R v Locke [2016] NZDC 25977 (19 December 2016)

Last Updated: 9 March 2017

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED.}

IN THE DISTRICT COURT AT AUCKLAND

CRI-2016-092-002742 [2016] NZDC 25977

THE QUEEN

v

_{CHRISTINA LOCKE}

Hearing:	19 December 2016
Appearances:	H Clark for the Crown L Burns for the Defendant
Judgment:	19 December 2016

_{NOTES OF JUDGE A E KIERNAN ON SENTENCING}

[1] Christina Locke, you are here for sentence on a number of criminal matters as you know. The most serious is an offence of arson, 14 year maximum penalty. That occurred on 21 December last year, so almost a year ago. Then there is a receiving from 28 December, seven year maximum. There are then a great number of other dishonesty offences from the North Shore and the Manukau Courts. There are four offences of using a document, two of receiving, two of possession of a pipe and you have today pleaded guilty to receiving, being reckless, a car and also four breaches of bail. So today I am going to sentence you for all of those matters.

[2] The most serious is, of course, the arson. I am just going to refer to the facts for that offence. 21 December last year you were living at Taurus Crescent in Birkdale. In the afternoon you were at home having let your children go and stay somewhere else. You went to one of the bedrooms, lit a fire when things caught light

_{you left the house and went somewhere else nearby. While you were away, the fire}

R v CHRISTINA LOCKE [2016] NZDC 25977 [19 December 2016]

caught hold, passersby called the Fire Service who fought the fire which burnt the house down. It had to be demolished and the site at the time this was written is now bare. Reparation is due in principle to Housing New Zealand.

[3] While the fire was being put out, you came back there and were spoken to by the police and you have provided a statement saying that you had received a threat just before the fire was set and you had left the house to see a friend to discuss the threat. There was a production order done on your phone and there were text messages, according to the summary, found on your phone messaging other people telling them that you were setting the fire. There is also a note about an interview that you gave to the police. You said that the fire was started by another person, a man, and there is reference to previous convictions.

[4] There is a claim in principle for reparation. You are not in a position to offer that. The cost of the demolition was over or almost $62,000. Loss of rent, obviously, from House of New Zealand property almost $20,000 and the estimated cost of the rebuild, $250,000.

[5] The victim impact statement points out that Housing New Zealand, of course, provides houses for people who need the subsidized homes and clearly this property once you had burnt it was not available for you or, indeed, anybody else to live in.

185,000 people across the country, the statements says, live in their properties. So, as you know, they are a social housing provider and they are an important part of the organisation of housing in Auckland.

[6] There are summaries in respect of the other offences prosecuted by the police. The receiving in December was a laptop that was taken from a car in Glenfield. It was found at a motel room that you were at on 28 December. The summary in relation to the other matters from Manukau details a number of checks that you used from a stolen cheque book. The car was taken at the end of last year and valued at approximately $9000. You said at the time about the car, you had bought it from someone else for about $650.

[7] The offences of possession of the pipe speak for themselves and you have pleaded guilty to most of those other offences at a much earlier stage. The arson plea came on 26 October this year. You were first in Court for that matter, I think, early in January.

[8] I have got a list of your previous convictions. They go back some years, as you know, Ms Locke and significantly there is a gap and it seems to me from what I have read that you went to Australia for some years. There are a number of dishonesty convictions on there and I am going to, of course, add to them today with the matters you pleaded guilty to from the end of last year and the beginning of this year. So I think altogether there are over 30 convictions at present. Most of them are for dishonesty. I think 26 of them for dishonesty, none for anything as serious as arson.

[9] There are three probation reports that I have read. You have heard me discuss them with your lawyer, Mr Burns, 7 April, 22 August and 28 November. So the information in those reports tells me about your own personal background, your family history, that you are the mother of some seven children, that you moved to Australia in 2009 and stayed there until 2013.

[10] In those reports and indeed in Mr Burns’ submissions and also in the letter that you wrote to the Court addressed to a previous lawyer but provided or intended for the Court, you say that in 2015 you were raped by a gang member and this happened before your offending - both the dishonesty offending and also the arson. You told the probation officer that you had been traumatised by that event and that needs, the probation officer points out, to be addressed in due course.

[11] You attribute drug dependency and, indeed, the dishonesty and arson offending to that event in your life and I will mention more about it shortly. The reports also tell me that, looking back, you are sorry about the arson. You burnt the house, you say, to wipe all memories of the rape away. You lost your own property or some of it, obviously, in that house including important family things that you would have liked to keep if you had been thinking clearly.

[12] The recommendation in all the reports is for a term of imprisonment. Your previous history of dishonesty is noted and also the need for you to address grief and also drug dependency issues in the future. No restorative justice conference has been able to be held for any of these matters. I am told that you would have participated in that if that had been available.

[13] Crown have filed submissions in relation to the arson. They suggest a starting point of some four years’ imprisonment and 15 percent reduction for your plea given the time at which it came. They identify some planning, obviously the extent of the damage and the risk of harm to others as important factors. There is no tariff standard for arson, sentencing, every case depends on its own facts.

[14] The Crown have pointed to a number of other decisions in particular Erickson v R1, R v Gilchrist2, Grindrod and Christie3 which I have read and also R v Z4. All very different. The only common factor is, of course, a building was burnt albeit for different results. Some more serious but the Crown suggests that looking at that spread of offending, a four year starting point would be appropriate in your circumstances.

[15] They stressed the guilty plea did not come at the earliest opportunity and it was a strong Crown case given the texts on your phone setting out exactly what you were doing. There is mention in the Crown submissions to the rape issue and an investigation following information that you gave to the police. The fact is no one has been charged with that event and there has been an investigation. So as Mr Burns points out, it is not something that you have come up with recently to justify your behaviour. It is something that you stated at the time, at least at the end of last year. But there has been no progress in the police inquiries on the information that you provided.

[16] Sergeant Horsley appears for the police today for the drug and dishonesty matters. He asks the Court to think of a starting point perhaps in the region of nine

1 _{[2012] NZCA 449}

2 _{CA 429/90}, 15 April 1991

3 _{CA263/99 CA 268/99 20 October 1999}

4 R v Z CA 138-00, 27 June 2000

months for all of those matters taken together. He acknowledges there is no prospect of reparation and, as you have heard me say clearly, that offending appears to have been to feed the drug habit.

[17] Mr Burns, on your behalf, ask the Court to start at three years for the arson. He agrees with the 15 percent discount. He has also pointed to other cases, Ericson, as the police have, but also Lockley v R 5, Coxson v Police6, and McCormack v

Police7. Again, different circumstances but helpful authorities.

[18] Mr Burns has emphasised the fact that there really is no explanation for the arson other than your own explanation of trauma from past events and, in particular, things that might have happened at that house. He says that is the only motive that could be attributed. Well, the Court does not have to decide on a motive. Ms Locke, you have accepted responsibility and you have given as part of the reason for the arson a traumatic event.

[19] As to risk, he acknowledges that there must have obviously been a risk to neighbouring properties. He has mentioned, as I do, the letter you have written to the Court some time ago now explaining your behaviour, both the dishonesty and the arson, to do with that trauma and the resulting drug dependency. As to the dishonesty offending, Mr Burns suggests looking at all of them together, a six month uplift would be sufficient.

[20] I have read all of the material, Ms Locke, that the lawyers have given me and all of the information I have about you in the papers, including the probation report and the previous convictions. The clear picture for the Court is of someone whose life was clearly out of control at the end of last year and beginning of this year. Obviously, much of this offending was on bail and is clear on the surface, anyway, that there must have been a drug dependency.

[21] In respect of the arson the aggravating features, or what makes it worse, are obviously there was some planning, your children were not at home. You set the fire

5 _{[2011] NZCA 439}

6 _{HC DUN CRI-2011-412-000009 7 April 2011}

7 [2012] NZHC 2970

and then left and there is, it seems, some evidence from your phone telling people what you have done. So to some extent there is planning. There was a risk of harm to others. It is a built up suburban area and it is very fortunate that no one was hurt. Clearly, the extent of the damage I have to take into account, the house was completely burnt down and has to be rebuilt.

[22] As far as the dishonesty offending is concerned all of it, pretty well, was on bail and you have those number of previous convictions for dishonesty. In your favour, for all matters guilty pleas. On the arson, in my view and Mr Burns agrees with this, discount of 15 percent reduction for the plea. For the others, I am going to give you a 25 percent. That is the highest discount I can give even though you have only, today, formally entered pleas to the receiving of the car and the breaches of bail. I will give you some further small discount for the background personal issues, if I put them like that, that you have made clear to the police and the probation officer.

[23] Principles and purposes of sentencing are punishment, deterrence, consistency with other cases, protection of the public, and that is in respect of the arson in particular but also the dishonesty offending, and the least restrictive outcome. The starting point I am going to take for the arson which includes the aggravating features is three years and six months’ imprisonment. I am going to allow you 15 percent off that starting point. So that takes it down to under three years, two years, 11 and a half months, I think.

[24] I need to impose a cumulative sentence in respect of all the dishonesty and the two drug matters. The overall starting point for all of those, looking carefully at the offending and including the fact that they were on bail, I am going to take as 18 months imprisonment. It cannot be any lower than that, Ms Locke, given your history and the repeated offending on bail. I will give you a discount then, from that starting point which would bring a final sentence down to under 14 months imprisonment. So it is two years, 11 and a half months plus 14 months. That takes it to 48 months or so altogether which is four years. I am going to look at the totality of the offending and also give you a small discount for those personal background features.

[25] So if you stand up now, please, Ms Locke. In respect of the offending overall, the term that I am going to impose is three years and seven months’ imprisonment. So it will be up to the Parole Board in due course to decide when you are able to be released if it is before the end of that sentence.

[26] Arson sentence, 3 years’ imprisonment.

Receiving CRN ending 0152, 7 months’ cumulative on 3 years.

Other offences as listed, 7 months concurrent with CRN 0152 and cumulative on the arson: viz,

Receiving CRN ending 1085

Bail Breach “ “ 3035

Bail Breach “ “ 3036

Bail Breach “ “ 4716

Bail Breach “ “ 4722

Using a document “ “ 1080

Possession pipe “ “ 1086

Possession pipe “ “ 1088

Using a document “ “ 1083

Using a document “ “ 1084

Using a document “ “ 1082

Finally, in respect of:

Receiving CRN ending 1079

Receiving “ “ 1081

2 months imprisonment concurrent with 7 months, but cumulative on the arson.

A E Kiernan

District Court Judge