French v R [2014] NZCA 297 (2 July 2014)

Last Updated: 12 July 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA586/2013 [2014] NZCA 297
BETWEEN	DALJIT FRENCH Appellant
AND	THE QUEEN Respondent

Hearing:	12 June 2014
Court:	Randerson, Keane and MacKenzie JJ
Counsel:	C B Wilkinson-Smith for Appellant M D Downs for Respondent
Judgment:	2 July 2014 at 2:30 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by MacKenzie J)

[1] The appellant was found guilty at trial on one count of arson. She was sentenced on 5 August 2013 by Judge Roberts to five years and six months imprisonment.^[1] She appeals against that sentence. An appeal against conviction was abandoned.
[2] There are three grounds of appeal. Mr Wilkinson-Smith for the appellant submits that first, the Judge erred in taking into account an aggravating factor that was disputed by the appellant, without resolving that dispute under s 24 of the Sentencing Act 2002. Second, he submits that the starting point is too high. Third, he submits that the Judge erred in failing to consider the appellant’s mental health issues, including a major depressive disorder.
[3] Counsel for the respondent rightly describes this as a case of troubling facts. The appellant had recently separated from her husband and was living in the former family home with her two children, aged about nine and seven at the time of the offending. The appellant intentionally lit a fire in close proximity to the closed door of the boys’ bedroom, against which she had placed bed frames as an obstruction. She had put an accelerant over furnishings in the lounge at the other end of the hallway. When the fire was lit vapours from that accelerant ignited in a vapour explosion. A fire developed in the lounge and quickly took hold and burned many parts of the house. The boys woke up and escaped out the bedroom window. The appellant was found naked and in apparent shock. She had minor injuries which were later shown to be self-inflicted. She told Police she had been attacked sexually by an intruder with a knife. She said someone had been around her property on preceding nights and that her husband had threatened to kill her.
[4] In sentencing, Judge Roberts observed that the appellant denied her guilt despite overwhelming evidence, including having been caught by her son in the process of starting the fire. He said she had no previous convictions and noted the pre-sentence report writer’s view that the appellant had lasting health and emotional problems. He described the recommendation of home detention as clearly inappropriate. He referred to a subsequent psychiatric report expressing the conclusion that the appellant has a personality disorder. He noted counsel’s submission of a longstanding issue of depression and the appellant’s claims of historic and more recent abuse. The Judge discussed a number of comparable authorities on sentence. He found as aggravating factors the seriousness of the offending; the consequential loss, both to the appellant’s husband and to the insurers; the breach of trust; and the vulnerability of the appellant’s two sons. He adopted a starting point of six years imprisonment. He allowed what he described as a notional concession of six months to reflect the lack of previous convictions, leading to an end sentence of five years and six months imprisonment.
[5] The first ground of challenge is a submission that the sentencing Judge erred in applying an aggravating factor, disputed by the appellant, namely the extent of the loss suffered by the appellant’s husband. The Judge referred to the husband’s victim impact statement and said:

[21] ... He had been given a figure of $88,000 for his payout. If the house had sold at market rate before the fire, that would have been closer, he contends, to $330,000. If the house had been sold and the money divided prior to the fire, he would have had approximately $30,000 more than the $88,000. He complains that you allowed the contents to lapse, the insurance cover to lapse to the extent that he lost items of value to him.

...

[33] The aggravating factors in relation to the offending are these.

...

(b) The consequential loss, both to your husband and to your indemnifiers. The greater part of the remaining contents belonged to your husband. They are lost to him. While you contend that he will be accommodated in future if the Family Court so orders, undoubtedly you will protract that argument as long as you can. For the moment I regard the loss as significant and I am prepared to accept for the moment, the figures detailed in Mr French's victim impact statement.

[6] Mr Wilkinson-Smith submits that the extent of the financial loss was disputed by the appellant, and that the sentencing Judge should have resolved that dispute in accordance with s 24 of the Sentencing Act. He submits that the figures were based on the husband’s victim impact statement, and that the sentencing Judge acknowledged this document had not been seen by the appellant prior to the sentencing hearing. He submits that the extent of the loss was not proved beyond reasonable doubt, being contained only in a victim impact statement with no supporting documentation.
[7] The Judge did not place particular reliance upon the figures given in the husband’s victim impact statement. The reference at [21] of the sentencing notes to the husband’s statement came in the discussion of the comparable authorities, and was not a firm finding of fact. When he dealt with the aggravating factors, at [33], the Judge did not use those figures. What was important for sentencing purposes was the overall extent of the damage, and the loss consequent upon that damage. The apportionment of that loss between the husband and the appellant, and the indemnifiers, was not a critical factor in the assessment of the extent of the criminality of the appellant’s conduct. The Judge, as the trial Judge, was in a position to assess the overall criminality of the offending. He did not, in doing so, place specific reliance upon the precise financial effect of the offending on the husband, in such a way as to require proof beyond reasonable doubt of that loss in accordance with s 24. A disputed facts hearing was not necessary.
[8] It is also pertinent to observe that while it is submitted that the figures were not proved beyond reasonable doubt, there is no evidence before either the sentencing Judge or this Court to indicate that the figures may be wrong. There is no evidential basis to suggest that the Judge may have been in error in his understanding of the overall extent of the damage when he assessed the criminality of the appellant’s conduct.
[9] The second ground of appeal is that the starting point was manifestly excessive. The appellant was charged under s 267(1)(a) of the Crimes Act 1961, which carries a maximum penalty of 14 years. Counsel for the appellant acknowledges, as this Court said in R v Z, that there is no tariff case for sentencing for arson offences.^[2] However, he submits that there are a number of decisions of this Court relevant to determining the appropriate starting point in circumstances similar to the present case. The sentencing Judge referred to the decisions of this Court in R v Grindrod,^[3] R v Rameka,^[4] R v Skeens,^[5] R v Travers,^[6] R v Z,^[7] R v Gemmell,^[8] and R v Leach,^[9] and the High Court case of R v Snoeijer.^[10] Counsel for the appellant refers also to R v Munro,^[11] R v Neal^[12] and the High Court decision in R v Meha.^[13] Also relevant are Ollerenshaw v R,^[14] Howarth v R,^[15] and the recent decision in Hayball v R.^[16]
[10] The most comparable of those cases are those involving setting fire to houses in which there have been occupants asleep. These cases include R v Munro, R v Skeens, R v Neal. and R v Meha. The starting points in those cases are either five years (in R v Munro and R v Skeens), five and a half years (in R v Meha), or six years (in R v Neal). Counsel for the appellant submits that R v Meha and R v Neal are more serious than the present case and that R v Munro demonstrates a similar level of culpability.
[11] We do not accept that analysis. The offending in this case is at least as serious as that in R v Neal.^[17] An accelerant was used. The appellant deliberately placed her two young children at risk. Counsel’s submission that she assisted them to escape from the house is not supported by the Judge’s findings. The appellant placed bed frames in the hallway. Counsel contended that the obstacle had been placed to ensure that the children left the house by the window. The Judge did not accept that, and held that the placement would have complicated access by fire fighters. Even if the appellant’s explanation was accepted, it would not diminish her culpability. She started a fire where the only means of egress for the children was through a window, which they had to break to get out.
[12] This offending is more serious in one respect than that in R v Meha. There, the occupant of the house was an adult. A more serious factor in that case is that four fires were lit over a period of two weeks. Those were all lit outside the house, where the potential for danger to life seems less likely than in this case.
[13] This offending was on our assessment more serious than that in R v Munro, where the occupants of the house were adults. In both cases, the usual exit from the house was unavailable because of the actions of the offenders. This Court described the starting point of 5 years as “well justified”.^[18]
[14] It is also relevant to note, as Mr Downs points out, that the aggravating feature in s 267(1)(a) of the Crimes Act, which attracts the 14 year maximum rather than the seven year maximum under s 267(2), is knowledge that danger to life is likely to ensue. It is the likelihood of danger, not the actual harm to the occupants, which is the relevant aggravating factor. The likelihood of danger to the two children, in circumstances where the progress of the fire may have rendered the appellant unable to help them, was high. A starting point of six years, from a potential maximum of 14 years, was not above the available range.
[15] The third ground of appeal is that the Judge gave no discount for the appellant’s mental health issues. Counsel submits that a discount of between 20 and 25 per cent should have been given to recognise those mental health issues.
[16] The pre-sentence report writer assessed the offending related factors as the breakdown of the appellant’s relationship and multiple emotional health issues. She noted that the appellant described her marriage as abusive with physical, sexual and psychological elements resulting in lasting health and emotional problems. She expressed the view that the appellant’s fragile emotional presentation meant that she will require counselling and therapy to address her complex psychological needs.
[17] The sentencing Judge also had the benefit of two psychiatric reports. The first was prepared in February 2012, to assess fitness to stand trial. That report noted a history of contact with community mental health services dating back to 1996. The appellant had been treated with anti-depressant medication, and by a clinical psychologist. The opinion expressed was that the appellant has a history of recurrent depressive episodes and severe anxiety, sometimes diagnosed as an obsessivecompulsive disorder, but that no major mental disorder was noted during the two week clinical observation period. It was clear that she had a personality disorder with mainly histrionic but also borderline traits. She was not suffering from a major mental disorder and was fit to stand trial. There were no grounds for a defence of insanity. The recommendation was that she will need further psychiatric support which can be provided in either a community or a prison environment.
[18] A second report, for the purpose of sentencing, was obtained in June 2013. That report noted a history of obsessive-compulsive disorder, a major depressive disorder with a recurrence in April 2001, and postnatal depression following the birth of her first child in 2002. Some symptoms were suggestive of post-traumatic stress disorder. She was described as needing further assessment and treatment management by mental health services. The recommendation was that there is no limitation to the type or length of sentence the Court may impose. If she received a custodial sentence, the regional Forensic Mental Health Service would continue to be involved in her further assessment, and in the management of any treatment. She would also benefit from being seen by the Department of Corrections Psychological Service.
[19] Counsel refers to s 9(2)(e) of the Sentencing Act and to the decision of this Court in E(CA689/10) v R which said:^[19]

[68] A mental disorder falling short of exculpating insanity may be capable of mitigating a sentence either because: if causative of the offending, it moderates the culpability; it renders less appropriate or more subjectively punitive a sentence of imprisonment; or because of a combination of those reasons. The moderation of culpability follows from the principle that any general criminal liability is founded on conduct performed rationally by one who exercises a willed choice to offend.

[20] The appellant’s actions are so inconsistent with a parent’s natural concern to protect his or her children that we must consider carefully whether this may be a consequence of a mental illness short of insanity which may be seen as reducing her culpability. We do not find in the reports significant support for the proposition that the appellant’s mental condition may be causative of the offending in a way which moderates the culpability of that offending, as described in E(CA689/10) v R. There is no sufficient basis to conclude that the disturbed thought processes which have culminated in this offending are the result of impaired mental functioning through psychiatric or psychological disorder. The sentencing Judge, who had ample opportunity to observe the appellant, did not think that was the case. He considered that she had set up unnecessary concerns in the minds of the children that their father meant to cause them harm, and that she was disconnected from reality. He described her as having fashioned an evil plan to deprive her husband of an entitlement. There is no basis upon which we could properly conclude that the culpability of the offending is moderated by mental health issues.
[21] Nor do we find support for the proposition that the appellant suffers from a mental disorder which would render a sentence of imprisonment less appropriate or more subjectively punitive. The report, which was specifically prepared for the purpose of assisting the Court in sentencing, concluded that there was no limitation to the type or length of sentence which the Court may impose, and that her assessment and treatment management could be addressed appropriately in the prison environment.
[22] For these reasons, we are satisfied that the Judge’s decision not to give a discount for the appellant’s mental health issues was a proper exercise of his discretion, and that the sentence is not manifestly excessive.

Result

[23] The appeal against sentence is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v French DC New Plymouth CRI-2012-043-313, 5 August 2013.

^[2] R v Z CA138/00, 27 June 2000 at [6].

^[3] R v Grindrod CA263/99, 20 October 1999.

^[4] R v Rameka CA426/04, 16 June 2005.

^[5] R v Skeens CA341/01, 26 February 2002.

^[6] R v Travers CA267/96, 15 November 1996.

^[7] R v Z, above n 2.

^[8] R v Gemmell CA257/96, 2 October 1996.

^[9] R v Leach CA50/98, 18 June 1998.
^[10] R v Snoeijer HC Wellington CRI-2008-035-2274, 5 March 2009.

^[11] R v Munro CA132/02, 24 July 2002.

^[12] R v Neal [2008] NZCA 327.

^[13] R v Meha [2013] NZHC 2957. This case is presently under appeal to this Court.

^[14] Ollerenshaw v R [2010] NZCA 32.

^[15] Howarth v R [2010] NZCA 523.

^[16] Hayball v R [2014] NZCA 237.

^[17] R v Neal, above n 12.

^[18] R v Munro, above n 11, at [11].

^[19] E(CA689/10) v R [2010] NZCA 13, (2011) 25 CRNZ 4 (footnotes omitted).