McDowell v R [2014] NZHC 3310 (18 December 2014)

Last Updated: 23 December 2014

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2014-425-000038 [2014] NZHC 3310

SHANE LEIGH McDOWELL

v

_R

Hearing:	15 December 2014
Appearances:	H T Young for Appellant S N McKenzie for Crown
Judgment:	18 December 2014

_{RESERVED JUDGMENT OF DUNNINGHAM J}

Introduction

[1] Shane McDowell appeals the sentence of three years, four months’ imprisonment imposed on him by Judge Phillips in relation to a variety of offences. The offences he was charged with were:

(a) On 24 November 2013 intentionally damaging the property of Louiciana Jackson by fire, where he ought to know that danger to life was likely to ensue;¹

(b) On 24 November 2013 attempting to damage a vehicle belonging to

_{Mr Jackson by fire;}²

¹ _{Crimes Act 1961, s 267(1)(a).}

² _{Crimes Act 1961, s 268.}

McDOWELL v R [2014] NZHC 3310 [18 December 2014]

(c) On 3 May 2014 together with another offender, intentionally and without claim of right, damaging clothing and personal belongings of Billie Brown by fire, having no interest in that property;³

(d) On 3 May 2014 entering a building, namely a bedroom, without authority and with intent to commit an imprisonable offence therein;⁴

(e) On 10 June 2014, three charges of unlawful possession of a firearm, not being the holder of a firearms licence.⁵

[2] Mr McDowell advances his appeal on the basis that the end sentence of three

years and four months’ imprisonment was manifestly excessive as:

(a) the starting point on the lead arson offending was too high;

(b) the cumulative starting point on the May 2014 property arson and burglary offending was too high; and

(c) an additional discount should have been made in order to recognise

the appellant’s rehabilitative prospects.

Background

[3] On 24 November 2013, Mr McDowell went to an associate’s address at Sneyd Street, Tuatapere. He consumed a large quantity of alcohol while he was there. At around 6.00 pm, Mr McDowell walked to the victim’s address which was also on Sneyd Street.

[4] Shortly after arriving at the victims’ address he was asked to leave. He eventually complied. However, at some point an altercation took place on Sneyd Street between Mr McDowell’s associate and the occupiers of the house. A

_{short time after, the police attended an incident on Sneyd Street, which resulted in}

³ _{Crimes Act 1961, s 267(2)(a).}

⁴ _{Crimes Act 1961, s 231(1)(a).}

⁵ Arms Act 1983, s 20(1) and (3).

them driving Mr McDowell to his home on Main Road, Tuatapere at around 8.50 pm.

[5] Undeterred, Mr McDowell returned to Sneyd Street at around 10.00 pm. He walked into an unoccupied residential property next door to the victim’s house. Once inside the yard, he found and took a small bucket, some fuel and some newspaper. He carried these items to the victim’s vehicle which was parked directly outside the victim’s house. He then poured petrol over the driver’s door and, using the paper and lighter, attempted to light the fuel. He failed in this endeavour.

[6] While Mr McDowell was attempting to do this, a witness saw him. Once the witness saw him they turned their headlights on and directed them towards Mr McDowell. This resulted in Mr McDowell walking away from the vehicle and back to the address from which he had taken the items. The witness drove off, but returned, parking further along Sneyd Street.

[7] After around 20 minutes, Mr McDowell emerged from the unoccupied premises. He made his way to the victim’s house carrying more fuel and paper. He placed the paper next to the house and set it alight. However, the paper and fuel only burnt for 30 seconds, reaching a height of around one metre before being put out by torrential rain. The fire caused smoke damage and blistering to the surface of the building. Three people were asleep inside at the time.

[8] Mr McDowell returned to the unoccupied dwelling where he gathered some more paper. He sheltered under a tree where he set the paper alight. He then took the lit paper back to the victim’s car where he attempted to ignite the fuel. It again failed. He returned to the unoccupied address, gathering more paper and lighting it, before returning to the victim’s car placing it under the driver’s door. Again, the wet conditions thwarted Mr McDowell’s attempt. For the fourth time, Mr McDowell retrieved further paper before returning to the victim’s house. He placed the paper approximately one metre from the location of his earlier fire and successfully ignited it. However, it was again extinguished by rain. The three people inside slept through this and the damage to the property was minimal.

[9] At around 9.30 pm on 3 May 2014, Mr McDowell was at his home on Main Road, Tuatapere. He was consuming alcohol with two associates. At some point Mr McDowell became annoyed with his flatmate, who is the victim in this matter, but who was not present at the time. Mr McDowell went to the victim’s bedroom, gathered up a large amount of clothing, linen and other chattels before taking them out to the backyard and throwing them on a fire he had previously started. He also threw a basket belonging to the victim onto the fire. The total value of the damaged property was $2,771.63.

[10] While in the victim’s room, Mr McDowell also knocked a laptop off a

cabinet, damaging it so it was unusable.

[11] On 10 June 2014, police executed multiple search warrants at

Mr McDowell’s property. During their execution, three firearms were located.

Jurisdiction

[12] Mr McDowell is able to appeal the sentence imposed as of right.⁶ This Court, as first appeal Court,⁷ will only disturb the sentence appealed from if the appellant can establish that there was an error in the sentence and that a different sentence should be imposed.⁸ In a recent judgment, the Court of Appeal has confirmed that the sentence appeal regime in the Criminal Procedure Act 2011 was not intended to signify a departure from the position under the predecessor regimes in the Crimes Act 1961, s 385(3) and in the Summary Proceedings Act 1957, s 121(3).⁹

The District Court decision

[13] The District Court Judge began by acknowledging the difficulties in establishing where the starting point for this offending should be. However, he noted that in terms of the Sentencing Act 2002, arson is a particularly serious offence and

_{calls for strong specific denunciation and deterrence.}

⁶ _{Criminal Procedure Act 2011, s 244.}

⁷ _{Criminal Procedure Act 2011, s 247.}

⁸ _{Criminal Procedure Act 2011, s 250.}

⁹ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

[14] He then summarised the aggravating factors which were “the unlawful presence and entry onto the property in November and into the bedroom in May; the harm, the loss, the damage resulting from your acts; and the reality of the huge risk that you created; the vulnerability of your victims; your hostility and anger and the alcohol-related prior convictions”. In terms of factors which would reduce a sentence, the only matter the Judge noted was Mr McDowell’s guilty plea.

[15] The Crown proposed a starting point of five years’ imprisonment and, with uplifts and a guilty plea discount, contended for a sentence of between four years and four years, five months. The defence, however, submitted that this was a case where an appropriate starting point was two and a half years and with only a small uplift for “priors” and a guilty plea credit, Mr McDowell might be eligible for home detention.

[16] In the end, (although noting that the cases in French v R¹⁰ and Meha v R¹¹ which had just been referred to him, might have persuaded him to a higher starting point), the Judge set the starting point at four years’ imprisonment for the November offending. With uplifts he came to an overall starting point of five years but, taking into account the totality principle, ended up with a starting point of four years and six months from which he deducted the full 25 per cent available for a guilty plea. That resulted in an end sentence of three years and four months. Concurrent sentences were set for the other charges, as well as an order to pay reparation of

$1385.82 for the property damage.

Submissions on Appeal

[17] Counsel for Mr McDowell, Mr Young, submitted that the starting point of four years for the lead offending was too high and that three and a half years was more appropriate. He noted that there are a wide variety of arson cases, and an equally wide variety of starting points. However, he considered that the cases that the District Court appeared to consider were analogous were more serious and

_{should be distinguished having regard to the unique features of this case.}

¹⁰ _{French v R [2014] NZCA 297.}

¹¹ Meha v R [2014] NZCA 307.

[18] In terms of the May 2014 offending, Mr Young said that the uplift of

12 months (reduced to six months to reflect the totality principle) was far too stern. He submitted that an uplift of four months, reduced to two, was more appropriate. This would give a combined starting point of 44 months which, after deduction of a full discount for a guilty plea, would result in an end sentence of 33 months.

[19] In the alternative, if the starting point submission was rejected, Mr Young submitted that a discrete discount of five to 10 per cent should be afforded to Mr McDowell to account for his rehabilitative prospects.¹² In this regard he noted that Mr McDowell has glowing references from family and previous employers and, while he offended between 2002 and 2004, there was a seven year hiatus from offending, with further relatively low level offences in 2011 and 2012. Mr McDowell has never been to prison before, so a shorter prison sentence would

still have a significant punitive effect. He has also paid reparations for the damage done.

[20] The Crown’s response to Mr Young’s submissions is simple. First, Mr Young has not advanced any compelling reason why the starting point was in fact too high. They go on to say that the contention that the 12 month uplift was inappropriate is without foundation, the fact that reparation paid in full in relation to the May 2014 offending is not determinative of success on appeal and that any rehabilitative prospects are secondary to the aggravating features of this offending. Even if the sentence might be said to be stern, it was clearly within range, and there is no basis for imposing a different sentence on appeal.

Discussion

Aggravating and mitigating features of the offending

[21] Mr McDowell was 29 at the time of the offending and all of the offending occurred while he was heavily intoxicated.

[22] The arson attack on the house by Mr McDowell was properly identified as the lead offence and in respect of that, the aggravating features were, first, that the

¹² It is not clear what the rationale was for prescribing these as alternative submissions.

victims were vulnerable. He knew that they were in bed asleep at the time that he set the weatherboards on fire and so would have been unable to defend themselves against the risk he created, had the fire taken hold. Second, there was a degree of premeditation and determination. It is clear that when he arrived at Sneyd Street he persisted in a determined fashion, making several attempts to light a fire, in spite of the torrential rain. It seems it was only because of the wet weather that more serious consequences did not flow. However, the premeditation appears to lack any sophistication as, despite his repeated attempts, he was not successful in doing more than creating minor burn damage to the house.

[23] It is also relevant that this offending occurred on the property of another, at which Mr McDowell was unlawfully present. Unlawful entry into, or presence in, a dwelling is an aggravating feature.¹³ Here Mr McDowell was unlawfully present at the property where he lit the fire (and also took items from the neighbouring property to assist in his venture), and this is an aggravating feature.

[24] Against these factors, the level of actual harm and loss were in fact very low. There was minimal damage to the house and no evidence that the occupants suffered any emotional harm as a consequence. While, in French, the Court of Appeal identified the degree of property damage as one of the critical factors in setting the sentence for arson, it has also been identified that “...[i]t is the likelihood of danger,

not the actual harm to the occupants, which is the relevant aggravating factor”.¹⁴ In

this case the risk of harm and potential loss was significant, because he was deliberately endeavouring to light a fire against a house where he knew three people were asleep. However, in terms of the harm or loss that actually eventuated, there was virtually none, and it is the discrepancy between the risk of harm, and the actual harm caused which contributes to the difficulty in setting the starting point.

[25] In Meha,¹⁵ the Court of Appeal also said that the mental state of the offender was relevant and, while Mr Young’s submissions concede that Mr McDowell was clearly “angry and motivated by something that had happened earlier in the night”,

_{they also say he was “extremely intoxicated and so his awareness was impaired and}

¹³ _{Sentencing Act 2002, s 9(1)(b).}

¹⁴ French v R, above n 10, at [14].

his attempts were inept”. In addition, he was not charged with knowing that danger to life was likely, but rather that he “ought to have known” of this risk, which does suggest slightly lesser culpability. However, I also take into account that the actions were determined, and for a vindictive purpose. Overall, I consider that his purpose for lighting the fire and his commitment to achieving the result, is an aggravating feature.

[26] There are no mitigating features of the offending.

[27] In determining the starting point it has been said that: ¹⁶

There is no tariff for arson. Each case will depend on its own facts which will involve a consideration of the property damage, danger to life both of occupants and fire fighters, and often the mental state of the offender will be of significance.

Having reviewed a wide range of cases, including those referred to by the Judge, starting points appear to range from about two and a half years up to about seven, depending on the aggravating features involved.

[28] The Crown noted the wide range of cases which the Judge had referred to in sentencing, and his comment that, had he had more time to consider French and Meha, he “might have been minded to apply a higher starting point”. In response, Mr Young argued that both of those cases had more significant aggravating features. In French, the victims were two children aged nine and seven years who were clearly vulnerable because of their age and the fire was lit inside the house, in close proximity to their bedroom door, and where the offender had placed bed frames against the door as an obstruction to trap the victims inside the bedroom.

[29] In Meha, there was an escalating series of arsons with the offender targeting the front door of the house in the second to last arson and then in the last arson, sliding the rubbish bin lid filled with petrol under the base weatherboards of the exterior wall of the victim’s bedroom in which the victim was sleeping. Mr Young

_{submitted, and I accept, that in terms of aggravating features, both of these cases}

¹⁶ R v Z CA138/00, 27 June 2000 at [6]. See also R v Munro CA132/02, 24 July 2002; R v Protos

CA259/04, 19 October 2004; R v Gilchrist CA429/90, 15 April 1991.

involved greater danger posed to the victims and more steps taken by the offenders to place the victims in danger.

[30] Mr Young referred to Cox v R and McWatters v R, as being more relevant cases for fixing the starting point. ¹⁷ In Cox, the appellant lit a fire under the wheel arch of the vehicle in a driveway and set it alight. The vehicle was parked within two metres of a dwelling house in which the occupants were sleeping and the fire caused approximately $2,000 worth of damage. The appellant also faced a second charge, again when he had been drinking, where he went to a victim’s address,

pushed the baby’s pram up against the doorway and set the pram alight. Both the pram and the dwelling caught fire and the fire caused damage totalling approximately $12,000 before it was put out. The appellant had four previous convictions for arson, three of which related to setting alight paper that he had placed on the wheel arches of parked vehicles. The Judge in the District Court adopted a

starting point of three years, following the decision in R v Protos,¹⁸ and the Court of

Appeal concluded that the starting point was “well within the available range”.

Mr Young pointed out this sentence covered both arson offences.

[31] In McWatters, the appellant and some companions made up some Molotov cocktails, took them to the victim’s house where he was sleeping with his family, including his three children and set a corner of the house alight with them. The occupants awoke, called the police and fire service, and the fire was extinguished with only moderate damage to the building. There were also other charges of burglary and receiving and they attracted a starting point in total of four years’ imprisonment. Mr Young therefore submitted that McWatters had “a number of strongly aggravating features including multiple offenders and a very clear danger to life”.

[32] Having regard to both those cases, which Mr Young said are more serious in terms of their aggravating features, it was submitted that the starting point in this

_{case is too high.}

¹⁷ _{Cox v R [2013] NZCA 194, McWatters v R HC Whangarei CRI-2003-488-2, 6 June 2003.}

¹⁸ R v Protos CA259/04, 19 October 2004.

[33] Although I have considered Cox and McWatters, they are just two of a range of cases I have had regard to and I do not consider that they demonstrate the starting point adopted was outside of the available range. For example, I have read a number of cases where the starting point for arson was in the range of four to six years, and where the main distinguishing feature was that considerable property damage in fact

eventuated.¹⁹

[34] In my view, the critical aggravating feature in this case, is the fact that it involved arson on an occupied home. Such offending must be condemned, whether or not danger to life actually ensued. In the circumstances, and having regard to a much wider range of cases, the initial starting point of four years was not outside the available range.

[35] However, I am not persuaded that the uplift of 12 months for the May offending was justified, even though of course, it was reduced by six months to take account of the totality principle. Considered on its own, the May offending was of quite a different nature in character to the November offending. Mr McDowell, had a grievance with his flatmate and, with his co-offender, took and burnt some of his flatmate’s possessions on a bonfire in the backyard. He has since paid his share of reparations for this in full and has expressed remorse for this offending. Taking account of this action, and the other offending, I consider an uplift of six months is appropriate but, having regard to the totality principle, I am satisfied that a sentence of four years and four months is sufficient to mark the offending.

[36] Because Mr McDowell’s previous offending is different in nature to the current offending, and altogether less serious, in my view no uplift is required for that.

[37] I then must consider Mr Young’s submission that there should be a discount to account for rehabilitative prospects, demonstrated by his willingness to change, some minor element of genuine remorse (the letter to his flatmate) and the family

_{and employer support which Mr McDowell enjoys.}

¹⁹ See for example, Howarth v R [2010] NZCA 523; Ollerenshaw v R [2010] NZCA 32; R v

Rikiriki [2009] NZCA 217; R v Rameka CA426/04, 16 June 2005; R v Skeens CA341/01,

[38] It does not seem that the issue of Mr McDowell’s rehabilitative prospects was explored in sentencing at the District Court. It is not referred to in submissions or in the Judge’s sentencing notes. It seems the Judge relied on the pre-sentence report to provide an indication of rehabilitative prospects which assessed Mr McDowell as being at “a medium risk of reoffending, [and] a high risk of harm to others”.

[39] In terms of rehabilitative prospects, the primary evidence is the support Mr McDowell has from his family, including to assist him in addressing his drinking problem, and the willingness of his previous employer to provide a reference and to offer him employment on his release from prison.

[40] However, it is clear that his drinking is the primary cause of his offending, and although he has previously completed drug and alcohol counselling, he had not successfully addressed this problem. There must therefore be a level of scepticism about whether he will be more motivated to succeed this time around.

[41] Overall, I am persuaded that a modest discount should be given for his rehabilitative prospects of four months. This leads to an overall sentence of four years, to which the 25 per cent discount for a guilty plea should be applied. That results in an end sentence of three years. While only four months less than the sentence imposed in the District Court, the difference is material, and does not constitute mere “tinkering” to the sentence.

[42] Accordingly, the appeal is allowed, the sentence of three years and four months is quashed. In its place, a sentence of three years’ imprisonment is imposed.

Solicitors:

Hugo Young Law, Invercargill

Preston Russell Law, Invercargill