R V MILLS HC ROT CRI-2008-063-002260 [2009] NZHC 969 (6 August 2009)

IN THE HIGH COURT OF NEW ZEALAND
ROTORUA REGISTRY
                                                        CRI-2008-063-002260



                                      THE QUEEN



                                             v



                           
   GARY DONALD MILLS



Hearing:        6 August 2009

Appearances: Mr F Pilditch and Mr C Macklin for Crown
             Mr P Mabey
QC for Prisoner

Sentence:       6 August 2009


                      SENTENCING REMARKS OF LANG J




Solicitors:
Crown Solicitor,
Rotorua
Counsel:
Mr P Mabey QC, Tauranga



R V MILLS HC ROT CRI-2008-063-002260 6 August 2009

[1]     Mr Mills, you appear for
sentence having been found guilty by a jury on a
charge of murdering your partner by setting fire to her with petrol. You were also
found guilty on a charge of arson. That charge arises out of the fact that you also
burnt down, using petrol, the home in which you
and your partner, Ms Lyn
Delzoppo, had been living.


[2]     The maximum sentence, as you know, on a charge of murder is one of
life
imprisonment. The maximum sentence on the charge of arson is one of 14 years
imprisonment.


[3]     Before I begin my formal
sentencing remarks, I want to acknowledge the
presence here today of a number of people important to this process.


[4]     Firstly,
there are members of Ms Delzoppo's family. I had the opportunity to
hear some of you giving evidence during the trial and I know
that this has been a
terrible tragedy for you. I will say something more about that later in my remarks
but at this stage I acknowledge
you and extend the sympathy of the Court to you.


[5]     Also to the owner of the building that was burnt down. This, as I have
read,
has come at a significant personal financial cost to you and I acknowledge that as
well.


[6]     I want to acknowledge the
presence of Mr Mills' family. You are innocent
victims of this. You could never know that this was going to happen. It has affected
you almost, or probably as, deeply as it has affected the Delzoppo family. You must
say now goodbye, effectively, to a member of
your family for a very long time.
Nothing the Court can do can change that.


Facts


[7]     The facts of the offending are reasonably
simple so far as they are to be
gleaned from the evidence given at trial.


[8]     At about 10.30 pm on 1 May 2007 your neighbours
in Ngongataha awoke, or
looked out their windows, to find a glow on the skyline. They quickly realised that a

house in the vicinity
was on fire. A number of them immediately telephoned the fire
brigade and several of them also went down the street to find the source
of the blaze.
When they got there they found that the house that you had been renting in Taui
Street was well ablaze.


[9]    One
of the neighbours went up the driveway and there she stumbled across
Ms Delzoppo. She was lying crouched in a foetal position on
the grass outside the
property. She was clearly distressed and badly hurt. This neighbour went to the aid
of Ms Delzoppo and her
evidence at trial, I have to say, was harrowing indeed.
When she tried to pick Ms Delzoppo up to take her to safety down the driveway,
Ms
Delzoppo slipped out of her hands. She realised later that Ms Delzoppo had slipped
out of her hands because her skin had come
off in her hands. Now you heard the
way in which that witness gave evidence. She was clearly traumatised by that
experience and it
has had a very long-lasting effect on her.


[10]   When this neighbour spoke to Ms Delzoppo about what had happened, she
told the
neighbour that you had set the house and her on fire. You had poured petrol
on her and the house and then you had lit it. When she
asked where you were, she
said that you had run away.


[11]   The evidence makes it clear that at some stage before the arrival
of the
neighbours you had indeed left the property.         You had gone down into the
Ngongataha township where you had gone into
a bar. When you went into the bar
you said to the barmaid words to the effect that "it's all gone" and the barmaid
ultimately had to suggest to you that it would be a good idea to ring
111. That was
done but, of course, by this stage a number of other calls had already been made to
111 by the neighbours. You went
back to the property at about the same time as the
fire engine arrived. You then remained in the vicinity speaking to police and
fire
officers present.


[12]   Ms Delzoppo, meanwhile, was placed in the care of the ambulance officers.
It was clear that she was
seriously burnt. They took steps to stabilise her condition
so far as they could. They then transported her to the Rotorua Hospital,
where she

received initial treatment. She was then airlifted, I think the same night, to Waikato
Hospital where she was placed
in the Burns Unit.


[13]   Ms Delzoppo then remained alive for another 28 days before she finally
succumbed to her injuries. She
was found to have received burns to more than 40
per cent of her body as a result of the blaze. She ultimately died as a result of
damage to her lungs that had been caused when she inhaled fumes, smoke and toxic
gases from the blaze. The house was also completely
destroyed in the fire.


The approach to sentencing in this case


[14]   There is no dispute really in this case about the sentence
that the Court must
impose. Section 102 of the Sentencing Act 2002 requires the Court to impose a
sentence of life imprisonment whenever
a person is being convicted of murder
unless it would be manifestly unjust to impose that sentence. There can be no
suggestion in
this case that it would be manifestly unjust to impose life
imprisonment. Accordingly, I now impose that sentence on you.


[15]
  The real issue that I must determine is the minimum term of imprisonment
that you must serve before you are able to apply for parole.
Section 103 of the Act
requires the sentencing Court to make an order that the offender serve a minimum
term of imprisonment in any
case when it imposes a sentence of life imprisonment.
The Court may not impose a minimum term of imprisonment of less than ten years.


[16]   In this case the Crown submits that the minimum term of imprisonment
should be significantly more than ten years. It says
that a minimum term of at least
17 years imprisonment must be imposed. In making this submission, the Crown
relies on s 104 of the
Act. This requires the Court to impose a minimum term of not
less than 17 years in circumstances where one or more of certain specified
criteria
are met.


[17]   In the present case, the Crown submits that the murder of Ms Delzoppo was
committed with a high level
of brutality, cruelty or callousness. This is one of the
criteria under s 104. It is provided for by s 104(e).

[18]   Your counsel
quite properly accepts that the only realistic conclusion that the
Court can reach in the circumstances of this case is that s 104(e)
applies. As a result,
I must impose a minimum term of imprisonment of not less than 17 years unless I
consider that it would be manifestly
unjust to do that.


[19]   In order to reach that conclusion, I must consider what minimum term your
offending would ordinarily
attract. I must then consider whether, in light of that
conclusion, it would be manifestly unjust to impose a minimum term of 17
years
imprisonment.


What minimum term would the offending ordinarily attract?


[20]   In order to reach the conclusion as to what
minimum term your offending
would ordinarily attract, I need to take into account a number of factors.


The offending


[21]   The
first and most important of these is the way in which the offending was
carried out. That presents some difficulties, because all
we know is what can
objectively be ascertained as a result of the examination that the experts carried out
at the scene of the fire.
In addition, we have what Ms Delzoppo told her neighbour
in the driveway and that contained only the barest of details.


[22]  
The expert evidence makes it clear that there were three seats of fire in the
house. The first of these was in Ms Delzoppo's bedroom in an area towards the foot
of her bed.
It seems likely that accelerant in the form of petrol was poured in this
area and then ignited. It is also clear that petrol was
poured directly on Ms Delzoppo
and ignited. This is clear both from her burns and from the fact that hydrocarbons
denoting the presence
of petrol were found on her upper clothing. The likelihood
therefore, Mr Mills, is that you poured petrol on Ms Delzoppo whilst she
was on or
near the end of her bed. It is likely that you poured it on her legs and upper body
before igniting it. The forensic evidence
makes it clear that this immediately created
a very fierce and intense blaze in the area at the end of her bed.

[23]    In addition,
you must have poured petrol in at least two other places.
Another seat of fire was found in an area outside her bedroom door. A separate
seat
of fire was found in an area further towards the kitchen. I infer, Mr Mills, that you
must have lit the fire in the bedroom
first because otherwise you would have had to
go back out through a blaze when you left the bedroom. You must then have lit the
other
two fires as you left the property, having set the blaze in Ms Delzoppo's
bedroom alight.


[24]    I am unclear, I have to say,
as to the circumstances in which Ms Delzoppo
came to leave the house. Clearly, she was able to leave the house notwithstanding
her
burns and the fires that were burning because she was found in the driveway
outside the address. She did not explain to anybody how
she had got there. It is at
least possible, as you said to others later, that you may have helped her from the
property. That does
not, however, detract from the fact that, as the jury found, you
started the fires in circumstances whether you either intended to
kill Ms Delzoppo
or, at the very least, where you appreciated that death was a likely result and you
carried on regardless.


[25]
   In those circumstances I conclude that there was a degree of premeditation
about this killing. It must have involved some premeditation
because you had to
decide to set fire to Ms Delzoppo. You then had to go and get petrol and then you
had to light it, and you did
so in more than one place.


[26]    Having said that, it is quite clear to me that this was not a carefully planned
event. You obviously
grabbed the can of petrol that had been in the lean-to garage
outside your property and you used that to start the fire. That container
was never
seen again, although it was clearly in the garage in the day or so immediately before
the fire.


[27]    I also say that
it is unlikely that there was a great deal of premeditation here
because the most likely explanation for why this happened is that
you and Ms
Delzoppo had been drinking for a good part of the day. The evidence established
that you had started drinking around 8
to 9 am in the morning. You then continued

drinking beer throughout the day. You made two trips during the day to the bottle
store
in Ngongataha to obtain fresh supplies.


[28]   It seems that Ms Delzoppo had also been drinking in the morning, but she
then took
a break during the day when she went out with her mother and she
returned home in the late afternoon. She was then seen at about
5 o'clock at the
bottle store purchasing a bottle of vodka.


[29]   Now drinking sessions like that were not uncommon for you and
Ms
Delzoppo. It seems that you both had a very real issue with alcohol in that you
drank quantities of alcohol far in excess of what
most people would ever consume on
a daily basis. The consumption of alcohol, as you frankly acknowledge in your pre-
sentence report,
causes an adverse reaction for you. It can cause you to become
violent and that very effect is evident from the fact that, on previous
occasions when
you had both been drinking, the neighbours had heard violent arguments. The police
were often called to the property
and you had faced a number of charges in relation
to assaults that you had carried out on Ms Delzoppo whilst you were both drunk.


[30]   It seems
to me, although no neighbours heard an argument on this particular
night, that the most likely explanation is that there was an argument.
That argument
was no doubt fuelled by the alcohol that you had been consuming all day and that
she had consumed for at least part
of the day. Nobody knows what the argument
was about because you have never accepted that there was one and she has not been
able
to tell anyone what it was about. Whatever the subject of the argument was, it
caused you to decide that you would kill her or, at
least, cause her injury that you
knew would be likely to cause her death. You then went to the garage, got the
petrol, came back
and poured it on her whilst she was in her bedroom. You then set
it alight and things went from there.


[31]   So, this was serious
offending but it was not as serious as situations in which
there has been a carefully pre-planned and orchestrated murder carried
out by a
person in full sense of his or her faculties. I have no doubt that you were severely
affected by alcohol at the time that
you made the decision to set fire to your partner.

[32]    In addition, there is the fact that your actions on that night destroyed
the
house, thereby causing very significant personal loss to the owner of the house and
to his insurer.


[33]    I also have to
bear in mind the effect that this has had for the victims, and in
this case there are three sets of victims. First and foremost is
Ms Delzoppo. She had
the right to believe that she would live to a ripe old age to enjoy all of the things in
life that all of us
are free to enjoy. You have effectively robbed her, Mr Mills, of
that opportunity. You wiped her out when she was still relatively
young.


[34]    Then there is Ms Delzoppo's family. They have lost a loved mother, sister,
daughter. I have read with care the very
careful and thoughtful victim impact
statements that the Crown has provided me with. They make it clear that this family
has suffered
a devastating loss as a result of your partner's death.


[35]    Perhaps the most poignant aspect for me of the victim impact statements
was
the description that all members of the family have of the time between Ms
Delzoppo's admission to hospital and her ultimate
death. It was by no means clear,
it would seem, at the beginning that Ms Delzoppo would die. Members of her
family speak of the fact
of how they looked forward to bringing her home and
resuming their life with her. They thought that that would ultimately happen.
They
say that those 28 days, as they visited their disfigured family member in hospital,
were a time of absolute hell for them. They
are clearly traumatised by it and will
never get over it.


[36]    The third set of victims is your family. Like Ms Delzoppo, you
have a loving
family who have stood by you throughout your life and through the difficulties that
that has brought. They will continue
to support and care for you and visit you in
prison. They provided me with thoughtful letters in which they expressed their
condolences
to the members of the Delzoppo family for what has happened. They
say how sorry they are for what you have done.


Mr Mills' position

[37]   This, then brings me, Mr Mills, to your own position and your reaction to
what you have done. You, of course, have always
denied completely having any
involvement in your partner's death. From the outset you told everybody who would
listen that she must
have either accidentally set herself alight or, later on, that she
must have deliberately done that.


[38]   I read with real concern
in the probation report your comments that you
believe that she killed herself deliberately in some way to get back at you. Quite
clearly, you are not going to come to terms with the fact of what you have done. But
you need to realise, Mr Mills, that nobody believes,
and the jury did not believe, that
Ms Delzoppo got a can of petrol, poured it all over herself and set it alight.


[39]   We have detailed evidence about what
she was doing that day, who she was
with and even as late as 5 o'clock when she went to the liquor store, it appears that
everything
was normal. She did not set fire to herself, Mr Mills.


Previous convictions and lack of remorse


[40]   I accept, however, that
your previous convictions, even though they did relate
in large part to Ms Delzoppo, are relatively minor when placed alongside the
offending for which you appear for sentence today. I also do not count as an
aggravating factor the fact that you refuse to accept
what you have done and show no
remorse. I accept your counsel's submission that that really amounts to the lack of a
mitigating factor
rather than an aggravating factor per se.


The authorities


[41]   When I take all of those matters into account, I consider that
an appropriate
minimum term of imprisonment would have been around 15 years. In reaching that
determination I have had regard to
several other cases to which counsel have referred
me. I have done this because the Sentencing Act requires the Court to impose a
sentence that is broadly consistent with those imposed in relation other instances of
similar offending. That is always difficult,
of course, because the circumstances of
no two cases are ever exactly the same.

[42]    Not surprisingly, and perhaps thankfully,
there are only a limited number of
cases in which the Court has been required to impose a sentence where a person has
set fire to
his partner. They show a different range of outcomes.


[43]    First, there is the case of R v Tapsell HC ROT T030771 10 June 2004
Venning J.    In that case, which has, at first blush anyway, some very marked
similarities with your offending, the Crown did not
seek a minimum term of
imprisonment of more than ten years. I am aware from the circumstances of that
case and, in particular, the
circumstances of the offender that there may well have
been special reasons why the Crown did not seek a minimum term in that particular
case.


[44]    Next, there is the case of R v Harmer HC CHCH T46/01 25 September 2002
Chisholm J. Now that is a very complex case
and it involves a man setting fire to a
vehicle in which his wife was sitting. In that case the Crown did not seek to invoke
s 104
either. There was an issue in that case, however, as to whether or not the
deceased was dead at the time that the fire was lit so
I place that in a similar but, also
different, category to your offending.


[45]    Next, there is a case called R v Khan HC AK
CRI-2004-092-3097 20 October
2004 Frater J. That case involved an offender deliberately setting fire to his partner
in the precincts
of a service station. He then stood back and watched whilst she
burned to death. He also displayed a degree of callousness towards
her relatives. In
that case the Crown did invoke s 104, and the sentencing Judge ultimately impose a
minimum term of imprisonment
of 19 years.            I am satisfied, however, that the
circumstances in Khan were significantly more serious than they are in
your case.


Conclusion


[46]    So, having regard to the nature of your offending and the sentences imposed
in other cases, I consider
that a minimum term of imprisonment of around 15 years
would have been appropriate.


Would it be manifestly unjust to impose a minimum
term of 17 years?

[47]     That does not mean, however, that that is the minimum term that I must
impose. Section 104 is mandatory
in its terms. It requires me to impose a sentence
of 17 years imprisonment unless I consider that to do so would be manifestly unjust.


[48]     This means that Parliament has placed offending of this type in a particular
category. It requires a minimum term of 17
years to be imposed even where,
ordinarily, the Court would only have imposed a sentence of 15 years or perhaps
even 14 years.


[49]     In the present case I cannot say that it would be manifestly unjust to impose a
minimum term of imprisonment of 17 years, having regard to all the factors to which
I have referred. Indeed, your counsel responsibly submits that that is the case.


Sentence


[50]     On the charge of murder, you
are sentenced to life imprisonment and ordered
to serve a minimum term of imprisonment of 17 years.


[51]     On the charge of arson
you are sentenced to seven years imprisonment. That
sentence, of course, will be concurrent on the sentence of life imprisonment.


[52]     Although reparation is referred to in the report, that is realistically out of the
question given your current and future
circumstances.


[53]     Stand down.




Lang J