Reed v Police

[2016] NZHC 3097

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-000115

CRI-2016-409-000116 [2016] NZHC 3097

BETWEEN

CHEYENNE DESTINY JADE REED

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	6 December 2016
Appearances:	K Gray for the Appellant D J Matthews & P A Norman for the Respondent
Judgment:	16 December 2016

JUDGMENT OF NATION J

[1]      On the night of 7 May 2016, the appellant (Mr Reed) was on the grounds of St Margaret’s Presbyterian Church in Christchurch.  He entered the hall at the rear of the main building by breaking a window and climbing through it.   Upon making entry into the hall, Mr Reed proceeded to break an internal glad door and gained entry into an audiovisual room.   He then uplifted a number of items, including a computer and a sound mixer, and removed them from the building.

[2]      A week later, on 15 May, Mr Reed once again entered the grounds of St Margaret’s Presbyterian Church.  He removed a number of items, including sound equipment and speakers, and took them to his home.  He then returned to the church, located a bag inside the building, set fire to it and placed it on the carpeted floor.  He exited the building and returned home. After a period of time, Mr Reed heard a loud bang  come  from  the  church  at  which  point  he  woke  up  his  flatmates  and accompanied them to the church.  By the time he returned to the church it was fully

engulfed in flames. The church suffered extensive fire damage.

REED v POLICE [2016] NZHC 3097 [16 December 2016]

[3]      At the time of the arson and burglaries, Mr Reed was on bail on charges of theft of a motor vehicle, possession of a knife in a public place and shoplifting at a Farmers store in the Northlands Shopping Centre.

[4]      On 14 September 2016, Mr Reed received an effective sentence for this offending of six years by way of concurrent sentences as follows:1

·     arson – six years’ imprisonment

·     burglary – two years’ imprisonment

·     receiving - three months’ imprisonment

·     theft of the motor vehicle - 18 months’ imprisonment

·     theft by shoplifting – one month imprisonment

·     possession of the knife - one month imprisonment

·     breach of bail – one month imprisonment. [5]      Mr Reed appeals against those sentences.

Jurisdiction

[6]      Mr Reed appeals as of right.2    Pursuant to s 250 of the Criminal Procedure Act 2011, the appeal must only be allowed if the Court is satisfied that there is an error in the sentence imposed and a different sentence should be imposed.3   If either element is not satisfied, the appeal court must dismiss the appeal.

[7]      If the sentence under appeal may be properly justified having regard to the relevant sentencing principles, it is not the place of this Court to intervene and

substitute its own views for those of the sentencing Judge.  It is only if the sentence

1      R v Reed [2016] NZDC 18015.

2      Criminal Procedure Act 2011, s 244.

3      Section 250.

is “manifestly excessive” that the Court should interfere with the exercise of the

Judge’s discretion. As Toogood J said in Larkin v Ministry of Development:4

[26]     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 the process by which the sentence is reached.

[8]      The focus on most appeals is thus on the end sentence.  In Tutakangahau v R, the Court of Appeal held that:5

…the focus is on the sentence imposed rather than the process by which the sentence  is  reached.  That  encapsulation  of  the  position  will  no  doubt represent the position in the vast majority of cases.

District Court decision

[9]      After traversing the facts of the offences, the sentencing Judge noted the restorative justice report and the victim impact statement.  The Judge also mentioned Mr Reed’s previous dishonesty convictions, including burglary and receiving.

[10]     Mr Reed had explained his offending to the Police by saying he was angry at God for killing his friends in the 2011 Christchurch Earthquake.  He said he stole items from the church and set fire to the church in an attempt to get back at God.  He stated that voices in his head told him to commit the offence.  The Judge noted the forensic nurse at Court was of the opinion that there was no evidence of any major mental illness. At most, Mr Reed was suffering from opiate dependency.

[11]     The  Court  then  proceeded  to  identify  four  aggravating  factors  of  the offending.    These  elements  were  premeditation,  the  danger  to  fire  fighters,  the motive, which the Judge considered to be covering up the burglary, and the extent of damage, being $2,276,173 in insurance terms.

[12]     As to mitigating factors relating to Mr Reed personally, the Judge did not accept there was sufficient remorse to justify any credit beyond that to be given for

Mr Reed’s guilty plea.  The Judge also refused to provide a discount for his mental

4      Larkin v Ministry of Development [2015] NZHC 680, citing Ripia v R [2011] NZCA 101 at [15].

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

health issues, holding there was nothing to show that his purported mental state in any way pointed to diminished responsibility.

[13]     The Judge considered the way in which the Court of Appeal had discussed sentencing in arson cases in R v Lucas-Edmonds but distinguished the circumstances of Mr Reed and his offending from that case.6

[14]     The Judge said arson was the lead charge but adopted a starting point of seven years and six months’ imprisonment “on a totality basis”.   The Judge then uplifted the sentence by a further six months to reflect Mr Reed’s previous criminal history.  He then discounted that sentence by 25 per cent for his guilty pleas.  This resulted in the final sentence of six years’ imprisonment.

First ground of appeal - starting point too high

[15]     Ms Gray submitted for Mr Reed that the Judge made an error in adopting a starting point of seven and a half years for the arson charge and in assessing Mr Reed’s culpability on that charge, taking into account the aggravating factors of premeditation, danger to the fire-fighters, motive to cover up his burglaries and the extent of the damage at nearly $2,300,000.

[16]     Ms Gray acknowledged there was no tariff case or guideline judgment for arson because the circumstances of such offending was very much case-specific. She noted that, in the District Court, the then counsel for Mr Reed had submitted a starting point for arson should be in the region of five to five and a half years’ imprisonment while the Crown had suggested a starting point in the vicinity of six years’ imprisonment.  She submitted that the particular aggravating factors identified by the  Judge  were  not  of  such  a  nature  to  justify what  she  submitted  was  an excessively high starting point for the arson offending.

[17]     Having carefully read the Judge’s sentencing notes, I consider this challenge to the sentence is based on a false premise.

[18]     The Judge stated:

6      R v Lucas-Edmonds [2009] NZCA 193, [2009] 3 NZLR 493.

[17]      I take the lead charge for the purposes of sentencing to be the charge of arson.   On that charge I shall sentence you on a totality basis.   On the other charges I shall impose concurrent sentences.   The starting-point is imprisonment for seven years and six months.  This takes into account the aggravating factors for your offending already identified and, in particular, the loss caused.   There will be an uplift of six months for the personally aggravating factors of your previous offending and your offending on bail. The sub-total is eight years.   There are no personal mitigating factors.   I deduct two years for your guilty pleas.  You are sentenced on this charge to imprisonment for six years.

[19]     Reading that part of the sentencing notes as a whole, I am satisfied that, at the first stage of the approach to sentencing mandated by the Court of Appeal in Taueki, the Judge arrived at a starting point of seven years and six months to reflect Mr Reed’s  culpability with  regard to  all  the  offending.7     That  was  reflected  in  his statement that he was sentencing Mr Reed “on a totality basis”.   There was no separate uplift for his offending on the other charges.  There was no other adjustment to the sentence on a totality basis.  Consistent with the Taueki approach, the Judge then allowed  an  uplift  for matters  relating to  Mr Reed  personally,  his  previous

convictions and for the fact that some of the burglary and arson offending occurred when  he was  on  bail.   The Judge did  not  accept  that  there were  any personal mitigating factors.   The prison sentences imposed for the other offences were concurrent.

[20]     I consider the Judge was justified in taking into account the aggravating factors he referred to in assessing the seriousness of all the offending.  Premeditation was involved in relation to both the burglaries and arson.  He went to the grounds of the church on 7 May 2016 at a time when he must have known it was unlikely any person would be there.  He did not simply take advantage of being able to access the building but broke a window and climbed through it, and then broke an internal glass door as well.  On 15 May 2016, he returned to the building in the early hours of the morning, firstly when he stole further sound equipment and other items from the building.  He then returned, seemingly for the sole purpose of starting a fire in the building.  The explanation he gave to the Police for the arson, while not being the result of any mental illness, was consistent with him going to the church with the

intention of setting fire to it.

7      R v Taueki [2005] 3 NZLR 372 (CA).

[21]     I reject the submission that the potential danger to emergency services such as firemen should not be treated as an aggravating circumstance of the offending because arson always creates such a risk.  The offence of arson can be committed in circumstances where there is no potential for the fire service to be involved in attempting to suppress the fire or any risk to them.  Such an arson was one of those

which occurred in R v Lucas-Edmonds.8

[22]     In Howarth v R, the Court of Appeal referred to the “substantial risk to fire- fighters” where an arson attack had destroyed a church, and the risk to neighbouring properties  and  fire-fighters  where  there  had  been  an  arson  in  respect  to  an unoccupied home, as factors that were relevant in assessing the seriousness of the offending.9    In this instance, the church must have been a relatively large building. Fighting a fire in  such a building would  inevitably create dangers for the fire- fighters, albeit dangers they are professionally trained to guard against.

[23]     Ms Gray submitted the Judge’s reference to the motive for the arson of covering up the burglaries was “somewhat speculative” and was not a factor that would have justified the starting point.  It was reasonable for the Judge to infer this had been Mr Reed’s motive, given he had already taken items from the building and later returned to the building for no other apparent purpose than to set the fire. However, if that was not his motive, Mr Reed’s explanation that he did it out of anger would suggest that he deliberately set fire to the church not just to damage the building but as an attack on all that it stood for.  If that was his motive, it must have also been an act done with a deliberate intent to cause distress to those people who used the building and were associated with the church.  On either basis, the motive for the offending could have been treated as an aggravating factor.

[24]     As to the extent of the damage caused by the arson, Ms Gray accepted that the extent of the damage was high.   The loss in insurance terms was $2,276,173.

The church has to be rebuilt.

8      R v Lucas-Edmonds, above n 6.

9      Howarth v R [2010] NZCA 523 at [49].

[25]     The purposes of sentencing, as set out in the Sentencing Act 2002, require the Judge to hold Mr Reed accountable for harm “done to the victim and the community by the offending”.10   The harm done need not be just in financial terms.  The victim impact statements said the loss of the building would continue to affect different people and community groups almost every day for the next two years.  Up to 400 people from community groups used the buildings every week.  The victim impact statements filed with the Court, and particularly that provided on behalf of church staff and management, speak of the way the physical destruction of the building was

also a callous and hugely distressing affront to the significant number of people who were closely associated with that church, many of whom who had made a significant investment in it through their work and involvement in the church community.  One statement said “They have felt the pain and loss as much as St Margaret’s parishioners.”

[26]     In Howarth v R, the Court of Appeal reviewed the sentences that had been considered by the Court of Appeal in a number of cases between 1991 and 2010 where starting points for offending had been three to five years.11     In the circumstances of that particular case, the Court of Appeal adopted a starting point of five  years’ imprisonment  but  with  an  uplift  of  one  year  having  regard  to  Mr Howarth’s  past  offending  and  the  need  to  reflect  his  overall  criminality.    The

offending in that instance involved Mr Howarth setting fire to the home of his partner and their children after the end of their relationship.  A minimum period of imprisonment of three and a half years was imposed on the arson charge.

[27]     In R v Z, the appellant had set fire to a 124 year old church in Tauranga of considerable historic and cultural significance.12    The appellant had set fire to the church to show his loyalty to a gang and its leader and had described his actions as an “anarchist or anti-church thing”.   The Court of Appeal said the arson could be described as an act of wanton vandalism.   The same could be said of Mr Reed’s

arson.  In R v Z, the Court of Appeal said the sentencing Judge had been correct in

10     Sentencing Act 2002, s 7(1)(a).

11     R v Howarth, above n 9.

12     R v Z CA138/00, 27 June 2000.

selecting seven years’ imprisonment as the appropriate starting point for the arson

and related wilful damage charge.

[28]     In  R  v Lucas-Edmonds,  the Court  of Appeal  had  to  consider a sentence imposed primarily on three charges of arson and one of burglary relating to three fires lit in Wellington within a 45 minute period after the appellant had been sniffing glue.13    The first fire involved setting fire to plywood board that had blocked pedestrian access to an over-bridge.  The appellant had extinguished the fire with his shoe.  The second arson involved setting fire to a mattress stored in an open garage

beneath a residential apartment which was occupied by three people at the time. The appellant had stood outside the garage watching as fire appliances arrived to extinguish the blaze.   The wooden floor of the apartment was scorched and its interior damaged by smoke.  The appellant had then broken into an historic church and set fire to an altar cloth draped over an altar table.  The appellant fled when the fire  grew  out  of  control.    The  internal  sprinkler  system  was  activated  which contained the fire.  Damage was in the region of $750,000.

[29]     The sentencing Judge had fixed a starting point for the offending of seven years’ imprisonment.   The Court of Appeal said that the sentence of eight years before discounting for mitigating factors was too high but that a seven year start point was an appropriate reflection of the  appellant’s specific culpability before weighing in the balance “his lack of insight, his damaged state, and the absence of any clear malice”.14     The Court of Appeal considered an appropriate term of imprisonment before applying mitigating factors would have been seven years’ imprisonment.

[30]     In this instance, Mr Reed’s offending also included his earlier burglaries in relation to the church - he broke into it and stole a number of items one week prior to the arson and the other immediately preceding it.

[31]     Between 4.00 pm on Friday 30 October 2016 and 7.30 am on Monday 2

November   2016,   a   burglary   occurred   at   the   Waimairi   Primary   School   in

13     R v Lucas-Edmonds, above n 6.

14 At [39].

Christchurch.    Items  stolen  in  the  burglary included  four Apple  computers  and computer keyboards valued at $2,000.   On 15 May 2016, the Police located the stolen items in Mr Reed’s bedroom.  He told the Police he had bought the computers for $150 sometime before Christmas 2015 from a person he would not name.  He pleaded guilty to receiving.

[32]     On 6 February 2016, there was a burglary of a car dealer’s premises in

Christchurch.   A Hyundai motor vehicle worth $82,000 was taken.   On 2 March

2016, Mr Reed was located with the stolen vehicle in Christchurch.   He pleaded guilty to the theft of that vehicle and acknowledged he had been driving the vehicle for three weeks.

[33]     On 24 March 2016, Mr Reed shoplifted two bottles of men’s perfume from a Farmers store in Christchurch.  When he was arrested for this, he was found to be carrying a craft knife and a builder’s knife.  He pleaded guilty to the Police charges of possession of a knife in a public place and shoplifting.

[34]     Mr Reed was on bail in relation to the theft of the motor vehicle from a car dealer and the offending related to the shoplifting when he committed the burglaries and arson of St Margaret’s Presbyterian Church.

[35]     A starting point of seven and a half years in prison might well be considered severe if it had been just for the arson offending.  I am satisfied, however, that this was the starting point adopted for all offending.  On that basis, it was within range.

[36]     Mr Reed was 35 when he was sentenced for all this offending.  His previous convictions included shoplifting from September 2015, unlawful possession of a firearm, assault with a firearm and the discharge of a firearm on 24 December 2007, a burglary conviction from 2006 and a burglary, three charges of receiving and the unlawful taking of a motor vehicle from 2002.   I consider his previous criminal offending and his offending while on bail justified the uplift of a further six months for aggravating features related to him personally.

[37]     Taking all those matters into account, I consider the starting point of eight years adopted for the offending was within range.

The second ground of appeal – inadequate recognition for remorse

[38]     Ms Gray said the Supreme Court judgment in Hessell v R and the Court of Appeal’s judgment in Rowles v R indicated how remorse had to be recognised.15   In the latter case, the Court of Appeal increased a discount of 4.8 per cent for both remorse and personal factors to 10 per cent where there had been a significant effort by the appellant to demonstrate remorse in a tangible way.

[39]     In Hessell v R, the Supreme Court however said:16

Sentencing Judges are very much aware that remorse may well be no more than self pity of an accused for his or her predicament and will properly be sceptical about unsubstantiated claims that an offender is genuinely remorseful.  But a proper and robust evaluation of all the circumstances may demonstrate a defendant’s remorse.   Where remorse is shown by the defendant  in  such  a  way,  sentencing  credit  should  be  properly  given separately from that for the plea.

[40]     The potential for a defendant to participate in the restorative justice process is now a step provided for as a matter of course under the Sentencing Act.17   It is also a matter of common experience for defendants, especially those facing a potential sentence of imprisonment, to write letters, sometimes to a victim but also to the Court, with expressions of remorse.  Judges are entitled to be sceptical as to whether such matters are genuine demonstrations of remorse and of empathy for the way

victims may have suffered as a result of their offending.  In exercising judgment over this, in my view, the sentencing Judge was entitled to consider the suggested indications of remorse in the context of the actual offending and how it occurred along with any other information which the Court had about the offender.

[41]     The Judge here said he had noted the contents of the restorative justice report.

He recognised that Mr Reed’s participation in the restorative justice process may

15     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607; Rowles v R [2016] NZCA 208.

16     Hessell v R, above n 15, at [64].

17     Sentencing Act 2002, s 24A.

have been some comfort to the people who attended and that it showed a change for

the better in Mr Reed’s attitude from that represented in the pre-sentence report.

[42]     Nevertheless, the Judge had to weigh in the balance the probation officer’s advice that the factors in Mr Reed’s offending were his “substance abuse and his attitude of entitlement to offend”.  It also referred to his denial of substance abuse issues.  The report did refer to Mr Reed feeling sorry for the victims of the arson offence and his wish to pay reparation.  At the same time, the report referred to Mr Reed having an attitude of entitlement regarding the theft of the vehicle and the intimation of his pleasure at getting away with taking the vehicle and driving it for so long before being discovered.

[43]     Mr Reed had also put before the Court medical summaries from Hillmorton Hospital from 31 July 2013 and 12 February 2014.  The report of 12 February 2014 referred  to  his  “known  opiate  dependence”  but  also  to  his  “no  formal  thought disorder, minimal insight, poor judgement as he admits to getting (what) he needs from the black market”.  It also referred to multiple general practitioners refusing to work with him due to his drug-seeking behaviour.   The report of 31 July 2013 referred  to  him  not  being  in  employment  for  a  number  of  years  due  to  his dependency on opiates.

[44]     The pre-sentence report said Mr Reed had been involved in setting up a car- grooming business with a business partner prior to the offences for which he was being sentenced and that he hoped to re-establish this upon his release.  The report nevertheless advised the  Court that the business partner did not wish to pursue further  business  interests  with  Mr  Reed  as  he  was  “too  much  trouble”  and completely unreliable.

[45]   The restorative justice conference report confirmed that Mr Reed had participated in a restorative justice meeting at Christchurch Men’s Prison.  The only victim who attended was the Minister of St Margaret’s Presbyterian Church.   The report indicated that the Minister extended the church community’s forgiveness to Mr Reed at the outset of the conference.   No doubt this was consistent with that community’s wish to adopt a Christian approach to Mr Reed and what he had done

but it is significant that this forgiveness was not as a response to anything Mr Reed had said.  The report also indicated that the Minister expected Mr Reed to face the consequences of his offending.  Mr Reed’s response was quoted as being “I am sorry for what I have done.  I am really annoyed and disappointed with myself.”  He then went on to explain how his drug use had contributed to his offending.  In the report, there was no evidence of Mr Reed demonstrating or articulating any real understanding of the way his offending had affected the community who use the church.

[46]     With all the information that was before him, I do not consider the Judge was in  error  in  not  giving  him  credit  either  for  such  expression  of  remorse  as  had occurred in the restorative justice meeting or what was likely to be an offer of reparation of no practical value.

Conclusion

[47]     On this appeal, my focus has to be on the end sentence which was imposed.  I agree with the sentencing Judge that the relevant purposes of sentencing were the need to denounce Mr Reed’s offending, to hold him to account, to deter him personally from offending and to deter others from such offending, and to assist Mr Reed’s rehabilitation and reintegration.  Given the probation officer’s assessment that there was a high risk of Mr Reed causing harm to others, the Judge also had to consider the need to protect the community from the offender.

[48]     I have not been persuaded the final sentence of six years’ imprisonment, after a credit of 25 per cent for guilty pleas, for all the offending for which Mr Reed was sentenced was in error or manifestly excessive, or that a different sentence should have been imposed.

[49]     Mr Reed’s appeal is accordingly dismissed.

Solicitors:

Public Defence Service, Christchurch

Raymond Donnelly & Co., Christchurch.