Police v Uerata [2019] NZDC 11185 (24 April 2019)

Last Updated: 21 July 2021

IN THE DISTRICT COURT AT NELSON I TE KŌTI-Ā-ROHE KI WHAKATŪ

CRI-2019-042-000290

[2019] NZDC 11185

NEW ZEALAND POLICE

Prosecutor v

KAURI IRARANGI HAWKE UERATA Defendant

Hearing:	24 April 2019
Appearances:	Sergeant W Johnston for the Prosecutor C P Stevenson for the Defendant
Judgment:	24 April 2019

NOTES OF JUDGE A A ZOHRAB ON SENTENCING

[1] Mr Uerata, you are aged 24, for sentence having pleaded guilty to the following matters. You have got no previous convictions and all of the offending took place on the night of 10 February. There is a charge of arson carrying a maximum of 14 years’ prison, a burglary, a lesser form of arson carrying a maximum penalty of seven years’ prison and also four charges of unlawful interference with a motor vehicle.

[2] In terms of the offending, it started about 12.45 am on 10 February]. You were riding a bicycle through the Montgomery carpark in the Nelson CBD. You cycled up to a motor vehicle, checked no one was watching and attempted to break the driver’s door by kicking it twice. The window did not break and you attempted to break the window again using your bicycle handlebars. The window still did not break and you

NEW ZEALAND POLICE v KAURI IRARANGI HAWKE UERATA [2019] NZDC 11185 [24 April 2019]

cycled away. You face one charge out of that. You then attempted to enter another vehicle which is not the subject of a charge. You have then ridden your bicycle to another vehicle, tried to open the passenger door which was locked. You did the same in relation a further vehicle. There were two further charges in respect of those vehicles. You have then attempted to enter into another vehicle. It appears that the registration numbers for the two vehicles could not be obtained so they are not the subject of charges.

[3] You have then cycled on to Rutherford Street and this is when the offending has gone to a different level. You have used a lighter to set a large plastic skip on fire at the rear of a restaurant. This is the subject of the first arson charge. The fire has caused burn marks approximately two metres up a concrete wall of the building. Fortunately, members of the public observed the fire and the Fire Service was called to extinguish it. You have then wandered along Hardy Street , accessed a residential property through a gate, gone up a flight of stairs, this has led to the burglary charge. One occupant of the home was asleep inside. Outside the home was a rubbish bag on the top of a rubbish bin which was located directly below a gas water heater. The building is of wooden construction. You have set the bag of rubbish on fire and this is the subject of the second or the most serious arson charge. Fortunately, another occupant of the home arrived at this time and found you attempting to leave. You have fled and the victim extinguished the fire.

[4] So, whilst the interfering with vehicle charges are criminal charges, they are relatively modest in nature, but it is the arsons which are very serious indeed.

[5] As far as sentencing is concerned, I have had the benefit of reading very full submissions that have been provided in written form by the Crown. I also have written submissions from your lawyer. I have a probation officer’s report which tells me about your background and circumstances, the recommendation is a sentence of home detention. I have also got a report from an experienced addictions clinician confirming you do not appear to have a substance use disorder as such, but she observes that your patterns of drinking are very concerning.

[6] The Crown have referred me to the purposes and principles of sentencing and have focused very much on the arson charges. They highlight what they call the aggravating features, those are the features of the offending which makes it really serious. We have got the risk of harm to the occupants of the residential property. There was potential for significant harm if the gas water heater had exploded. Given the time of night, it was fortunate, and it was quite unusual too, for the occupant to arrive home, as she did, because if she had not, who knows what would have happened. The potential for harm was extremely high, more especially with somebody else sleeping inside the dwelling.

[7] This is also offending which took place during the state of emergency. The forestry fire in the Pigeon Valley had started on 5 February, so everybody was in a heightened state of awareness. The resources were spread thinly across the area, and the people who attended to put out the first fire set by you could have been better employed fighting the forest fires. If that gas water heater had exploded, that would have required significant fire-fighting resources. And, I accept it is an aggravating feature, given the limited resources that were available at the time, and that the impact upon the wider community is an aggravating feature.

[8] There is also unlawful entry on to a property. The Crown have reminded me that there is no tariff case for this sort of offending, meaning there is no set rate for an arson charge. The primary considerations when determining a start point are the degree of property damage, the degree of danger to any occupant or fire-fighter, and the cases note the mental state of the offender.

[9] I have been referred to the decision of R v Marson-Wood and also R v Protos.1 Mr Stevenson quite rightly points out that those are more serious offences than your offending. But the Crown have acknowledged that in their suggested start point, and they have suggested for the property where there was the risk to the occupant, the residential property, that a start point of two and half years would be appropriate. There should be an uplift of three to six months for the second arson, and then three months for the other matters, and there is reparation of $400 sought.

1 R v Marson-Wood [2018] NZHC 610; R v Protos CA259/04, 19 October 2004.

[10] Mr Stevenson, on your behalf, does not take issue with the suggested start point. He does, however, emphasise your youth, and also the fact that you were affected by alcohol, and he highlights the contents of the alcohol and drug assessment. He acknowledges that alcohol and drugs are not mitigating factors, but says the reality of the situation is that you need to moderate your drinking, and he notes the recommendations of the addictions clinician. He endorses what is suggested by way of sentence for this offending, which is home detention. He wonders aloud whether or not supervision might be appropriate. He says you are available for community work. He also observes that you are keen to work, and are hopeful that some arrangement could be made as far as the sentence of home detention is concerned, to enable you to work.

[11] In terms of fixing a start point, I am pretty much in agreement with the Crown as far as their start point is suggested. In my view, a start point of two and a half years’ prison is appropriate. The Crown suggests there should be an uplift of three to six months for the other arson, and a further three months for the dishonesty offending. I would uplift three months for the other arson, and a further three months for the dishonesty offending. The dishonesty offending is modest in nature, but it is different in nature in terms of it being a distinct dishonesty matter, and there was certainly a concerted effort on your part to break into the vehicles. The charges that you face are not all of the charges that could have been sheeted home to you, they are effectively representative of a course of conduct on your part.

[12] So, standing back and looking at it, I would have thought that three years’ prison is appropriate as a start point. You are entitled to credit for your age and lack of prior history. In my view, the 10 percent suggested by the Crown is appropriate, so I would deduct four months for that which then takes me to 32 months.

[13] You are entitled to the full credit in terms of the Hessell v R case, so 25 percent.2 That would involve me then deducting eight months, which then brings me back to 24 months. That gives me the option then of considering whether or not something short of prison is appropriate. Arson is regarded as a serious offence for good reason,

2 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

particularly when members of the public are potentially endangered, and there was a real risk here. I appreciate and accept your explanation to the writer of the pre- sentence report that you are confused as to why you did these things, and I do not have any reason to doubt that. You seem to have been pretty upfront with the probation officer in explaining to him or her what led to this offending, and you are, as I say, somewhat confused, and at a bit of a loss to understand why you behaved in this fashion. But the fact that alcohol and/or drugs may have been involved, those do not mitigate or excuse your offending, they might explain what has happened.

[14] But I am acutely conscious of your age, and your lack of prior history, and whilst one might be tempted to send out the message to you, and to others, that this sort of offending demands a fulltime prison sentence, I think there is more to be gained for both you and the community by keeping you out of prison.

[15] We have an address which is suitable for a sentence of home detention so, in my view, the aims and objectives of sentencing in a case such as this can be met by something short of prison.

[16] So what I am going to do is as follows. I am going to sentence you to 10 months’ home detention on each of the charges. It is an all up total of 10 months’ home detention. There are two special conditions to follow on that sentence, each to extend six months beyond your sentence expiry date. Those are:

• (a) That you attend and complete an appropriate alcohol and drug assessment and, if recommended, an appropriate programme, the details of which are to be determined by your probation officer.
  
• (b) That you are not to possess, consume or use any alcohol or drugs not prescribed to you.
  

[17] The address is as specified. There will be 100 hours of community work on each charge, that is an all up total of 100 hours of community work.

[18] There is reparation of $400 to be paid at a rate agreed with the registrar.

[19] Now the addictions clinician is pretty insightful, and she has made some pretty useful suggestions in her report. It is really important that you take on board any help that is offered to you as far as alcohol and drug consumption is concerned.

[20] And obviously, if you were to be back again before the Court for this sort of offending, and I am talking here about the lighting of fires, then you will be met by a firm response, and that will involve a prison sentence, so I hope it does not come to that.

A A Zohrab

District Court Judge