Stone v R [2016] NZHC 1289 (14 June 2016)

High Court of New Zealand

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Stone v R [2016] NZHC 1289 (14 June 2016)

Last Updated: 20 June 2016

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-000026 [2016] NZHC 1289

BETWEEN	MICHAEL RAYMOND WILLIAM STONE Appellant
AND	THE QUEEN Respondent

CRI-2016-409-000027

BETWEEN MICHAEL RAYMOND WILLIAM STONE

Appellant

AND NEW ZEALAND POLICE Respondent

Hearing:	14 June 2016
Appearances:	R M Buddicom for Appellant A M Toohey for Respondent
Judgment:	14 June 2016

_{ORAL JUDGMENT OF GENDALL J}

[1] Having pleaded guilty to charges of: (a) arson;¹

(b) obtaining by deception;²

_{(c) attempting to obtain by deception;}³

¹ _{Crimes Act 1961, ss 267(1)(c) and 66.}

² _{Crimes Act 1961, ss 240(4)(a) and 66.}

³ _{Crimes Act 1961, ss 240(1A) and 66.}

STONE v THE QUEEN [2016] NZHC 1289 [14 June 2016]

(e) possession of a pipe,⁵

on 9 March 2016 the appellant Michael Raymond William Stone was sentenced by Judge Kellar in the District Court to two years and 10 months’ imprisonment.⁶ It is this sentence that is now under appeal.

Background

Factual background

[2] Mr Stone, his partner Ms Menner, and an associate Mr Clark, lived at and were tenants at a Housing New Zealand property at Ruru Road, Christchurch. On

17 January 2015, in response to alleged threats to their safety, Mr Stone and his co- defendants, including a fourth associate, devised an ill-conceived plan to set fire to the house. In preparation the accomplices drove to Timaru and booked a motel.

[3] In the early hours of the following morning, Mr Stone and two of his co- defendants, Mr Clark and Mr McGoverin returned to Christchurch. On the way they stopped in at the BP Rolleston petrol station and filled a petrol can with petrol. On arriving at the property Mr Stone and Mr Clark went into the house while Mr McGoverin drove the car around the block.⁷ Once the house was alight, Mr McGoverin picked up Mr Stone and Mr Clark and the three returned to Timaru. Neighbours discovered the fire and called the fire service. The house was extensively damaged however with costs of repairs assessed in the region of

$150,000.

[4] Ten days prior to the arson, Mr Stone and Ms Menner had taken out an insurance policy covering $95,000 worth of their contents. They subsequently made an insurance claim for loss of contents. The insurance company provided an instant

_{$1,000 emergency payout. Mr Stone and Ms Menner both made statements to the}

⁴ _{Crimes Act 1961, s 231(1)(a).}

⁵ _{Misuse of Drugs Act 1975, s 13(1)(a) and (3).}

⁶ _{R v Stone [2016] NZDC 4076.}

7. There was a dispute between Mr Stone and Mr Clark about the roles that each played, however it was agreed that they were both principal and equally culpable offenders in the offending.

insurance investigator denying any knowledge of the fire. However, the insurance claim came to an end after they admitted the offending.

[5] On 12 November 2015 while on bail for the above offending Mr Stone and Ms Menner went to a residential property under construction in the Wigram area. Ms Menner climbed into the roof trusses of a house under construction, removed copper wiring and passed it to Mr Stone. However, several construction workers in the area approached the defendants who escaped over the fence, leaving their vehicle in the driveway to the property. After returning to collect their vehicle the police located Mr Stone and Ms Menner. Mr Stone was also found in possession of a cannabis pipe.

Procedural background

[6] Mr Stone pleaded guilty to the charges which he faced. However, a disputed facts hearing was required in relation to the charge of arson after he contested the Crown’s summary of facts. The issue arose out a statement made by Mr Stone’s co- offender, Mr Clark. Mr Stone disputed the fact that he entered the house, contending that he got cold feet at the entrance of the property and could not go through with the plan. He claimed that Mr Clark offered to set fire to the house while he waited outside. Mr Clark stood by his statement that they both entered the property and that it was Mr Stone that poured petrol around the house.

[7] Having discussed the situation, the parties agreed that:

(a) Mr Stone and Mr Clark were equally culpable in relation to the arson. (b) Mr Stone should not suffer any loss of credit for his guilty plea

despite the fact the matter went to a disputed fact that it went to a disputed facts hearing.

District Court sentencing

[8] Turning now to the sentencing in the District Court, in relation to the arson, Judge Kellar identified the following aggravating features:

(b) the substantial property loss of over $150,000; and

(c) the potential for harm to the fire fighters and adjoining properties.

[9] The Judge went on to take a starting point of three years for the arson. He then imposed an uplift of six months to account for the obtaining by deception and the attempt to obtain by deception in relation to the insurance proceeds. A further nine months’ uplift was imposed in recognition of the burglary and possession of utensils offending. This left the total at 51 months’ imprisonment.

[10] Judge Kellar then applied discounts. The sentence was reduced by eight months for good character and a further nine months to reflect the guilty plea and a reasonably successful restorative justice conference. That left an overall end sentence of two years and 10 months’ imprisonment.

Submissions

Submissions for the appellant

[11] Turning now to the appellant’s submissions, the appellant appeals on two bases, first, alleging a disparity of sentence and, secondly, regarding the uplift for burglary and possession of the cannabis pipe, alleging that these were manifestly excessive.

[12] The first ground relates essentially to the sentence passed on Mr Stone’s co- offender, Mr Clark. It is submitted that there was an unusual set of facts leading up to the entering of a guilty plea. In brief, Mr Stone had indicated he would enter a guilty plea once the summary of facts was accurately recorded. In the meantime, Mr Clark sought a sentence indication based on a summary of facts that, it would seem, was advantageous to him but detrimental to the appellant. The appellant Mr Stone was left in a position where a disputed facts hearing was necessary. For Mr Clark’s assistance in this matter, a 30 per cent discount was indicated.

[13] Despite the result of the disputed facts hearing, it is said, suggesting that there is equal culpability between the appellant and Mr Clark, Judge Kellar maintained a disparate sentencing approach between the two offenders. Although both of these men received the same starting point, it is submitted for this appeal that the

30 per cent discount that Mr Clark received for assistance resulted in an unjustified disparity in sentence.

[14] Counsel suggests that Mr Clark was in fact the least co-operative and the most self-serving of the defendants. It is said it was also clear from the other co- defendants’ co-operation that things were not going to proceed to trial. Given what must be seen as the extraordinary facts of the case, it is submitted that the appellant must be given similar credit.

[15] The second point of appeal relates to the uplift for the burglary and the possession of utensils offences. The burglary was of an unoccupied construction site in the daytime and it is said it was spontaneous offending. The cabling was not removed from the property and nothing was taken. A nine month uplift, according to the appellant, was excessive in the circumstances.

Discussion

Parity of sentence with Mr Clark

[16] The first point of appeal relates to the parity of the sentence between the appellant and his co-offender, Mr Clark. Mr Clark was given the same three year starting point as the appellant. Mr Clark, however, offered assistance to the prosecution if the matter was to go to trial. Judge Kellar calculated that the offer of assistance and the evidence given, despite its disputed nature, warranted a

30 per cent discount. This, in combination with a guilty plea discount, resulted in an

18 month reduction in sentence to an overall end sentence for Mr Clark of one year and six months’ imprisonment. This was commuted to a sentence of nine months’ home detention.

[M]ust take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances.

[18] Public perception is a particularly important consideration when it comes to parity of sentences, as expressed by the Court of Appeal in R v Lawson:⁸

[A] marked difference in the sentences imposed on co-offenders, and for which no justification can be shown, may be of importance to the administration of justice generally in that such a marked and unjustified difference will tend to bring the administration of justice into disrepute. The Courts must bear in mind that public confidence in the administration of justice is best preserved if justice appears to be administered even-handedly.

[19] However, the Court of Appeal in R v K noted that sentencing is not an exact science and often there will be legitimate reasons for disparate sentences between co- offenders:⁹

Whilst it is vital for a sentencing Court to strive for parity in sentencing co- offenders (whether sentenced separately or together), parity will not be achieved by a simple measurement against a co-offender’s culpability. Parity means treating like cases alike and others with due regard for relative differences. It is best achieved by sentencing each offender appropriately for his role in the overall offending, in light of any relevant antecedents and taking into account any aggravating or mitigating features personal to the offender.

[20] In R v Morris the Court of Appeal observed, in relation to its appellate role, that it:¹⁰

[M]ust also be concerned to ensure the maintenance of a due proportion between sentences. Any marked departure from accepted levels for offences of similar gravity without adequate reason can result in injustice to an accused person and may raise doubts about the even-handed administration of justice.

[21] In the earlier case of R v Rameka the Court of Appeal was cognisant of the increased willingness to allow disparity of sentence as a ground of appeal but stated

_{that simply because one co-offender has received too short a sentence is not grounds}

⁸ _{R v Lawson [1982] NZCA 67; [1982] 2 NZLR 219 (CA) at 223.}

⁹ _{R v K (2003) 20 CRNZ 62 (CA) at [20].}

¹⁰ R v Morris [1991] 3 NZLR 641 (CA) at 645.

for necessarily interfering with a longer sentence imposed on another.¹¹ In each case the court must consider all of the surrounding and infinitely variable circumstances.¹² Put slightly different, Roskill LJ in R v Stroud held that if the appellate court was bound to take a lesser sentence as the norm when that sentence is inappropriately lenient, it would be tantamount to saying that, “where you have one wrong sentence and one right sentence [the] Court should produce two wrong sentences”.¹³ Although where the disparity is unjustified and gross, there may be grounds for appeal.¹⁴ There is a balancing act between confidence in the administration of justice and the desirability of compounding the injustice of one manifestly inadequate sentence by adding another to it.¹⁵

[22] Where the sentence itself is appropriate then, the disparity must be unjustified or gross. This is an objective test not based upon what the appellant thinks, but whether “a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice”.¹⁶

[23] Finally, when considering parity between two co-offenders’ sentences, it is more important to consider parity of starting points rather than end sentences because as the Court of Appeal observed in R v Mako, “fixing the starting point is the mechanism for seeking consistency in sentencing”.¹⁷

[24] In relation to Mr Stone and Mr Clark here, they each received three year starting points for their primary roles in the arson. No issue is taken with this, nor could one be. The issue, as stated above, is taken with the 30 per cent discount for assistance provided to Mr Clark.

[25] Although the utility of this assistance offered may ultimately have been questionable, an offer of assistance was nonetheless made and evidence was

_{provided. At the time the sentence indication was given, a 30 per cent reduction was}

¹¹ _{R v Rameka [1973] 2 NZLR 592 at 593.}

¹² _{At 593.}

¹³ _{R v Stroud (1977) 65 Cr App R 150 at 152 approved in Lowe v R [1984] HCA 46; (1984) 154 CLR 606 (HCA).}

¹⁴ _{R v Rameka, above n 11, at 593.}

¹⁵ _{Jacobs v Police HC Rotorua AP 11-90, 21 May 1990.}

¹⁶ _{R v Lawson, above n 8, at 223.}

¹⁷ R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 (CA).

indicated and ultimately imposed at sentencing. In terms of reductions for assistance, this appears to have been fairly standard and I do not consider that Mr Clark was not entitled to any discount.

[26] Taking a step back and asking myself the question of whether a reasonable minded and independent observer aware of all the circumstances of the offending and of the offenders would think that something had gone wrong with the administration of justice here, I do not think that they would. Mr Clark was entitled to a discount but Mr Stone was not. That discount imposed was not excessive. I do not therefore consider that the disparity in sentence is either unjustifiable or gross. On this point, the appeal must fail.

Burglary

[27] Turning now to the burglary and related matters, counsel for the appellant takes issue with the size of the uplift imposed on the sentence for the burglary and possession of a pipe offending. Counsel frames the offending as a spontaneous burglary of an unoccupied construction site in the daytime. The copper wiring was not removed from the property and nothing was taken.

[28] However, the summary of facts records that the wiring was not removed because Mr Stone was approached by construction workers. Furthermore, Mr Stone admitted that he was going to sell the copper wiring for money.

[29] In R v Nguyen , the Court of Appeal was not willing to fix a tariff for burglary sentencing, although it did identify a number of factors relevant to the seriousness of burglary offending:¹⁸

(a) the degree of planning and sophistication in the offending; (b) the nature of the premises entered;

_{(c) the kind and value of the property stolen;}

¹⁸ R v Nguyen CA 110/01, 2 July 2001.

(d) damage done;

(e) the impact and potential impact upon occupants or owners of the property; and

(f) the extent of the offending where multiple burglaries are involved.

[30] In this case, although the property was residential, it was under construction at the time so it was not truly residential then. At the same time it was not a commercial premise. It was something of a hybrid, or possibly similar to the burglary of a detached garage or shed on a residential property. The kind of property stolen is of relevance. In this case it was property that could and was intended to be converted into money. In saying that, the degree of planning and sophistication appears low. The offending also occurred while Mr Stone was on bail for other

dishonesty offending which is a general aggravating factor.¹⁹

[31] R v Stevens involved the burglary of $350 of copper piping from a commercial premises, although there were also significant breaches of trust as the offender used to the clean the premises and had knowledge of the security system.²⁰

The Court of Appeal reduced the starting point holding that it should have been no higher than 18 months’ imprisonment.²¹ In doing so it stated that “Theft of copper piping from the interior and exterior of buildings imposes considerable inconvenience on property owners”.²² Copper wiring is in a similar category in that it is an item targeted for its on-sale value. This slightly increases the degree of sophistication of the current offending in my view.

[32] In these circumstances I consider that the uplift of nine months to take account of the burglary and the possession of pipe offending imposed here was

_{justified, particularly given it was committed whilst Mr Stone was on bail.}

¹⁹ _{Sentencing Act 2002, s 9(1)(c).}

²⁰ _{R v Stevens [2009] NZCA 190.}

²¹ _{At [14].}

²² At [14].

Outcome

[33] As to the outcome, for all the reasons I have outlined above, this appeal is dismissed.

...................................................

Gendall J

Solicitors:

Ruth Buddicom, Christchurch

Anne Toohey, Christchurch