Hall v R

• Jurisdiction: New Zealand
• Judge: Muir J
• Judgment Date: 12 July 2021
• Neutral Citation: [2021] NZCA 314
• Docket Number: CA622/2020
• Court: Court of Appeal

Between

Kerry Richard Hall

Appellant

and

The Queen

Respondent

[2021] NZCA 314

Court:

Clifford, Thomas and Muir JJ

CA622/2020

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Criminal Sentence — appeal against a sentence of two years and seven months imprisonment for arson — the appellant set fire to his unit in a social housing complex — whether the appellant's mental illness entitled him to discrete discounts at both stages of the sentencing process by way of a reduction to the starting point because of reduced culpability and because as a convicted arsonist, his accommodation options would be severely constrained

Counsel:

D J Matthews for Appellant

C Ure for Respondent

• A The appeal is allowed.

• B The sentence of two years and seven months' imprisonment is quashed.

• C A sentence of two years and one month's imprisonment is substituted.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Muir J)

Introduction

1 This is a second appeal from a sentence of two years and seven months' imprisonment imposed for arson. 1 On 22 April 2021, this Court granted leave for the appeal to be heard. 2 It did so on the basis that: 3

A miscarriage of justice may arise if the sentence was manifestly excessive because of the starting point adopted and the extent of the discount allowed for Mr Hall's mental health issues.

Background

2 Mr Hall was the sole tenant of one of 20 single-level social housing units in a Christchurch complex. On the afternoon of 24 March 2020, while he was in the unit alone, he used a lighter to set fire to his bedding materials. The fire took hold and caused substantial damage to the dwelling. The repairs cost $38,000.

3 Mr Hall's neighbours noticed the fire and called Fire and Emergency New Zealand. One neighbour controlled the spread with a garden hose until the emergency services arrived. The statement of facts to which Mr Hall pleaded guilty noted his behaviour to emergency service staff as “agitated” and “aggressive”. He was subsequently restrained by a member of the public.

4 By way of explanation, the statement of facts records that Mr Hall “admitted lighting the fire and stated that he was angry and frustrated with living at the flat complex”.

5 Mr Hall was subsequently assessed under s 38(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPA) to determine his fitness to stand trial and/or whether he was insane pursuant to s 23 of the Crimes Act 1961. Reports were provided by Dr James Foulds and Mr John Carrell. Both concluded that Mr Hall was fit to stand trial and was not insane at the time of the offending.

6 The reports also recorded Mr Hall's advice to health professionals that, at the time he lit the fire, he was experiencing delusions of a persecutory religious nature, believing that he was spiritually cursed. He also stated that he thought spirits inhabited some of the other tenants in the complex and that he decided “something had to be done”. He said that he believed fire “would make the spiritual activity stop”.

7 This account is consistent with the observations of a witness who reported that Mr Hall appeared disturbed earlier in the day, “screaming and saying things like the spirits are going to kill him and that he needs to kill everyone to get rid of the spirits”.

8 Dr Foulds and Mr Carrell referred to Mr Hall's long history of mental health problems, severely exacerbated by substance abuse. Dr Foulds recorded that although Mr Hall is known to have brief periods of psychosis, this was “thought to arise in the context of substance intoxication rather than forming part of an enduring major psychotic disorder such as schizophrenia”. Although noting one countervailing view, 4 he stated that the consensus of those who had cared for Mr Hall was that his primary problem was a mixed severe personality disorder complicated by severe addiction problems.

9 Both report writers expressed concerns about whether elements of Mr Hall's narrative were genuine or whether his descriptions were influenced by his legal situation. Mr Carrell referred to the fact that although, on first presentation to adult mental health services, Mr Hall was diagnosed as having episodic psychosis, that diagnosis was later changed to antisocial personality disorder and substance abuse disorder “due to Mr Hall admitting to fabricating psychotic symptoms in an attempt to [be admitted] to hospital and to be sent to prison due to cold weather and lack of accommodation”. Mr Carrell recorded advice from Mr Hall's most recent case manager that Mr Hall consistently attempted to have his needs met by way of inappropriate means, reporting that he presented on numerous occasions to the Emergency Department and/or contacted Crisis Resolution and reported vague psychotic symptoms. On each such occasion, it was decided that his presentation was

secondary to him having spent his available money on illicit substances, running out of food and seeking access to respite care

The District Court decision

10 In the District Court, Judge O'Driscoll accepted there was “not a great deal of premeditation” in the offending and that it was “fair to say” Mr Hall's mental health issues were “a significant contributing factor” in the offending. 5 He concluded that Mr Hall's actions posed a “real and significant risk” to other tenants present in the housing complex, 6 although there was no evidence before him that anyone was asleep at the time of the fire. 7

11 He concluded that an appropriate starting point (absent recognition of the extent to which Mr Hall's mental health issues impacted on his culpability) was four years and six months' imprisonment, 8 having regard particularly to the extent of the damage and the risk to other tenants. From this notional starting point, he recognised a deduction of 10 months (approximately 18.5 per cent) on account of the fact that criminal liability is founded on conduct that is performed rationally by a person who exercises a wilful choice to offend and that he did not think that “[could] be said to have occurred here because of [Mr Hall's] mental health issues”. 9 He recognised a further discount of 13 months (approximately 24 per cent) on account of Mr Hall's guilty plea. 10

12 He therefore imposed a sentence of two years and seven months' imprisonment. He noted that Mr Hall had no realistic means by which to pay reparation and that any such order would accordingly be futile. 11

The High Court decision

13 On appeal to the High Court, Osborne J considered the District Court starting point “stern but within range”. 12 His Honour stated that, on the basis of the cases referred to by counsel, he would have regarded a starting point of between four and four and a half years' imprisonment as appropriate. 13

14 His Honour accepted that in terms of the authorities, a mental health discount could be available at two separate stages of the sentencing process, being relevant both to culpability and, for example, the extent to which a custodial sentence may be more onerous for the defendant than others. He said that he was “satisfied that is what the Judge did”. 14 Subsequently, however, he said that he did not consider the Judge to have erred in not doing so in this case because: 15

His Honour accounted for it significantly in … adjusting the starting point and the potential for a further allowance by way of personal mitigating factors has to be offset against what would otherwise have been an appropriate upwards adjustment for Mr Hall's relevant record of wilful damage offending.

The appellant's case

15 Mr Matthews, counsel for Mr Hall, submits that an (unadjusted) starting point of four and a half years' imprisonment was beyond the appropriate range and resulted in a sentence which was manifestly excessive. He refers, in particular, to the decisions of this Court in Munro v R and Skeens v R where starting points of five years' imprisonment were recognised for cases involving premeditated arsons at night where it was obvious there were occupants sleeping in the targeted properties and where there was an extreme risk to life. 16 He contrasts those situations with the present case where

the fire was lit during daylight hours where, he says, there was no more than an outside chance of risk to life and where, unlike Skeens, no individual was being specifically targeted

16 He further submits that Mr Hall's mental illness entitles him to discrete discounts at both stages of the sentencing process. First, by way of a reduction to the starting point because of reduced culpability and secondly, because as a convicted arsonist, his accommodation options will be severely constrained — a factor likely to weigh heavily on the Parole Board.

17 Mr Matthews also submits that Osborne J was incorrect to identify a possible uplift for previous offending as a countervailing factor to non-recognition of Mr Hall's mental health difficulties at the second stage of sentencing. He submits that although Mr Hall's history of criminal offending is extensive (running to 14 pages and over 100 offences), it is largely at the “nuisance level” of disorderly conduct and wilful damage, noting in particular that there have been no previous convictions for arson.

18 Taking these factors into account, Mr Matthews submits that the final sentence should have been around the two-year mark.

The Crown case

19 Ms Ure submits that the sentence was not manifestly excessive. She says that the case does not fit conveniently within the category of cases where starting points of five years and above have been adopted, nor the category where sentences have been in the three to three-and-a-half-year range. She emphasises that although the fire was lit within Mr Hall's own unit, it was part of a larger complex. She says the fact that it did not spread further was a function of “good luck, not good management” on the part of Mr...