LOWENSTEIN v NEW ZEALAND POLICE [2020] NZHC 786

LOWENSTEIN v NEW ZEALAND POLICE [2020] NZHC 786 [22 April 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2020-409-000023[2020] NZHC 786BETWEEN JACOB LOWENSTEINAppellantAND NEW ZEALAND POLICERespondentHearing: 21 April 2020Appearances: J D Lucas and J M Campbell for AppellantS Bicknell for CrownJudgment: 22 April 2020JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 22 April 2020 at 3.00 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate22 April 2020Introduction[1] The appellant, Mr Lowenstein, pleaded guilty to two charges of arson and acharge of unlawfully taking of a motor vehicle. This offending occurred whileMr Lowenstein was on bail, awaiting sentence, for a charge of assault with intent toinjure and an associated burglary charge.[2] Judge Saunders, in a decision of 14 June 2019, sentenced Mr Lowenstein to anend sentence of six years and nine months' imprisonment.1 Mr Lowenstein now1 R v Lowenstein [2019] NZDC 11538.appeals this sentence on the ground that the end cumulative sentence was manifestlyexcessive.[3] Mr Lowenstein appeals out of time. He filed his appeal on 2 August 2019 inthe Court of Appeal. The appeal was dismissed on 21 February 2020 for want ofjurisdiction.2 The High Court is the first appeal court for this appeal. Accordingly,Mr Lowenstein applies for leave for this appeal to be heard by the Court.Facts[4] On 20 June 2018 Mr Lowenstein entered the restricted area of the property ofPak'nSave in Wainoni disguised as an employee. Mr Lowenstein sought out thevictim. He confronted the victim whom he believed had insulted or abused his motherthe previous day. Mr Lowenstein punched the victim in the face multiple times beforebeing restrained. The victim sustained severe bruising, a cut to the lip and was shakenup by the violence. Mr Lowenstein plead guilty in October 2018 to charges of assaultwith intent to injure and burglary. The burglary was not for the purpose of theft, butto seek out the victim who Mr Lowenstein knew worked there.[5] While on bail awaiting sentence, Mr Lowenstein committed three furtheroffences.[6] On 11 March 2019 Mr Lowenstein put a lighter, some paper and fuel in hisbackpack and left his house. He unlawfully took a Mazda station wagon that wasparked in a driveway on Puriri Street, Riccarton. Mr Lowenstein then drove the carto Upper Riccarton, parking it a short distance from The Church of Jesus Christ ofLatter-day Saints.[7] Mr Lowenstein entered the property through a door he had smashed theprevious day. He poured petrol over a couch and carpet in the lounge and set it alight.The fire destroyed the lounge and kitchen area. The cost of the damage wasapproximately $500,000. The church does not have insurance.2 Lowenstein v R [2020] NZCA 25.[8] On 13 March 2019 Mr Lowenstein drove to The Church of Jesus Christ ofLatter-day Saints at Main South Road, Greymouth. He broke into the building and setit alight using petrol. The entire building was destroyed despite attempts by the fireservice to extinguish the fire. The cost of the damage was approximately $700,000.The cost of repairing the two church buildings is around $1.32 million.[9] Police spoke to Mr Lowenstein after the fires, but he did not admit anywrongdoing at that point. Approximately three weeks later, on 1 April 2019,Mr Lowenstein approached the police and admitted his guilt. At this pointMr Lowenstein stated his reason for the arson was anti-religious, but after speakingwith a friend, realised what he had done was wrong. On 3 April 2019 he appearedbefore the court and pleaded guilty to two charges of arson and one charge of unlawfultaking of a motor vehicle.District Court decision[10] Judge Saunders considered the arson at Greymouth on 13 March 2019 to bethe lead offending. The Judge adopted a starting point of seven years imprisonmentfor that offending. The Judge sentenced Mr Lowenstein concurrently, uplifting thesentence by two years for the arson of 11 March 2019. This brought the startingsentence to nine years imprisonment, incorporating a concurrent period for theunlawful taking of a motor vehicle. The Judge then applied a further uplift of18 months' imprisonment for the June 2018 offending at Pak'nSave. This brought thestarting point to 10 years and six months' imprisonment.[11] The Judge considered the psychiatric report of Mr Metoui which had beenprovided to be akin to a s 27 Sentencing Act 2002 cultural report covering matters ofupbringing.3 A 12-month discount to reflect matters covered in the report andparticipation in restorative justice was applied, reducing the sentence to nine years andsix months. The Judge then applied a full 25 per cent discount to reflectMr Lowenstein's guilty plea. On a strict arithmetical basis this brought the endsentence to seven years and one-month imprisonment.3 At [20].[12] Considering the principle of totality, the Judge applied an end sentence ofsix years imprisonment in relation to the arson offending and nine months'imprisonment in relation to the Pak'nSave offending. This brought the total effectiveterm to six years and nine months' imprisonment.Principles on appeal[13] 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.4 As the Court of Appeal mentioned in Tutakangahau v R quoting thelower court's decision, a "court will not intervene where the sentence is within therange that can properly be justified by accepted sentencing principles".5 It is onlyappropriate for this Court to intervene and substitute its own views if the sentencebeing appealed is "manifestly excessive" and not justified by the relevant sentencingprinciples.6SubmissionsAppellant's submissions[14] In bringing this appeal Mr Lowenstein does not challenge the starting point of10 years and six months' imprisonment. However, Mr Lucas, for Mr Lowenstein,submits Judge Saunders erred in conflating and combining the two mitigating factorsof restorative justice and personal circumstances. The discount applied was around9.5 per cent (12 months). Mr Lucas contends the mitigating factors are distinct and agreater discount ought to have been applied.[15] Mr Lucas also submits Mr Lowenstein's remorse is genuine and exceptional.It goes beyond undergoing a restorative justice conference. It includes Mr Lowensteingoing to the police station to take responsibility for his wrongdoing. Mr Lucas submits4 Criminal Procedure Act 2011, ss 250(2) and 250(3).5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].6 Ripia v R [2011] NZCA 101 at [15].it is unusual for offenders to go to police to confess, as such Mr Lowenstein's case isexceptional.[16] Mr Lucas states it is a well-established principle that self-referral of criminaloffending to the police is a significant mitigating factor for sentencing. He citesseveral cases:(a) In R v Strickland the defendant was sentenced for five attacks onwomen over a three-week period.7 After being apprehended by thepolice after the last attack he admitted the other attacks. The Judgenoted confession for offending that may not have resulted in convictionsaves considerable time and work, that factor ought to be considered insentencing.8(b) In R v Sanday the appellant raped a disabled woman and confessed topolice.9 The court considered there was a strong public interest elementin encouraging offenders to confess crimes to the police. The deductionfrom the starting sentence of one third was held to be warranted in theunique circumstances.(c) In D v Police Nicholson J considered that a very substantial discount of"at least half after the guilty plea discount" ought to have beenapplied.10 In this case the appellant had self-referred to the police afterraping his daughter. Significant efforts were taken to make apologiseand make amends.(d) In R v Ringrose the Court of Appeal allowed an appeal on the groundthat there should have been a 15 per cent discount made for youth andconfessing to authorities.117 R v Strickland [1989] 3 NZLR 47, (1989) 4 CRNZ 632 (CA).8 At 635.9 R v Sanday CA146/99, 29 July 1999.10 D v Police (2000) 17 CRNZ 454 (HC) at [24].11 Ringrose v R [2011] NZCA 634 at [24].[17] Mr Lucas submits a discount for remorse of at least 15 per cent ought to havebeen imposed. This encompasses confessing to the police and participating in arestorative justice conference. Mr Lucas notes it was acknowledged by the victimsthat Mr Lowenstein's apology was genuine.[18] Mr Lucas submits Mr Lowenstein's offending is a product of his upbringingand a discount of around six per cent is appropriate. Mr Lucas notes Mr Lowenstein'supbringing was polarised. His mother was a drunk who was incarcerated numeroustimes. His father was a devout Christian and strict disciplinarian. Mr Lowenstein'srelationship with his father degenerated and reached a low point whenMr Lowenstein's father denounced a musical tribute Mr Lowenstein had composedfor his grandparents and posted online.[19] Mr Lucas submits the Pak'nSave offending of June 2018 was a result ofMr Lowenstein's extreme love for his mother which resulted in him becoming angryat a perceived insult she suffered while shopping. The arsons were an extreme act ofanger to the rejection he felt from his father. This background impacts the culpabilityof the offending.[20] In summary, Mr Lucas submits the following discounts ought to have beenapplied:(a) 15 per cent for remorse and voluntary admission of guilt,(b) Six per cent for personal circumstances,(c) 25 per cent for Mr Lowenstein's guilty pleas.12An end sentence of around five years and seven months imprisonment is thereforejustified. This is comprised of a sentence of five years for the arsons and a cumulativesentence of seven months for the assault and burglary.1312 I note that Judge Saunders applied full 25 per cent guilty plea discount.13 I note that Mr Lucas has erred in his calculation of what the end sentence should be. Applying thediscounts submitted by Mr Lucas the end sentence would be six years and two monthsimprisonment.Respondent's submissions[21] Ms Bicknell, for the respondent, submits Judge Saunders' methodologydiscloses no error and the end-sentence is within range.[22] Ms Bicknell notes Judge Saunders considered Mr Lowenstein's admission tothe arsons to be "perhaps the most powerful mitigating factor alongside the credityou will get for the guilty plea".14 Ms Bicknell notes the aggravating factors werepremeditation, the fact Mr Lowenstein was on bail when he committed the arsons, the"significant" financial impact of the offending on the church, the emotional harm tothe churchgoers and a risk of harm to the firefighters.[23] Ms Bicknell submits Judge Saunders properly recognised Mr Lowenstein'sconfession to police and remorse when applying the 12-month discount. Ms Bicknellmakes five primary submissions in support of the appeal being dismissed.[24] Firstly, Ms Bicknell notes Mr Lowenstein received a 25 per cent discount forhis guilty pleas, and any additional discounts require "a robust evaluation of all thecircumstances."15 The guilty plea already recognised Mr Lowenstein's acceptance ofresponsibility.[25] Secondly, it was three weeks after the arsons when Mr Lowenstein approachedthe police. Ms Bicknell describes this as "prompt, but not immediate".[26] Thirdly, the restorative justice participation is of mutual benefit toMr Lowenstein and the victims. Too great a discount risks undermining thatapparently mutual benefit.[27] Fourthly, the credit given to the matters in the psychiatric report may be viewedas generous as it was largely based on self-reporting by Mr Lowenstein. It does notfollow that the report demonstrated a compelling link between Mr Lowenstein'sbackground and the offending.14 R v Lowenstein, above n 2, at [13] – [14].15 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].[28] Finally, Mr Lowenstein received a non-specific additional four-month discountafter deductions for mitigating factors.AnalysisStarting point[29] No issue is taken with the starting point adopted by Judge Saunders for eitherthe lead offending, being the arson at Greymouth, or for the uplifts for the further arsoncharge, relating to the Riccarton Church fire and for the assault and burglary chargesof June 2018.[30] Having reviewed the District Court analysis of the aggravating features of thelead offending, including that it was premeditated and resulted in both financial lossand the devastating loss to parishioners of a building that was of social and religiousimportance, I concur with that view. The starting point set reflects relevant Court ofAppeal authorities on sentencing for arson and the uplifts applied for the furtheroffending are appropriate.16Mitigating factors[31] The mitigating factors as they relate to Mr Lowenstein are remorse, asdemonstrated by handing himself in to police, and his participation in restorativejustice, his personal circumstances as identified in the psychiatric report and his guiltyplea.Assisting authorities by handing in to police[32] Where assistance to authorities has been provided, discounts to sentence maybe given. Considerations when arriving at the appropriate discount are the type andseriousness of the offending, the nature and value of the assistance, the situation inwhich the assistance was given and the consequences of the defendant giving16 R v Z CA138/00, 27 June 2000 and R v Lucas-Edmonds [2009] 3 NZLR 493 (CA).assistance, such as personal danger.17 The Court of Appeal has held a keydeterminative factor of the discount to be given will be the value of the assistance.18[33] There are obvious policy reasons for applying discounts to the sentenceimposed where an individual assists authorities by confessing to a crime before beingcharged with the offending. At one end of the spectrum, where the offending mightnever have come to light but for the confession, significant discounts are warranted.For example, in R v Sanday a discount of 33 per cent was applied to recognise theexceptional circumstances including that the crime would have gone undetected hadthe offender not confessed.19[34] Even where it is likely the defendant would have been charged in due course,as I consider was the case here, there are benefits which flow from earlyacknowledgment of a crime. In particular, there is a saving of time and cost ininvestigating the crime and gathering evidence to support a charge. I also accept thatacknowledgement of the wrongdoing is relevant to the assessment of remorse.[35] In the present case, the offending was of a serious nature. The value of theassistance meant that the police saved time and resources investigating the offences,noting the arson offences, in particular, would have involved considerable technicalinvestigation. However, I accept Ms Bicknell's submission that the confessioninvolved no personal risk beyond self-incrimination. There is also no evidence tosuggest Mr Lowenstein would not have been apprehended following the policeinvestigation. Accordingly, the value of the assistance does not fall into the same classas that in R v Sanday, where the offending would have gone entirely undetected hadthe offender not confessed.17 See Williams v R [2011] NZCA 384, Waihape v R [2012] NZCA 425, R v Cameron CA319/99,25 November 1999.18 Williams v R, above n 23.19 R v Sanday, above n 9.[36] The authorities identified by Mr Lucas show a discrete discount in recognitionof the value of self-referral of offending is justified. I therefore considerJudge Saunders erred in his sentencing methodology by not providing such a discretediscount. Considering the authorities above, I consider a discount of 10 per cent beapplied. In setting that discount I have focussed on the benefits to the administrationof justice which confession of a crime brings. I have been careful not to double-countfor remorse, which is addressed separately below.Further discounts[37] Mr Lowestein's remorse, demonstrated by acknowledging his offending,participating in restorative justice, and apologising, also warrants a distinct discountwhich I set at five per cent.[38] I consider, too, that the personal mitigating factors from Mr Lowenstein'sdysfunctional upbringing, as reflected in the psychiatric report, warrant a five per centdiscount.20 It is clear that his dysfunctional upbringing and the distorted relationshipshe had with each parent as described in the report, was a direct contributing factor tohis offending.[39] This brings the overall discount for mitigating factors to 20 per cent. From astarting sentence of 10 years and six months (126 months) the sentence is thereforereduced to eight years and five months (101 months). I then apply a full 25 per centdiscount for guilty pleas.[40] Considering all these matters, a final sentence of six years and four months isarrived at. This is five months less than the sentence imposed by Judge Saunders.That is a sufficiently material difference for me to allow the appeal and impose adifferent sentence. The amended sentence will be imposed as follows:(a) a sentence of five years seven months for the arson committed on13 March 2019;20 Judge Saunders applied a 12 month, 9.52 per cent, discount for these two factors.(b) a concurrent sentence of four years for the arson committed on11 March 2019; and(c) a concurrent sentence of two years for the unlawful taking of the motorvehicle.[41] As was imposed by Judge Saunders, there is also a cumulative sentence ofnine months in relation to the assault with intent to injure and the burglary, to reach anend sentence of six years four months' imprisonment.Conclusion[42] The appeal is allowed.[43] The sentence of six years and nine months imprisonment is quashed.[44] A sentence of six years and four months' imprisonment is substituted, to beimposed as follows:(a) on the charge of arson committed on 13 March 2019, five yearsseven months' imprisonment;(b) on the charge of arson committed on 11 March 2019, four years'imprisonment (concurrent);(c) on the charge of theft of a motor vehicle, two years' imprisonment(concurrent);(d) on the charge of assault with intent to injure, nine months'imprisonment (cumulative on the sentence for the 13 March 2019arson); and(e) on the charge of entering a building with intent to commit animprisonable offence, nine months' imprisonment (cumulative on thesentence for the 13 March 2019 arson, but concurrent with the sentencefor assault).Solicitors:J Lucas, Barrister, ChristchurchRaymond Donnelly & Co., Christchurch