Blackley v The King

[2025] NZHC 881

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2025-409-57 [2025] NZHC 881

BETWEEN  CHRISTOPHER BLACKLEY

Appellant

AND  THE KING

Respondent

Hearing:                   10 April 2025

Appearances:           A M McCormick for Appellant

P J Brand for Respondent

Judgment:                10 April 2025

ORAL JUDGMENT OF EATON J

BLACKLEY v R [2025] NZHC 881 [10 April 2025]

Introduction

[1]    Christopher Blackley pleaded guilty to arson1 and possession of a methamphetamine utensil.2 He was sentenced by Judge Gilbert on 21 August 2024 to two years and eight months’ imprisonment.3 He appeals this sentence on the grounds the total uplift of 15 per cent for previous convictions and for offending while on sentence was too high, resulting in a manifestly excessive end sentence.

Facts

[2]    The arson was committed on 6 September 2023. At that time Mr Blackley was serving a sentence on five months’ home detention imposed on 5 May 2023 following a burglary conviction. He was relocated to a motel complex consisting of multiple units on 5 September 2023. At around 5 pm on 6 September, he dialled 111 from his cell phone. He told the police operator he could hear his neighbours talking about him in the next room and believed they were going to shoot him. Mr Blackley told the operator he wanted to set the place on fire. He then set fire to a mattress, which quickly engulfed the room. The operator told him to leave the room. Mr Blackley asked to be taken to the police station. In the meantime, the fire spread through an open window, causing  the  upstairs  curtains  to   catch   fire  and  engulfing  the  upstairs  unit.   Mr Blackley’s unit sustained extensive damage to the extent it is uninhabitable. The upstairs unit suffered extensive fire damage to one bedroom and smoke damage to the rest of the unit.

[3]    Other tenants  of the  premises had to  be evacuated.   At around 5.30 pm,   Mr Blackley was arrested. A post arrest search revealed a used glass methamphetamine pipe in his bag.

[4]    The arson caused damage in the sum of $64,000. Further financial loss has resulted from the motel owners not being able to rent the room.

1      Crimes Act 1961, s 267(1)(b); maximum penalty 14 years’ imprisonment.

2      Misuse of Drugs Act 1975, s 13(1)(a) and (3); maximum penalty one year imprisonment or $500 fine.

3      R v Blackley [2024] NZDC 20050.

District Court Decision

[5]    The Judge considered the case was most analogous to Hall v R4 and adopted a starting point of three years and 10 months’ imprisonment. An uplift of 7.5 per cent for previous convictions and another 7.5 per cent for offending on sentence were applied. The Judge allowed a 20 per cent deduction for guilty pleas and a further global deduction of 25 per cent to recognise personal mitigating factors including background,  mental  health  and  methamphetamine  use.  The  net  deduction  of   30 per cent led to the end sentence of two years and eight months’ imprisonment. A one-month concurrent sentence for the utensil possession charge was imposed.

Principles on appeal

[6]    Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.5 As the Court of Appeal stated in Tutakangahau v R, with reference to the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.6 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.7

Submissions

Appellant’s submissions

[7]    Mr McCormick, on behalf of the appellant, accepts the starting point adopted by the Judge was within range. However, he submits the 15 per cent uplift for previous convictions and for being on sentence at the time of the offending was excessive.

[8]    Mr  McCormick  further  questions  whether   the   complicated   issue   of  Mr Blackley’s mental health has been properly factored into the sentencing overall.

4      Hall v R [2021] NZCA 314.

5      Criminal Procedure Act 2011, ss 250(2) and 250(3).

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

7      Ripia v R [2011] NZCA 101 at [15].

Respondent’s submissions

[9]    Mr Brand, for the respondent, submits the offending was more serious than in Hall. He contends that a higher starting point could have been adopted. Mr Brand acknowledges the offending was not premeditated, but submits it was deliberate and that there was a high degree of risk to life. He highlights that there was extensive fire damage sustained by the ground unit and one bedroom of the upstairs unit, and that the affected business sustained a significant loss of income and an interruption to their business.

[10]   Mr Brand submits that the 25 per cent deduction allowed by the Judge for personal circumstances, including mental health, was generous. He submits the uplifts that were imposed were within the available range. He submits that if the Court were to take a different view in relation to the uplifts, that the end sentence nevertheless is not manifestly excessive, having regard to what is submitted to be a low starting point.

Analysis

Leave to appeal

[11]   The appeal is out of time.   Counsel have explained this delay was  due to   Mr Blackley’s former counsel being unable to take on the appeal and having to identify other counsel for the appellant. Leave is not opposed by the respondent. There is no prejudice arising and I am satisfied it is appropriate to grant leave for the appeal to proceed out of time.

Mental health/starting point

[12]   As I have observed, Mr McCormick does not challenge the starting point taken by the sentencing Judge. I consider that to be a responsible position to take, given the offending is broadly similar to that in Hall where a starting point of three years and eight months was adopted on a second appeal for arson offending involving significantly less damage. Like Mr Blackley, Mr Hall faced some serious mental health challenges.

[13]   Mr McCormick does however question whether Mr Blackley’s mental health should have been factored into stage one of the sentencing, that is in fixing the starting point. The Court of Appeal in Shailer v R recognised that mental health disorders may be taken into account at stage one, that is in evaluating the offending itself to the extent that it has a causative impact on culpability — criminal legal responsibility being a “juridical response to an offender's willed choice to offend”.8 More commonly though, mental health disorders are taken into account at the second stage of sentencing, that is in considering mitigating or aggravating circumstances personal to an offender. Beyond a causal connection to the offending that reduces moral culpability, mental health issues on a personal level might mean a sentence of imprisonment weighs more heavily on a particular defendant suffering mental health issues.

[14]   The Judge in the District Court had the benefit of a very full psychiatric report prepared by Dr Maxwell Panckhurst and a s 27 cultural report. Doctor Panckhurst concluded that the appellant was not suffering a disease of the mind but there was very strong evidence to indicate that Mr Blackley’s behaviour in committing the arson was substantially affected by his paranoid psychotic experiences and, but for the methamphetamine induced psychotic episode, it seems very unlikely that the appellant would have engaged in fire setting behaviours.

[15]   In fixing the appropriate starting point, the sentencing Judge did not refer to the appellant’s mental health. I agree with Mr McCormick, that on the available evidence, it was open to the Judge to factor mental health in fixing the starting point. But as the Court of Appeal recognised in Hall, with reference to the observations made in Shailer, the Judge did not need to make discrete discounts provided all the implications of the appellant’s unwellness were appropriately recognised.9 I am satisfied the Judge did so.

[16]   A global deduction of 25 per cent to represent mental health disorders, methamphetamine addiction and other personal background factors was allowed.

8      Shailer v R [2017] NZCA 38, [2017] 2 NZLR 629 at [45] and [50].

9      Hall v R, above n 4, at [30].

Realistically, Mr McCormick does not contend that the Judge failed to adequately recognise the challenges faced by Mr Blackley.

[17]   Further, I think it is relevant that Mr Blackley’s offending did give rise to a very real danger to other members of the public. His mental health put the lives of others at risk. That is a relevant consideration in determining the extent to which mental health might impact the end sentence imposed.

[18]   Much like the appellant in Hall, Mr Blackley has a very lengthy history of incarceration, such that a further term of imprisonment is unlikely to have any significant adverse effect on his mental health.

[19]   Finally, as regards to the starting point, the Judge referred to Mr Blackley’s criminal history and that he was offending while serving a sentence of home detention as aggravating factors of the offending. I agree with Mr McCormick those factors were personal factors not ones that aggravated the offence.

Uplifts

[20]   The Judge imposed a 7.5 per cent uplift to reflect Mr Blackley's previous convictions and a further 7.5 per cent uplift to reflect that he had offended while serving a sentence of home detention. I agree with counsel that what was missing from the analysis of the District Court Judge was why those uplifts were applied.

[21]   Section 9(1)(c) of the Sentencing Act 2002 (the Act) provides that a relevant aggravating factor is offending while subject  to  sentence.  In  Clunie  v  R  the  Court of Appeal confirmed that s 9(1)(c) of the Act specifically recognises that the fact that the offending was committed while on bail is an aggravating feature. The Court there observed that an uplift for the appellant's offending while on bail is not a case of double counting and that it is intended to reflect the fact that such offending “displays disregard for Court processes.”10 In Thomas v R, the Court of Appeal considered an uplift for offending while on parole “was required to reflect the principle of deterrence.”11

10     Clunie v R [2013] NZCA 110 at [22].

11     Thomas v R [2020] NZCA 257 at [19].

[22]   There is no doubt Mr Blackley’s offending occurred whilst he was serving a sentence of home detention. I accept it is orthodox to impose a modest uplift for an offender who offends on sentence. But the Judge had referred to offending on sentence when setting the starting point. To my mind that gives rise to a risk of double counting.

[23]   Further, the expert psychiatric evidence was that this offending was the likely consequence of a paranoid psychotic experience. Given the nature and severity of  Mr Blackley’s condition at the time of the offence, I doubt this offending does reflect any disregard for the prior sentence imposed by the court. I also doubt that the principle of deterrence was engaged.

[24]    An uplift for previous convictions might be applied under s 9(1)(j) of the Act. The number, seriousness, date, relevance and nature of prior convictions must be taken into account. Those prior convictions may be relevant in three ways: an indicator of character and culpability; as showing the need for a greater deterrent response from the court; and as an indicator of the risk of re-offending.12

[25]   Mr Blackley undoubtedly has an extensive criminal history. However, he has no prior convictions for arson or for intentionally damaging property. He does have a number of convictions for offences that involve unlawful behaviour relating to other persons’ property, including burglary, aggravating robbery and theft. I have no doubt that Mr Blackley’s history certainly points to a real risk of him re-offending, but again with reference to his mental health, I am not satisfied that prior convictions reflect greater culpability.

[26]   Overall, I do not agree that any uplift for offending on sentence was appropriate. On review, I fix the appropriate level of uplift for previous convictions at five per cent.

12     R v Casey [1931] NZLR 594 (CA) at [597]; Kushell v Police [2012] NZHC 2380 at [10].

Result

[27]   The appeal is allowed. The sentence of two years and eight months’ imprisonment is quashed and substituted with a sentence (rounded down) of two years and three months’ imprisonment.

...................................................

Eaton J

Solicitors:
Crown Solicitors, Christchurch

Counsel:
A M McCormick, Barrister, Christchurch