Tania Cresswell burned down the home of her former partner. Photo / NZME
Tania Cresswell burned down the home of her former partner. Photo / NZME
A woman who smacked her ex around the head with a piece of timber and then burned down his house could overturn her current jail sentence if she pays the man a "significant" lump sum - but her lawyer has argued such an approach can only advantage the rich.
"In effect, the rich get credit where the poor don't. I think that is a fundamentally difficult issue," defence lawyer Andrew Laurenson submitted on behalf of his client who was sentenced to three years and six months' jail and has no way of paying the ordered reparation of $150,000.
Laurenson argued the offender, Taranaki's Tania Cresswell, should get a discount to her sentence simply because an order was made.
"If a reparation order is made and she does her best to fulfill that obligation then a credit, in my submission, should be given otherwise it becomes quite unfair."
At the appeal heard in the High Court on Thursday, Crown prosecutor Holly Bullock accepted that if a voluntary lump sum payment was made, rather than an imposition of reparation, then credit would be appropriate.
But that hasn't happened and so no discount should apply, she said.
Justice Andru Isac, who heard the appeal, said "the proof was in the pudding".
"What the victim needs is to see a significant, realistic lump sum payment. I think in that event, you [Laurenson] are on much better grounds to say there should be a significant discount to reflect that."
What remained of the newly renovated home was bulldozed following the fire. Photo / NZME
Justice Isac said it would be inappropriate for him to suggest a figure.
In August, Judge Gregory Hikaka sentenced Cresswell to jail and ordered reparation.
Immediately after the sentence was handed down, Laurenson indicated there would be an appeal.
Cresswell was granted bail pending the appeal, meaning she is yet to be imprisoned.
Her sentence was the result of her January 15, 2021, attack on her on and off partner of eight years, Tony Oxenham, with a piece of timber and then setting fire to his house.
The blaze destroyed his newly renovated Waitara home, leaving him $165,000 out of pocket.
Cresswell, who became jealous when Oxenham received a text from another woman and lashed out, immediately pleaded guilty to arson but was found guilty on the assault with a weapon charge at a judge-alone trial.
Her sentence covered the assault, arson and an unrelated charge of drink-driving.
Defence lawyer Andrew Laurenson has appealed Tania Cresswell's sentence. Photo / Pool
At her appeal, Laurenson argued that the starting point of the sentence was too high and that Judge Hikaka gave either no credit or insufficient credit for mitigating factors such as the cultural report, remorse and previous good character.
He also submitted the reparation order was excessive.
While Bullock submitted the starting point was well within range and that community protection and the seriousness of the offending should take precedence, she conceded the reparation was excessive.
She said $36,000 was appropriate but acknowledged that amount would likely reduce if Cresswell was imprisoned.
That figure was based on Cresswell, who works at the freezing works, paying $100 per week until she retired.
Bullock said Oxenham wanted to see Cresswell held accountable for her actions but reparation would help him get back on his feet.
Justice Isac said holding Cresswell accountable by serving a term of imprisonment was incompatible with her ability to earn and pay reparation.
Cresswell, 58, had limited previous convictions and was facing her first term of imprisonment, and she has issues with alcohol that do not appear to have been addressed.
In addition to that, there has been a devastating loss for the victim that he won't recover from, Justice Isac said.
He suggested a just resolution might have been a "decent" lump sum reparation with an ongoing order.
That might have got a community-based sentence, he said.
"But at the moment what the court's looking at is sending a woman in her sixth decade to jail for quite a substantial period of imprisonment.
"I want to make sure before it's accepted that that outcome is inevitable, because it clearly affects her ability to pay reparation, that everything has been done that could be done to address reparation."
Laurenson said Cresswell, who has paid Oxenham $600 since she was sentenced, has no way of making a large or even meaningful lump sum.
But Justice Isac suggested asking Cresswell, who was not at the hearing, whether she had any Kiwisaver funds she could use or if any of her whānau could help.
He adjourned the appeal part heard for Laurenson to gather that information by October 14.
Cresswell's bail will continue until the final disposition of the appeal.
