Hall v R
[2021] NZCA 314
•12 July 2021 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA622/2020 [2021] NZCA 314 |
| BETWEEN | KERRY RICHARD HALL |
| AND | THE QUEEN |
| Hearing: | 16 June 2021 |
Court: | Clifford, Thomas and Muir JJ |
Counsel: | D J Matthews for Appellant |
Judgment: | 12 July 2021 at 10.30 am |
JUDGMENT OF THE COURT
A The appeal is allowed.
B The sentence of two years and seven months’ imprisonment is quashed.
CA sentence of two years and one month’s imprisonment is substituted.
____________________________________________________________________
REASONS OF THE COURT
(Given by Muir J)
Introduction
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
[1]R v Hall [2020] NZDC 15535 [District Court decision].
[2]Hall v R [2021] NZCA 125 [Leave decision].
[3]At [18].
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.
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.
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”.
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.
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”.
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”.
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.
[4]That of Canterbury District Health Board clinician Dr Tegwyn Williams who did consider Mr Hall to have “an enduring major psychotic illness”.
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
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]
[5]District Court decision, above n 1, at [12].
[6]At [13].
[7]At [14].
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]
[8]At [15].
[9]At [17].
[10]At [18].
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
[11]At [18].
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]
[12]Hall v R [2020] NZHC 2552 [High Court decision] at [29].
[13]He stated, “[t]hat starting point includes recognition of the extent to which Mr Hall’s mental health is likely to have affected his actions”: at [29]. In the District Court, the four-and-a-half year starting point was identified as appropriate prior to adjustment for culpability factors. If Osborne J considered four and a half years as an appropriate starting point after adjustment for culpability, this would suggest an initial starting point of between five and five and a half years. We would regard that as significantly too high. In upholding the District Court’s sentence and its essential methodology, Osborne J must be taken, however, as recognising that the four and a half years adopted by it and recognised by him as “stern but within range” was prior to the culpability adjustment.
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
[14]At [25].
[15]At [29].
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]See Munro v R CA132/02, 24 July 2002; and Skeens v R CA341/01, 26 February 2002.
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.
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.
Taking these factors into account, Mr Matthews submits that the final sentence should have been around the two-year mark.
The Crown case
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 Hall. She points out that, unlike the position in Munro where the damage amounted to just over $5,000, the damage in this case was significant and in respect of an important resource, namely, social housing.
As to Mr Hall’s mental health problems, she submits that these were properly accounted for in both the District Court and High Court decisions, noting the reservations expressed by the various mental health professionals about Mr Hall’s veracity and the fact that Dr Foulds in particular could not rule out the possibility that symptoms had been fabricated or exaggerated to avoid Mr Hall taking responsibility for his actions.
Discussion
Starting point (excluding culpability adjustment)
In respect of the starting point, we consider there to be a significant distance between cases like Munro and Skeens where this Court has endorsed starting points (unadjusted for culpability factors) of five years or more and the index offending. Here the offending occurred by day with other people in the vicinity. This facilitated ready identification and early control of the fire. Ms Ure’s “good luck, not good management” submission is necessarily tempered by that context.
More significantly, whereas in both Munro and Skeens people were asleep in the targeted premises, there was, as the District Court Judge observed, no evidence of that in the present case.[17]
[17]District Court decision, above n 1, at [14].
We accept that in Munro (unlike Skeens and Meha v R[18]), those asleep were not the specific focus of the offending but, in circumstances where the fire was lit at night under a second storey flat there was, at a minimum, a reckless indifference to the fate of persons likely to be sleeping above the seat of the fire. Indeed, it was only as a result of their ability to escape through a garage door that tragedy was avoided as egress down their staircase was blocked by flames. It was genuinely a case (as with Skeens and Meha) where there was a real and significant risk to life. By contrast, we consider that this description overstates the threat to other persons in Mr Hall’s social housing complex which, as we have observed, was a single level development. There were also physical separations between various blocks of units.
[18]See Meha v R [2014] NZCA 307 where a starting point of five years and six months’ imprisonment was regarded as appropriate for multiple arsons against a former partner, the last of which involved accelerants placed under his bedroom while he slept.
We accept that there was significant damage to the property and considerably more damage than in Munro, where the repair bill was $5,000 only, but note that in other cases like Erickson v R, this Court has endorsed a starting point as low as three years despite greater damage.[19] That case included a retributive element not present in respect of Mr Hall’s offending.[20]
[19]Erickson v R [2012] NZCA 449 at [11]. The repair bill in Erickson was $47,000.
[20]At [6]. We accept, however, that although there was no risk to any person in Erickson, such a risk cannot be completely discounted in this case.
Osborne J recognised that cases like Munro, Skeens, Meha and Neal v R[21] were “more serious than the present case” and that Mr Hall was “clearly at a lower level of culpability than the offenders in those cases” but he, likewise, considered that people and property were at “significantly greater risk” than in cases where three year starting points had been adopted.[22] He considered that R v Marson-Wood was “perhaps closer” to the index offending.[23]
[21]Neal v R [2008] NZCA 327.
[22]High Court decision, above n 12, at [27]–[28].
[23]At [28], citing R v Marson-Wood [2018] NZHC 610.
That case involved a fire lit in a recycling bin outside the Viaduct Events Centre in Wellington where more than 900 people were in attendance at the time. The recycling bin was in close proximity to gas cylinders. Peters J adopted a starting point of three and a half to four years’ imprisonment on that charge.[24]
[24]R v Marson-Wood, above n 23, at [37].
Again, the case is a somewhat imperfect analogy. There was no significant damage, but there was some potential for multiple fatalities or injuries. Significantly, the offending occurred as part of a spree of arsons over the previous week. This was a significant aggravating feature not present in respect of Mr Hall’s offending.[25]
[25]A starting point of five years’ imprisonment was adopted for all of the offending in Marson-Wood.
In the context of these cases, we consider the District Court Judge’s (unadjusted) starting point of four years and six months’ imprisonment was too high and outside the “stern but available” range endorsed by Osborne J. We consider an (unadjusted) starting point of three years and eight months’ imprisonment appropriate, having particular regard:
(a)the absence of premeditation or any retributive element;
(b)the relatively low risk of danger to any person;
(c)the reasonably significant damage caused to an important community resource; and
(d)the prospect that, absent timely intervention, further housing units could have readily become involved.
Discounts for mental health
In Shailer v R, this Court recognised that mental health disorders may be taken into account at two stages in the sentencing process.[26] First, 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”.[27] Secondly, in considering mitigating or aggravating circumstances personal to the offender, for example, where there is a serious risk that imprisonment will have a significant adverse effect on the offender’s mental health or will otherwise weigh more heavily on them than on a person in normal health.[28]
[26]Shailer v R [2017] NZCA 38, [2017] 2 NZLR 629 at [44]. See also Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37 at [45]–[47]. Compare R v Taueki [2005] 3 NZLR 372 (CA) at [45] where “diminished responsibility by reason of psychiatric or behavioural disorder” is discussed in the course of addressing the “circumstances of the offender”.
[27]Shailer v R, above n 26, at [50].
[28]Sentencing Act 2002, s 8(h).
In this case, the District Court Judge gave a discount of approximately 18.5 per cent on account of Mr Hall’s “well-documented history of unwellness”.[29] He did not expressly state whether this was at step one, step two or both stages of the sentencing process, although his discussion focuses on the implications in terms of Mr Hall’s culpability. In any event, as this Court held in its decision granting leave, the Judge did not need to make discrete discounts provided all of the implications of Mr Hall’s unwellness were appropriately recognised.[30]
[29]District Court decision, above n 1, at [16].
[30]Leave decision, above n 2, at [17].
We consider the Judge’s mental health discount appropriate. We share some of the concerns of both the District Court and High Court Judges that although Mr Hall was clearly behaving in a manner consistent with psychosis earlier in the day and, in the course of his CPA assessment, he reported that he had lit the fire to rid himself of persecutory delusions, this was not the explanation given to first responders.[31] However, although the reports indicate that Mr Hall’s mental health problems have been significantly exacerbated by his addictions and sometimes manipulated to his advantage, they are, nevertheless, longstanding. And, as this Court observed when granting leave to appeal, the very act of setting fire to his own living space might be thought to be irrational and to have justified a “material reduction” in the sentence.[32]
[31]Mr Hall denied any stimulant use or synthetic cannabis use shortly prior to the index offending. Dr Foulds considered that “this self-report is probably unreliable”. Mr Hall admitted to proximate use of “magic mushrooms” at some point soon before the index offending but could not say precisely when this was.
[32]Leave decision, above n 2, at [17].
We are unpersuaded that there were any “stage two” considerations sufficiently material to warrant any further adjustment. The reports indicate that Mr Hall barely copes in the community. He has a history of using benefit payments to fund the purchase of alcohol and illicit substances,[33] not making adequate provision for food and then seeking incarceration or access to respite care. All of the reports agree that misuse of substances has been a very prominent feature of Mr Hall’s mental health history. In those circumstances, we do not identify imprisonment as having a significantly adverse effect on his mental health. Nor do we consider it appropriate to speculate on how the Parole Board is likely to respond to Mr Hall’s circumstances or what accommodation options might be available to him.
Implications for end sentence
[33]The substances used by Mr Hall were identified by Dr Foulds to include “cannabis, probably synthetic cannabinoids (although he denies this), Ritalin, hallucinogens, [and] opioids”.
Adopting an (unadjusted) starting point of three years and eight months’ imprisonment, alongside the District Court’s mental health discount of 18.5 per cent and its 24 per cent discount for guilty plea, we arrive at an end sentence of two years and one month’s imprisonment or approximately 20 per cent less than the sentence originally imposed. We are satisfied this meets the threshold for appellate intervention.
Result
The appeal is allowed.
The sentence of two years and seven months’ imprisonment is quashed.
A sentence of two years and one month’s imprisonment is substituted.
Solicitors:
Crown Law Office, Wellington for Respondent
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