arson was accompanied by sinister statements and that one of the fires was at theneighbour's residence, where the neighbour should have been able to feel safe. Shenoted that this fire was lit when the neighbour was asleep, putting him in a vulnerableposition. She said that the resulting damage was at the "mid end of the range". Sheobserved that she had not received any victim impact statements and that there was nophysical damage to the neighbours themselves. She nevertheless commented thatwhat occurred must have been a terrifying experience for them.[16] Taking these various matters into account, the Judge adopted a starting pointof four years' imprisonment. She allowed Mr Woodward a 25 per cent discount forhis guilty plea, a five per cent discount for remorse and his efforts at rehabilitation, a10 per cent discount for drug and addiction issues which Mr Woodward faces and afurther 10 per cent discount to recognise time which Mr Woodward had spent eitherin custody or on restrictive bail pending sentencing. This amounted to a 50 per centdiscount and resulted in an end sentence of 24 months' imprisonment.[17] The Judge did consider whether home detention might be appropriate. Sheagreed with the officer who prepared the pre-sentence report that the addressesproposed were not suitable. She nevertheless gave leave under s 80I of the SentencingAct 2002 for Mr Woodward to apply for home detention if a suitable address could befound.[18] She imposed a sentence of 24 months' imprisonment with release conditionsto run for a further six months thereafter, as set out in the pre-sentence report. Sheordered Mr Woodward to pay reparation to the boat owner of $12,000, observing thathe would not be in a position to commence such payments until after his release fromcustody.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 thesentence imposed and that a different sentence should be imposed. The appellateCourt does not start afresh, nor simply substitute its own opinion for that of the originalsentencer. Rather, it must be shown that there was an error "whether intrinsically, oras a result of additional material submitted" on appeal.2 If there is an error of therequisite character, the Court will form its own view of the appropriate sentence. Thefocus is on the sentence imposed and whether it is within range, rather than the processby which the sentence was reached.3The 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 whichMr Woodward suffers from;(c) failed to give sufficient weight to the fact that Mr Woodwardvoluntarily reported his offending to the police and made a fullconfession; and(d) failed to give any consideration to Mr Woodward's ability to payreparation and to give him any discount from the starting point adoptedfor the reparation that was imposed.It was submitted that as a result of these various errors, the sentencing miscarried andthat the resulting sentence was both manifestly excessive and wrong in principle.A sentence of supervision without any reparation order was suggested as theappropriate outcome.[21] Mr Fotherby, for the Crown, submitted that Mr Woodward's complaints wentto the weighting the Judge gave to the various factors resulting in the end sentence andthat Mr Woodward cannot point to any error made by the Judge. It was submitted thateach case depends on its own facts. Mr Fotherby referred to a number of other casesit was suggested were comparable and it was submitted that the Judge's starting pointof four years' imprisonment and end sentence of two years' imprisonment werecomfortably within the available range.[22] The issue of reparation was dealt with by Mr Gibson for the Crown. He notedthat a reparation schedule was referred to by the Judge, although he acknowledged thatno reparation report was obtained under s 33(1) of the Sentencing Act. It was arguedthat the reparation ordered was discounted and my attention was brought to a passagein the pre-sentence report recording that Mr Woodward owns some 54 hectares ofbush, which he wishes to use to start a firewood business when he is released fromcustody. It was acknowledged that the evidence suggests that Mr Woodward isunemployed, but it was submitted that the land is a valuable asset, which can be usedto meet or fund the reparation payment ordered.Analysis[23] There is no guideline judgment dealing with sentencing for arson. Each casedepends on its own facts and typically involves a consideration of the propertydamaged, whether there was danger to life (both of occupants and of fire fighters) andthe 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. Thedamage to the fences between Mr Woodward's mother's property and the adjoiningproperties was relatively slight but there was significant damage to the neighbour'sboat. 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 immediatedanger to life, the arson to the adjoining fences occurred in the early hours of themorning and the arson to the boat occurred in the middle of the night. It is likely thatthe neighbours were at home asleep on each occasion. Further, there must have beena possibility that any fuel stored on the boat might ignite. There was a risk to anyoneendeavouring to put out the fire. The fire could have spread to the house. There isalso the inherent danger of the offending. Molotov cocktails were thrown to start firesin a suburban area during the hours of darkness. It was clearly relatively seriousoffending of its kind.[25] Mr Williams argued that the Judge erred in her consideration of the seriousnessof the offending. He observed that Mr Woodward was charged under s 267(1)(b) ofthe Crimes Act which deals with arson that damages property, in which the offenderhas no interest; he was not charged under s 267(1)(a), which deals with arson wherethe offender damages property in circumstances where he or she knows or ought toknow that danger to life is likely to ensue.[26] I am not persuaded that the Judge erred. She expressly stated thatMr Woodward was before the Court for sentencing on one charge of arson unders 267(1)(b). She referred to Meha v R,5 and commented that Mr Woodward's case was4 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 closeto their homes and to a boat that was parked in the driveway of one of the neighbour'shomes. She noted that that neighbour was asleep at the time when the boat went up inflames.[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 neighbourwas asleep, thus putting him in a vulnerable position, and that all three fires must havebeen terrifying experiences for the neighbours, were in my view simply a summary ofthe offending and the effect it must have had on the neighbours. They do not suggestthat the Judge mischaracterised the offending or regarded it as more serious than waswarranted by the charge.[28] Mr Woodward did face some mental health issues at the time and I acceptMr Williams' submission that a mental disorder, falling short of exculpating insanity,is capable of mitigating a sentence, either because, if causative of the offending, itmoderates culpability or because it renders less appropriate and more subjectivelypunitive 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. Shealso noted that less than three weeks after the offending, [REDACTED].[31] There were other [REDACTED] materials which were available, although I donot know whether they were before the Judge. In particular, there was a report dated28 October 2021, addressed to the presiding Judge, recording Mr Woodward'sbackground and noting that, [REDACTED].[32] I was told from the bar that some consideration was given to obtaining therequired reports so that an assessment of Mr Woodward's mental health could be made6 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 theevent, this did not proceed.[33] As I have noted, the Judge acknowledged that Mr Woodward had mental healthissues at the time of the offending. She referred to the evidence suggesting that thoseissues were caused by substance abuse and she allowed a 10 per cent discount fromthe sentence she would otherwise have imposed to allow for Mr Woodward's drug andaddiction issues. On the limited materials which were available to her (and whichwere 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 wasnothing to suggest that Mr Woodward suffered cognitive difficulties or from any lossof understanding. There was no evidence that his mental health difficulties werecausative of the offending or that they moderated his culpability.[34] There are similar cases which assist in determining whether or not the four-yearstarting point adopted by the Judge was appropriate.(a) In Hall v R, the offender set fire to bedding materials and causedapproximately $38,000 of damage.7 He suffered from mental healthissues. A starting point of four and a half years' imprisonment wasadopted in the District Court. This Court on appeal found that a startingpoint of four to four and a half years' imprisonment was appropriate. Italso held that the end sentence of two years and seven months'imprisonment imposed was not manifestly excessive. The appeal wasdismissed.(b) In Cox v R, the offender pleaded guilty to two charges of arson.8 Onearson involved the offender stuffing some paper under the wheel archof a vehicle and setting it alight. This caused damage to the vehicle ofsome $2,100. The second arson arose when the offender pushed ababy's pram up against a doorway before setting the pram alight. Thefire caused damage totalling some $12,300. There was no immediate7 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 Courtadopted a starting point of three years' imprisonment. This was upliftedby six months to reflect previous convictions for arson. There was thena discount to allow for guilty pleas. The end sentence was two yearsand eight months' imprisonment. The appeal against sentence wasdismissed by the Court of Appeal.(c) In Meha v R, the offender set fire to a mat outside the victim's backdoor, attempted to set fire to a hedge in front of the victim's house, setfire to the victim's front door and then slid a rubbish bin lid filled withpetrol under the base boards of the exterior wall beneath the victim'sbedroom.9 The victim was asleep inside. The offender then lit thepetrol in the rubbish bin lid. The High Court took as its starting pointa sentence of five years and six months' imprisonment. The endsentence imposed was one of four years and six months' imprisonment.This was upheld on appeal.[35] Considering these various cases and the aggravating features ofMr Woodward's offending, I am satisfied that the Judge's initial starting point of fouryears' imprisonment was well within the available range.[36] In addition to the discount allowed for drug and addiction issues discussedabove, the Judge allowed Mr Woodward a five per cent discount for his remorse andfor his rehabilitative attempts. This discount seems appropriate. Mr Woodward hadexpressed remorse and he had shown a willingness to engage in rehabilitation. He hadgraduated from Te Whare Tapa Whā on 3 February 2022. He had completed a furthercourse at the Mana Atua Recovery Home and he had attended Narcotics Anonymousmeetings and the Salvation Army Bridge programme. The discount allowed by theJudge recognised these various matters.[37] It was argued that insufficient weight was given for the fact that Mr Woodwardvoluntarily 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 afull confession, I agree with the Crown that, in the circumstances, there is little thatcan be taken from this. Mr Woodward's interaction with the boat owner on the day ofthe arson did not leave too much doubt as to who was responsible for the damage tothe boat and from there, it was but a short step to ascertain who had thrown theMolotov cocktails at the fences. The 25 per cent discount for the guilty plea was themaximum discount normally allowed for guilty pleas, where the plea was entered atthe first reasonably available opportunity after the charge was finalised. In thecircumstances, I am not persuaded that any additional discount for the voluntaryreporting and confession was required. It is not as if the offences would otherwisehave remained undetected.[39] There was no challenge to the discount allowed by the Judge for the timeMr 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 topay reparation of $12,000.[41] The Judge's reasoning leading to the reparation order is sparse. She recordedthat she had been provided with a schedule setting out what it would cost to repair theboat. She noted that photographs attached to that schedule showed that the boat wasvery badly damaged, but nevertheless said that because the victim had originally statedthat the boat was worth about $12,000, reparation was only being sought for $12,000to compensate the victim. She did not order a reparation report under s 33(1) of theSentencing Act. She did not explain why she considered that it was not necessary toobtain a report. Nor did she set out the basis on which reparation was to be paid afterthe sentence of imprisonment is served.[42] In Howarth v R, the Court of Appeal overturned a reparation order made inrelation to arson offending in circumstances where the sentencing Judge had noinformation 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 aboutMr Howarth's financial circumstances, the Judge made an order forreparation of $50,000 noting that an arrangement for payment overtime could be made upon the prisoner's release as part of his paroleconditions. Payment would be suspended during the term of hisimprisonment. She allowed a reduction of one year's imprisonment inrecognition of the imposition of reparation to arrive at an end sentenceof eight years on the arson count with a concurrent three year term forthe intentional damage charge.[55] We do not consider the reparation order ought to have been made. TheJudge acknowledged that there was little information before the Courtabout Mr Howarth's financial capacity. The pre-sentence report statedthat he had no income and owed $8,000 to WINZ. As far as we areaware, no reparation report was obtained under s 33 of the SentencingAct 2002. This Court has recently reiterated in R v Wonnacott that caremust 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 asentence of reparation without further inquiry in three circumstances:(a) if the Court is satisfied as to the amount of reparation that theoffender should pay; or(b) the type of information referred to in a reparation report isavailable 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 isunnecessary.[56] In Wonnacott this Court made it clear that the availability of adequateinformation about the financial capacity of the offender was importantin order to establish whether the making of an order would result inundue hardship under s 12(1); for the purpose of determiningunder s 35(1) the amount of reparation or whether payment should bemade by instalments; and for the purpose of determining theconditions of the reparation sentence under s 36(1). This Court alsosaid it was for the sentencing judge to determine the frequency andamount of any instalment payments. It was not open to the Judge toleave that for others to decide.[57] In the present case, it is not clear on what basis the Judge decided tomake an order for reparation notwithstanding the absence of anyinformation as to Mr Howarth's financial capacity. Such informationas there was suggested Mr Howarth had no financial capacity. TheJudge did not provide any basis for her conclusion that reparationshould be fixed at $50,000 other than to observe that this was less than11 R v Wonnacott [2009] NZCA 414.one-quarter of the amount of the damage sustained. It was not open tothe Judge to leave it to the Parole Board to establish a programme forrepayment of the amount of reparation over time as a condition ofMr Howarth's release. That was for the Judge to determine. While theimposition of a substantial prison term does not preclude the makingof a reparation order as well, there was nothing before the Court tosuggest that Mr Howarth would be in any better position to payreparation at the end of his sentence than his apparently parlous stateat the time of sentence.[58] For these reasons, we are satisfied that there was no proper basis for areparation order to be made.[43] Mr Williams suggested that I should take a bold approach and set aside thereparation order made by the Judge. Mr Gibson suggested that if I concluded that thereparation order should not have been made, I should remit the matter to the DistrictCourt to reconsider the appropriate reparation order and its effect on the end sentenceimposed.[44] I have very little information about Mr Woodward's financial means. Hismother has sworn an affidavit for the appeal hearing, in which she deposes that he hasno money and no job. The boat owner in his reparation schedule states thatMr Woodward has a Harley Davidson motorcycle. He expresses the hope that at thevery least, Mr Woodward's property should be seized in order to pay reparation. I donot know whether the owner was insured, whether the boat was repaired or whether itwas written off. This could affect who should receive any reparation payment orderedby the Court. When the possibility of reparation was raised with Mr Woodward by thereporter 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. Whenhe was discussing his future employment goals, he advised that he wants to start afirewood business in Whangārei. The report states as follows:He said he owned 54 acres of bush, so had a good start in terms of accessingthe wood.As against this, I was told from the bar that Mr Woodward no longer owns a motorbikeand that the bush property is owned by his mother and not Mr Woodward. There washowever no evidence of either of these matters.[45] Given this evidential void, I am not prepared to simply set aside the reparationorder.[46] While I would not otherwise be minded to interfere with the sentence ofimprisonment imposed, a reparation order is a relevant consideration whendetermining the length of a prison sentence.12 It seems to me that the appropriatecourse is to allow the appeal, remit the sentence to the District Court, direct that itobtain a reparation report under s 33(1) of the Sentencing Act and direct that it thenreconsider, first, whether a reparation order should be made and, secondly, if such anorder is made, whether that order should affect the sentence which should otherwisewould be imposed. Remitting the matter to the District Court will preserveMr Woodward's and the Crown's appeal rights in the event that one or other party isdissatisfied with the end result.[47] Accordingly, I allow the appeal and remit the matter to the District Courtpursuant to s 251(2)(c) of the Criminal Procedure Act. I direct that the District Courtis to obtain a reparation report under s 33(1) of the Sentencing Act and then reconsiderwhether a sentence of reparation should be imposed, if so, in what amount and thenwhat sentence should be imposed for the offending.[48] Issues of bail, if the same is sought pending resentencing, are to be consideredin the first instance by the District Court.______________________________Wylie J12 R v Protos CA259/04, 19 October 2004 at [11].