Hall v The Queen
[2021] NZCA 125
•22 April 2021 at 9.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA622/2020 [2021] NZCA 125 |
| BETWEEN | KERRY RICHARD HALL |
| AND | THE QUEEN |
| Court: | Gilbert, Mallon and Edwards JJ |
Counsel: | D J Matthews for Applicant |
Judgment: | 22 April 2021 at 9.30 am |
JUDGMENT OF THE COURT
The application for leave to bring a second appeal is granted.
____________________________________________________________________
REASONS OF THE COURT
(Given by Mallon J)
Introduction
Mr Hall was charged with arson.[1] He pleaded guilty and was sentenced to two years and seven months’ imprisonment.[2] An appeal against sentence was dismissed by the High Court.[3]
[1]Crimes Act 1961, s 267(1), maximum penalty of 14 years’ imprisonment.
[2]R v Hall [2020] NZDC 15535 [Sentencing judgment].
[3]Hall v R [2020] NZHC 2552 [High Court judgment].
Mr Hall applies for leave to bring a second appeal. He raises the same grounds as he raised in the High Court, namely that the starting point for the offending was manifestly excessive and the sentencing Judge erred in not taking into account Mr Hall’s mental health issues in setting that starting point.
Mr Hall accepts that the proposed appeal does not give rise to a question of general or public importance. He says that a miscarriage of justice may occur if a second appeal against sentence is not heard.[4] The test for leave to bring a second appeal is a high one.[5]
Background
[4]Criminal Procedure Act 2011, s 253(3).
[5]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [37]–[38].
On 24 March 2020, Mr Hall was in his unit at a social housing complex in Christchurch. He used a lighter to set fire to bedding on top of his bed. The fire spread to the living room. His neighbours called Fire and Emergency New Zealand and one neighbour used a garden hose to control the spread of the fire. The fire caused approximately $38,000 worth of damage to the living room and bedroom of Mr Hall’s unit.
Mr Hall was agitated and aggressive towards emergency service staff when they arrived. He was restrained by a member of the public until the police arrived to arrest him. He told the police he started the fire because he was frustrated and angry with living there. That explanation appears not to account for the full stressors on Mr Hall at the time. Two neighbours described him as erratic at the time of the incident and gave evidence that he was talking to himself and shouting about evil spirits that were trying to kill him. The behaviour towards emergency services involved snapping off a tree branch and swinging it around aggressively.
Prior to entering a guilty plea, an issue was raised as to Mr Hall’s fitness to stand trial and the potential availability of an insanity defence. Two reports were prepared pursuant to s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003. Mr Hall described to the report writers (a clinical psychologist and a consultant psychiatrist) that he believed the house was possessed by spirits. He was also upset about a relationship that ended on the day of the offending and had been using illicit substances. The report writers concluded that the defence of insanity was not available to Mr Hall. Similarly, the report writers considered that he was fit to plead. Both report writers detailed Mr Hall’s lengthy history of mental health problems involving contact with psychiatric services dating back more than two decades. Mr Hall was aged 45 at the time of the offending. He was diagnosed in his early twenties with schizophrenia. The consensus of the clinicians currently involved in his care was that Mr Hall’s primary problem was a mixed severe personality disorder complicated by severe addiction problems. However, he was known to have brief periods of psychosis and one doctor was of the view that he had an enduring psychotic illness. There was also a view recorded in his medical file that he sometimes exaggerated symptoms as a way of having his immediate needs met and eliciting practical help.
The District Court determined that Mr Hall was mentally impaired at the time of the offending but was fit to plead.[6] Mr Hall then pleaded guilty.
District Court sentence
[6]Police v Hall [2020] NZDC 10470.
In the District Court, Judge O’Driscoll considered a starting point of four and a half years’ imprisonment was appropriate. He reduced this by 10 months (18.5 per cent) for Mr Hall’s mental health issues. This was reduced by another 13 months (24 per cent) for the guilty plea.[7] This resulted in a sentence of two years and seven months’ imprisonment.[8]
High Court appeal
[7]The sentencing pre-dated Moses v R [2020] NZCA 296, (2020) 29 CRNZ 381.
[8]Sentencing judgment, above n 2, at [15]–[18].
In the High Court, Osborne J discussed the cases relied on by Mr Hall in support of a submission that the starting point should have been three years’ imprisonment.[9] The Judge determined that the closest comparator was R v Marson‑Wood, where a starting point of three and a half to four years’ imprisonment was considered appropriate.[10]
[9]Bulman v R, [2017] NZHC 3282; Erickson v R [2012] NZCA 449; R v Marson-Wood [2018] NZHC 610; and R v Protos CA259/04, 19 October 2004.
[10]R v Marson-Wood, above n 9, at [37].
In forming that view, the Judge considered that the risk to life in R v Marson‑Wood was more substantial than with Mr Hall’s offending but the damage caused was much less. The Judge considered the present case to be more serious than Bulman v R and Erickson v R, where three-year starting points were upheld on appeal, because Mr Hall’s offending placed both people and property at a significantly greater risk than in those cases.[11]
[11]High Court judgment, above n 3, at [28]; referring to Bulman v R, above n 9; and Erickson v R, above n 9.
The Judge concluded the available starting point to be between four and four and a half years’ imprisonment. This meant that the starting point imposed in the District Court was “stern but within range”.[12]
[12]At [29].
As to the mental health factor, the Judge said:
[25] Judge O’Driscoll found Mr Hall’s mental health to be “a significant contributing factor” of the offending. It is clear the Judge was satisfied that Mr Hall’s actions were influenced by his mental state. His Honour took that assessment into account when setting a starting point. I accept Mr Matthews’ submission that mental health may be taken into account at two separate stages of the sentencing exercise, but I am also satisfied that is what the Judge did. I agree with the Judge’s conclusion that Mr Hall’s mental health was likely to have been causative of his offending to some extent, but not so much as to absolve him of culpability.
…
[29] … To the extent that a sentencing judge might bring mental health factors into account at two stages of the sentencing analysis, I do not consider the Judge erred in not doing so in this case. 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 Judge therefore concluded that the end sentence was not manifestly excessive.[13]
Risk of miscarriage?
[13]At [31].
Mr Hall submits the starting point was manifestly excessive with reference to the cases considered in the High Court appeal.[14] The respondent submits the starting point was within range with reference to those cases.
[14]Bulman v R, above n 9; Erickson v R, above n 9; Cox v R [2013] NZCA 194; R v Marson-Wood, above n 9; and R v Protos, above n 9 (three to four-year starting points); and French v R [2014] NZCA 297; R v Neal [2008] NZCA 327; R v Munro CA132/02, 24 July 2002; R v Skeens CA341/01, 26 February 2002; and R v Meha [2013] NZHC 2957 (five-year or more starting points).
Mr Hall says the High Court was wrong about whether his mental health issues were considered by the District Court at both stages of the sentencing exercise (that is, when considering the culpability of the offending; and when considering personal mitigating factors). The respondent says that the High Court rightly concluded that the District Court considered them at both stages.
Judge O’Driscoll’s approach was first to set the starting point of four and a half years’ imprisonment on an objective basis without reference to the appellant’s mental health issues. He then said:[15]
[16] I accept here on the basis of the materials before me and the two health assessors’ reports that your mental health issues are likely to have been and were a significant factor in your offending. You have a well-documented history of unwellness.
[17] Culpability is assessed on the principle that general criminal liability is founded on conduct that is performed rationally by one who exercises a wilful choice to offend. I do not think that that can be said to have occurred here because of your mental health issues. For that reason, I intend to take 10 months from the sentence that I have imposed of 54 months and that then means that there is a provisional sentence of 44 months’ imprisonment.
[15]Sentencing judgment, above n 2.
The Judge did not say whether he was taking account of this issue at step one or step two of the sentencing process but nor did he have to.[16] The issue here was that the applicant was exhibiting psychotic symptoms (whether drug‑induced on this occasion or otherwise) immediately before and after the arson against the background of a lengthy history of mental health issues. Indeed, the very act of setting fire to his own living space might be thought to be irrational. A material reduction was available for this reason.[17]
[16]See Shailer v R [2017] NZCA 38, [2017] 2 NZLR 629 at [44]–[48] for a nuanced discussion of how mental illness may affect sentence; and Orchard v R [2019] NZCA 529 at [45]–[47]. Compare with R v Taueki [2005] 3 NZLR 372 (CA) at [45] where “diminished responsibility by reason of psychiatric or behavioural disorder” is discussed under “circumstances of the offender”.
[17]Compare with L(CA719/2017) v R [2019] NZCA 676 at [56] where a 50 per cent discount for “the causal relationship between disorder and offence” was justified on the evidence at the first stage. See also [58] for evidence justifying a further 20 per cent discount at the second stage.
We consider that leave should be granted. 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.
Result
The application for leave to bring a second appeal is granted.
Solicitors:
Crown Law Office, Wellington for Respondent
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