Finlinson v Police [2016] NZHC 224 (19 February 2016)

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Finlinson v Police [2016] NZHC 224 (19 February 2016)

Last Updated: 19 February 2016

NOTE: ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF THE COMPLAINANT REFERRED TO IN THIS JUDGMENT AND OF THE HOME DETENTION ADDRESS OF THE APPELLANT.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-409-000131

CRI-2015-409-000129 [2016] NZHC 224

BETWEEN	RYAN THOMAS FINLINSON Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	16 February 2016
Appearances:	K Paima for the Appellant C E Martyn for the Respondent
Judgment:	19 February 2016

_{JUDGMENT OF NATION J}

[1] On 1 May 2015, Mr Finlinson went to the home of his ex-partner to collect some personal belongings. (I will refer to Mr Finlinson’s ex-partner as Ms Green, although that is not her real name. For similar reasons, I also do not refer to the name of her horse.) He went there at 10.00 pm and became aware she was in bed with a person previously known to him. A short time later, Mr Finlinson left the address and went to a nearby paddock where he shot Ms Green’s horse. This was a horse she was emotionally attached to. It was also of considerable value to her as a horse which she had worked up since October 2014 to a level where she could compete with it in equestrian events at a national level.

[2] On 17 December 2015, Judge Farish in the District Court sentenced Mr

_{Finlinson to 28 months’ imprisonment, required him to pay $10,000 in reparation}

FINLINSON v POLICE [2016] NZHC 224 [19 February 2016]

and ordered forfeiture of a firearm.¹ The sentences were imposed on a charge of intentional damage under the Crimes Act 1961.

[3] Mr Finlinson has appealed against that sentence.

[4] Mr Finlinson had also pleaded guilty to a summary offence charge of assault. When he called at the house, Mr Finlinson wanted the person with Ms Green to leave. As this person was attempting to make his way out of the bedroom and passed Mr Finlinson into the hallway, Mr Finlinson pushed him into the hallway wall. The man was not injured.

The sentencing

[5] Although Mr Finlinson pleaded guilty at an early stage, sentencing was deferred after Judge Farish indicated the Judge who had taken the guilty pleas had not had the opportunity to fully understand the seriousness of the offending. A pre- sentence report dated 18 November 2015 was prepared for a sentencing on 20

November 2015. Judge Farish indicated on 20 November 2015 that a starting point of imprisonment was clearly warranted. A second pre-sentence report dated 9

December 2015 was then prepared for the sentencing which took place on 17

December 2015.

[6] In referring to what happened, Judge Farish said Mr Finlinson had wanted “to cause as much emotional distress to [Ms Green] as you could”. She referred to Mr Finlinson telling the pre-sentence report writers that he recognised the horse had done nothing wrong. She said he had acted “simply out of vengeance for the fact [Ms Green] had decided to end the relationship and you were not happy with that”.²

She said that his actions had caused immense distress and continued to do so. The

Judge agreed with Ms Green’s statement that it was the closest thing to shooting her and the shooting had a two-fold effect. The Judge said it indicated “she lost her most prized possession, the thing she loved the most in the world and something that she

_{cannot replace”. Secondly, the Judge indicated that, to Ms Green, there was an}

¹ _{New Zealand Police v Finlinson [2015] NZDC 25054.}

² At [4].

implied threat that he would do the same to her which made her extremely fearful for her own personal safety.

[7] The Judge acknowledged that there was nothing in Mr Finlinson’s history to indicate that he would act in such an extremely violent way towards Ms Green. The Judge said that the pre-sentence reports indicated he had little insight into his offending and little understanding of the effects of his offending on Ms Green, although he was apologetic for the harm he had caused to the horse. The Judge said there was no real responsibility or sense of remorse and the pre-sentence reports indicated he was at “high risk of causing serious harm unless some sort of intervention [was] brought to bear in relation to [his] thinking and [his] behaviour”.

[8] The Judge said that, because there were no similar cases to Mr Finlinson’s, she had looked at a number of cases across a broad basis to arrive at an appropriate starting point for the offending. She referred in particular to certain cases.³

[9] The Judge said the aggravating features associated with the offending were: (i) the use of a firearm in the context of domestic violence;

(ii) the fact the property damaged was an animal, a pet and a companion, an animal that could feel pain, suffer and die, something that could not be replaced. The Judge said it was not like a house or a car or a room in a house and so the damage was more serious than arson cases;⁴

(iii) it was done with the intention of inflicting the most emotional pain he could in relation to Ms Green, in the context of having made threats against the horse as well as shooting himself or ending his own life; and

(iv) the devastating effect on the victim of finding this horse dead in the paddock.

³ R v McIvor DC Nelson CRI-2013-042-00182, 4 March 2013; Howarth v R [2010] NZCA 523; Ollerenshaw v R [2010] NZCA 32; Police v MacDonald [2012] NZHC 2388; Samuel v R [2012] NZCA 376.

⁴ New Zealand Police v Finlinson, above n 1, at [13] citing Ministry for Primary Industries v

Erasmus [2013] NZHC 281, [2013] NZAR 311.

[10] The Judge adopted a starting point of three and a half years’ imprisonment, gave Mr Finlinson a credit of 10 per cent for the reparation of $10,000 he had arranged and 25 per cent credit for the plea of guilty.

[11] That resulted in a sentence of 28 months’ imprisonment. This was outside the range within which there could be a sentence of home detention. The Judge also said that, given the seriousness of the offending, a sentence of home detention would not have been sufficient to denounce and deter Mr Finlinson’s offending or hold him accountable for the harm he had caused.

Approach on appeal

[12] Section 250 of the Criminal Procedure Act 2011 requires that the appeal be allowed if I am satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.⁵ I must dismiss the appeal in any other case.⁶ To allow the appeal, I must be satisfied that the sentence imposed

_{was “manifestly excessive”.}⁷ _{As has been stated:}⁸

The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than by the process by which the sentence is reached.

Submissions

[13] In careful and thorough submissions for the appellant, Mr Paima submitted the ultimate sentence was manifestly excessive. He submitted the starting point the Judge had adopted was too high and too great an emphasis had been placed on denunciation and deterrence and insufficient weight had been accorded to other relevant purposes and principles. He submitted the Judge should have found Mr Finlinson was genuinely remorseful for what had occurred and should have been given credit for that in addition to the credit for his guilty plea. With an adjustment to take account of those errors, he argued the appropriate sentence should have been

_{less than two years’ imprisonment so that home detention could then have been}

⁵ _{Criminal Procedure Act 2011, s 250(2).}

⁶ _{Section 250(3).}

⁷ _{Tutakangahau v R [2014] NZCA 297, [2014] 3 NZLR 482.}

⁸ Larkin v Ministry of Social Development [2015] NZHC 680 at [26] per Toogood J.

available as an appropriate sentence. He submitted that, if the appeal were to be allowed, home detention should be the substituted sentence, particularly so taking into account the two months that Mr Finlinson has now spent in prison.

[14] For the Police, Ms Martyn submitted that, given the aggravating features of the offending identified by the Judge, an appropriate starting point for the offending was, quite properly, one half of the maximum sentence of seven years for intentional damage to property. She submitted the combined discount of 35 per cent for reparation and the guilty plea was appropriate.

Discussion

Aggravating features

[15] I accept that an aggravating feature of the offending was that Mr Finlinson intended to emotionally hurt Ms Green. An initial pre-sentence report referred to Mr Finlinson stating that he had shot the horse “so that she would feel what I was feeling”. That was repeated elsewhere in the report.

[16] The second report had a somewhat different appraisal, referring not just to what he said but expressing the opinion that Mr Finlinson had felt entitled to emotionally harm Ms Green. The Judge went further and sentenced Mr Finlinson on the basis he had wanted to cause “as much emotional distress to the girlfriend as he could”. This overstated his intention. The first pre-sentence report had referred to Mr Finlinson saying that he shot the horse so she would feel like he did with her ending their relationship. That was not the same as saying that he intended to cause as much emotional distress as he could.

[17] I consider that, given what happened, how it happened and the way Mr Finlinson acted afterwards, it was going too far to say Mr Finlinson felt “entitled” to act as he did. I do not consider he was acting rationally in that sense. The second report referred to Mr Finlinson saying he had felt suddenly overcome and controlled by an overwhelming external force. While that comment was no basis for thinking anyone other than Mr Finlinson was responsible for what he did, it does suggest he was not thinking clearly about what he was doing. The first pre-sentence report also

referred to Mr Finlinson’s attitude towards Ms Green over the ending of their relationship and his desire to do something emotionally to hurt her as being, at least in part, due to his lack of maturity. The fact Mr Finlinson went to the Police Station and reported what he had done almost immediately afterwards, is inconsistent with him having felt “entitled” to shoot the horse.

[18] The Judge referred to the use of a firearm in the context of a domestic situation as being another aggravating factor. To the extent that it is applicable in the case, the use of a weapon is an aggravating factor which the Court must take into account. The situation here is somewhat different from that where a firearm is used to cause genuine intimidation or fear or where it creates a risk for people who an offender may come into contact with while committing a crime. Mr Finlinson did not take the firearm into the home. Obviously, he had it with him when he left the house and when he went to the paddock and shot the horse. The firearm was an essential part of the offence for which he is being sentenced, the killing of the horse. In the particular circumstances of this case, the fact a firearm was used did not create an additional risk for others. It would nevertheless have caused Ms Green to be afraid of what Mr Finlinson might do next.

[19] The Judge had also accepted the statements referred to in the pre-sentence report as having been made by Ms Green that Mr Finlinson had refused to accept the relationship had finished. Ms Green said that, whenever she talked to him about the relationship ending, he would become very emotional and on at least two occasions had threatened to shoot himself, or her horse, or both. The making of such threats was certainly consistent with his wanting to cause her intense emotional distress but, although Ms Green may not have perceived it this way, with such threats he was not

_{threatening to shoot her.}⁹

⁹ There had been a dispute as to whether those threats had been made. They were not referred to in the summary of facts. If they were to weigh heavily in the ultimate sentence, the Judge was required to give Mr Finlinson notice of the weight she would attach to those statements and give him the opportunity to have a disputed facts hearing. I discussed this with Mr Paima on the hearing of the appeal. I said that I would give him the opportunity for such a hearing. I also indicated that I was minded to accept that such threats would have been made. They were consistent with all that happened and Mr Finlinson’s disturbed thinking in connection with the end of his relationship. I also said the threats would not be given such weight as to affect my ultimate determination on the appeal. Mr Paima said, given the delays that had already occurred, he did not seek to have a disputed facts hearing in relation to those allegations but Mr Finlinson nevertheless denied making such threats.

[20] Accepting that Mr Finlinson had made threats to use a firearm in the way Ms Green had described, there was some significance in those threats having been made in relation to the horse or himself but not in relation to Ms Green.

[21] The fact the killing of the horse occurred in a domestic situation was an aggravating feature because of the emotional harm that was done to Ms Green as a result and the fear and hurt that it caused her. Given the Judge’s reference to the emotional harm done to Ms Green as being a separate aggravating factor, care had to be taken to ensure there was no double counting in respect of this.

[22] As a second aggravating feature, the Judge referred to the particular nature of the property that had been destroyed, emphasising that it was an animal. She referred to Priestley J’s observation that an animal is different from other forms of property because it can feel pain, suffer and die. In this instance, because of the way the horse was killed, it was not alleged the horse felt pain or suffered.

[23] In referring to the property being destroyed as an animal, the Judge also referred to it as being a pet and a companion, and as something that could not be replaced. On this basis, she said it was different from a house or car or a room in a house and thus was more serious than the arson cases she referred to. The Sentencing Act, however, requires the Court to consider the seriousness of offending with regard to the maximum sentences that were available for the offending.¹⁰ The maximum sentence for arson is 14 years. The maximum sentence for intentional damage to property, including an animal, is seven years. On that basis, I consider the

Judge made an error in saying the destruction of an animal had to be treated as more serious than the instances of arson she referred to.

[24] I do not consider Priestley J’s judgment in Erasmus was a basis for holding that intentional damage to an animal had to be treated as an aggravating factor because animals feel pain, suffer and die.¹¹ On an appeal, he had to consider the sentence imposed on three charges under s 28 of the Animal Welfare Act 1998. The

_{charges alleged wilful ill-treatment of dairy cows. The case involved “arguably the}

¹⁰ _{Sentencing Act 2002, s 8(b).}

¹¹ Ministry for Primary Industries v Erasmus, above n 4.

most serious case of deliberate animal injury that had occurred and come before the Courts in New Zealand”.¹² The farmer’s actions were described as “appalling”, as causing huge distress to the animals whose welfare had been entrusted to him and as being deliberate and prolonged. Given Mr Finlinson was not charged with wilful ill- treatment or cruelty towards the horse, I do not accept that the mere fact the property damaged in this instance was an animal was, of itself, properly to be regarded as an

aggravating feature of the offending.

[25] The information from Ms Green was that she had purchased her horse in October 2014, that it had taken some months to find a horse suitable for her and further time to train it to the level it was at when it was killed. She also said that the horse “has been valued at $10,000 to replace”. In her victim impact statement, she went on to say “to help me move on with my life I would like reparation to replace [it]”. Although the loss of her horse had left a hole in her life, she was able to say “the sooner I have a new one the sooner my life will be back on track”. I accept the horse was unique and special but, given Ms Green’s statements, it was replaceable.

[26] I do not underestimate the emotional impact that the killing of this horse had and was meant to have on Ms Green. However, I do have a concern that, in referring to this damage having been done in the context of a domestic relationship, the animal being a pet and companion, the emotional damage and the “devastating effect” the death had on Ms Green and, in that context, the animal irreplaceability, the Judge took into account the emotional impact of what happened as three different aggravating features of the offending, when in reality it was one significantly aggravating matter.

[27] The third and fourth aggravating factors of the offending which the Judge took into account both related to Mr Finlinson’s intention to inflict emotional pain on

_{Ms Green and his achievement of this goal.}

¹² At [6].

Credit for remorse, reparation and responses to offending

[28] The Judge gave Mr Finlinson no credit for remorse. She acted on the opinion of two probation officers. On separate occasions, these probation officers had interviewed Mr Finlinson and had agreed that he showed no remorse for the effects that his actions had on Ms Green although he acknowledged that they were not fair on the horse which had done him no harm. The first report had also referred to Mr Finlinson having no insight into the effects that his offending had on the victim, his failure to express any remorse for his offending but his willingness to pay reparation which was acceptable to Ms Green.

[29] All the information before the Court did justify the Judge concluding that Mr Finlinson had shown little remorse with regard to the effect his offending had on Ms Green.

[30] The observations in the pre-sentence report as to his lack of insight and lack of remorse were consistent with the letter he wrote to Ms Green, a copy of which was made available to the Court. In that letter he refers to how messed up he was at the time, the impact this had on his life. He did say in that letter he could not imagine how she felt and that he was sorry for what he had put her through but then says “it wasn’t fair on you and definitely not on your horse”.

[31] Section 9 of the Sentencing Act, however, requires a Judge to take into account “any remorse shown by the offender, or anything as described in s 10.” Section 10 refers to any offer of reparation. This was something the Judge clearly took into account. Section 10(1)(c) also required the Court to take into account the response of the offender to the offending. An important feature of this case was that, following the offending, Mr Finlinson immediately went to the Ashburton Police Station and informed them what had happened. On the Saturday, he voluntarily went into the Kaiapoi Police Station to explain himself further. He resigned immediately from his work at a farm where he was employed so he was not at risk of coming into contact with Ms Green. He voluntarily surrendered his gun licence and guns to the Police. Those actions do not indicate that he had insight into the effect of his offending on Ms Green but they did demonstrate that he immediately acknowledged

what he had done was seriously wrong and that it would have serious consequences for him and her. He took responsibility for all of that. Those were matters which he had to be given credit for. They were not referred to at all by either the probation officers in their reports or by the Judge.

[32] His going to the Police was also inevitably going to lead to the laying of criminal charges and, through the ultimate sentence, the sort of intervention which the pre-sentence reports indicate was required and which they considered could be effective in reducing the risk of further similar offending. His surrendering himself and his guns to the Police should also have significantly reduced the extent to which Ms Green might have to feared she was personally at risk.

[33] Section 10(1)(c) also required the Court to take into the account the response of the offender’s family to the offending. The second pre-sentence report not only referred to Mr Finlinson having the full support of his family but also their acceptance that there would need to be consequences for his behaviour and their not wanting to make any attempt to rescue their son from those consequences.

[34] In a letter to me, Mr Finlinson’s parents have said they do not condone what he has done, expect him to take responsibility for what has happened and to make things right. They say they know he is aware of what he has done and say they will support him any way they can to make sure that nothing like this ever happens again.

[35] Mr Finlinson had arranged to borrow the $10,000 he needed to make the offer of reparation which the Judge accepted was appropriate and reflected in the order for reparation which she made. Payment of that sum was going to enable Ms Green to replace her horse. The fact he had to borrow that amount was significant. It ensured there would be an ongoing financial penalty for Mr Finlinson as a result of what he

_{had done, with his having to repay the loan with interest over a period of time.}¹³

¹³ I was concerned both when I heard the appeal against the refusal of bail and during the more recent hearing to be told that, while the $10,000 was available for payment to be made, because of the difficulty that Mr Finlinson would face in repaying the loan if he remained in prison, reparation had not in fact been paid and, if he were to remain in prison, he would have to consider the possibility of selling a car rather than relying on the loan. I indicated during the appeal hearing that, if he is committed to paying reparation and is to be given credit for that, then the payment should be made immediately. If, as a result of the appeal being dismissed, he was to remain in prison he would still have the option of repaying the loan wholly or in part

[36] The reparation, at $10,000, could not be considered compensation for the emotional harm done to Ms Green through his actions. It could not compensate Ms Green for all the work and hours she would have spent with her horse, training it up so that it could compete in equestrian events at a high level. Nevertheless, on all the information available, in pure commercial terms, I accept that at $10,000 the reparation was appropriate and indeed fair. It was appropriate that Mr Finlinson be given significant credit for the fact he had arranged to make this payment.

Recognition of personal mitigating factors

[37] The Judge gave Mr Finlinson no credit for his relatively young age, for his lack of any previous relevant criminal convictions and his otherwise good character. She did refer to his appearing to be “a fairly quiet, self-contained young man, well represented in terms of his employment on two dairy farms, someone who worked long hours and worked hard”. References provided to her and to me, from a human resources manager at a factory where he worked in the past, have reported that managers in that factory would be willing to reemploy him there, even if he was required to wear a monitoring device and had to abide by strict terms of any sentence. He was employed by a dairy farm company after June 2012. One of the directors of that company has referred to his very good work ethic, the good relationship he had with work mates and the positive relationship he had with management. There was also reference to the natural empathy Mr Finlinson had with livestock. That person said they would have no hesitation in employing Mr Finlinson again if they had the opportunity. Other references were provided by family members and friends. They wrote of Mr Finlinson in ways that suggested his offending was out of character and unexpected. The only concern I had in reading some of those references was that the writers did not appreciate the seriousness of what Mr Finlinson had done and the consequences it had for Ms Green.

[38] Section 9 required the Court to take into account any evidence of the

_{offender’s previous good character.}

through the sale of his motor vehicle. I indicated to his counsel that I wanted to have confirmation that reparation had been paid before I gave my judgment. I received such confirmation on 17 February 2016.

[39] Some regard could be had to Mr Finlinson’s age at the time of this offending. He was 22. He could be loosely described as still a youth, particularly so when circumstances in which this offending occurred had the hallmarks of immaturity and irrational impulsiveness. It was most unwise and inconsiderate for Mr Finlinson to go to Ms Green’s home at 10.00 pm, even if it was just to collect items which were his. It was not what he discovered that night that brought an end to the relationship. He had already moved out of the home. The information before the Court from Ms Green, the pre-sentence reports and from references provided for Mr Finlinson, all indicated the relationship had already ended but Mr Finlinson was struggling to accept this.

[40] A lack of maturity is also consistent with his failing to appreciate the effect of what he did on Ms Green and his inability to express remorse about what he had done. The immaturity is also consistent with reference in the second pre-sentence report to Mr Finlinson’s conflict-resolution deficits, including unpredictability, distorted thinking and poor ability to process complex emotions. Because of Mr Finlinson’s relative youth, there was the potential for him to deal with the underlying problems or weaknesses which caused this offending so as to avoid any future offending. I note that, although the second report refers to his being at a high risk of reoffending and doing harm to others, the initial report referred to his being a medium risk and envisaged those risks being reduced through development of a relapse prevention plan with his probation officer as part of either his release from prison on conditions or a supervision sentence.

[41] I have regard to the comments made by Kós J in Selfe-Brennan v Police.¹⁴

They were to the effect that, where imprisonment of a young person who has never served a term of imprisonment before is required, a shorter sentence than would otherwise be appropriate will often be justified in order to lessen the prospect that the offender comes out of prison a greater risk to the community than he or she was

before. Kós J also referred to the comments of the Court of Appeal in R v K:¹⁵

[T]he gravity of a young offender’s offending has necessarily to be balanced

_{against the need to consider his rehabilitation and reintegration into society}

¹⁴ Selfe-Brennan v Police [2012] NZHC 220.

and the outcome should be the least restrictive in the circumstances of the case. Whilst these are not the only principles that require balancing in the case of a young offender, they are the principles to be given emphasis. If not, a truly crushing sentence might be imposed that diminishes any real hope of reformation in a young person. Although there is no material before the Court pointing to a particular rehabilitative path for this appellant, his youthfulness alone requires a rehabilitative approach, as the victims themselves responsibly recognised.

[42] Those observations led in part to Kós J reducing a sentence of 21 months’

imprisonment for an 18 year old to a sentence of 15 months’ imprisonment.

Balancing purposes and principles of sentencing in difficult cases

[43] The killing of an animal, particularly in circumstances such as this, can quickly arouse such feelings of revulsion that considerable care had to be taken to ensure all relevant matters were weighed carefully in arriving at the end sentence. Mr Finlinson had accepted responsibility for and acknowledged the harm he had done through his going to the Police. He had made his offer of reparation. The need for him to be held accountable for the harm he had done, the need to denounce his conduct and to deter him or anyone else from committing the same or a similar offence, had to be balanced against the purpose and principles of sentencing which could be applied in his favour. While taking into account the gravity of the offending in the particular case, the Judge had to impose “the least restrictive

outcome that is appropriate in the circumstances”.¹⁶

[44] That necessitated a similar careful appraisal in Godsiff v R, when Mallon J

dealt with an appeal against a sentence of two years’ imprisonment by Mr Godsiff.¹⁷

When Mr Godsiff was 19, he and an associate clubbed to death 23 seals, part of a colony just north of Kaikoura. They did it because they considered the seals pests. On appeal, Mallon J considered the District Court Judge had erred in allowing only a

10 per cent discount for youth and good character. The Judge noted Mr Godsiff had “feelings of remorse with respect to the effect of his actions on others but limited remorse as far as the effect of his actions on the animals was concerned”. Mallon J however noted his offer to make amends by carrying out community work with the

_{Department of Conservation and, differently from the sentencing Judge, considered}

¹⁶ Sentencing Act 2002, s 8(g).

that the offer was an indication of an acceptance of responsibility and was intended as a constructive way through which Mr Godsiff could have made some amends and at the same time learned more about conservation values. She gave him credit for this acceptance of responsibility in the same way I consider the Judge should have given some credit to Mr Finlinson for the way he went to the Police, resigned from his job and handed in his firearms. With a 25 per cent discount for a guilty plea and a 25 per cent discount for youth, good character and remorse, the appropriate starting point sentence came down to around 20 months’ imprisonment.

[45] Mallon J then noted that caution had to be exercised before refusing to commute a short term of imprisonment to one of home detention simply because of the need for accountability, denunciation and deterrence. Her Honour considered Mr Godsiff’s relative youth and rehabilitation prospects, that he was a hardworking young man who would contribute better to society the sooner he was back working as a builder and that he had learnt from the reaction to his offending that his behaviour was unacceptable. He was viewed as having a low risk of offending so that imprisonment was not necessary to achieve specific deterrence and, as such, was not the least restrictive sentence that was appropriate in the circumstances. Taking all those matters into account, Mallon J considered the sentence of imprisonment should have been commuted to home detention. Most of those considerations also apply in this case.

[46] This was a difficult sentencing because of the emotional impact of what Mr Finlinson had done and because there was no similar precedent. I have considered certain cases where there has been violence in the context of a domestic relationship.

[47] In Samuel v R, a 22 year old went to his former partner’s home to use her laptop.¹⁸ When she asked him to return it, he refused. She grabbed the cord. He ended up interfering. She went to her bedroom and locked the door. He kicked the door open and punched her in the face with a closed fist and ended up on top of her preventing her from standing up. When a flatmate intervened, he said to the flatmate “just let me choke her out so she will calm down”. There were further attempts to

_{punch the victim when she went to call the Police. The most serious charge he faced}

¹⁸ Samuel v R [2012] NZCA 376.

was assault with intent to injure. The maximum penalty on that was three years’ imprisonment. He was also charged with intentional damage and male assaults female. Having regard to the aggravating features of this offending, the Court of Appeal considered a starting point of 20 months’ imprisonment was appropriate.

[48] In Mitchell v R, the defendant had left abusive voice messages by telephone for a former partner who blamed him for a protection order that had been in force against her for five years at the time.¹⁹ She went to his house close to midnight where the complainant was with his partner and three visiting friends. She walked around the house and smashed most of the accessible windows with a tyre-iron and smashed outside lights on the garage before moving to the front door. There she smashed a large glass panel and entered the house through the broken glass. She entered the house, yelling for the victim in a threatening manner. She pleaded guilty

to two counts: one of intentional damage and the other a breach of a protection order under the Domestic Violence Act 1995. The Court of Appeal took into account the aggravating features of the offending, including a history of “a deliberately imposed sequence of intimidatory events, inflicted on the victims with complete disregard for repeatedly imposed Court strictures and punishments, and the most explicit warning

at her last appearance”.²⁰ The Court of Appeal considered the starting point of two

and a half years’ imprisonment, for both the intentional damage and breach of protection order offending, was “stern, but not disproportionate, taking into account the totality principle”.²¹ That was before allowing for a further uplift because the offending also involved breach of bail and the appellant’s previous record for other violent offending.

[49] Trainor v Police also concerned offending which occurred in the context of a relationship ending.²² At 3.20 am, some several months after the relationship had ended, Mr Trainor went to the home of his female victim and her new partner. He climbed through a bedroom window, pushed past the female victim and went into the bedroom where he punched her new partner repeatedly in the head. He then put the

_{man in a “choker hold” until he passed out. He was charged with injuring with}

¹⁹ _{Mitchell v R [2013] NZCA 583, (2013) 29 FRNZ 498.}

²⁰ _{At [13].}

²¹ _{At [16].}

²² Trainor v Police HC Invercargill CRI-2011-425-45, 29 November 2011.

intent as a result. The maximum penalty on that was five years’ imprisonment. He was also charged with burglary. When the former partner attempted to call the Police, Mr Trainor grabbed her and threw her around, slapping her face and preventing her from leaving the bedroom. Later, when she again attempted to telephone, he pushed her to the ground and threw her on a couch. This led to a charge of male assaults female. He then questioned her about having sex with her partner, forcing his hand into her pants and towards her genitalia, attempting to see if she had been having sex. This was the subject of an indecent assault charge.

[50] Having regard to aggravating factors associated with all this offending, White J in the High Court on appeal held that an appropriate starting point, before a discount of 15 per cent for personal mitigating factors and 25 per cent for guilty pleas, was three years and six months’ imprisonment.

[51] The Court of Appeal has considered sentences involving revenge arson, intentional damage and burglary in the context of domestic violence. As noted, on charges of arson, the maximum penalty was 14 years’ imprisonment in contrast to the seven years’ maximum for intentional damage as Mr Finlinson was charged with.

[52] In Ollerenshaw v R, the appellant’s offending was set against the background of an acrimonious end to a relationship.²³ The appellant broke into his former partner’s home, stealing a computer hard drive and jewellery. He then set fire to her bedroom causing damage to the extent of $146,000. The Judge adopted a six year starting point for the arson, which was not altered by aggravating or mitigating factors. A concurrent sentence of one year’s imprisonment was imposed for the

burglary. The Court of Appeal upheld the six year sentence but accepted it was

“unquestionably severe”.²⁴

[53] In Howarth v R, the charges of arson and intentional damage arose from two incidents in which the appellant slashed a tyre on a vehicle belonging to his former partner and then set fire to her home, causing substantial damage.²⁵ Aggravating

_{factors included the unlawful entry into the complainant’s home at night, the}

²³ _{Ollerenshaw v R [2010] NZCA 32.}

²⁴ _{At [19].}

²⁵ Howarth v R [2010] NZCA 523.

existence of actual and threatened violence, the significant and ongoing effect of the offending on the complainant and her two children, the predatory, premeditated and repeated nature of the offending, the extent of the damage (in excess of $200,000) and the appellant’s multiple previous convictions for offences of violence, including a number of convictions on charges of assaulting females.

[54] The Court of Appeal found that the eight year starting point was too high and adopted a six year starting point comprised of five years for the arson offending with an uplift of one year having regard to the appellant’s past offending and the need to reflect his overall criminality including the charge of intentional damage.²⁶

[55] In Police v MacDonald, Simon France J had to sentence Mr MacDonald for a number of crimes, most involving acts of vengeance towards neighbours.²⁷ In December, Mr MacDonald and a co-offender had gone to the paddock of a neighbour, shot two trophy stags, removed them and buried them in a hole. The judgment refers to the proximity of the stags’ paddock to the home. The deaths left the family with fears for their safety.

[56] A second charge of intentional damage arose out of Mr MacDonald and his co-offender going to a neighbour’s property and releasing 16,000 litres of milk from a vat, an act of revenge because Mr MacDonald considered the owner had told other people about their poaching animals from another property.

[57] In a further act of vengeance for the same reason, Mr MacDonald went to another neighbour’s property intending again to release milk. When Mr MacDonald and the co-offender found there was no milk there they decided, as the Judge put it, “upon a more callous and more brutal revenge”. They killed 19 calves held in a nearby shed. One was still alive when the scene was discovered the next morning.

[58] Seven months later, the two offenders returned to the property of one of these neighbours and burned to the ground a 110 year old whare which had been a

²⁶ _{At [54].}

²⁷ Police v MacDonald [2012] NZHC 2388.

treasured possession of the family, as the Judge put it, “full of family memories and

experiences. This resulted in a charge of arson.

[59] The killing of the animals was, in some ways, similar to Mr Finlinson’s

killing of the horse. Simon France J referred to the farmer’s reaction as follows:²⁸

For [him], most difficult was dealing with the scene that confronted him and his wife that morning. They describe the act, amongst other things, as nasty, cruel and senseless. I agree. A theme that also emerges is the sense of disbelief they feel that someone with a farming background would act as you did. It is an understandable sentiment.

[60] For all this offending (including the arson which by reason of the maximum penalty is to be regarded as a significantly more serious charge than intentional damage), having regard to the aggravating features, the Judge arrived at a starting point of two years and seven months.

Fixing an appropriate sentence

[61] Having regard to all the matters I have already mentioned, I consider that, despite the care which the Judge took with this sentencing, errors were made. Those errors resulted in the adoption of a starting point which was too high. I consider there was insufficient credit for the way in which Mr Finlinson had acknowledged the criminality of his conduct and taken responsibility for it. I also consider there was inadequate recognition of his relative youthfulness, his otherwise good character and the requirement for the Court to impose the least restrictive sentence. Those errors resulted in a sentence which I find was manifestly excessive and which must be quashed. I need to fix what I consider is the appropriate sentence.

[62] The offending was serious. It involved the destruction of property worth around $10,000. The commercial value of the property did not reflect the value of the property to its owner or the work she had put in training and developing the horse. A significant aggravating feature of the offending was that the killing of the horse was intended to cause significant emotional distress to its owner and did so. A firearm was used with the offending.

[63] An appropriate starting point sentence for the offending, with due regard to aggravating factors, is two years and eight months’ imprisonment. There should then be a discount of 20 per cent recognising the reparation paid and the mitigating matters relating to Mr Finlinson personally, including his early acceptance that what he had done was wrong and his taking responsibility for that. That reduces the starting point sentence to one of two years, one and a half months. There is no dispute that there should be a discount of 25 per cent for his early guilty pleas. In round terms, that leads to an appropriate end sentence of around 19 months’ imprisonment.

[64] On that basis, home detention has to be considered as an alternative to imprisonment, given the requirement for the Court to impose the least restrictive sentence.

[65] As the Court of Appeal has observed, a sentence of home detention involves a real loss of personal liberty.²⁹ Having regard to all the principles and purposes of sentencing, I consider that, despite the need for accountability, denunciation and general deterrence, home detention should be imposed as an alternative to actual imprisonment.

[66] Mr Finlinson has now served two months of his original sentence of imprisonment. That, in itself, would have provided a significant measure of accountability, deterrence and denunciation with regard to what he did. I take the time served on that sentence into account in the sentence which I now substitute.

Conclusion

[67] The appeal is allowed. The original sentence is quashed and replaced with a sentence of eight months’ home detention. Mr Finlinson is also ordered to pay reparation of $10,000 and the costs of removal of the horse of $201.25 (that total sum has now been paid to the District Court). An order is made for forfeiture of the firearm used in the killing of the horse.

[68] Having regard to the conditions which the pre-sentence report indicated would have been appropriate if a sentence of home detention had been imposed in December 2015, the following conditions are to apply:

(a) This sentence is to be served at the home detention residence of [...]

(b) On release from prison, Mr Finlinson is to travel directly to [...] and there await the arrival of the probation officer and security technician.

(c) Mr Finlinson is to reside at [...] subject to the conditions of home detention.

(d) If not already doing so in terms of his protection order requirements, Mr Finlinson is to be assessed for and attend a programme related to domestic violence.

(e) Mr Finlinson is not to possess or consume alcohol or any illicit substance whilst subject to home detention.

(f) Mr Finlinson is not to possess or have any interest in any firearm whilst subject to home detention.

(g) In the interests of victim issues for the duration of the home detention, Mr Finlinson is not to travel south of a line drawn between Rolleston township and Hokitika without the written approval of a probation officer.

(h) Leave is reserved to the Police, the Department of Corrections or the appellant to seek any change to these conditions that may be appropriate as a result of the time that has elapsed since these conditions were first recommended as being appropriate.

[69] I make an order prohibiting publication of the home detention address of the appellant, also of the name or any other details that might lead to the identification of the person referred to in this judgment as Ms Green.

Solicitors:

Better Law, Christchurch

Raymond Donnelly & Co., Christchurch.