R v Webb [2013] NZHC 746 (12 April 2013)

Last Updated: 12 April 2013

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2011-031-1821 [2013] NZHC 746

THE QUEEN

v

_{KELVIN MARK WEBB}

Hearing: 12 April 2013

Counsel: A Read for the Crown

F Steedman for the Accused

Sentence: 12 April 2013

_{SENTENCING REMARKS OF MALLON J}

Introduction

[1] Mr Webb, you appear for sentencing today having been tried before a jury and convicted of four counts of arson.[1] You were acquitted of one count of arson.

[2] You maintain your innocence I understand, but you are to be sentenced on the basis of the jury’s verdicts and the convictions I entered on those - in accordance with - those verdicts. I also know from the letters submitted to me by your family that they do not accept the jury’s verdicts. Given that view I understand it will be difficult for them to listen to this sentence. However Mr Webb has been convicted

_{following a trial and the sentencing must proceed on that basis.}

R v WEBB HC PMN CRI-2011-031-1821 [12 April 2013]

Circumstances of offending

[3] The charges against you arose from the deliberate lighting of five fires at the Foxton Racing Club racecourse during November and December 2011. During that period you were the caretaker of the racecourse. You had arrived in Foxton a couple of months earlier, and after a short time working at the golf course, you had taken on the position of caretaker of the racecourse. This was part of your ACC rehabilitation plan following a serious accident in respect of which you suffered significant injuries. The arrangement was that you were to look after the racecourse grounds in return for free accommodation, telephone and power at the caretaker’s house. As the caretaker you were the only person who lived permanently on the racecourse grounds. The caretaker’s house had a view over much of the racecourse grounds, and from the house you could see the patrols of the security officers and other comings and goings.

[4] The first of the five fires was of the racecourse grandstand. It occurred on

18 November 2011. The police theory of this fire was that it was a break-in, possibly by someone looking for alcohol. You were acquitted of the charge that related to this fire. You were convicted of the other four fires, which caused significant damage to three stable blocks and a wood shed.

[5] The second fire occurred on Saturday 19 November. Some time before

10:47 pm you left your home and went to one of the two stable blocks that are directly across from your home behind a hedge at the State Highway 1 entrance to the racecourse. The stable block contained 24 stables but on that night the horses were all in the paddocks. You entered an unlocked one at the end of the stables. They contained hay and other material that was relatively easy to alight. You set fire to the hay or other material and returned to your house. The fire took hold and could be seen by Foxton residents and the emergency services were alerted at 10:47 pm. Word spread quickly around the people associated with the racecourse and with the horses kept there, and many came running to look after and move the horses from the paddocks next to or near the stables and otherwise to help. Although the horses were kept safe, the stables could not be saved. The block of stables was completely destroyed. The stable was insured. The Foxton Racing Club had an insurance

deductible of $25,000 and the insurer paid out just over $175,000. The fire also destroyed property belonging to horse trainers who use the stables. This property was owned by Mr Laursen and Ms Weller. Mr Laursen estimates the value of the property that he lost at around $24,000. It was not insured, however the racing community rallied around and replaced Mr Laursen’s gear. Ms Weller estimates that she lost about $8,000 in feed and riding gear which she had to replace out of her own pocket also because it was uninsured.

[6] Four days later, on Wednesday 23 November 2011, some time before

10:52 pm you set fire to the other stable block at the State Highway 1 entrance that was adjacent to the destroyed stable block. Again the horses were in the paddocks that evening. The fire was lit in the same manner as the first. Again it took hold and could be seen by Foxton residents. The emergency services were called at 10:52 pm. Again people came running to look after the horses in the paddocks and to help where they could. Of the 24 stables, 12 were destroyed. The stable was insured. The Foxton Racing Club again had an insurance deductible of $25,000 and the insurer paid out just over $174,000. Again, property belonging to horse trainers was destroyed in the fire. After the first stable fire Ms Weller had moved her gear to this stable only to lose it all over again. Mr Scott had gear in these stables worth about

$8,500. He was able to borrow some replacement gear but had to pay out about

$2,500 of his own money to replace some gear.

[7] Four days later, on 27 November 2011, many show-jumping competitors were staying overnight at the racecourse because of an event that was held at the track on that weekend. Some time before 4:30 am you left your house and entered the woodshed (which was close to the caretaker’s house), poured an accelerant, probably diesel, over the wood and set it alight. You left the shed, shut the external door and returned to your house. One of the two security officers looking after the racecourse noticed the fire. He knocked on your door to alert you of the fire and then asked you to do various things to assist him in putting out the fire, which you largely did though you took other actions which were a hindrance. The 111 call was made at 4:43 am. By the time the fire fighters had come the security officer had essentially managed to put out the fire. There was however extensive damage to the

woodshed. As a result around $4,364 was paid out in repair costs and professional fees.

[8] The last fire was lit on 18 December 2011. You left the house at about

12:24 am. You walked to the stable block at the Bergen Road end of the racecourse which was about 500 metres from your home, and on the other side of the racecourse from where the first two stables that you had previously set alight. As with the other stable blocks, the stable block was empty of horses on this night. You again set fire to the stable block using hay or other materials located in the stables. The fire took hold. The emergency services were alerted at 1:08 am. Again people came to look after the horses in the paddocks and to assist in the emergency. Fifteen of the 30 stables in the block were destroyed. The Foxton Racing Club’s insurance deductible was again $25,000 and the insurers paid out an amount just over $175,000 for this loss and in professional fees. No motive has been established for the offending. But before I come onto that, Mr Humphries had property in those stables. He lost around

$15,000 to $20,000 worth of his property which, as with the other trainers, was uninsured.

[9] No motive has been established for the offending. The Foxton Racing Club had been good to you in setting you up in the caretaker’s house and in giving you work to do. You in turn seemed to like your job and to do it well. Despite Mr Laursen’s losses he was still prepared to say that you did a pretty good job of the track. At the time of the fires you were drinking a lot of alcohol and smoking cannabis but this does not explain your actions. What you did and why you did it remain unclear.

Victim impact statements

[10] There are victim impact statements from Mr Laursen, Ms Weller, Mr Jaggard, Mr Humphries and Mr Scott. It has to be said that all of them are moderately expressed consistent with the “get on with things” sort of people that they strike me as being.

[11] The impact on those with gear in the stables and who used the stables, was fortunately reduced by the generosity of the racing community and the support they provided to the affected trainers through the replacement gear and through clients of trainers sticking with them despite the difficulties for them in training the horses without proper facilities. However some had to use their own funds to replace some items and this would have been a burden for them given the evidence I heard at the trial about the absence of much in the way of spare money to go around in this occupation and in this place.

[12] Ms Weller also lost money through having to turn away about five horses who she would otherwise have trained. Each horse being worth about $1,400 a month to her. Mr Humphries had to give up training for a period of about a year. He had four horses at the time which were each worth about $1,400 a month to him. You also, he says, took away his passion to train the horses which he says he is only getting back now.

[13] Fortunately the horses in the main were not harmed. Mr Scott does however refer in his victim impact statement to horses which were burnt and says that one of them has never really gotten over that. There was no evidence about that at the trial, however there is no particular reason not to accept what he says about that.

[14] Mr Jaggard, as president of the club, says that they have been treated well by the insurers. The Club has not been able to run its usual meetings. It has run only one meeting at another racecourse which ran at a loss. It had to surrender its six meeting licences in 2012 and it anticipates having to surrender another two this year.

[15] There has also been the mental strain the fires have caused. I heard the evidence from those involved as the fires unfolded in the course of that period. It was a difficult time for those involved, not knowing who was lighting the fires and whether there would be another one. Accusations were flying around the community.

[16] Ms Weller talks about her five year old daughter having nightmares and waking up screaming that the horses were on fire. Mr Humphries, who helped set

you up at the caretaker’s house and took you to the Salvation Army to get furniture for you, feels extremely let down by you. Those affected have however managed to get through this difficult period. As Mr Scott puts it “life is a bit harder as a result but we just get on and do the best we can”.

Circumstances of the offender

[17] I turn now to your personal circumstances. You are 37 years old. You currently live with your partner in Levin. You have two children from a previous relationship who live locally, and with whom you continue to be involved. You are said to be very good with your children and your nieces and nephews. I have read the letters from your family that have been submitted to me. Your partner, parents and siblings have been and are very supportive of you. It is good that you have support from people who love and care about you.

[18] You have had ongoing health issues following a farm vehicle accident in

1999. You were flown to hospital in a critical condition. You were in hospital for a couple of months and had to have many operations. The operations to restore your jaw and other parts of your body continued after you left hospital. You suffered a brain injury. I do not have any medical evidence about that but, according to those who know you well, this has affected you greatly. They also say however that you have shown great determination to endeavour to live a normal life again despite the adversity you have gone through. You came to Foxton after your marriage fell apart to be closer to your family and to rebuild your life.

[19] You have no relevant previous convictions. Your only convictions are one for assault on a child in 2010 and one for careless driving in 1996. For your assault conviction, you received a sentence of supervision which you successfully completed. For the careless driving conviction, you were ordered to pay a fine.

[20] In relation to the current offending, you have offered to pay reparation but you would have to do so by instalments. The offer although probably genuine is unrealistic. You have little disposable income and the loss suffered is very large. Your family are not in a position to assist.

Purposes and principles

[21] In sentencing you, I am required to take into account the relevant purposes and principles of sentencing as set out in the Sentencing Act. They are discussed in the submissions of counsel and I do not need to go into any detail about them. Importantly you are to be held accountable for the harm caused, and your offending must be denounced and deterred. With arson protection of the community is also a relevant factor. I must also impose the least restrictive sentence available in the circumstances.

Starting point

[22] In terms of approach although there are four charges, they are connected. It is appropriate to impose a sentence on the lead offence which I take to be the first stable fire which includes all aggravating features including the other three arsons and to impose concurrent sentences on those other charges.

[23] I must now set a starting point for your sentence. There is no tariff case for arson,[2] so the Court is primarily guided by cases comparable to yours when determining the starting point. There is little difference between counsel as to what the appropriate starting point is. The Crown’s written submissions were for a starting point of seven and half to eight and a half years’ imprisonment to reflect the extent of the financial and emotional harm caused by your offending, the abuse of your position of trust as a caretaker at the Foxton Racing Club and the premeditated nature of the offending. Today the Crown submits that the appropriate starting point is at the bottom of that range, namely one of seven and half years’ imprisonment.[3]

The Crown also relies on the multiple counts of arson, that your offending caused

significant stress and concern for the entire community of Foxton and the risks inherent in your offending.

[24] Counsel on your behalf submits that a starting point of between six and seven years’ imprisonment is warranted with reference to the comparable cases.[4] Counsel emphasises on your behalf that, on the Crown’s case, you took care to light the fires when the stables were empty of animals and at a time when people were not around, so that danger to life or limb was minimised.

[25] In my view premeditation is not present to any significant degree beyond any other comparable arsons which counsel have referred to in the cases relied on. I do not see this as an aggravating feature. In my view, taking into account the number of arsons, your breach of trust when you were the caretaker living on the grounds and people like Mr Humphries went out on a limb for you, the significant financial harm as well as the emotional harm and the inherent danger that was involved in lighting these fires, in this case the risk to fire fighters and to all the many people who came to help with the fires and to keep the horses safe, the risk to the horses themselves, the goats and other animals such as the cats that were in the stables and bearing in mind, very much guided by the comparable cases which I will refer to in the typed

up sentencing notes,[5] a starting point of seven years’ imprisonment is appropriate.

Aggravating and mitigating factors

[26] There are no personal aggravating and mitigating factors. You were in custody for three months when you were first arrested but were then granted electronically monitored bail. This was subject to restrictive conditions. It was subject to a 24 hour curfew and you were not granted permission to leave the house until about half way through that period. Even then the periods that you were permitted to leave were restricted to walking your dog at designated times, to having

_{evening meals with your family at designated times and on two occasions to visit}

your doctor. These were restrictive conditions and for this reason I will reduce your sentence by four months.[6]

Reparation

[27] The Crown seeks reparation orders of $77,560 in favour of the Foxton Racing Club and an order for $451,242.24 in favour of your insurers. The Crown also refers to the property damage to those with gear and equipment and feed in the stables. I decline to make any reparation order. The sentence I have imposed reflects both the damage caused and the reality that you have no capacity to pay reparation. No

purpose would therefore be served by ordering reparation.[7]

Sentence

[28] Mr Webb, this means that you are sentenced to six years and eight months’ imprisonment. A minimum non-parole period is not sought and I do not consider it appropriate to impose one. The [six and a half years’] [see below] imprisonment applies to the second count in the indictment, being the first stable fire. In respect of the count relating to the second stable fire the sentence will be a concurrent sentence of three and a half years’ imprisonment. In relation to the count that relates to the woodshed there will be a concurrent sentence of one year’s imprisonment and in relation to the third stable fire there will be a concurrent sentence of three and a half years’ imprisonment.

[29] Stand down.

Postscript

After I had completed my remarks, it was brought to my attention that there had been an oral slip when I was allocating the overall sentence of six years and eight months. I confirmed through the registrar that the sentence on the lead offence was

_{six years and eight months (not six years and six months) and counsel did not require}

me to correct this in court in the presence of the accused, it being clear that it was a

_slip.

Solicitors:

Crown Solicitor’s Office, Palmerston North

Mallon J

---

[1] _{Crimes Act 1961, s 267(1)(b) and (c).}

[2] _{R v Munro CA132/02, 24 July 2002 at [11]; R v Protos CA259/04, 19 October 2004 at [8].}

[3] The Crown submitted that, of the cases it relied on, the most comparable was R v Van Haaren [2008] NZCA 91 because of the number of arsons committed and the substantial amount of damage/harm caused.

[4] Counsel for Mr Webb correctly points out that in R v Van Haaren, the case on which the Crown primarily relies, the arsons had a revenge element that was not present in this case.

[5] This case is less serious than R v Thomson CA1/05, 14 June 2005 (starting point of eight years' imprisonment); R v Honan [1988] NZCA 109; (1988) 3 CRNZ 532 (CA) (end sentence of eight years' imprisonment); R v Lucas-Edmonds [2009] NZCA 193, [2009] 3 NZLR 493 (starting point of

seven years' imprisonment); R v Van Haaren [2008] NZCA 91. Comparable to R v Craig

CA142/02, 11 December 2002 (end sentence of eight years' imprisonment but Court of Appeal considered this to be at the top of the range). More serious than R v Z CA138/00, 27 June 2000 (starting point of seven years' imprisonment); R v Thomson (1992) 9 CRNZ 173 (CA) (starting point of five years' imprisonment); R v Rikiriki [2009] NZCA 217 (starting point of seven years' imprisonment although the Court of Appeal considered this to be at the top of the range).

[6] _{R v Tamou [2008] NZCA 88 at [18]; Filoa v R [2010] NZCA 588 at [9].}

[7] New Zealand Police v MacDonald [2012] NZHC 2388 at [28].