R v Protos CA259/04 [2004] NZCA 355 (19 October 2004)

Last Updated: 22 April 2018

IN THE COURT OF APPEAL OF NEW ZEALAND

CA259/04

THE QUEEN

v

CORY JAMES PROTOS

Hearing: 11 October 2004 Coram: McGrath J
Goddard J Randerson J

Appearances: W H McMenamin for Appellant
M F Laracy for Crown Judgment: 19 October 2004

JUDGMENT OF THE COURT DELIVERED BY GODDARD J

Introduction

[1] The appellant was convicted by a jury on two counts of arson, sentenced to three years imprisonment and ordered to pay reparation in the sum of $13,200 on completion of his sentence. The first count concerned a charge of wilfully setting fire to a car, which at the time was parked 1.75m from the front wall of a wooden house. The second count related to the house property, which caught fire from the heat of the burning car.

R v PROTOS CA CA259/04 [19 October 2004]

Background facts

[2] The occupiers of the house property were asleep inside at the time. The bay window of the house was extensively damaged and the evidence of a fireman who attended the scene was that the house could have been engulfed in fire within a further 2-3 minutes, had the Fire Service not arrived. The car was completely destroyed.

[3] The female occupier of the house was in her eighth month of pregnancy and the effect on the victims has been profound. One of the most unfortunate aspects is that they remain substantially out of pocket as the result of the destruction of their car, which they have yet to pay off. Although the insurance claim on the house property (which they were renting) has been met, the insurance claim on their car was apparently not accepted.

[4] The appellant’s defence at trial was that he had no memory of events and had therefore not acted intentionally in setting fire to the car. He had been drinking during the evening and when later apprehended returned a breath test result of 730mg of alcohol per litre of breath. The victims’ car was the second that he had broken into that evening. From the first car he had taken some candles. After breaking into the victims’ car he had used the candles to set fire to some paper rubbish on the front seat. Mr McMenamin submitted that although the appellant’s intention had simply been to steal the car rather than set fire to it, his reckless lighting of the paper rubbish in the car had produced that result.

[5] In convicting the appellant on both charges, the jury clearly rejected his defence of inability to remember anything at all about the incident. However prior to returning their verdicts the jury had asked a question, which the trial Judge on sentencing said indicated to him and to the Crown that the jury had regarded the appellant’s behaviour as “wilful in the sense that it was reckless rather than in the sense that it was intentional”; that is, that the appellant had not meant to set fire to the house but that his recklessness in setting fire to the car had raised the risk that the house was likely to catch fire and “notwithstanding that risk” he had “decided to go ahead with lighting the fire in the car”.
[6] The Crown prosecutor had submitted that a sentence of between 18 months and two years imprisonment should be imposed but the Judge rejected that submission, instead adopting a starting point of four years imprisonment based on the reckless nature of the appellant’s actions, his age, his otherwise good record and his demonstrated willingness and ability to make reparation. The latter was evidenced by the fact that in the period between the offending and his sentencing, the appellant had been paying $120 reparation per week in fines and reparation imposed for the other offending he had committed the same evening.

[7] The starting point of four years was calculated by reference to the decision of this Court in R v Munro CA132/02 24 July 2002. In that case a starting point of five years imprisonment was upheld. The Judge in the present case found the offending in Munro analogous, even though the arson in Munro had been committed by two offenders and was deliberate rather than reckless.

Applicable legal principles

[8] As previously noted by this Court and confirmed in Munro, “there can be no fixed tariff for arson offending since the facts and seriousness of such cases can vary inordinately”. The arson in Munro also involved domestic premises that were occupied at the time with resultant risk to life. The offending in Munro was however more serious than that of the appellant because it involved the intentional setting of fire to a house which the two offenders knew to be occupied. Although both offenders were intoxicated at that time, their actions were premeditated and their intent specific. Munro’s co-offender pleaded guilty and he was convicted by a jury at trial. He received a discount of 1½ years imprisonment which brought his sentence into line with that of his co-offender. As Munro was considered to have been the less culpable of the two offenders parity was appropriate. An order for reparation in the sum of $30 per week following Munro’s release was quashed on appeal as this Court took the view that it was “inappropriate to order reparation to follow such a significant sentence of imprisonment”. In addition, despite Munro’s offer to pay reparation at the ordered weekly rate, there had been no realistic indication of his ability to do so.
[9] The Crown at sentencing in this case also referred to the decision in R v Skeens CA341/01 26 February 2002, in which an effective sentence of 3½ years imprisonment for arson and threatening to kill imposed on a 22 year old offender was upheld on appeal. The offender in that case had a lengthy list of convictions of which eight were violence related. The house to which he set fire was occupied by his father and two other persons who were in bed and asleep at the time. This Court referred to the significant features of that offending, which were “the deliberation with which the fire was set, the premeditation by which it was lit after a prolonged period of vehement threats to do so, and the fact that it was ultimately lit covertly at a time when the three occupants were asleep”.

[10] Before us Ms Laracy referred also to the decision in R v Grindrod and Christie CA263/99 CA268/99 20 October 1999. In that case terms of four years imprisonment imposed on offenders aged 17 and 19 years, following their conviction at trial, were upheld on appeal. Both offenders had entered an unoccupied home and set it alight. The home was destroyed with resultant loss to the insurance company of $120,000. In addition, certain possessions of value to the owner were unaccounted for and believed stolen. The offending clearly involved a degree of premeditation and planning, as evidenced by the fact that the appellants had broken into a shed and obtained petrol as an accelerant before entering the house and setting fire to it. Both offenders had previous convictions for burglary-type offending. The owner of the house was the chief of the local volunteer fire service and had given 25 years of fire-fighting service to the community. The emotional, physical and financial effects of the fire upon him and his partner were substantial.

[11] Ms Laracy referred also to the impact of reparation on a term of imprisonment. In the appellant’s case she fairly conceded that his demonstrated ability and genuine inclination to make reparation was capable of distinguishing his case from that of Munro, which had been decided prior to the Sentencing Act 2002. That Act now places greater emphasis on reparation, with relevant amendments having been made to the Summary Proceedings Act 1981 to ensure that reparation orders are manageable and effective. A reparation order is therefore a relevant consideration when determining the length of a prison sentence, although the making of reparation is only one of many factors to be taken into account. Reparation has
however long been regarded as an important consideration in determining the nature and term of any sentence in a case involving loss of property: see, for example, R v K CA246/92 4 September 1992 (citing R v Thacker CA382/90 22 March 1991).

Discussion

[12] The issue of reparation in this case is important. The couple who were the victims of this offending have suffered a property loss in the form of their car, which their insurer has apparently declined to meet. It is in their interests that the appellant recommence employment at an appropriately early date, so as to be able to make good the financial loss he has caused them. It is also in the interests of the insurance company that has met the cost of damage to the house to be reimbursed as appropriately early as possible. Facilitation of that reimbursement can, however, only be contemplated as part of an overall sentence of imprisonment of appropriate length.

[13] On a comparison with the cases outlined above, we are satisfied that the overall sentence imposed requires adjustment, as the effective term of imprisonment of three years, when taken in conjunction with an order for reparation of $13,200, is manifestly excessive. Although comparisons between different fact situations can seldom be made with exactitude, the prosecutor’s suggestion at sentencing that an appropriate sentencing range would be between 18 months and two years has merit.

[14] On the basis of the jury’s apparent acceptance that the appellant’s actions in setting fire to rubbish in a car that was parked close to a house property were reckless rather than premeditated and calculated to cause risk to life, his case can be seen as of lesser seriousness than those of Munro and Grindrod and Christie.

[15] When further account is taken of the fact that the appellant has demonstrated his ability to obtain and hold employment and to make reparation payments, it seems to us that the most appropriate adjustment to be made is by reduction of the term of imprisonment. Taking all matters into account, we are satisfied that an appropriate term of imprisonment is two years, and that leave to apply for home detention should be granted.

Result

[16] Accordingly, the sentence of three years imprisonment is quashed and in lieu a term of two years imprisonment is imposed. The appellant is granted leave to apply for home detention. The order for reparation in the sum of $13,200, suspended until the appellant’s release from prison, is confirmed.

Solicitors:

W H McMenamin, Christchurch, for Appellant Crown Law Office, Wellington