R v Knape [2017] NZDC 2997 (15 January 2017)

Last Updated: 3 May 2017

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED.}

IN THE DISTRICT COURT AT INVERCARGILL

CRI-2016-025-002202 [2017] NZDC 2997

THE QUEEN

v

_{JOHN WILLIAM HENDRUM KNAPE}

Hearing:	15 January 2017
Appearances:	K Allen for the Crown R G R Eagles for the Defendant
Judgment:	15 January 2017

_{NOTES OF JUDGE M J CALLAGHAN ON SENTENCING}

[1] John William Knape, you appear at age 52 for sentence on a charge of intentional damage by fire, which carries a maximum sentence of 14 years’ imprisonment.

Facts

[2] The facts are that since January 2016 you and the victim of this offending have been in a dispute which did result in police involvement. On 27 October you were at your home, and some empty beer bottles and boxes had been left near your front door area. You formed the belief that the victim was responsible and you then walked to the police station to talk to the police about the matter.

[3] When asked to wait at the police station, you refused to do so and you left,

_{saying that you would sort the matter out yourself. You then walked to the victim’s}

R v KNAPE [2017] NZDC 2997 [15 January 2017]

address after stopping at an associate’s address. You arrived at about 12.15 pm and you attempted to rouse the victim by banging and knocking on the front door and looking through the house windows. You realised that he was not home because his car was not there as well. You then picked up a plank of wood and used it to smash a front window in the house and you then climbed into the lounge. You picked up some newspapers and you then lit the newspapers and threw it on the floor. The lit paper started a fire in the room. You then tried to leave, but because the front and rear doors were locked, you had to leave hurriedly through the window that you had broken to enter into the property. In the course of that, you suffered a cut to your left wrist which left blood at the point of exit.

[4] The Fire Service were alerted at about 12.41 pm when the house was well ablaze. The house suffered significant damage and is no longer inhabitable.

[5] When spoken to, you admitted setting the fire but stated that you had gone to the address to assault the victim and not intended to set the fire, and that you had set the fire because you thought that that would fix him by burning down his house.

Restorative justice

[6] You were referred to restorative justice and the victim declined to attend.

Previous history

[7] You have a previous relevant conviction in 2016 for wilful damage where the victim was the same. Prior to that, you have got some previous convictions, but they are of some age.

Victim impact statement

[8] The victim has filed a victim impact statement which I have read and considered. He has been destroyed both emotionally and financially as a result of your actions. He had no insurance and lost everything, including family treasures, art works and all personal items, and he estimates the loss to be in the vicinity of

$100,000. The house and his place to stay has also been lost. He lives in fear of you because of the animosity that you bear towards him.

Pre-sentence report

[9] I have also read the pre-sentence report which was prepared. In that, you accept responsibility for what you did. That report clearly indicates that you have got no remorse for your actions and it recommends a sentence of imprisonment. In actual fact, in respect of the remorse issue, you say in the pre-sentence report that the victim deserved what happened to him.

[10] A psychiatric assessment was carried out on 6 December 2016 but that shows that you have no acute mental or mood disorders, paranoia, or delusional symptoms, although, as Mr Eagles has said today, there is of some concern as to your lack of remorse and empathy, as it indicates that there might well be some underlying issues that you might have.

Submissions

[11] The Crown have filed submissions, as has your counsel. There are aggravating aspects that the Crown says make matters worse for you. Firstly, there is the unlawful entry into the dwelling by breaking a window to gain entry. There is the extent of the loss; not only has this victim lost his home, but all the items that he has accumulated over the years, including matters which had quite significant sentimental value to him. He was a vulnerable victim and he is now in fear of you. There was risk, not only to him but also to fire fighters, by setting the fire, and this was an act of revenge, seeking retribution for what could only be described as a minor incident involving some beer bottles or boxes left on your property; and it was the second the act of retribution within a period of seven weeks.

[12] There is also the aggravating factor that that second incident is the same victim.

[13] In mitigation, or a factor that goes in your favour, is the fact that you did plead guilty at an early stage. The Crown, with reference to a number of cases which I have considered, says that a starting point of four years’ imprisonment would be the relevant starting point for you, taking into account the loss and the level of spiteful revenge which motivated this offending.

[14] Mr Eagles has also filed written submissions and has spoken to them today. He says that there was not an intention to light this fire, that your intention when you left the police station after failing to have your complaint noted was that you intended to assault the victim, and the setting of the fire was secondary to that intention and only arose when you saw that the victim was not at his home.

[15] As to your personal circumstances, he said that you are single, you have no known associates, and you have limited family contact. He says that there may well be some significant psychological underlying aspe cts because he is at a loss to explain why you have no remorse.

[16] He also refers to a number of cases and says that I should step back from the starting point that the Crown estimates. He says that a starting point of three years would be appropriate. He refers me to cases where starting points between

17 months and four years have been imposed. He says that the distinction here is, firstly, that in many of the cases the intention at the outset was to set the fire, whereas here your intention was different, and there was no premeditation as such to go and set fire to the place; and also the amount of loss which is probably, he says and quite rightly so, fortunate for you because the value of properties where the location of the fire occurred, is less than it would be in other parts of the country.

[17] He suggests that the starting point of three years is a more appropriate starting point.

Purposes and principles of sentencing

[18] In sentencing you, I have to hold you accountable for your actions. You set out to do something and that was assault the victim, but that changed only because

the victim was not at home. I need to promote in you a sense of responsibility and I must take into account the interests of the victim here; he has suffered substantial loss, including both emotional harm, and also the loss of his house and all his possessions. I have to take into account and I have to denounce your conduct and deter you and others from doing so. I have to protect the victim and I have to consider your rehabilitation and reintegration into society.

[19] There are no tariff cases for arson. The guidelines in respect of sentencing you are on a case by case basis and I have to be consistent in sentencing you.

[20] The matters that make things worse for you are that there was an unlawful entry into this property, there is the extent of the loss that has occurred, and there is the victim vulnerability.

[21] In respect of reparation, I have to take into account your ability to repay or pay any reparation. The claim here is for the loss of the house, the land, and buildings, and also all of the items that were lost, which are estimated to be

$100,000. As to the claim for the loss of the property, I can only impose reparation for the value of the house, because the land is something which exists whether the house is on it or not. In terms of your ability to pay, I am told that your house is subject to a ratings sale and that the ratings sale has been put in place and that you may have little or no money to pay any reparation, although the sale of the property may result in some money being available to be put towards a reparation figure.

[22] As to the amount of the loss of chattels, I have nothing before me that substantiates the victim’s stated loss of an estimate of $100,000. I have to be satisfied that that is the actual loss, and without any further evidence before me, it would be wrong for me to accept an assessment of that figure without any specific information being put before me. Normal house amounts of chattels in any society would be approximately $15,000, and I am minded to impose that for the loss of the contents of the property.

[23] However, I will assist the victim by awarding a sum for emotional harm loss.

[24] In terms of matters that are in your favour, there is also the fact that you pleaded guilty immediately.

[25] While you did not set out to burn down the victim’s house, you were intent on causing him harm and distress. Because you could not physically attack him, you attacked his property, with devastating effects for him.

[26] There is that previous incident which occurred where you destroyed his motor vehicle because of this perceived dispute between you both. He has done nothing to warrant this lawless act of revenge.

Starting point

[27] Taking into account all of the aggravating factors that I have mentioned, including the loss that the victim has suffered, your lack of remorse and the fact that reparation is probably a forlorn hope for the victim, a starting point of three years and six months is warranted.

[28] I have reached that starting point because I am concerned that the starting point advocated by the Crown is too high. If there were some psychological factors which impacted upon your rationale and reasoning for committing this offence, it might well have been a little lower, but because I do not have that information, that is the appropriate starting point.

[29] You must get a discount for the guilty plea of 25 percent. That would mean that the end sentence would be one of two years and seven months’ imprisonment.

[30] In terms of reparation, as I have already canvassed, I am going to order reparation.

Result

[31] In respect of the charge of arson, you will be sentenced to a sentence of two years and seven months’ imprisonment.

[32] You are also ordered to pay reparation for loss of the house and contents in the sum of $38,000, and you are further ordered to pay reparation by way of emotional harm in the sum of $15,000. The total amount of reparation will be one of

$53,000.

M J Callaghan

District Court Judge