Police v Setu [2016] WSSC 47 (21 March 2016)

SUPREME COURT OF SAMOA
Police v Setu [2016] WSSC 47

Case name:	Police v Setu
Citation:	[2016] WSSC 47
Decision date:	21 March 2016
Parties:	POLICE v SIO SEU SETU of Lotopa and Fusi Savaii
Hearing date(s):
File number(s):	S3938/15
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE SAPOLU
On appeal from:
Order:	- The accused is convicted of arson and given a 2 year suspended sentence. If he reoffends within that period of time then I have indicated the sentence of 15 months imprisonment that he will have to serve. But if he does not reoffend then that will be the end of this matter.
Representation:	L Sua-Mailo for prosecution P Toma for accused
Catchwords:	Arson – maximum penalty – sentence – guilty at the earliest opportunity – pre-sentence report – reconciliation with the victim – previous good character – mitigating and aggravating features – sentencing guidance
Words and phrases:
Legislation cited:	Crimes Act 2013,s.182 (1), (b)
Cases cited:	Lefebvre v Police Erickson v R [2012] NZCA 449 Howarth v R [2010] NZCA 523 R v Carlos [2010] NZCA 249 R v Delegat CA 406/91, R v Gemmell CA 257/96, R v Gilchrist CA 429/90 R v Grindrod CA 263/09, 20 October 2009; R v Mohi CA 37/07 R v Mohi [2000] NZCA 139” R v Munro CA 132/02, 24 April 2002; R v O’Sullivan High Court Whangarei CRI – 2007 – 088 – 5182, 19 R v Poole et al [2014] NZHC 1126 R v Protos CA 259/04R v Rameka CA 426/04, 16 June 2005; R v Skeens CA 341/01, 26 February 2002; R v Thomson CA 168/92, 9 September 1992; R v Wonnacott [2009] NZCA 414
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S3938/15

BETWEEN

P O L I C E
Prosecution

A N D.

SIO SEU SETU of Lotopa and Fusi Savaii
Accused

Counsel:
L Sua-Mailo for prosecution
P Toma for accused

Sentence: 21 March 2016

S E N T E N C E

The charge

1. The accused Sio Seu Setu is a 39 year old male of Lotopa and Fusi, Savaii. He appears for sentence on one charge of arson, contrary to s.182 (1), (b) of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment pursuant to s.182 (2). To the charge, he pleaded guilty at the earliest opportunity.

The offending

2. The prosecution’s statement of facts shows that on the morning of 15 December 2015 the accused had been drinking beer at his house at Lotopa. The accused told the Court that he had actually been drinking with his brother from 8:00pm the previous night until about 9:00am the following morning. Around 11:30am the following morning, the accused who was heavily drunk got into an argument with his wife as his wife was unhappy with his drinking. The accused told a relative of his to put all his wife’s clothes in the boot of the taxi he was driving as he wants to take his wife to her family. When the accused told his wife to get into the taxi she refused. The accused then went into the house and brought out a container of kerosene. He opened the boot of the taxi and poured kerosene over his wife’s clothes and set them on fire. It appears that the taxi was parked close to the accused’s house because when the accused’s aunt saw what was happening, she rushed to turn off the electricity metre of the house in case the wires caught fire. There were children in the house but they were well taken care of by the accused’s aunt. A short while after the fire started the boot of the taxi and the wife’s clothes in it were all burnt. When the rear windshield and side windows of the taxi exploded, the accused came to his senses and ran and fetched a bucket of water to put out the flame.

The accused

3. As shown from the pre-sentence report, the accused has a wife and a one year old son. He is the sole breadwinner of his family. He works as a taxi driver earning an income of $200 a week. He is a regular consumer of alcohol and was intoxicated at the time of this offending.
4. The accused has reconciled with his wife and are living together again. His wife told the probation service that the accused is a hardworking and reliable father and a person of good character. The written testimonial from the pastor of the accused’s church attests that the accused has been a reliable member of his church for more than twenty years. The written testimonial from the pulenuu of the accused’s village attests that the accused is a respectful person.
5. The accused was referred to the Alcohol and Drugs Court (ADC) clinician for an assessment. The ADC clinician reported that the accused meets the ADC moderate alcohol abuse criteria and recommends that the accused would benefit from an alcohol and drugs programme focused on the reduction of hazardous drinking. The accused has now successfully completed the six weeks Toe Afua Se Taeao Fou programme of the ADC. The report from the ADC case manager/programme facilitator shows that the accused has been an active participant in the programme and has contributed well with sharing his experiences with other participants of the programme. He has also been very supportive of other participants of the programme and sharing strategies that has worked for him in maintaining change to his alcohol habits. He told the ADC case manager/programme facilitator that he has been alcohol free for over six weeks.
6. The accused has a previous traffic conviction. This is of a different nature from the present offending and I will not take it into account as an aggravating feature.

The victim

7. The victim in this case is a company which leases out taxis to taxi drivers. At the end of each week the company will receive a fixed sum from each taxi driver and the remainder of the weekly earnings would be for the taxi driver. The accused is one of the taxi drivers who leases a taxi from the victim.
8. As a result of the accused’s actions, the taxi he was driving is no longer operable. The value of the taxi is estimated at $15,000. The company as of 25 February 2016 has also incurred loss of income of $2,880. There is of course a duty on the company to mitigate its losses.

Sentencing guidance for arson cases

9. In Howarth v R [2010] NZCA 523, which is the leading New Zealand authority on sentencing in arson cases, the Court of Appeal noted that there is no tariff for arson offending. The Court then stated at paras [49] and [51]:
   • “[49] Our review of the authorities suggests that starting points for arson in the seven to eight year range are rare.
   • ...
   • “[51] Other appellate authorities we have reviewed have adopted starting points in the three to five year range. These include: R v Gilchrist CA 429/90, 15 April 1991; R v Thomson CA 168/92, 9 September 1992; R v Skeens CA 341/01, 26 February 2002; R v Rameka CA 426/04, 16 June 2005; R v Munro CA 132/02, 24 April 2002; R v Grindrod CA 263/09, 20 October 2009; R v O’Sullivan High Court Whangarei CRI – 2007 – 088 – 5182, 19 August 2008; and R v Carlos [2010] NZCA 249. Lower starting points have been adopted in particular circumstances. Examples include R v Gemmell CA 257/96, 2 October 1996 and R v Mohi [2000] NZCA 139”
10. In Howarth v R, the appellant had slashed a tyre on a vehicle belonging to his former partner and then set fire to her home causing damage in excess of $200,000. He had multiple previous convictions for offences of violence including a number of convictions on charges of assaulting females. The Court of Appeal found that the starting point of 8 years set by the lower Court was too high and adopted a starting point comprised of 5 years for the arson offending with an uplift of one year for the appellant’s previous convictions.
11. In Erickson v R [2012] NZCA 449, the New Zealand Court of Appeal stated at para [11]:
    • “Appellate authorities generally adopt starting points in the three to five year range, although lower starting points may be adopted in particular circumstances: Howarth v R [2010] NZCA 523, para [51]”.
12. In the case of R v Poole et al [2014] NZHC 1126, the accused Murphy pleaded guilty to arson of a car for the purpose of destroying evidence of burglaries committed previously and also evidence of the firearm used in the shooting of one of the houses that was burgled. At para [40] Katz J said:
    • “[40] I have reviewed the various authorities relied on by the Crown as being analogous, and those referred to by your counsel. Most of the cases referred to by the Crown involved a starting point in the range of two years six months to three years. In light of the cases I have reviewed and the particular facts of your offending, I have concluded that the appropriate starting point on the arson charge is two years six months for Mr Murphy, who was the principal offender, and 18 months for Mr Perry, who played a lesser support role”
13. In the case of R v Coleman [2010] NZHC 208 MacKenzie J carried out a review of the New Zealand cases concerning starting points adopted in cases of arson of motor vehicles. For present purposes, it would be useful to set out this review in full. At paras [10] – [15], His Honour stated:
    • “[10] In R v Wonnacott [2009] NZCA 414, the offender had set fire to a van parked near her ex-partner’s house. She waited until she thought the occupants of the house had left before doing so. The fire spread to the exterior of the house and the van was completely destroyed. A victim asleep inside the house at the time escaped unharmed. The offender had no previous convictions, and had a history of abusive relationships, depression and alcohol abuse. A starting point of two years four months was reduced by eight months for mitigating factors, including previous good character and a guilty plea. The final sentence was of six months home detention and reparation of some $27,000. On appeal, the reparation order was quashed on the basis of the offender’s means, and sent back to the District Court for re-assessment.
    • “[11] In R v Mohi CA 37/07, 19 April 2007, the offender set alight two vehicles belonging to his ex-employer with whom he had had a difference. One fire did not take hold, but the other vehicle was completely destroyed. There was clear pre-meditation but some degree of remorse. The Court considered that the sentencing Judge’s imputed starting point of 34 months was excessive and adopted a starting point of 30 months. That was reduced by six months in recognition of reparation, resulting in a final term of 24 months. Leave to apply for home detention was refused.
    • “[12] In Lefebvre v Police HC Christchurch CRI-2008-009-002907, 10 July 2008, the offender had formed a relationship with the complainant. An argument developed while the offender was visiting the complainant, who asked her to leave. She took a petrol container from her car, filled it at a petrol station and used that to set fire to the complainant’s mobile home. Before lighting the fire, she removed garden hoses. She stated all this was done in anger and revenge. The fire completely destroyed the mobile home and the complainant’s car, with total damage of around $48,000. A three year starting point was reduced to two years three months for the guilty plea. That was upheld on appeal.
    • “[13] In R v Delegat CA 406/91, 5 March 1992, the offender set fire on his ex-girlfriend’s house out of revenge for the fact that she was in a new relationship. He suspected or knew that no one was in the house at the time. A starting point (and end sentence) of three and a half years was taken, but was reduced on appeal to two and a half years under the totality principle, as the arson sentence was cumulative on an existing two year sentence.
    • “[14] In R v Protos CA 259/04, 19 October 2004, the offender set fire to a vehicle parked close to a house in which people were sleeping. The vehicle was completely destroyed and the house damaged. The sentencing Judge adopted a four year starting point reduced to three years for mitigating factors, and imposed reparation of $13,200. On appeal, the Court found that the combination of the prison term with the reparation was excessive and the sentence was reduced to two years with leave to apply for home detention.
    • “[15] In R v Cowie HC Christchurch CRI – 2006 – 409 – 198, 3 November 2006, the offender was subject to a protection order obtained by his former partner. One night he purchased a small quantity of petrol and poured that over a vehicle on the front lawn of his former partner’s home. He unsuccessfully attempted to light the car and no damage was done. He was intercepted by police on his way back to the address, having purchased further petrol to try again. A starting point of three years taken by the sentencing Judge was reduced on appeal to two years for attempted arson. Leave to apply for home detention was denied.
14. In the R v Coleman the offender was charged in the District Court with one count of arson, one count of attempted arson and one count of driving with excess blood alcohol. She went to the house where the complainant (her ex-partner), his two young daughters and the complainant’s new partner were asleep and placed cardboard cartons under a vehicle in the garage underneath the house and set fire to those cartons. She also put some cardboard cartons under a vehicle parked on the front lawn and set fire to those. When she saw that the fire had taken hold of the vehicle in the garage and was beginning to take hold of the building, she alerted the neighbours to the fire and fled the scene. Damage amounted to approximately $45,500. The sentencing Judge adopted a starting point of 17 months. He took into account the seriousness of the offending which had the potential to cause significant harm, if not death, to people living in the house. He also took into account as a mitigating factor that the respondent came to her senses part way through what happened and made efforts to alert others as to the danger. A starting point of 17 months was adopted. On appeal to the High Court the 17 month starting point was upheld.
15. On the basis of the above authorities, I consider a starting point of 4½ years for this case to be too high.
16. However, it must be noted that a starting point of imprisonment is not always inevitable in every case of arson. It is axiomatic that the starting point in a particular case ultimately depends on the facts of that case. For example, in the English cases of R v B [2011] EWCA Crim 1479 and R v Singleton [2008] EWCA Crim 468 and the Australian case of R v Leslie [2016] QCA 15, the Courts imposed non custodial sentences. This was partly because the offender in each of those cases had psychiatric problems. In Police v Sopoaga Amosa (2015) (unreported judgment of Aitken J delivered on 3 August 2015), a suspended sentence of 3 years was imposed on the offender for setting fire to a pile of building materials, plates and pots with an estimated value of $2,245.00.

The aggravating and mitigating features

17. The aggravating features relating to this offending are the value of the car and loss of income to its owner as well the fact that the house of the accused’s family was at risk of being burnt. However, the accused himself when the rear windshield and side windows of the car exploded came to his senses and ran and fetched a bucket of water to put out the flame. The value of the clothes of the accused’s wife that were destroyed is unknown.
18. The fact that the accused came to his senses when the rear windshield and side windows of the car exploded and then took steps to put out the fire is a mitigating feature in relation to the offending. The offending also involved a low level of premeditation.
19. In relation to the accused as offender, I will not take into account his one previous traffic conviction which is of quite a different nature from the offending in this case. So I will treat him as a first offender for present purposes. The testimonials from his wife, the pastor of his church and the pulenuu of his village show that the accused had been a person of good character prior to this offending. He has reconciled with his wife and are living together again. He also expressed remorse to the Court. His guilty plea at the earliest convenience is an important mitigating feature.

Discussion

20. The arson in this case is towards the low end of the scale. The real aggravating feature in relation to this offending is the extent of the loss to the owner of the taxi. The value of the clothes of the accused’s wife that were burnt is unknown. The accused’s actions in setting fire to his wife’s clothes inside the boot of the taxi were very reckless. His drunkenness was the main, if not the sole, contributing factor. However, the low level of premeditation and the actions of the accused to put out the fire and thereby reduced the risk of damage to his house are relevant mitigating features to assessing the gravity of this offending.
21. I will not make an order for compensation under s.165 of the Criminal Procedure Act 1972 as it appears that the accused is now unemployed. However, the accused told the Court that he has entered into an agreement with the company owner of the taxi to repay the damage by weekly instalments of $100. Should the accused default on that agreement, the owner may still bring civil proceedings against him.
22. Having regard to the aggravating and mitigation features relating to the offending and the need for deterrence in this type of case, I will like 2 years as the starting point for sentence. I will deduct 2 months for previous good character. That leaves 22 months. I will deduct a further 2 months for remorse. That leaves 20 months. I will further deduct 25% or 5 months for the early guilty plea. That leaves 15 months. That means the end sentence the accused would have served for his offending would have been 15 months imprisonment.
23. However, given the report from the ADC case manager/programme facilitator that the accused has successfully completed the six weeks Toe Afua Se Taeao Fou programme of the ADC and that the accused has good rehabilitative prospects, I have decided to give the accused the opportunity to turn a completely new leaf for his own good and that of his family and to impose a suspended sentence.

Result

24. The accused is convicted of arson and given a 2 year suspended sentence. If he reoffends within that period of time then I have indicated the sentence of 15 months imprisonment that he will have to serve. But if he does not reoffend then that will be the end of this matter.

CHIEF JUSTICE