R v O'Brien DC Wellington CRI-2011-091-4225 [2012] NZDC 524 (5 April 2012)

Last Updated: 3 January 2020

IN THE DISTRICT COURT AT WELLINGTON

CRI-2011-091-004225

THE QUEEN

v

DYLAN O'BRIEN

Hearing: 5 April 2012

Appearances: V C Brewer for the Crown C J Tennet for the Prisoner

Judgment: 5 April 2012

NOTES OF JUDGE B DAVIDSON ON SENTENCING

[1] Mr O'Brien, you appear for sentence on 2 charges of arson.

[2] Both occurred on 26 November 2011. During the first, you set fire to some bushes at a park in close proximity to 2 houses. The fire had several seats. There was substantial fire damage to the fence line area, but luckily no damage to either of the nearby houses, most likely because of intervention from emergency service workers.

[3] You then went to a flat, where your brother had been living. You disarmed the smoke alarm and set fire to linen in a cupboard using a cigarette lighter. You watched the fire take hold before leaving the house. You, however, remained in the area to watch the emergency services tackle the fire. The fire caused substantial damage to the house, estimated at between $90,000 and $110,000.

R V O'BRIEN DC WN CRI-2011-091-004225 [5 April 2012]

[4] You were arrested soon after and you have been in custody since, a period of around 4 months.

[5] The victim impact statements show that the owners of the flat have been badly affected, both financially and emotionally. Although their insurance claim has been accepted, they have out of pocket expenses of around $3,400. The owner of one of the houses adjacent to the park is scared and apprehensive. The fence line to their property was damaged. The local District Council had to spend around $750 replacing a garden area.

[6] You have a moderate list of previous convictions over a 2 year period from 2009 to 2011. Some of your convictions are for property offending and others for non-compliance. You faced a charge of arson in the Youth Court. You had been jailed in July 2011 and this offending arose while you were on release conditions.

[7] You are aged 20. Prior to your remand in custody you were on a sickness benefit and flatting. You have had a fractious relationship with your mother and brother, but you usually turn back to them in any time of need.

[8] You have some community support. There is a home detention proposal through an adult friend who has known you for some years. However, there are concerns expressed by the Crown, the probation officer and the local police about the ability of the proposed home detention sponsor to control you in the community. Nevertheless, professionals believe that you can survive in the community, with your risk to the community managed by very close monitoring.

[9] You have obvious issues with alcohol, drugs, impulsivity and your mental health. Both the psychiatric report and the drug and alcohol assessment conclude that you require very intensive management. The psychiatrist says of you as follows:

Mr O’Brien is a young man who is presented with arson in the context of ADHD and possible autistic traits, as well as a history of unstable attachments and lack of a constant caregiver. The management of his risk will be multifactorial, primarily requiring a stable environment with opportunity to build up trusting relationships, alcohol and drug service input, psychology input regarding socialisation and self-esteem and continued

medication for ADHD. However, without a stable environment, all other measures are likely to fail.

[10] You are said to be remorseful. You have a degree of insight to your offending. You are obviously intelligent. I have read all the letters that you have written to various judges over the last few months.

[11] The aggravating features of your offending are self-evident. Clearly it was inherently premeditated. You obviously have a prurient interest in fires. The arson of your brother’s flat caused very substantial damage. The offending occurred while you were on release conditions; and, of course, arson carries an ever present risk to life and property.

[12] By way of mitigation I take into account your age, your plea of guilty, your remorse, your insight, your willingness to undertake appropriate rehabilitation programmes. As I observed at the sentencing indication hearing, there undoubtedly is room for a rehabilitative approach, as long as public safety can be promoted.

[13] The Crown submit that the appropriate starting point is imprisonment of around 3 years. The Crown acknowledge that if there was a credible and very controlled home detention proposal, then you may be able to be released into the community. At the moment, the Crown believe that such controls and measures do not exist.

[14] Your counsel, in written submissions, had asked for a very short sentence of home detention, noting that the current sponsor had indicated the availability of her address for a few months only. Mr Tennet has resiled from that, somewhat accepting that if home detention were to be considered, it would need to be for a longer period. He submits that you can be managed in the community and you should be tested sooner than later.

[15] All of what I have just said to you, Mr O’Brien, was debated at the sentence indication hearing in late February this year. At the time, I was concerned about the lack of information about you, but that is now remedied, of course, by the drug and

alcohol assessment, the pre-sentence report and the psychiatric report. All of that tells me that your management in the community must be intense.

[16] I have little doubt that the starting point sits at 3 years’ imprisonment. I have already indicated that at the sentence indication hearing. You are entitled credit for your remorse, your willingness to undertake any directed treatment and the difficulties that you have faced in your life. After credit for those features and your pleas of guilty, any end sentence of imprisonment would sit at around 20 months. You have been in custody for 4 months, the equivalent of 8 months of that period. In a very broad sense, you owe about a year’s imprisonment, or its equivalent, for sentencing on these charges.

[17] What I have decided to do, Mr O’Brien, is this. I have decided to sentence you to a short sentence of home detention on the less serious of the 2 charges and to adjourn the other matter, with bail, to be reviewed at the end of that period. You need to be under no illusions whatsoever. If you re-offend, or breach the home detention sentence, then it will come back to haunt you and you will go back to prison and serve out the sentence which I have already mentioned. I cannot be any clearer than that. I know you have real difficulties. All I have read tells me that, but it is time for you to try and make the best of the programmes that will be offered to you.

[18] Mr O’Brien, in respect of the charge of arson relating to the properties adjacent to the park (CRN No. 4651), you are sentenced today to home detention for 2½ months. The home detention residence is at 30 Ruapehu Street, Paraparaumu. You are to travel directly to that address from Court today and co-operate in the installation of the electronic monitoring equipment relating to the sentence. There are standard and special conditions during the period of detention, that is, for the next 2½ months. The special conditions are as follows:

• (a) That you undertake such drug and alcohol assessment treatment and counselling as may be directed.

• (b) That you undertake such psychological and/or psychiatric treatment and counselling as may be directed.
  
  • (c) That you do not possess alcohol or illegal drugs.
    

[19] On that charge, you are ordered to pay reparation of $250.

[20] There are no post-detention conditions because, of course, the matter will be reviewed by me on the other charge. On that charge you are remanded to 15 June 2012 at 2.15 pm for sentence. You are allowed bail with conditions as follows:

• (a) You are to reside at the home detention address.
  
• (b) You are to abide by all the conditions of your home detention sentence.
  

[21] I ask for a supplementary pre-sentence report addressing compliance and future sentencing. I also ask for a reparation report in relation to his ability to meet any reparation on that particular charge.

[22] Mr O’Brien, I cannot be any clearer. It is entirely over to you. Your lawyer has done everything he can. I have done everything I can. Now it is your turn.

B Davidson

District Court Judge