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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hall v The Queen

Details

AGLC: Hall v The Queen [2021] NZCA 125
Case: [2021] NZCA 125
Decision Date: 22 April 2021 at 9.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application from Kerry Richard Hall, who was convicted of arson and sentenced to two years and seven months' imprisonment. The High Court had dismissed an earlier appeal against the sentence. Hall now sought leave to bring a second appeal, arguing that the starting point for his sentencing was manifestly excessive and that the sentencing judge had erred in not sufficiently taking into account his mental health issues in setting that starting point. The court was required to decide whether the second appeal raised a question of general or public importance and whether a miscarriage of justice may have occurred if the second appeal was not heard.

The court held that the test for leave to bring a second appeal was a high one. However, in this case, the court found that there was a possibility that a miscarriage of justice may occur if a second appeal against sentence was not heard. The court noted that the starting point for the offending was at the higher end of the range and that the extent of the discount allowed for Mr Hall's mental health issues was questionable. The court concluded that leave should be granted because there was a possibility that the sentence was manifestly excessive. The application for leave to bring a second appeal was granted.

Orders