R v Timms [2012] NZHC 968 (9 May 2012)

Last Updated: 23 June 2012

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI-2011-006-000765 [2012] NZHC 968

THE QUEEN

v

DAVID JOHN TIMMS

Counsel: M A Donoghue for Crown

M Hardy-Jones for Prisoner

Judgment: 9 May 2012

_{SENTENCING NOTES OF WILLIAMS J}

[1] David John Timms you appear for sentencing having pleaded guilty to a charge of arson. The maximum penalty on that charge is 14 years’ imprisonment.

[2] The facts are that on 19 April 2011 you were arrested by the police. A substantial illegal amount of paua had been located with you in a vehicle and then your home was searched and further paua were found. These were seized along with a laptop and some documents. The items were taken to the MAF office in Kaikoura and you were interviewed there. I should note that MAF is no longer MAF and it is now the Ministry of Primary Industries but it is the same outfit.

[3] You later fixed on the idea that the only way to get out of this mess, and I expect to save your diving career, was to destroy the seized evidence. You hatched a plan, extraordinary though it seems as your lawyer said, in the cold light of day, to

_{burn down the MAF office. You had seen where MAF officers had stored this}

R V DAVID JOHN TIMMS HC BLE CRI-2011-006-000765 [9 May 2012]

material. And you convinced a flatmate and fellow diver, Daryl Hazeldine, to help you. You and Mr Hazeldine made three Molotov cocktails out of wine bottles, petrol and rags from a tea towel that was later identifiable as yours.

[4] You headed down to the MAF office in the early hours of the morning following your arrest. You walked. You took a hammer with you and you smashed open one of the windows and the two of you threw the Molotov cocktails inside. As far as I can tell only one exploded scorching an area of the building but succeeding in causing $26,592.42 worth of damage to the building and associated property.

[5] You and Mr Hazeldine took off back to your place, stripping clothes, making various amateurish almost Hollywood attempts to remove, destroy or clean the evidence that might have associated you with this crime.

[6] Inevitably, you were arrested there at your home, along with your colleague, shortly after you arrived.

[7] Mr Hazeldine pleaded guilty at an early stage and was sentenced in the

District Court by Judge Mill on 11 October last year. He received a sentence of

10 months’ home detention and was ordered to pay half of the cost of the damage to the MAF building – $13,296.21 by way of reparations.

[8] Your guilty plea came much later as you know, and only after you had seen the overwhelming case confronting you, including the evidence of your co-accused which effectively nailed your guilt.

[9] According to the pre-sentence report, you are 44 years old. You and your wife are separated but you maintain a good relationship with her and your two daughters, both teenagers. You have been a professional paua diver in the past of course, as well as a landscape gardener. And did I hear right that you are doing building work as a hammer-hand? You have got no particular history of alcohol and drug abuse, and my view of you today is you look fit and healthy.

[10] You say that this offending was a retaliation because you felt you were being singled out by your employer for targeting by MAF. I am not sure I understand that but that is what you say. You accept responsibility for this offending, although you say the arson was not entirely your idea. It was shared in by Mr Hazeldine. Of course that is contrary to Mr Hazeldine’s pre-sentence report, the findings of Judge Mill, and the brief of evidence you saw in disclosure that was going to be given by him at your trial.

[11] You say you are full of remorse and you understand that your offending was caused by a range of factors including stress over the relationship with your wife and family, and this issue with your employer or maybe it is better to say your factors targeting you – you say.

[12] You have $11,645 in outstanding fines according to my documents, mostly fisheries related. You have got 11 previous convictions – three for Fisheries Act breaches last year, all other offending being prior to 1992 including four drug related convictions; two excess blood alcohol, one assault, and one wilful damage conviction.

[13] The pre-sentence report attributes this current offending of your to poor decision-making (that is an understatement really), bad attitude, and “unhelpful lifestyle balance”. But the report does say you are at low risk of reoffending.

[14] Important background in your sentencing is the way Judge Mill dealt with your co-offender. The Judge made the following points:

(a) The offending was serious because:

(i) it caused serious damage to property;

(ii) it endangered the lives of firefighters that had to go and put this thing out; and

(iii) it was a form of reprisal against MAF for targeting him

(Mr Hazeldine) for the illegal taking of paua.

(b) The normal starting point for this kind of offending (in the case of

Mr Hazeldine) was three and a half years’ imprisonment;

(c) But because Mr Hazeldine’s involvement was overall of a lesser culpability generally, and because of his “otherwise law abiding life” (his words not mine), and early guilty plea, that three and a half years was reduced to two years which of course brought it within the range of home detention and that was the final sentence imposed.

Submissions

[15] In this case, the Crown focused on:

(a) The need to denounce what you have done. Do you understand what that means? I guess the best way to explain that is the need to declare publicly that what you have done was deeply wrong – that is what

‘denounce’ means. So whatever sentence I adopt must reflect how wrong and bad your offending is seen as in the eyes of the community;

(b) The Crown focused on the need to deter this offending and to make you accountable, to hold you accountable, for what you have done;

(c) The gravity of this arson (by that I mean the seriousness of it), your level of culpability (that is how much you are to blame for it as against Mr Hazeldine), and to make sure that whatever sentence is imposed upon you is consistent with other arson cases of a similar kind;

(d) The aggravating features of your offending – premeditation (you planned this, albeit badly, and you executed it); the cover-up motive that you had here; and the impact on MAF staff in terms of their work and their ability to do their work;

(e) Your personal circumstances are relevant including your guilty plea – albeit late, and in the face of what in the end looked like a very strong Crown case;

(f) The fact that of the two of you, you are the more culpable – you are the ringleader, you are the senior partner, and that ought to be reflected in your sentence.

[16] Your counsel argued:

(a) I should bear in mind that the level of damage was relatively limited.

He said let’s not get carried away here in his written submissions, it was a 1x1m scorched area. And in fact that firefighters were instructed to use not too much water in case the firefighting created water damage;

(b) A discount for your guilty plea of 15%;

(c) A small discount for the fact that this offending was out of character; (d) A further discount for the reparations that you heard us discuss today

reflecting what he, and you, have both said is your commitment to setting this right at least financially.

Purposes

[17] I agree that denunciation (this thing that I talked about), deterrence and accountability are crucial ideas in your sentencing for this kind of offending Mr Timms. Hatching a plan to destroy prosecution evidence is not only unbelievably stupid, it must be firmly denounced and deterred by the courts. It must be. We cannot allow this sort of activity to go on.

[18] I must also take into account the gravity of your offending and make sure that in sentencing I am consistent with the penalty imposed on your co-accused and other-like cases.

Starting point

[19] A consistent starting point is important in this case. Judge Mill started at three years six months. In my view that is slightly too low for you. I do not go as high as the Crown’s four years but there will be a three months premium imposed to reflect the fact that, I too, believe you were the senior player here. You were the diving instructor, the older guy, the one who really knew what you were doing, the one whose career was mostly at stake.

[20] So I am going to start at three years nine months. I take that to be consistent, not only with the situation of Mr Hazeldine but consistent with other similar arson cases.

[21] I also think it is significant that on the narrative as I have it, on the story that has rolled out so far – you were the one who knew where the seized items were stored at the MAF office because you had been interviewed there – and that was the trigger.

[22] Mr Timms, this is not simple arson – this is arson with a dark motive: to attack enforcement authorities for holding you responsible for breaking the law. This is a case where you said, in your actions, that you were bigger than the law. It is significant that you broke into a government building, in the dark hours, using multiple explosive devices either for the purposes of covering up your offending or, another story is that it might have been reprisal against MAF for doing their job. As I have said before, this just cannot be tolerated, and you have got to wear that.

[23] I will also focus on the impact of what you did on MAF employees, the planning you engaged in to achieve your objective, and the serious risk of harm to others if this fire had not been stopped.

Adjustments

[24] I accept that there are no aggravating features (nothing that makes this worse)

that are personal to you. But there are mitigating features.

[25] The first includes your guilty plea four months before trial – albeit in the face what ended up being an overwhelming case. I accept your counsel’s submission that a reduction by 15% in your case is in order – that is a reduction of six months.

[26] As to reparations your counsel says that you are prepared to sell your home and your 2005 Subaru, and that is all in order. MAF (or the Ministry of Primary Industries now), is as we read in the papers every day, tight on money. So if you can bring this incident back to zero from a financial point of view, that is worth something.

[27] I also am prepared to accept having seen you today, and having read the pre- sentence report, that what you did was not just stupid but out of character. And that your risk of reoffending in this way is low.

[28] I would order you to pay $10,000 reparations. I give that figure because I am reasonably satisfied you can make it, and that, in addition to the character considerations I borne in mind, would reduce your sentence by a further six months.

Final sentence

[29] Your final sentence therefore will be two years nine months’ imprisonment.

_{[30] Please stand down.}

Williams J