Rattray v Police [2014] NZHC 663 (3 April 2014)

Last Updated: 16 May 2014

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2013-409-145 [2014] NZHC 663

BETWEEN	JOHN NGARIMU RATTRAY Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	3 April 2014
Appearances:	E Bulger for Appellant K Basire for Respondent
Judgment:	3 April 2014

_{RESERVED JUDGMENT OF MANDER J}

[1] This is an appeal from a 3 year and 5 month sentence of imprisonment imposed by Judge Farish for arson. The appellant pleaded guilty to 2 charges of wilfully setting fire to property in circumstances that endangered life, 2 charges of arson simpliciter, 1 charge of possession of a knife in a public place, and 1 charge of intentional damage under the Summary Offences Act 1981. The charges of wilfully setting fire to property endangering life carry a maximum penalty of 14 years imprisonment.

The facts

[2] The facts of the offending are not in issue, nor the Judge’s analysis of the

aggravating features of the offending.

[3] On 5 July 2013, the appellant set a fire on the stove of a flat he shared with four other occupants. He arranged a series of items on the stove, turned all the elements on and then left the property. One of the flatmates smelt smoke and turned the elements off. However, the appellant returned and turned the elements back on

_{again. Fortunately, the fire was detected and Police and the fire brigade alerted.}

RATTRAY v NEW ZEALAND POLICE [2014] NZHC 663 [3 April 2014]

[4] The appellant was apprehended on his return to the property, where he was found in possession of a small vegetable knife. After being charged with the possession of the knife and the serious charge of arson where life was endangered, the appellant was seen by a psychiatrist and psychiatric nurse. While in custody and in his unwell state, he ripped a Police blanket. He was committed under a compulsory treatment order and whilst on remand assessed as to fitness to plead at Hillmorton Hospital. The appellant subsequently decamped from that facility. He was on medication and still unwell. While at large, the appellant began abusing alcohol which aggravated his bipolar disorder.

[5] After leaving Hillmorton Hospital, the appellant set fire to the contents of a plastic wheelie bin stored against the side of a temporary dairy. This caused damage to the outside of the building and also caused stock damage to the value of some

$1,250. At that time the appellant also set fire to a pile of possessions stacked against a garage door of another property, thereby endangering three dwellings attached to the garage. This fire caused damage to the value of $29,803. Significantly, it put at risk people who were sleeping in their homes, in additional to causing emotional and financial stress to the shop owners. These fires were the basis for the further charge of arson laid in its aggravated form of endangering life.

[6] In the early hours of the following morning, the appellant proceeded to light two further separate fires in two council rubbish bins before being located by the Police and arrested. The appellant was remanded in custody, subsequent to which his mental health improved with the regular taking of his medication.

[7] In reviewing the circumstances of the offending, Judge Farish noted the endangering of life and the hardship to the dairy owners, reliant for their income from their small business which had been resurrected to serve the local community after being significantly affected by the earthquake. Notwithstanding the risks to the fire fighters, it was noted that no one was hurt as a result of the arsons and comparatively little significant damage caused.

[8] The learned sentencing Judge had available to her two psychiatric reports.

The first prepared in relation to the appellant’s fitness to plead and the other in

relation to the type and length of sentence. The Court recognised the psychiatric disorder which the appellant has been struggling with for a number of years. That disorder is coupled with a history of polysubstance abuse in relation to drugs and alcohol. Her Honour noted the relatively isolated life the appellant led within the community, his alienation from his family as a result of those difficulties, the impact of his father’s death and his genetic predisposition to serious mental health issues which have also affected other close relatives.

[9] In sentencing the appellant, Judge Farish identified a number of aggravating features. Firstly, the level of premeditation apparent in relation to the most serious arsons. Secondly, the risk to the tenants and home owners as a result of these fires. Thirdly, the loss suffered which, while not excessive, is not insignificant, totalling some $31,000. Reparation would be futile. Fourthly, that the second episode of offending occurred after the appellant had absconded from Hillmorton Hospital where he was subject to a compulsory treatment order. It was acknowledged that at that time the appellant had little insight in relation to his illness but he was aware that alcohol would only aggravate his condition, and yet he made a deliberate decision to drink. Other aggravating features included the number of fires lit and the effects upon the victims of that offending.

[10] Relying on the authorities of R v Rameka¹ and R v Skeens,² the learned District Court Judge took a starting point of 5 years. In so doing, Her Honour noted the need to reflect the totality of the appellant’s offending and the need to denounce the conduct, protect the community and deter the appellant. Of significance was the relevant previous offending by the appellant in 2008. That offending involved 5 charges of burglary and 3 charges of arson which resulted in extensive damage to the premises of a cricket club, a church and a church hall. Almost $800,000 in damage was done. This previous offending resulted in an uplift in the starting point of 6 months imprisonment.

[11] On the appeal, Ms Bulger for the appellant does not take issue with the starting point of 5 ½ years adopted by Judge Farish, nor the 25% discount for his

¹ _{R v Rameka CA 426/04, 16 June 2005.}

² R v Skeens CA 341/01, 26 February 2002.

early guilty pleas. Ms Bulger however does seek to contest the discount applied by the sentencing Judge to recognise the serious mental illness that the appellant was labouring under at the time. It is submitted on behalf of the appellant that the 10% credit applied for the mental health aspect of the offending did not adequately reflect the extent to which that factor impacts on the appellant’s culpability.

[12] In advancing this submission, the appellant submits that too much emphasis was placed on the appellant’s appreciation that when he set the fires he knew what he was doing was wrong and was legally responsible for his actions. This however, it was submitted, should not detract from the role the appellant’s mental disorder played in his offending.

[13] Secondly, Ms Bulger submits that while it is acknowledged that the appellant’s abuse of alcohol and drugs was a feature of the appellant’s conduct, that factor together with his failure to self-medicate were subsidiary to the overarching serious mental illness.

[14] Further, it is submitted that on the information available to the Court it is apparent that the appellant does have some insight into his personal situation and the consequences of his offending on his victims. Ms Bulger submits that there is an appreciation by the appellant about what gets him into trouble and what he needs to do to avoid those difficulties. It is submitted that this is a positive factor in terms of the appellant’s rehabilitative prospects. Ms Bulger stressed the importance to the appellant of being afforded the opportunity to demonstrate his commitment to his rehabilitation and taking up the support offered by his sister and brother-in-law.

[15] In only affording a 10% discount under the heading of the mental health aspects of this case, it is submitted due recognition was not paid to the extent to which the appellant’s mental condition influenced his criminal conduct, nor does it recognise his apparent commitment to overcome those issues. Ms Bulger submitted that in imposing such a lengthy sentence the appellant’s apparent commitment may be lost and that a credit in the vicinity of some 20% should have been extended to recognise the mental health dimension of the appellant’s circumstances in this case.

[16] In the appellant’s submission a total discount of 45% was within range, having regard to the matters of mitigation which the Court was obliged to acknowledge, and in particular the appellant’s early pleas and the part played by the appellant’s mental health in the offending.

[17] The Crown in its written submissions emphasised that the appellant knew what he was doing when setting the fires and that such conduct was wrong. That the abuse of alcohol and cannabinoids have been a feature of the appellant’s prior episodes of offending and that a sentencing Court has to take care not to allow the effect of alcohol to be used as a matter of mitigation. Furthermore, the appellant was well aware of the jeopardy he placed himself in when abusing alcohol and taking drugs. His decision not to take his medication was a deliberate one and that the appellant’s history shows this type of conduct is not isolated. The Crown takes issue with the submission that the appellant has demonstrated insight into the consequences of his offending, or his empathy for others.

[18] The Crown submitted that unfortunately, as the appellant presented to the sentencing Judge, there was little cause for optimism that the appellant will have the necessary motivation to properly manage his mental health and substance abuse issues. The 35% total discount was described as generous by the Crown, and it was submitted no error in the sentence imposed by Judge Farish has been identified.

[19] Ms Basire in oral argument submitted no identified error was apparent in the District Court’s approach to the sentencing exercise and appropriate deductions were made from a valid starting point. Reference was made to the Court of Appeal’s decision of R v Lucas-Edmonds,³ which involved a similar situation of an offender labouring under psychological and psychiatric difficulties who had committed multiple arsons. The Court of Appeal observed that the case raised difficult and perplexing issues relating to the sentencing of offenders who are significantly impaired and the interface between culpability and diminished responsibility. While

reducing the sentence on the basis of an excessive starting point, the Court considered a one-third reduction to reflect both guilty pleas and the appellant’s diminished responsibility as appropriate. Any greater reduction than a third discount

would, it was held, result in an unjustified diminution of the need to consider public risk.

[20] Reference was also made by the Crown to Shingleton v Police,⁴ where Panckhurst J reduced a sentence of 3 years and 9 months by a year which had been imposed on a first offender who had committed arsons and struggled with numerous psychological difficulties. In that case the High Court considered the approach in Lucas-Edmonds but concluded that the need for protection of the public did not trump the necessary modification to the length of an otherwise appropriate sentence

to recognise the appellant’s psychological difficulties. In Ms Basire’s submission the

appellant’s history prevents the same type of approach being adopted in this case.

[21] It is apparent that this appeal turns on the learned sentencing Judge’s consideration of the role played by the appellant’s mental health in the offending and whether the 10% reduction is adequate having regard to the other factors which bear on the sentencing exercise. This was the subject of some focus by Judge Farish who noted the appellant’s comorbidity, that being the interaction between the appellant’s Bipolar Affective Disorder and the appellant’s predisposition upon becoming unwell to self-medicate with alcohol and drugs which only exacerbates his mental health disorder and aggravates the risk of re-offending. The appellant also has displayed antisocial personality traits in the past which are typically worsened when in an elevated mood state.

[22] Judge Farish directly engaged with the submission that credit should be afforded to the appellant to recognise as a substantive mitigating factor his mental health difficulties. The learned sentencing Judge however noted the dilemma for the sentencing Court. While the appellant’s mental condition is clearly linked to the appellant’s offending, equally so is the appellant’s decision to stop his medication and in substitution abuse drugs and/or alcohol. In knowingly resorting to that course, credit that might otherwise be available to the appellant is more limited. His behaviour at the time of the offending was clearly influenced by marijuana, synthetic cannabinoids and alcohol which impaired his judgment. Judge Farish acknowledged however that the decline in the appellant’s mental health as a result of him not taking

his medication leads to him becoming significantly impaired such that by the time he has a predisposition to set fires he already lacks the insight to recommence his medication.

[23] Judge Farish in imposing the end sentence of 3 years and 5 months imprisonment recognised the need for the appellant to take the opportunity while in prison to undertake a drug and alcohol treatment programme. Further, upon release to have ongoing mental health support to ensure mental health providers have the opportunity to intervene at an early stage should they see a deterioration in the appellant’s health. The willingness of some of the appellant’s family to assist the appellant was also viewed as a positive development.

[24] The appellant contends for a credit of 20% to mark the appellant’s mental health difficulties, however in terms of the formal Taueki/Hessell/Clinton approach to sentence calculation that would result in a difference of only some two months from the current sentence. The proposed 20% calculation is required to be made as a discrete deduction from the starting point, followed by the third stage of the sentencing exercise which in this case would be marked by the 25% deduction for the guilty pleas. Instead of a sentence of 3 years and 5 months, a sentence of 3 years and 3 months would result.

[25] Ms Bulger accepted that the adjustment sought was not great but stressed that the value of the appeal was to achieve what she described as a more meaningful acknowledgment of the mental health issues that gave rise to the offending and the appellant’s commitment to avoid allowing himself to reach the type of tipping point that places him at risk of re-offending.

[26] The relevance of the appellant’s previous offending to the evaluation of the appellant’s culpability is sought to be mitigated by the emphasis Ms Bulger places on the insight and coherence which she submits is now being displayed by the appellant in the wake of this second bout of offending and which bodes well for his ultimate rehabilitation with the assistance of family. Against that, the Crown highlights the public safety considerations and that the recent arsons represent recidivist conduct.

[27] Essentially, an appeal Court must stand back and consider whether the sentencing Judge erred in the ultimate sentence imposed. A sentence of imprisonment was undoubtedly the appropriate type of sentence in this particular case. Having regard to the range of matters to be taken into consideration when dealing with such serious repeat offending and the limited basis upon which the appeal seeks to vary the sentence, I have not been brought to the conclusion that the sentence imposed was outside that available to Judge Farish in the exercise of her sentencing discretion. Nor, despite Ms Bulger submitting all that could be said in support of the appeal, have I found error in the balance Judge Farish achieved in allowing the deductions for plea and the appellant’s mental health.

[28] Undoubtedly, as recognised by the sentencing Judge, the appellant’s mental health condition had a central role in the offending. Equally however the appellant is aware of his responsibility to take his medication and keep himself safe. He also has an appreciation of how abuse of alcohol and drugs will aggravate his condition. His past experiences in that regard and previous interventions which have not prevented the current spate of arsons entitles the Court to conclude that the appellant must accept a considerable degree of responsibility. The need to protect the public from such dangerous conduct, the avoidance of which largely rests in the hands of the appellant, is also a relevant counter consideration. I am also driven to remark that if the appellant’s commitment to address his difficulties is genuine, a refusal to make the limited type of adjustment sought to the original sentence should not influence those efforts.

[29] In the absence of the appellant being able to satisfy me of any error in the District Court Judge’s approach and that a different sentence should be imposed, the appeal is dismissed.

Solicitors:

Elizabeth Bulger Barrister, Christchurch

Raymond Donnelly & Co, Christchurch