The Queen v Heritage [2007] NZCA 69 (15 March 2007)

Last Updated: 20 March 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA457/06
[2007] NZCA 69

THE QUEEN



v



CLIVE HERITAGE

Hearing: 5 March 2007

Court: Ellen France, John Hansen and Williams JJ

Counsel: B Yeoman for Appellant
S B Edwards and K Laurenson for Crown

Judgment: 15 March 2007 at 11 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

REASONS OF THE COURT

(Given by John Hansen J)

Introduction

[1]	On 4 December 2006, following trial by jury in the District Court at Wellington before Judge Burnett and a jury, the appellant was found guilty of:

(i) One count of arson, as a party; and

(ii) One count of possession of an offensive weapon.

[2]

On 4 December 2006 he was sentenced to an effective term of three years imprisonment. One co-accused, Kereopa Hune, was convicted of arson and possession of an offensive weapon, on which he was sentenced to three years three months imprisonment. The other co-accused, Turuhi Hune, was convicted of being a party to the arson and threatening to kill. She was sentenced to two years imprisonment and granted leave to apply for home detention.

[3]

The appellant appeals against the sentence on the grounds of disparity and that it is manifestly excessive.

Background

[4]	The appellant and Mrs Hune lived in a de facto relationship. Kereopa Hune was the 18 year old stepson of the appellant.
[5]	On 26 January 2006 Kereopa Hune was involved in a confrontation in Naenae. There were gang overtones, in that it appears that Kereopa Hune supported one gang, and one of the complainants, Petelo Vitale, a rival gang. Kereopa Hune later returned in a vehicle and told the complainant to "watch his back".
[6]	At 7 pm that same evening Kereopa Hune and four associates walked past the complainant’s address. Again, there appears to have been an exchange of gang signs and Kereopa Hune challenged the complainant to a fight. The complainant said he did not wish to have any trouble, and Kereopa Hune replied by saying:

I know where you live, I’m going to burn your house down.

[7]	Kereopa Hune returned home and told his family, including the appellant and Mrs Hune, of what had occurred. As a consequence the three accused and two associates, who remain undetected, obtained offensive weapons, including a cricket bat, a baseball bat, three Molotov cocktails and a long dark object.
[8]	At about 9pm that evening the appellant drove the other two accused and the two associates to the complainant’s address further along Fleet Street. The appellant parked the vehicle on the lawn of a neighbouring property and all five got out of the car.
[9]	The victim and his family were sitting outside the front door of their home. Kereopa Hune had a cricket bat in one hand, and he and his two associates were each carrying a Molotov cocktail. These were lit and thrown at the victim, and at the house. All three hit the side of the house, one narrowly missing a bedroom window. One bounced off the side of the house and landed in a hedge dividing the victim’s property from a neighbour. The hedge caught fire. The cricket bat was also thrown at the victim by Kereopa Hune. Turuhi Hune yelled at the victim’s mother, threatening to kill the victim.
[10]	The appellant was seen holding a long object that appeared to both the complainant and a neighbour to be a firearm. The complainant, fearing for his life, ran towards the back of the property and climbed a fence to make good his escape. The appellant, co-accused and the associates then left.

The sentencing

[11]	The victim impact statements recorded the fear felt by the complainant and his mother at the time of this attack. The sentencing Judge took a view that the offending involved a significant risk to life and property, not only for the victim, but for his mother, siblings, and the neighbouring family.
[12]	In relation to the appellant she considered the aggravating features to be the use of the dangerous weapon, premeditation and his key role as the driver of the car. She noted his significant criminal history, but accepted it had limited relevance to this offending. She accepted he was to be sentenced as having an offensive weapon, not a firearm, but observed the weapon both appeared to be a firearm and was presented by the appellant as if it was. She considered it added to the intimidation of the victim.
[13]	While accepting the appellant was a party to the arson, rather than the principal offender, the Judge considered his culpability as "increased by his overall role in the offending." The Judge reached this view because the presentation of the weapon heightened the overall impact of the offending, and he was the senior male member of the family. Rather than attempting to dissuade his wife and stepson from the enterprise, he actively participated in the offending and made it possible by driving all the participants along Fleet Street to the complainant’s address. He also parked the vehicle in such a way that would facilitate flight.
[14]	The pre-sentence report indicated the appellant downplayed his role in the offending. He was assessed as having a low motivation to change, and was at moderate risk of re-offending. He had 11 previous convictions for failing to comply with community based sentences.
[15]	The Judge took the arson as the lead charge and adopted a starting point in relation to the appellant of three years and eight months. She reduced this to three years to allow for any mitigating features. A concurrent sentence of 12 months imprisonment was imposed for the offensive weapon charge on a totality basis.
[16]	The Judge took a starting point of four years and four months for Kereopa Hune as the principal arson offender, but reduced that to a final sentence of three years and three months to take account of his age and the prospect of rehabilitation.
[17]	In relation to Mrs Hune, a starting point of three and a half years imprisonment was adopted. This was reduced to two years, with leave to apply for home detention, in what was said to be a "lenient and merciful sentence". This was because of Mrs Hune’s mental health problems, which would make imprisonment harsher for her, and of the three she appeared to have the best chance of rehabilitation.

Submissions

[18]	Mr Yeoman’s submissions focused on three points. The first was that the Judge wrongly assessed the culpability of the appellant. He submitted that the trial Judge placed too much weight on the possible consequences of the two fires caused by the Molotov cocktails, rather than the actual consequences. He therefore submitted the appellant was sentenced on the wrong basis.
[19]	Next, he criticised the sentencing Judge, who made reference to the Summary of Facts at [3] of the Sentencing Notes. He submitted that the evidence adduced at trial was the only source of facts the sentencing Judge should have relied on. Further, he said the Summary of Facts included a charge not proceeded with, was unreliable and contained police assumptions.
[20]	Finally, he submitted that there was a disparity in sentencing for two reasons. Firstly, he accepted the sentence imposed on Kereopa Hune was correct, but submitted his culpability was so much greater that a sentence of only three months less imposed on the appellant had to be manifestly excessive. He further submitted this was even more the case because Kereopa Hune was already on community work for another violent offence.
[21]	Secondly, he submitted that the culpability of Mrs Hune was greater than that of the appellant. He said the psychiatric reports showed that Mrs Hune had a mental disorder, but not such as to render her unfit for trial. He said it was she that made the threats to kill. After referring to the authorities of this Court dealing with disparity of sentences, he submitted that there was no basis to impose a greater sentence on the appellant than that imposed on Mrs Hune.
[22]	Mrs Edwards submitted that the Judge’s assessment of culpability was correct. She submitted that there was evidence at trial that enabled the Judge to infer it was fortuitous that neither the victim’s house, nor the neighbouring house, caught alight. Furthermore, there was evidence that the Molotov cocktail was thrown at the victim, and the Judge was entitled to take into account the risk to life and property from the actions of the appellant and co-offenders.
[23]	Mrs Edwards also submitted that the brief reference at [3] of the Sentencing Notes, to the Summary of Facts, did not mean the sentencing Judge limited the facts to those contained in the summary. She submitted a reading of the Sentencing Notes as a whole makes it plain that the Judge was alive to the facts that emerged at trial, and had formed her own view of the evidence.
[24]	In relation to disparity, Mrs Edwards submitted that the Judge made a careful assessment of the culpability of each offender in adopting the relevant starting points. She said it was open to the sentencing Judge to emphasise the appellant’s role as driver, and to view his active assistance and failure to assert any influence to prevent the attack as serious. She submitted the stepson’s age and Mrs Hune’s mental health background aggravated this. She submitted the Judge was further entitled to see the appellant’s possession of the weapon as rendering the appellant’s offending as more serious than that of Mrs Hune, particularly in the light of the effect of the presentation of the object on the victim.
[25]	Finally, the Crown submitted that the resulting final sentences properly reflected the differences in the personal circumstances of the three offenders.

Discussion

[26]	A Judge who has heard the evidence is entitled to form his or her own view of the facts for the purposes of determining the seriousness of the offending and the appropriate penalty, provided only that the view is not inconsistent with the jury’s verdict. Nor is a Court bound to sentence on facts most favourable to an accused person (R v Heti (1992) 8 CRNZ 554 (CA); R v Hopa CA302/01 CA320/01 18 December 2001).
[27]	Section 24(1)(a) of the Sentencing Act 2002 entitles a sentencing Court to accept as proved any fact disclosed by evidence at trial.
[28]	We have had the benefit of perusing the transcript of the evidence. From the evidence of the Vitales, Mr McKenzie and Mrs Stowers, the Judge could readily infer that it was fortunate that neither the victim’s house nor the neighbouring house caught alight. In any event, it is the real risk of potential harm that is significant for sentencing purposes. This Court in R v Rameka CA426/04 16 June 2005 at [27] and [28] said:

There was a real risk of potential harm which was identified by the sentencing Judge at [10] of his judgment:

... none of you knew whether the sleep-out was occupied or not. It could have been, and there could have been danger to life. Whether or not it was occupied, there was still danger to life in that there was a house close by which was occupied and which could have been ignited as the result of this attack.

It was fortunate that there was no-one in the sleep-out and that the fire was detected and put out promptly, thus avoiding the risk of it spreading to the house approximately one metre away, occupied by the complainant and sleeping children. The appellant and his co-offenders took the risk of endangering human life. While their knowledge of the extent of the risk, may have been less than in Skeens and the other decisions referred to above, nevertheless the real risk of danger to property and to life was present. We do not consider that this can be regarded as "low level offending", as submitted for the appellant.

[29]	Furthermore in this case the evidence was that the Molotov cocktails were thrown at the complainant as well as the house. So there was potentially real risk to the life of the persons present, as well as to property. As well, there was greater premeditation in this case than some of those considered in Rameka, and the motivation for the attack was revenge. Considering the authorities reviewed in Rameka, we are satisfied that a starting point of three years eight months imprisonment was available to the learned District Court Judge, given that the possession of an offensive weapon had to be factored into the sentence on a totality basis.
[30]	We do not read [3] of the Sentencing Notes as meaning the Judge limited her consideration of the facts for sentencing purposes to the Summary of Facts attached to the Crown’s submissions. At [2] she very briefly sets out the facts of the matter, and all she is saying at [3] is that the summary sets out the reality of the offending. A complete reading of the Sentencing Notes makes it apparent that she considered all of the evidence heard at trial and properly made her own assessment of it.
[31]	In R v Lawson [1982] 2 NZLR 219 (CA), at 223 this Court stated:

But a marked difference in the sentences imposed on co-offenders, and for which no justification can be shown, may be of importance to the administration of justice generally in that such a marked and unjustified difference will tend to bring the administration of justice into disrepute. The Courts must bear in mind that public confidence in the administration of justice is best preserved if justice appears to be administered evenhandedly. It is for this reason that a disparity in sentences imposed on co-offenders may justify a reduction in a sentence imposed on one which would otherwise be appropriate.

[32]	This Court has recognised that differences in sentences imposed will often be justified and explicable. In R v K (2003) 20 CRNZ 62 (CA), this Court said at [20]:

Whilst it is vital for a sentencing Court to strive for parity in sentencing co-offenders (whether sentenced separately or together), parity will not be achieved by a simple measurement against a co-offender’s culpability. Parity means treating like cases alike and others with due regard for relative differences. It is best achieved by sentencing each offender appropriately for his role in the overall offending, in light of any relevant antecedents and taking into account any aggravating or mitigating features personal to the offender.

[33]	In this case the starting point adopted by the sentencing Judge came after a careful assessment of the culpability of each of the offenders. It was open to the Judge to emphasise the appellant’s role as driver of the car and his failure, given his position in the family, to assert any influence over his stepson or wife. His actions made this offending possible, and if he had acted responsibly it is likely it would not have occurred.
[34]	Whilst the seriousness of Kereopa Hune’s offending cannot be understated he was aged only 18, had a limited criminal background, and there were prospects of rehabilitation.
[35]	In relation to Mrs Hune’s mental illness, Mr Yeoman, in his submissions, has incorrectly focused on its impact on the offending itself. The reality is that she suffers from long standing mental health issues. Whilst in prison on remand she attempted suicide, and is subject to compulsory treatment regimes. The Judge correctly noted the greater impact imprisonment would have on Mrs Hune, given her mental health difficulties, and it was open to the Judge to conclude that the prospects of rehabilitation in her case were greater.
[36]	It appears there was little prospect of rehabilitation for the appellant given his minimisation of his role in the offending, his significant criminal history, and his poor response to community based sentences.
[37]	For these reasons, there are justified and explicable reasons for the differences between the sentence imposed on the appellant as compared to those imposed on Mrs Hune and Kereopa Hune.
[38]	The sentence is not manifestly excessive. We have not been satisfied there is any unjustified or any inexplicable disparity. The appeal against sentence is dismissed.

Solicitors
Crown Law Office, Wellington