R v Firmin CA241/97 [1997] NZCA 300 (29 October 1997)

Last Updated: 15 November 2014

IN THE COURT OF APPEAL OF NEW ZEALAND CA 241/97

THE QUEEN

v

PETER JOHN FIRMIN Coram: Thomas J

Heron J Goddard J

Hearing: 28 October 1997

Counsel: S P France & A Mobberley for Crown

P H B Hall for Appellant

_{Judgment: 29 October 1997}

_{JUDGMENT OF THE COURT DELIVERED BY GODDARD J}

The appellant pleaded guilty in the District Court at Blenheim to offences of kidnapping, possession of explosives with intent to commit a crime, using a firearm in the commission of the crime of kidnapping and unlawful possession of a pistol, namely a sawn-off shotgun. He was sentenced to seven years imprisonment on the kidnapping charge and to four years imprisonment on the charge of using a firearm in the commission of that offence. On each of the charges of possession of explosives and unlawful possession of a pistol he was sentenced to one year imprisonment. All sentences were imposed concurrently.

He now appeals against the overall sentence of seven years imprisonment on the grounds that it was manifestly excessive and wrong in principle. The basis for his appeal on both of these grounds is that his offending was not motivated by any criminal purpose, unlike most kidnappings and all aggravated robberies. His motive was simply to advance and resolve a misguided but subjectively genuine grievance

with the Armed Forces. Nor, it was submitted, did the sentencer make sufficient allowance for his diminished responsibility and other mitigating factors.

The appellant is a 36 year old man who served as a member of the New Zealand Army between 1985 and 1988 at which time he was medically discharged following injuries received in Singapore. Following discharge, he has been in receipt of ACC payments and has engaged in what his Probation Officer has described as a “long and quixotic battle” with the Defence Department over injustices he considered he suffered when injured and medically retired. His sense of grievance with the Defence Department over these perceived injustices appears to have been compounded by conflicts with the Police in recent years relating to the supply of incorrect information by him in a firearms application licence, his prosecution for that offence and the subsequent revocation of his firearms licence. He complained to the Police Complaints Authority about these matters but his complaints were not upheld. Likewise, in 1994 his attempts to gain redress for his grievances with the Army were

brought to a head, but not to his satisfaction. He did, however, receive an apology on behalf of the Army for its lack of initial response to his needs and concerns following his discharge. He was however far from satisfied with the attempts made by the Department of Defence to remedy his concerns and, regrettably, his sense of

grievance has intensified to the point where the offences which are the subject of this appeal were committed.

On the 3 March 1997 he dressed himself in army camouflaged clothing and drove to Blenheim airport. There he made his way to the adjacent Woodbourne Airforce Base. He asked for the Base Commander and when an Airforce Corporal went to

find the Base Commander, followed him to the Base Adjutant’s office where the Base Warrant Officer was. He walked into the office and confronted all three persons with a sawn-off shotgun which he presented. He then made clear his intention to take a hostage at gunpoint and demanded to be flown to Defence Headquarters in Wellington to meet with the Chief of Defence staff. All three persons were in no doubt that the shotgun was loaded and that the appellant was serious in his purpose. He ordered the Base Adjutant and the Corporal out of the office and forced the Warrant Officer at gunpoint to a chair where he manacled him with chains around the

wrists and waist. He secured these chains with padlocks and locked them. The shotgun had been substantially modified by the appellant and with considerable effort. Not only had it been sawn-off but the appellant had attached a series of wires to the trigger mechanism to enable him to fire the gun by remote control. He secured the barrel end of this modified shotgun tightly against the Warrant Officer’s neck, firstly by means of a belt and then by use of a length of cord when the belt caused the Warrant Officer extreme discomfort. He had also taken a quantity of explosives and detonators with him and another device which was battery powered and believed to

be capable of electrically igniting the detonators. He set the explosives and

detonators up on a filing cabinet in the office. He made it clear that if the Police were to shoot him then death or grievous injury would also result to the Warrant Officer, because of the wire trace attached to the shotgun secured tightly against the Warrant Officer’s neck.

The hostage situation continued for over three hours until the Warrant Officer was released following negotiations between the appellant and members of the Armed Offenders Squad who had been summoned. Apparently the calmness and courage of the Warrant Officer throughout the ordeal had a significant effect on the final

outcome and although he was physically uninjured when released, must have been severely traumatised by the events. Undoubtedly his ordeal will have a lasting effect on him.

It transpired that the sawn-off shotgun was not loaded and in fact had been taped up by the appellant so it could not be loaded. It also transpired that the explosives he had set up could not immediately be detonated. However, only the appellant was aware of those facts throughout the hostage situation and his attempt to reassure the Warrant Officer that he did not mean him personal harm could not have been convincing. In the end it seems the Warrant Officer became visibly distressed and it was at that point that the appellant began to come to his senses. After the Warrant Officer was released a Police negotiator arranged for the appellant to disarm the explosives and unload the shotgun before emerging from the office and giving himself up.

Following his surrender to the Police, the appellant was apparently co-operative with them and the gun disposal team. He told the Police he had only approached the Airforce Base in the hope that his actions would provide him with safe transport to Defence Headquarters in Wellington and provide public exposure of his long standing grievances.

The sentencing Judge had a considerable volume of material placed before him, including a report from a psychiatrist who had carried out a clinical examination of the appellant pursuant to Section 121 of the Criminal Justice Act 1985. There was also a series of medical reports from the appellant’s general practitioner and an earlier

report from a psychiatrist who had examined him in 1984. This material indicated there was no evidence that the appellant was suffering from any major psychiatric disorder but expressed the opinion that he may be suffering from post traumatic stress disorder arising from his back injury and his consequent discharge from the Army and his loss of career. The sentencing Judge also had a considerable volume of references which spoke favourably of the appellant and also his service testimonial from the Army. The Judge noted the positive factors of the offending, namely, the actual, although unknown, lack of dangerousness; the appellant’s desistence once the

Warrant Officer became visibly distressed; his Army service; his medical history; and, the background to his offending. The Judge took all of those matters into account in fixing sentence and in addition gave the appellant credit for his pleas of guilty and for the fact he was a first offender. The Judge referred to the different categories of kidnapping which defence counsel had identified and expressed the view that kidnapping by taking a hostage for the purpose of achieving compliance with some personal demand, whether arising out of political ideology or a belief in personal injustice, could not be tolerated by the Courts. The Judge was in no doubt that the case was a very serious one and that nobody involved knew what the appellant’s true intentions were at the time or that the gun was not loaded or that the explosives were not wired. He was also of the view that whilst the appellant retained his sense of grievance and this remained unresolved, he posed a continuing threat to the community.

The Judge said:

“Clearly, in my view, the feelings of grievance that you have are unresolved and it must be accepted that until such time as they are resolved your underlying thought processes continue to create a threat to the community.”

The Judge found no particular relevant sentencing precedent, but identified the available range of penalty as being 7-9 years imprisonment. He determined this by reference to sentences imposed in serious kidnapping cases involving ransom demands. In fixing the appropriate sentence for the appellant at the lower end of that range he took into account his guilty plea and the other mitigating factors but identified the need for general deterrence and the effect on the victim as the dominant sentencing principles. He said:

“The focus of concern must be for the victim. Here the victim was selected randomly and thrown into a terrifying ordeal to facilitate a stranger’s cause. The crime in my view aggravated by the substantial planning and pre-meditation exemplified in this case

by the careful planning and the considerable effort which went

into the construction of the explosives and the mechanism for remote firing of the shotgun. It was aggravated by the use of firearms and explosives used to instil terror in those that you wished to

manipulate.

In my view a very clear message needs to be sent to you and to others who might be tempted to act in such a way, that such actions must result in significant periods of imprisonment. The validity or otherwise of the grievance can have no relevance. The crime can be no less serious because the grievance is justified or the aim laudable.”

In support of the appeal, Mr Hall emphasised the appellant’s severe psychological/psychiatric disability and the overwhelming sense of injustice he felt as

the result of his injury and his discharge from the Army, both of which had dominated his life and psyche for the past ten years. Mr Hall submitted that the medical evidence suggested the appellant was in a state of diminished responsibility, not far short of insanity, at the time of his offending and it was that which had caused him to behave

in such an obsessional, paranoid and irrational way. He argued that the District Court Judge had incorrectly regarded the appellant’s impaired mental functioning as an aggravating feature rather than as a mitigating feature and had placed insufficient weight on the view expressed by the Probation Officer that the appellant did not represent an on-going threat to the community. He submitted an affidavit from the appellant’s general practitioner which updated and expanded upon the medical information which had been placed before the District Court. In this affidavit, the appellant’s general practitioner noted that the sentencing Judge had expressed the hope that he would be afforded an opportunity to undergo psychiatric and psychological assessment in prison but recorded that nothing had happened until he had himself initiated a request through Accident Compensation for the appellant’s treatment in prison. As a result of that a consultant psychiatrist, Dr McLeod, had

been retained to review the appellant’s case. Dr McLeod’s report has been made available to this Court and his tentative conclusion is that the appellant may be suffering from a post traumatic personality disorder rather than a post traumatic stress disorder, although the former condition is not yet accepted as a disorder in the

medical literature. Dr McLeod’s examination of the appellant also suggested to him that the appellant may have underlying paranoid personality traits and Dr McLeod also expressed concern about his affective status. Any firm diagnosis however requires clarification and trial therapeutic intervention. Dr McLeod’s opinion is that the appellant is unlikely to be amenable to any significant therapy at the present time, however, and therefore psychotherapeutic intervention is unlikely to be of any great

influence until he takes a positive view and starts to consider his “life after prison”. In this regard we note that the appellant’s general practitioner has expressed concern

that the length of the sentence imposed is fuelling the appellant’s sense of grievance, his disorder and depression and is therefore not conducive to his rehabilitation. That is not to say, however, that the appellant is unable to make a positive commitment to therapeutic intervention or that therapeutic intervention and diagnosis cannot be undertaken whilst he is serving his sentence. Indeed, Dr McLeod indicates otherwise.

It all depends on the appellant’s attitude and willingness. Certainly, his treatment is in the interests of the community as well as in his own interests and, if desirable he can no doubt be transferred to a secure hospital environment for treatment whilst continuing to serve his sentence. That is a decision for the medical experts and the prison authorities to take and we simply note the possibility of it in passing.

Mr Hall referred to other mitigating factors which he said the District Court Judge had not taken into account, namely the concern the appellant had shown for the Warrant Officer when he began to exhibit signs of visible stress and the remorse he had afterwards expressed about the Warrant Officer’s ordeal. He also pointed to the fact that the appellant did not threaten the Warrant Officer directly and to a testimonial written by a police sergeant with whom the appellant had negotiated and co-operated during the hostage situation. Against those factors, however, it must be remembered that the appellant’s actions were deliberate and premeditated and caused

a major incident involving the call out of specialist teams from Wellington and Nelson. No-one who was involved in the situation knew that the appellant’s gun was not loaded at the time or that the explosives could not be instantly detonated. His actions were deliberately designed to create the dramatic situation which he achieved. The fact that the situation was not as dangerous as the appellant had led everyone to believe only became known after more than four hours and after he had failed to achieve his aims. We agree with the sentencing Judge that the need for general deterrence, coupled with the effect on the Warrant Officer and on all others who necessarily became involved in the situation, must be the dominant sentencing factor and that whilst his irrational obsession with his perceived grievance remains unresolved, the safety and protection of the public must be a very real consideration

for the Court. The appellant’s personal circumstances can therefore have little weight when viewed against the seriousness of what he did, and the issue of diminished responsibility must be weighed against the need to protect the public. As we have noted, the appellant can avail himself of medical and psychological services available

in the prison and is not precluded from being treated by Dr McLeod or others whilst serving a prison sentence if that is desirable, and can be transferred into a secure environment for treatment if that is necessary. As we have said, that is a matter for

the prison authorities and the medical experts to determine but they can only do so with the co-operation of the appellant.

In the end we are satisfied that the District Court Judge correctly identified the sentencing range, not by reference to any particular sentencing precedent, but by reference to the seriousness of the offence and by analogy to cases of kidnapping for ransom. We are also satisfied that he appropriately pitched the effective sentence at the lower end of the available range after taking into account all relevant mitigating factors. Mr Hall referred us to a selection of cases, none of which are directly comparable on the facts. One such case, that of the Police v Short (Taupo District Court) appears to have involved a terrorist type hostage situation resulting from the defendant’s obsessional objection to the use of the poison 10 80. Short was sentenced to two years imprisonment. On its face, the situation is somewhat comparable to the present and the sentence appears to be an extremely lenient one. We are however unable to make any useful comparison with the present case as there

is no summary of facts nor any sentencing judgment available to us. No demonstrable disparity therefore exists and it is well established that the imposition of a lenient sentence in one case does not require the downward adjustment of a sentence in another case. Overall we are satisfied that the sentence of seven years imprisonment

is appropriate and within range. Its length will serve to deter others who may contemplate taking the law into their own hands by hostage taking and demands. Such actions can never be tolerated by the Court whatever the reason for them. We express the hope however that the appellant will receive appropriate treatment whilst serving his term of imprisonment and we direct that the psychiatric reports before the Court and our sentencing judgment are drawn to the attention of the prison authorities. The appeal is dismissed.

Solicitors

Wood Marshall, Solicitors, Christchurch

Crown Law Office, Wellington, for Crown