Police v McMaster [2017] NZDC 6155 (16 March 2017)

Last Updated: 1 August 2017

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED.}

IN THE DISTRICT COURT AT NELSON

CRI-2016-042-002360 [2017] NZDC 6155

NEW ZEALAND POLICE

Prosecutor

v

LEVI JENSEN MCMASTER

_Defendant

Hearing:	16 March 2017
Appearances:	Sergeant C Stringer for the Prosecutor C P Stevenson for the Defendant
Judgment:	16 March 2017

_{NOTES OF JUDGE A A ZOHRAB ON SENTENCING}

[1] Mr McMaster, you are aged 20, appearing for sentence on the following matters. There are 26 charges in total spanning seven separate offence dates.

[2] From 6 June we have got charges of theft of a motor vehicle and damaging a car by fire. Then from 6 September, breach of post-detention conditions, a charge of theft of a motor vehicle and also a charge of damaging that motor vehicle by fire. Then from 21 September, there is a modest theft of some loose change, theft of a motor vehicle, theft of some tools, theft of a wallet, unlawfully getting into a motor vehicle, theft of a car, unlawfully getting into a car and then damaging a car by fire. Then from 24 September, a charge of breach of community work. From

27 September a charge of breaching post-detention conditions. From 6 October there is a charge of theft of some petrol containers, theft of a motor vehicle, interfering with a motor vehicle, another charge of interfering with a motor vehicle, a

_{charge of theft of some wallets and credit cards, unlawful interference with a motor}

NEW ZEALAND POLICE v LEVI JENSEN MCMASTER [2017] NZDC 6155 [16 March 2017]

vehicle, another charge of unlawful interference of a motor vehicle, a charge of theft of some items, a charge of theft of some cash and then a charge of theft of some fuel containers. Then from 19 November, theft of some items from a car.

[3] In terms of the maximum penalties available for this offending, they span anything from three months for the most modest theft, or breach of community work, through to seven years’ prison for the lesser form of arson, and also for the theft of the motor vehicles as well.

[4] In terms of the facts, I would ordinarily at this stage read the summary of facts to remind you about the offending that you are for sentence, and also so that others present can be aware of the basis on which sentencing is taking place, but the summaries of facts would take me a considerable period of time to read.

[5] The summaries basically involve you, with another person, for the majority of this offending, but that is not an excuse, that you have been involved with him as an offender before, so you cannot say that you have been overly influenced by this person because you have chosen to associate with a person with whom you have offended with previously.

[6] This offending involved you on occasions taking motor vehicles, and then destroying the motor vehicles to, presumably, minimise the chances of your being caught by disposing of any forensic evidence. But despite that being the seeming purpose of the torching of the motor vehicles, you and your co-offender have recorded each other driving in the vehicles on phones, and also burning the vehicles.

[7] So, fortunately that meant there was not too much scope for argument about some of these charges because there was some pretty compelling evidence.

[8] As well as on occasions stealing vehicles and torching them to avoid being apprehended, you have also stolen items from the vehicles and have damaged the vehicles. You have also breached community work and you have also breached post- detention conditions which were designed to assist you in avoiding further offending.

[9] There has been a significant impact upon the people who you have offended against. I have had to read 15 separate victim impact statements. They are from a range of people, some young, some older, some well-off financially, others less well-off. There are some pretty common themes in what they had to say as well as the financial loss which is significant for some. For someone, for example, who has a modest motor vehicle valued at $1500, that was their only asset and they have lost that. They do not know how they are going to be able to replace it.

[10] There was a man there who had a business. He had four people he had working for him. As a result of your taking and damaging his vehicle by fire, that meant that his four employees were without work for four days with considerable inconvenience to the business.

[11] There is one person who said in the victim impact statement that they were physically ill when they saw what you had done to his vehicle.

[12] There is a 67 year old woman of modest financial circumstances who has had to be put to the cost of paying for her excess, getting a new warrant, travelling to Christchurch. But what really upset her was that seated in the back of the car that was taken by you and your mate, was a box of family toys. They were just little plastic animals, but over several generations children have played with these plastic animals and she no longer has those. So nothing of any real financial value, but huge sentimental value.

[13] There was another family on an extremely tight budget, they had several children. Not only do they have to pay for their excess to car, there was about $3000 to $4000 worth of items which they lost which they did not have insurance for.

[14] We have got people repeatedly in the victim impact statements saying that their children are frightened that baddies might come to their house.

[15] Also we have got people who are frightened, these are adults, who are frightened when the wind, for example, blows a security light on, and they think that there is someone coming to steal their car.

[16] We have got people who, at the sound of any noise, getting up in the middle of the night going round and checking the doors, checking the windows. We have got children who are scared because, as I say, they are worried about bad people coming into the house, and doing something bad to them.

[17] So we have got people who are suffering from insomnia who cannot get to sleep. They are traumatised by it and they are lying in bed feeling quite vulnerable. There are people who are worried about their elderly neighbours next door, and there are people who are worried that Mapua is no longer the safe place that it used to be.

[18] I thought I should read those to you, but I suspect it is not going to have much impact upon you. The reason for that is because on the last occasion when Judge Russell dealt with you, he read six victim impact statements, detailing the significant impact of the offending upon those people. Also through the Youth Court process you have attended family group conferences and you have had victim impact statements read, you have had people write letters of apology for you, and so the reason why I suspect it is going to have little impact upon you, is because having heard from victims previously, I do not understand why it is that you have gone off and victimised all of these people.

[19] It is suggested in the probation officer’s report, and also in counsel submissions that you were perhaps influenced by this co-offender, but I cannot accept that because you have offended with him previously. If he was a bad influence, then you should have chosen not to associate with him, but you chose to associate with him.

[20] So that is something I have got to factor into the equation, the impact of your offending on all of these victims. It would take me a long time to go through each of these victim impact statements and highlight how it has affected the individuals and their families. I have just highlighted the major concerns which they have expressed.

[21] In terms of sentencing today I have got quite a bit of material about you. I

have got a probation officer’s report which tells me about your background and

circumstances. The probation officer’s report recommends a sentence of

imprisonment, together with reparation.

[22] As far as reparation is concerned, a half share of the damage, and this is very much a minimum estimate because there are all sorts of other costs that people have been put to that have not been claimed for, is $43,731, a half share of the cost of just putting right the physical damage.

[23] I have submissions in a written form from your lawyer. He suggests in his written submissions that three and a half years might be an appropriate start point. Today in oral submissions he was suggesting that four years might be an appropriate start point, before various credits. He reminds me of your youth, your early plea of guilty. He wonders about the sense of whether or not reparation is appropriate.

[24] I also have a letter from yourself explaining some of the circumstances immediately before this offending and I acknowledge, I am not going to go through those matters in open Court, but those matters would have had a significant impact upon you as well. You also in that letter express some desire to work on a dairy farm in the future and have thanked me for taking the time to read the letter.

[25] In terms of fixing a start point for this offending, which I have to do, I bear in mind there are no tariff cases, meaning there is no set rate for this sort of offending, and as best I can, given the scale of the offending, given that this took place between

6 June and 19 November, and there were many victims and many different types of offences, given we have got the arson, a lesser form of arson, we have got the taking of motor vehicles and also the other dishonesty.

[26] I have had to look to some other cases for some guidance as far as the arson charges are concerned. I have looked at the decision of Solicitor-General v Lyell1 and there the prisoner in that case was sentenced in relation to a fraudulent claim in relation to insurance claim where he torched his own car as it were. There was a

_{discussion within that case about arson and the appropriate sentences for arson. In}

1 Solicitor-General v Lyell [2009] NZCA 137

that case they referred to the cases of R v Thompson2 and R v Gilchrist3. Obviously those cases involve the more serious form of arson with the 14 year maximum, but there was some discussions there about sentencing for arson generally and they said that there is no tariff case, that is there is no set rate, given the various range of circumstances, but they did note obviously that arson is regarded a very serious offence.

[27] I looked at the decision of Gray v Police4, and that was a decision of Wild J from 27 July 1999, and he identified, and there was no adverse comment by the Court of Appeal in the Lyle case when they were looking at that, he identified a 16 to

18 month start point of a prison sentence being appropriate for a single offence of a deliberate setting fire to a car.

[28] What we have got in this case is three deliberate setting fires to car. We have got the three thefts, plus we have got all of the other associated offending.

[29] As best I can, I have got to fix a start point which takes into account the lead offences, namely the three lesser forms of arson, the multiple thefts of vehicles, the multiple unlawful interferences, and matters of that sort. Doing the best I can, I would have thought that three years and six months is appropriate as a start point.

[30] As I say, it is not an exact science, but that is the best that I can do taking those as the lead offences, and taking into account the scale of the offending, and the impact upon your victims, and matters of that sort.

[31] So three years and six months, in my view is appropriate. There should be an uplift to reflect your prior history. It should not be a double punishment situation, because you have already served your sentence in relation to those matters. So I will

_{uplift it by four months which would then take me to 46 months.}

2 _{R v Thompson}2 _{CA383/95, 23 November 1995}

3 _{R v Gilchrist CA 429/90, 15 April 1991}

4 Gray v Police HC Wellington AP139/99, 27 July 1999

[32] I can give you some credit for your youth, but it will be minimal and it is fast running out with this further offending. I will give you four months, so that then takes me back to the 42 months.

[33] There is no scope for any other credits. Often I would be looking at credits, for example, for an offer of reparation and the ability to pay reparation. Regrettably at the age of 20 you have got a significant criminal history both in the Youth Court and in the adult Court, people are hardly going to be crying to employ you, so it is going to make it difficult for you to get employment.

[34] Also you have got $12,000 of outstanding reparation from earlier offending as well.

[35] To your credit you have been paying off reparation, but it is still going to take a significant period of time for the previous reparation to be paid.

[36] I am going to order reparation, but it will only be a contribution towards the reparation. I do not want to get peoples hopes up, it is not that I do not think you should pay reparation, but what the cases say to me is that any reparation order should be able to be paid within a reasonable period of time. If I were to order you to pay the $43,000 reparation, to be added to the $12,000 outstanding, it is simply not going to be paid, and I am not saying that you should not pay it, but the reality of the situation is that you would not be able to pay it.

[37] So as far as each of the victims are concerned who are seeking reparation, I

am going to order you to pay 25 percent of the reparation, so 25 percent of the

$43,731 and I will apportion that separately for each of the victims.

[38] I cannot, as I say, give you credit for that in terms of a discount from your sentence because, as I say, you have got $12,000 to pay already, before any of these victims receive any of the money from you.

[39] In terms of further credits, Mr Stevenson asks for the full 25 percent. I

appreciate that this is a pretty large file and it would have taken a number of

attendances. Balanced against that the case against you is strong, but you did plead guilty at a very early stage, you did not seek a sentence indication or the like, so given those circumstances I am content to give you the full 25 percent discount for a relatively early plea, and acknowledgement of your guilt, and it would have saved a considerable amount of time and cost. That then takes me to 31 months or two years seven months.

[40] Standing back and looking at it that seems to me to be an appropriate response. It is perhaps more merciful than you deserve, but I am conscious acutely of your age. Prison is obviously the least restrictive outcome. The benefit for the community is that at least you will be out of circulation for a period of time, but balanced against that you have got to come back into the community and I am well aware of the fact that prison for a young person is not a great place to be. But, regrettably it is the only possible option in a case such as this.

[41] The end sentence is going to be as follows:

(a) On each of the arson charges, I will take those as the lead offences,

there is two years seven months’ prison.

(b) On all of the offences for which the maximum penalty is three

months’ prison, there is two months’ prison.

(c) On everything else there is six months’ prison.

(d) As I say as far as reparation is concerned, that 25 percent of the amount sought. As I say it has been reduced for the reasons that I have given.

(e) For the sake of completeness the outstanding community work hours are cancelled.

A A Zohrab

District Court Judge