Thompson v R

• Jurisdiction: New Zealand
• Judge: French J
• Judgment Date: 19 August 2020
• Neutral Citation: [2020] NZCA 355
• Court: Court of Appeal
• Docket Number: CA79/2019
• Date: 19 August 2020

Between

Colin James Thompson

Appellant

and

The Queen

Respondent

[2020] NZCA 355

Court:

French, Woolford and Dunningham JJ

CA79/2019

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Criminal — appeal against a sentence of life imprisonment with a minimum period of imprisonment of 13 years and two months for murder on grounds that due to a delusional disorder, life imprisonment was manifestly unjust — imagined conduct of the victim — provocation — Sentencing Act 2002

Counsel:

S W Hughes QC for Appellant

M J Lillico and J M Irwin for Respondent

• A The application for leave to adduce the report of Dr Lehany dated 20 February 2020 is granted.

• B The appeal is allowed to the extent that the minimum period of imprisonment imposed by the High Court of 13 years and two months' imprisonment is reduced to 12 years and four months' imprisonment. The sentence of life imprisonment is confirmed.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by French J)

Introduction

1 Mr Thompson pleaded guilty to the murder of his landlord Mr Riddle. He was sentenced in the High Court by Dobson J to life imprisonment with a minimum period of imprisonment of 13 years and two months. 1

2 He now appeals his sentence primarily on the grounds that due to a delusional disorder, life imprisonment was manifestly unjust under s 102(1) of the Sentencing Act 2002.

The facts of the murder

3 Mr Thompson and his wife rented a property on a farm owned by Mr Riddle. Mrs Thompson died in October 2017 following a lengthy illness. During the period of her illness, the relationship between Mr Riddle and Mr Thompson became fraught with arguments over unpaid rent and the state of the property. The situation escalated to the point where Mr Riddle who was in his late seventies felt threatened and would avoid face to face meetings with Mr Thompson.

4 Associates of Mr Thompson also became concerned after hearing Mr Thompson state on numerous occasions that he would shoot Mr Riddle if he continued to harass him. This resulted in one of the associates volunteering to be a facilitator or “go-between” to collect the rent.

5 The threats continued after Mrs Thompson died. In the weeks leading up to the murder, Mr Thompson told an associate that he had a gun ready and that if Mr Riddle kept harassing him he would shoot him without any hesitation. When another acquaintance commented that Mr Riddle had a right to expect the place to be tidy, Mr Thompson said he was going to shoot the mongrel anyway. On the day before the murder, he told someone else that he was going to shoot Mr Riddle.

6 On the day of the murder itself, 6 February 2018, Mr Riddle phoned Mr Thompson and spoke to him about the rent arrears. After going into town and withdrawing some money, Mr Thompson got back to Mr Riddle and invited him to

the property to collect his rent. Mr Thompson then called two associates — one of whom was the go-between — and told them “I've been to the bank to get some more money to add to the rent I had at home and I've rung [Mr Riddle] to come and get it. The gun is loaded and I've had enough of his shit, get up here now.”

7 Shortly afterwards, Mr Riddle arrived and after taking the rent money turned and started to walk back to his own house. Mr Thompson got his 12 gauge double barrel shotgun and confronted Mr Riddle at a side gate. He pointed the gun at Mr Riddle and said “what did you say?” The two men were only metres apart. When Mr Riddle turned to face Mr Thompson, Mr Thompson fired at his torso. Mr Riddle immediately fell to the ground critically injured.

8 Mr Thompson walked back to his house and only returned outside when the two associates he had called arrived on the scene. They immediately rushed to Mr Riddle and tried to help him. Mr Thompson told them that the “fucking bastard got what he deserved. Let him die.” He then walked over to where Mr Riddle was lying and kicked him hard in the hip area saying “take that, you cunt, you got what you deserved”.

9 While the associates continued to attempt to resuscitate Mr Riddle, Mr Thompson walked in and out of the house and at one point told the associates to “put him down the offal hole, let him die”. He told another associate over the telephone that he had shot Mr Riddle and that there was a truck parked near to where Mr Riddle was lying. He suggested the associate should start the truck up and back over Mr Riddle to finish him off.

10 Mr Riddle died at the scene. He was 78 years of age.

11 When spoken to by police, Mr Thompson admitted shooting Mr Riddle. He also stated that he “totally lost it” and that he “was out of [his] tree”.

12 At the time of the murder, Mr Thompson was aged 68. He had no previous convictions.

Psychiatric assessments prior to sentencing

13 There were a series of reports. The initial reports assessed Mr Thompson as unfit to stand trial and suffering from what was said to be a range of complex inter-related mental health problems including depression, cognitive impairment, possible psychotic symptoms, vague perceptual disturbances (hearing noises and voices) and an apparent persecutory ideation against Mr Riddle. The reports also recorded a history of heavy alcohol abuse.

14 Later reports continued to identify cognitive difficulties and delusional beliefs about Mr Riddle but found Mr Thompson fit to stand trial.

15 Cognitive assessments (psychometric testing) undertaken by a clinical psychologist in August 2018 indicated that Mr Thompson was malingering his cognitive impairment. That is to say, Mr Thompson was considered to be intentionally exaggerating his cognitive functioning difficulties, possibly motivated by a perceived gain of not remembering the crime he was accused of committing.

16 In another report dated 29 August 2018, Dr Street, a consultant forensic psychiatrist, said that most of the behaviours that had contributed to the initial concerns about dementia or cognitive issues were likely due to malingering. Dr Street also noted that during the evaluation with the clinical psychologist, Mr Thompson appeared to feign some of his depressive symptoms.

17 The most recent reports available to the Judge prior to sentencing was a further report by Dr Street dated 12 December 2018 and two reports by Dr Lehany, another consultant forensic psychiatrist. One was dated 9 November 2018 and the other 8 January 2019. 2

18 Dr Street's report of 12 December 2018 noted that at the outset of the interview, Mr Thompson presented with exaggerated mannerisms which the previous testing had indicated were the product of malingering. Dr Street said that this time

the exaggerated mannerisms stopped once Dr Street told Mr Thompson that if he did not make his best effort, Dr Street would communicate that very clearly to the Judge

19 Dr Street's report went on to opine that Mr Thompson was not currently presenting as depressed but his personality structure (lack of remorse and pre-occupation with injustices against himself) put him at significant risk for depression in the future.

20 The key aspects of the two reports from Dr Lehany were that Mr Thompson had a mild to moderate depressive illness with possible psychotic features and a delusional disorder characteristic of pathological jealousy which might or might not be related to the depression. The delusional disorder manifested itself in fixed and unshakeable delusional beliefs about Mr Riddle held by Mr Thompson, including that Mr Riddle had been persecuting him and had even raped his wife while she was ill. Dr Lehany noted that Mr Thompson had given a consistent account of these delusional beliefs to all the assessors making it likely these delusions were constantly present and sincerely and completely held. The onset of the delusional beliefs was unclear but, in all probability, they had been present for some time prior to the murder.

21 In Dr Lehany's opinion, it was likely that at the time of the murder, Mr Thompson was holding delusional beliefs about the victim and that his sense of persecution was heightened by auditory hallucinations. But the decision to shoot was based on a loss of temper at his understanding of the circumstances, rather than a delusional belief which prevented him from understanding his behaviour was wrong.

Sentencing in the High Court

22 Describing the shooting as the tragic culmination of a long expressed intention to kill Mr Riddle, Dobson J said it was not in the spur of the moment and was completely unprovoked. In the Judge's view, the Crown was entitled to call it a cold-blooded execution for which Mr Thompson showed no remorse both by his statements and his conduct immediately after the shooting. 3

23 The Judge went on to say that having regard to the circumstances of the offending and Mr Thompson as an offender, there was no way in which Mr Thompson could avoid a sentence of life imprisonment because there were no credible grounds for contending such a sentence would be manifestly unjust. 4

24 The Judge further held that the murder had been committed with a high level of brutality and callousness. 5 It therefore came within the categories of murders which under s 104 of the Sentencing Act attract a presumptive minimum period of imprisonment of 17 years or more unless that would be manifestly unjust. 6

25 Turning to Mr Thompson's personal circumstances, the Judge accepted that Mr Thompson “fell apart” after the death of his wife and that over a substantial period of time, he harboured a serious grudge against Mr Riddle. The grudge was based on apparently delusional concerns which, the Judge said, one of the assessing psychiatrists considered may have been genuinely held. 7

26 The Judge identified three mitigating personal circumstances, Mr Thompson's mild to moderate depression, his age and his guilty plea. 8 The Judge said he recognised from the analysis of Mr Thompson's mental condition reported...