In the Court Of Appeal of New Zealand
CA427/2010
[2010] NZCA 494

BETWEEN	BO-DEAN MICHAEL WALL
Appellant

AND	THE QUEEN
Respondent

Hearing:	19 October 2010

Court:	Hammond, Chisholm and MacKenzie JJ

Counsel:	W Kerr for Appellant
K J Beaton for Respondent

Judgment:	29 October 2010 at 11 am

JUDGMENT OF THE COURT	
The appeal against sentence is dismissed.

REASONS OF THE COURT
(Given by Chisholm J)

[1]	This is an appeal against a total sentence of 22 months imprisonment imposed by Judge Radford in the District Court at Christchurch for various offences including arson, assaults on the police and breaches of court orders.  The appellant contends that the sentence is manifestly excessive. 
History
[2]	Following a spate of offending between December 2008 and May 2009 the appellant pleaded guilty to 10 charges:  unlawfully getting into a motor vehicle (2); possession of instruments for conversion; possession of equipment (misuse of drugs); failing to answer court bail (2); wilful damage (3); and assaulting a police officer (spitting at a police officer).  He was sentenced to 12 months intensive supervision. 
[3]	While he was on bail in relation to the offending during December 2008 and January 2009, the appellant was involved in events during the early hours of 7 February 2009, which gave rise to a charge of arson and three charges of intentional damage.  It was alleged that the appellant and two associates set fire to a hedge at a school and caused damage to the school and other structures by throwing rocks.   He admitted the charges of intentional damage, but denied arson.  
[4]	Thereafter the appellant was involved in a series of breaches of court orders.  He failed to report as required by the sentence of intensive supervision and, having pleaded guilty, was ordered to come up for sentence if called upon within nine months.   Six days later he failed to appear at the depositions hearing on the arson charge.  Then, on 7 September 2009, he breached the intensive supervision order for a second time.  This second breach prompted the probation officer to seek cancellation of the sentence and re-sentencing on the various charges giving rise to the sentence.  The appellant indicated he intended to defend the application. 
[5]	The arson charge ultimately came before Judge Crosbie and a jury on 7 December 2009.  At the conclusion of the evidence of the first witness Judge Crosbie offered to amend the charge (which would have the effect of reducing the maximum sentence by two years).  The Judge also indicated that, subject to a favourable pre-sentence report, he would impose a sentence of home detention and that he wanted the application to cancel the intensive supervision order to be dealt with at the same time. 
[6]	Following those indications the appellant pleaded guilty to the amended arson charge and withdrew his opposition to the application to cancel the intensive supervision order.  He was remanded for sentence on 11 February 2010. 
[7]	Unfortunately the offending did not cease.  While awaiting sentence the appellant breached bail and assaulted a police officer (again by spitting at an officer).  Nevertheless, he was re-admitted to bail.  Despite a further breach of bail, he was re-admitted to bail but failed to appear at the appointed time for sentencing.  He did, however, appear later in the day and a new sentencing date was set for 1 March 2010. 
[8]	Five days later the appellant breached bail conditions and was remanded in custody for sentencing on 1 March.  On that date Judge Crosbie adjourned the sentencing, amongst other reasons, to enable more information to be obtained about the proposed address for home detention.  When the appellant appeared before Judge Crosbie on 23 April there was still no suitable home detention address.  The Judge advised the appellant that although he could immediately sentence him to 18 months imprisonment, his preference was for the home detention option to be pursued.  The matter was further adjourned. 
[9]	It was not until 17 June 2010 that the appellant was sentenced by Judge Radford.  We understand that Judge Crosbie was unavailable to conduct the sentencing at that time. 
The appellant
[10]	Although the appellant was 18 years of age by the time he was sentenced, most of the offending had occurred while he was 17.  Apart from the offending already traversed, the appellant did not have a previous record.  The pre-sentence report revealed that he had suffered an extremely difficult upbringing and that he was abusing alcohol and drugs.   
[11]	The appellant told the probation officer that he had breached the conditions of intensive supervision because he was “on the run a lot” and being “threatened” as part of an attempt to recruit him into the gang to which his father belonged.  He said that this threat no longer existed as he “took the bash” instead.
[12]	Notwithstanding the appellant’s expressed remorse and motivation to attend rehabilitative programmes, it was the probation officer’s view that:
Mr Wall’s response to his community-based sentence was poor and his complex needs and chaotic lifestyle have resulted in him failing to engage or participate in any rehabilitative treatment, counselling or programmes.  Mr Wall reports that he is willing to comply with any sentence imposed by the Court.  He is confident that alcohol & drug treatment and anger management will reduce his risk of re-offending.  In view of the seriousness and multiple offences Mr Wall has committed, including a failure to comply with a rehabilitative sentence, the Court may well consider a sentence of imprisonment unavoidable. 
All the addresses put forward for home detention were considered to be unsuitable and a sentence of imprisonment was recommended by the probation officer.  
Sentencing in the District Court
[13]	After traversing the various charges Judge Radford commented that the appellant had been “out and about in the community simply indulging in a wanton, destructive, wilful course of conduct” and that he was now in an “absolute mess”.  It was the judge’s view that the assault charges involving spitting at police officers reflected “disgusting and self indulgent behaviour” and that such behaviour was to be condemned.  He also noted that the offending encompassed a significant area of criminality.
[14]	Having commented on the appellant’s age, his unfortunate background, and the past unsuccessful attempts to rehabilitate him by way of intensive supervision, the Judge noted that despite many adjournments the appellant had not been able to come up with a suitable home detention address.  As the Judge saw it, events had overtaken the possibility of home detention and the appellant had demonstrated that he was not prepared to abide by conditions which might allow the Court to leave him in the community. 
[15]	Taking arson as the lead charge, and noting that it was “a planned, pre-meditated and potentially extremely destructive crime”, the Judge adopted a starting point of 20 months imprisonment.  That starting point was increased by 14 months to reflect the assaults on police officers (an additional six months), other aspects of the re-sentencing (a further six months), and the wilful damage and breach of bail charges (a further two months).  
[16]	The resulting notional sentence of 34 months imprisonment was then reduced by 12 months (approximately 35 per cent) to reflect the appellant’s age, absence of a previous criminal record, and his plea of guilty, thereby arriving at the sentence of 22 months imprisonment.  Given the opportunities the appellant had already had to come up with a suitable address and his demonstrated unwillingness to comply with court orders, the Judge declined to reserve to the appellant the right to apply for a substitution of home detention at some future time. 
Discussion
[17]	Mr Kerr accepted that events had overtaken Judge Crosbie’s indication at trial that, if there was a suitable pre-sentence report, a sentence of home detention would be imposed. Mr Kerr also refers to an indication apparently given by Judge Crosbie on 23 April, when sentencing was further adjourned, to the effect that the appellant should have the opportunity to complete his sentence on home detention. That was not a sentencing indication in the usual sense.  Thus the only issue is whether the sentence of 22 months imprisonment was manifestly excessive.  
[18]	In support of his submission that the sentence was manifestly excessive Mr Kerr emphasised that the appellant was only 17 years of age when he was remanded in custody, his lack of previous offending, and Judge Crosbie’s indication on 23 April 2010 that if sentence was imposed at that time a sentence of 18 months imprisonment would be appropriate.  Mr Kerr explained that it was difficult for the appellant to understand why, given that indication, a longer sentence was ultimately imposed.  He submitted that in all the circumstances the starting point should have been 12 months and that if there was to be an uplift it should have been no more than three months.  He did not challenge the discount.  
[19]	Although there was a relatively long delay before sentence was imposed, this was attributable, at least in part, to the extensive efforts that were being made to achieve a community based outcome.  By the time Judge Radford imposed sentence that possibility had been ruled out, partly by virtue of the appellant’s own conduct, and because the appellant had not found a suitable address.  Notwithstanding the earlier indications that had been conveyed by Judge Crosbie, it was necessary for Judge Radford to start afresh.  He was not, of course, bound by the earlier indications that had been given by Judge Crosbie.  
[20]	Despite Mr Kerr’s arguments to the contrary, we have not been persuaded that the starting point of 22 months was out of line.  In this respect we have been assisted by the previous decisions of this Court relating to arson that were cited by Ms Beaton:  R v Mohi; R v Protos; and R v Golding.  While we accept that the starting point is stern, it was not beyond the range available to the sentencing Judge.  
[21]	Nor have we been persuaded that the uplift for the other offending was beyond the range reasonably available to the Judge.  This uplift took into account that the appellant was being sentenced on 12 charges in addition to the charge of arson.  The arson, intentional damage and assaults against the police officers had been committed while the appellant was on bail.  And, as the Judge found, the assaults on police officers were particularly despicable.
[22]	It is hardly surprising that there is no challenge to the discount of 35 per cent.  The plea on the arson charge was at a very late stage and, as Ms Beaton pointed out, the appellant was originally charged with the lesser offence and could have pleaded at an earlier stage.  If 10 per cent of the discount is attributed to the guilty plea, then the remaining 25 per cent for the appellant’s age (and lack of previous convictions to the extent that it is a legitimate mitigating factor) is generous. 
[23]	Finally, stepping back and viewing the matter on a totality basis we have not been persuaded that the total sentence of 22 months imprisonment was manifestly excessive.  The appeal fails.  
Result
[24]	The appeal against sentence is dismissed.  

Solicitors: 
Raymond Donnelly & Co, Christchurch for Respondent