HAZELDINE v NZ POLICE [2016] NZHC 1132

HAZELDINE v NZ POLICE [2016] NZHC 1132 [27 May 2016]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYCRI 2016-443-10[2016] NZHC 1132BETWEEN HAYDEN JOHN HAZELDINEAppellantAND NEW ZEALAND POLICERespondentHearing: 11 May 2016Counsel: M S Boyd for AppellantS J Simpkin for RespondentJudgment: 27 May 2016JUDGMENT OF BROWN JBackground[1] On 17 February 2016 the appellant pleaded guilty in the District Court at Hawera to a charge under s 268 of the Crimes Act 1961 that on 9 October 2015 he attempted to damage by fire a residential dwelling at Gladstone Street, Hawera. Themaximum penalty for that offence is 10 years' imprisonment.[2] Judge A C Roberts sentenced the appellant to a term of imprisonment of one year and nine months. The appellant appeals that sentence.Circumstances of the offending[3] At about 5.03 pm on Friday, 9 October 2015 the defendant was at his rented residential property in Hawera with his partner and their three children. The defendant and his partner had an argument inside the property and she then went outside with the children. The defendant proceeded to use his lighter to set fire to a curtain belonging to him in the dining room. Once the curtain was sufficiently alighthe walked out of the house intending for the house to burn down. While outside he told his partner that she had better leave because the house was burning down. She then went back inside and extinguished the burning curtain. Although the curtain was damaged by fire, there was no damage caused to the house. In explanation the appellant said that after arguing with his partner he was frustrated and set the curtain alight with the intention of burning the house down.Department of Corrections report[4] The Corrections report noted that the appellant first came to the attention of the Courts in September 2009. His offending history largely comprised burglary, shop lifting, drug related offending and one charge for male assaults female. For those offences he received reparation, community work and supervision. He has two convictions for breach of community work for which he received a final warning on one and imprisonment on the other.[5] The report noted that the appellant was well supported by his immediate family at Hawera and a Hawera address was proposed as a suitable residence for home detention which was the recommended sentence.Sentencing notes[6] After recording the circumstances of the offending and noting the appellant'sprior history of offending, Judge Roberts noted that although home detention was the recommended sentence, regrettably for the appellant that was no longer available. Consequently the issue for the Court was the length of a prison sentence.[7] The Judge noted that there is no tariff and referred to High Court decisions cited by the Crown solicitor who pointed to three aggravating factors, namely premeditation, the subject property being a domestic dwelling and the potential real danger to others including the three children.[8] The Crown solicitor had submitted that the offence involved the threatened use of violence but Judge Roberts saw no overt mention of a threat being issued orally. While the Crown contended for a starting point of two and a half to threeyears, counsel for the appellant submitted that the offending was impulsive and childish with no significant damage resulting. He advocated a starting point of 12 months' imprisonment.[9] The Judge concluded:[11] I too regard the offending as inept. The potential, however, for a spreading fire is always real. You told your partner what you had done. You must have anticipated some responsible reaction from her. You were indeed fortunate some common sense did prevail, not yours regrettably. No damage occurred but that is more as aconsequence of the positive act on your partner's part extinguishingthe fire. While the criminal act of torching the curtains is very much on a par with the Cowie factual recital, the reality that this was a dwelling elevates, in my decision, the start point above the two year mark.[12] Taking into account the submissions made to me I intend to adopt a start point on sentence of two years and four months. I allow you a credit, the full credit of 25 percent, and have an end sentence thus of one year and nine months.[10] The Judge recorded that home detention could not be advanced because no address was available.Approach on appeal[11] The grounds of appeal in the notice of appeal dated 26 February 2016 stated:Sentence manifestly excessive, failed to take into account all relevant factors.[12] However greater specificity was provided in the appellant's written submissions which contended that Judge Roberts erred in:(a) finding premeditation as an aggravating factor;(b) finding that the offending was motivated by revenge or retribution;(c) the analysis of comparable cases in setting the starting point; and(d) failing to impose home detention or leave to apply for home detention.[13] It was submitted that the sentence of imprisonment should be quashed and replaced with a sentence of home detention.[14] An appeal against sentence is brought under s 244 of the Criminal Procedure Act 2011. Section 250(2) of that Act provides that the High Court must allow the appeal if it is satisfied that:(a) for any reason there is an error in the sentence imposed on conviction; and(b) a different sentence should be imposed.[15] A different sentence should be imposed when the appellate Judge believes a different type of sentence should be imposed or the length of sentence should bealtered but not in a way that amounts to a minor adjustment or 'tinkering'. TheCourt on appeal must concern itself with whether the end sentence imposed is within range, as opposed to focusing on the process by which the sentence was reached. In any other case the Court must dismiss the appeal.Premeditation[16] Ms Boyd submitted that there was no basis for concluding that the offending was planned by the appellant. She submitted that the attempt itself was not wellcalculated and noted the Judge's description of the offending as inept, submittingthat that was inconsistent with premeditation.[17] However I agree with Ms Simpkin's submission that the appellant's actionswere deliberate in taking up a lighter and setting fire to the curtain which involved a level of forethought albeit at a low level. Indeed it was premeditation of that nature which the Judge plainly had in mind when he referred to this factor in the following way:Premeditation. Certainly not long-term but premeditation nonetheless, a deliberate act to take up a lighter and torture curtain.[18] The significance which the Judge attached to this feature is apparent and in my view involved no error.Motivation for offending[19] Ms Boyd noted that the summary of facts records that the offending occurred after a domestic argument and that the appellant was frustrated but she observed that the summary of facts does not attribute the motive for retribution to the appellant. She drew attention to the fact that both the Department of Corrections report and theappellant's letter stated that the frustration was linked to the appellant's withdrawalfrom synthetic cannabis. Hence it was submitted that there was no basis on which the Judge was entitled to conclude that the motivation for the offending was retribution against his partner.[20] The question of motivation is one of inference. The offence occurred in the context of a domestic argument and after the appellant's partner had moved outsidethe house with their three children. At that point the appellant proceeded to set fire to the curtain. As Ms Simpkin pointed out immediately after the incident the appellant stated that after arguing with his partner he was frustrated and set the curtain alight with the intention of burning the house down. It was only at a later stage in anticipation of sentencing that the appellant identified withdrawal as a reason for his actions.[21] The Judge's comment on this issue was in the following terms: in some general features [Cowie] has parity with the facts in hand. Offending involved there and here designed to compromise a partner or aformer partner with a low level of damage resulting [22] I accept Ms Simpkin's submission that the clear inference from the sequence of events is that the appellant's motivation was to emotionally harm his partner, anobjective which is accurately reflected in the Judge's description.Starting point[23] Ms Boyd submitted that the starting point of two years four months was an error having regard in particular to Cowie1 and R v Protos.2[24] Cowie was an appeal against sentence of two years and six months'imprisonment imposed in respect of an attempted arson and a breach of protection order. On appeal the High Court found that a starting point of no more than two years was justified with a 25 per cent discount through a guilty plea.[25] The appellant in Protos while heavily intoxicated set fire to a vehicle parked outside a house with the fire spreading to the house and causing extensive damage.He was convicted by a jury on two counts of arson and sentenced to three years'imprisonment and ordered to pay reparation in the sum of $13,200 on completion of his sentence. The Judge adopted a starting point of four years' imprisonment but allowed a reduction for several factors including the offender's age, his otherwisegood record and his demonstrated willingness and ability to make reparation.[26] In allowing the appeal the Court of Appeal found that an appropriate term ofimprisonment was two years' imprisonment and that leave to apply for homedetention should be granted.[27] As earlier noted Judge Roberts likened the present case to Cowie but considered that it was more serious in that a dwelling was the focus of the offence.[28] Ms Boyd submitted that the offending was less serious than Cowie as it was not motivated by domestic retribution, no accelerants were used and the appellant immediately told someone what he had done. It was further submitted that the offending was significantly less serious than Protos as there was only one charge, the charge was attempted arson and no damage resulted.1 Cowie v Police HC Christchurch CRI-2006-409-198, 3 November 2006.2 R v Protos CA 259/04, 19 October 2004.[29] I have already rejected the contention that the offending was not motivated by domestic retribution and I accept that the Judge appropriately considered that the offending was more serious than Cowie on account of it involving a dwelling house with elevated potential risk to life.[30] As Ms Simpkin submitted the Court of Appeal in Protos did not discuss the appropriate start point and consequently the decision is of limited assistance on that issue. However it is apparent from the judgment that the Court of Appeal considered that the issue of reparation in that case was important and warranted a reduction in the term of imprisonment.[31] In my view the starting point of two years and four months was towards the top of the available range but cannot be said to have been manifestly excessive.Home detention[32] As earlier noted, home detention was the recommended sentence in the Department of Corrections report and the Crown accepted at sentencing that home detention might be appropriate. However, as Ms Boyd's submissions recorded, it appears that the appellant advised that the proposed home detention address was no longer available. At that time the appellant was receiving significant medication and it appears that his advice to the Court was in error.[33] Ms Boyd advised that the proposed address for home detention remained available to the appellant but recognised that it would be necessary for an updated report to be obtained as to its suitability. In those circumstances I adjourned the appeal and directed that an updated report should be provided.[34] An updated report dated 26 May 2016 advises that:(a) the appellant's family (comprising his mother, stepfather, brother and brother-in-law) all remain supportive of him and are prepared to have him reside at the proposed address in the report;(b) the property remains technically suited for an electronically monitored sentence;(c) the appellant has signed an Electronic Monitoring Offender Agreement and has been made aware of the standard conditions and likely special conditions that would be imposed;(d) no safety and welfare concerns have been identified with the occupants at the address and no children under the age of 16 years would be residing there.[35] In those circumstances, I accept that a sentence of home detention is the appropriate sentence. The appeal is allowed, the sentence of imprisonment of one year and nine months is quashed and is substituted by a sentence of nine months'home detention to commence on Tuesday, 31 May 2016 at the address referred to in the Department of Corrections report.[36] In addition to the standard conditions, the following special conditions will apply:(a) not to possess, consume or use any alcohol or drugs not prescribed to you;(b) to attend and complete an appropriate substance use programme to the satisfaction of a Probation Officer. The specific details of the appropriate programme shall be determined by a Probation Officer;(c) to attend an assessment for a Departmental Short Motivational Programme as directed by a Probation Officer. To attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.___________________________Brown J