EDITORIAL NOTE: NAMES AND/OR DETAILS IN THIS JUDGMENT HAVE
BEEN ANONYMISED.
IN THE DISTRICT COURT
AT WAITAKERE
CRI-2016-090-000690
[2016] NZDC 15409
THE QUEEN
v
HERMAN SCOTT
Hearing:
10 August 2016
Appearances:
A Luck for the Crown
J Edgar for the Defendant
Judgment:
10 August 2016
NOTES OF JUDGE K J GLUBB ON SENTENCING
[1]
Herman Scott, you appear for sentence on four charges. You appeared before
the Court on 17 May 2016 and a sentence indication was sought. At that time the
indication I gave was an end sentence of 33 months’ imprisonment. You accepted
that indication and subsequently pleaded guilty. The charges for sentence are arson,
burglary, intentional damage and breach of a protection order.
[2]
The facts are that the first complainant in this matter was your ex-partner and
you had been in an on and off again relationship for about three years and you have a
child with that person. There was a temporary protection order in place at the time
of this offending. That was made final in 2014.
[3]
On 23 January 2016 the complainant, Ms Merlo, had parked her vehicle in
the driveway at her address and was beginning to clean it. She went inside to get
some cleaning items. At that time you were driving a [details of car deleted] car
R v HERMAN SCOTT [2016] NZDC 15409 [10 August 2016]
nearby at speed and, revving the engine, you deliberately drove onto the
complainant’s driveway and into the complainant’s parked vehicle. The collision
caused major damage to the vehicle. You then reversed up the drive and sped off.
[4]
At about 3.00 am on 25 January, so two days later, you went to the [name of
motel deleted]. You were not a guest at that motel, nor did you have any valid
reason for being there. You entered room 210 at the motel. That room was not
locked and you had no authority to enter.
Once inside you caused significant
damage to the room. A wall and flat screen TV had been scratched and the word
“Fuck” written into the bathroom door. You then blocked the toilet using tea and
coffee sachets, cutlery, toilet paper and a cup from the room. Bedding was also
removed from the bed and placed in the shower. Taps were then left running,
causing the room to flood. As a result there has been extensive water damage to the
room as well as the motel unit beneath. The cost of the repair, and I have seen the
invoice, was $12,661.50. You left that motel and you were not located at that time.
[5]
Then on 12 March the complainant was driving her mother’s [details of car
deleted] car. You were in the front passenger seat. You and the complainant had
spent the day together. Throughout the day you had been drinking and by late
afternoon you were intoxicated. At about 6.00 pm that evening the complainant
stopped to get petrol at a service station. As you were leaving the petrol station you
got into a heated argument with her, accusing her of flirting with the shop attendant.
The argument escalated to you flailing your arms towards the complainant while she
was driving and caused her to swerve all over the road. She attempted to pull over to
the side of the road to resolve the argument but ended up crashing into a grass bank
on the left-hand side of the road. A number of passers-by witnessed that and pulled
over after the crash to see if you were all right.
[6]
You and the complainant continued to argue in the vehicle and a couple of
minutes later she got out of the vehicle and walked up the road. You were left alone
in it. One of the witnesses saw you smash the windscreen of the [details of car
deleted]. Your door was flat against the grass bank. You exited via the driver’s door
and walked past one of the witness’s vehicles. As you passed you said to them, “Just
so you know, the car is on fire,” and you continued walking. The witness saw that
there was a lot of white smoke coming from the vehicle. In a short amount of time
there were red flames coming out of the broken windscreen and dark smoke from the
vehicle. As a result of the fire the vehicle was completely gutted beyond repair. The
vehicle is the property of Ms Merlo’s mother and was valued at $4000.
[7]
None of that does you any credit at all, Mr Scott. In fact, it is an appalling
catalogue.
[8]
When I look to the matters of aggravation, there is a degree of premeditation
in all of them. There is the fact that you drove into the vehicle on the drive, there is
going to the motel and then entering and doing the damage as you did. Then there is
the premeditation in setting fire to that vehicle after the crash. Whilst it might have
been somewhat opportunistic, you had obviously given it some thought before you
got out and then walked up the road.
[9]
There is the damage done; $16,000 all up ($4000 for the vehicle, $12,000 for
the motel.)
[10]
There is the impact on the victims. I do not have any victim impact statement
from your partner but I can appreciate the impact that this would have had on her
and also on her mother. I do have a victim impact statement from the owners of the
motel. It is a family business. They have been running it for a time with their
children living on the property. They face significant losses as a consequence of this
offending. They were not covered by insurance. They lost the use of that room for
about a month while it was repaired and they also complain that their image as a safe
family motel was impacted because other customers thought you were a guest and
that had an ongoing impact on them. As I say, they have detailed the costs associated
with the repair of that particular address. I also note this was repeat offending that
occurred at that time.
[11]
I turn to consider the matters which aggravate circumstances for you
personally, specifically your previous conviction history. It is extensive. You have
some 61 convictions for wilful damage. A lot of those are graffiti-related but
nonetheless wilful damage. You have got 15 for theft, two for burglary, six for
unlawfully taking, 14 for breaching community work or supervision, eight for failing
to attend, five for EBA and three for breaches of release conditions. I note that it is a
significant list and they are recent and relevant. I see no mitigation in this offending.
[12]
I have the benefit of a pre-sentence report. You are 29 years of age. That
assessed your risk of re-offending as high and your risk of harm to others is also
assessed as high. They note your poor impulse control and lack of consequential
thinking, your offending-supportive attitude, sense of entitlement, relationship
difficulties and substance abuse. You have acknowledged that you were influenced
by drugs and alcohol at the time of your offending but that does not mitigate, in my
assessment. In fact, the Sentencing Act 2002 directs that it is no mitigation. The
recommendation of the report writer is one of imprisonment with release conditions.
[13]
I have reviewed the authorities that have been tendered by both the Crown
and the defence. The Crown took a starting point of 2.5 years for the arson and an
uplift of 12 months for the other offending and a 20 percent discount for plea. Your
counsel submitted 20 months for the arson, an uplift of nine months for the balance
and three months for your previous convictions and then 25 percent for the plea.
[14]
Specifically, in terms of the authorities I referred to, it was R v Kors, R v
Mohi [2007] NZCA 139, R v O’Sullivan HC Whangarei CRI-2007-188-5182, 19
August 2008, Cox v R [2013] NZCA 194 and R v Kirk.
[15]
As I say, I gave a sentence indication at that time. I took a starting point of
24 months. I upped it by 14 months for the balance. I uplift it by six months for
your previous. 44 months. Then I gave you 25 percent for your plea which got me
back down to 33 months.
[16]
Noting the indication was accepted by you, I propose to adopt precisely what
I said at that time. For the arson I take a starting point of 24 months. I uplift for the
balance of the offending by 14 months to 38 months. The burglary, if it stood on its
own, would have attracted a starting point of two years’ imprisonment but I reduce
that for the purpose of totality. I then look to your previous conviction history. It is
significant, as I have indicated. Six months uplift for that got me to 44 months. I
gave you a discount of 25 percent for your plea which was 11 months down to 33
months.
[17]
I note that you have made an offer of reparations and you are willing to pay it
and Mr Edgar makes that point to me today and asks for a discount in recognition of
that. He also asks that I recognise the fact that you were willing to participate in a
restorative justice meeting but, of course, the victims were not and I respect that of
course. Noting that I am going to order reparations and it will be significant, I will
reduce the end sentence slightly and I will also take account of the fact of your offer
of restorative justice. I will give you 10 percent. Ten percent on 33 months is three;
brings me down to 30 months.
[18]
Where that then gets me to on the charges specifically, on charges 2 and 3
which is the arson and the burglary, on each of those I convict you and sentence you
to 30 months’ imprisonment. On charge 3 I make an order that you pay reparations
of $4000. On charge 2 I make an order that you pay reparations in the sum of
$12,000. On charges 1 and 4 specifically, the intentional damage and the breach of a
protection order, I convict you and sentence you to imprisonment for a term of
12 months.
[19]
All those sentences of imprisonment are to be served concurrently. Do you
understand all of that? Let’s not see you back here again. Thank you, stand down.
K J Glubb
District Court Judge