THOMPSON v R [2020] NZCA 355

THOMPSON v R [2020] NZCA 355 [19 August 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA79/2019[2020] NZCA 355BETWEEN COLIN JAMES THOMPSONAppellantAND THE QUEENRespondentHearing: 27 July 2020Court: French, Woolford and Dunningham JJCounsel: S W Hughes QC for AppellantM J Lillico and J M Irwin for RespondentJudgment: 19 August 2020 at 9 amJUDGMENT OF THE COURTA The application for leave to adduce the report of Dr Lehany dated20 February 2020 is granted.B The appeal is allowed to the extent that the minimum period of imprisonmentimposed by the High Court of 13 years and two months' imprisonment isreduced to 12 years and four months' imprisonment. The sentence of lifeimprisonment is confirmed.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] Mr Thompson pleaded guilty to the murder of his landlord Mr Riddle. He wassentenced in the High Court by Dobson J to life imprisonment with a minimum periodof imprisonment of 13 years and two months.1[2] He now appeals his sentence primarily on the grounds that due to a delusionaldisorder, life imprisonment was manifestly unjust under s 102(1) of the SentencingAct 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 periodof her illness, the relationship between Mr Riddle and Mr Thompson became fraughtwith arguments over unpaid rent and the state of the property. The situation escalatedto the point where Mr Riddle who was in his late seventies felt threatened and wouldavoid face to face meetings with Mr Thompson.[4] Associates of Mr Thompson also became concerned after hearingMr Thompson state on numerous occasions that he would shoot Mr Riddle if hecontinued to harass him. This resulted in one of the associates volunteering to bea facilitator or "go-between" to collect the rent.[5] The threats continued after Mrs Thompson died. In the weeks leading up tothe murder, Mr Thompson told an associate that he had a gun ready and that ifMr Riddle kept harassing him he would shoot him without any hesitation.When another acquaintance commented that Mr Riddle had a right to expect the placeto be tidy, Mr Thompson said he was going to shoot the mongrel anyway. On the daybefore 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 phonedMr Thompson and spoke to him about the rent arrears. After going into town andwithdrawing some money, Mr Thompson got back to Mr Riddle and invited him to1 R v Thompson [2019] NZHC 72 [High Court sentencing].the property to collect his rent. Mr Thompson then called two associates — one ofwhom was the go-between — and told them "I've been to the bank to get some moremoney 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 turnedand started to walk back to his own house. Mr Thompson got his 12 gauge doublebarrel shotgun and confronted Mr Riddle at a side gate. He pointed the gun atMr 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 whenthe two associates he had called arrived on the scene. They immediately rushed toMr Riddle and tried to help him. Mr Thompson told them that the "fucking bastardgot what he deserved. Let him die." He then walked over to where Mr Riddle waslying and kicked him hard in the hip area saying "take that, you cunt, you got whatyou 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 overthe telephone that he had shot Mr Riddle and that there was a truck parked near towhere Mr Riddle was lying. He suggested the associate should start the truck up andback 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 previousconvictions.Psychiatric assessments prior to sentencing[13] There were a series of reports. The initial reports assessed Mr Thompson asunfit to stand trial and suffering from what was said to be a range of complexinter-related mental health problems including depression, cognitive impairment,possible psychotic symptoms, vague perceptual disturbances (hearing noises andvoices) and an apparent persecutory ideation against Mr Riddle. The reports alsorecorded a history of heavy alcohol abuse.[14] Later reports continued to identify cognitive difficulties and delusional beliefsabout Mr Riddle but found Mr Thompson fit to stand trial.[15] Cognitive assessments (psychometric testing) undertaken by a clinicalpsychologist in August 2018 indicated that Mr Thompson was malingering hiscognitive impairment. That is to say, Mr Thompson was considered to be intentionallyexaggerating his cognitive functioning difficulties, possibly motivated by a perceivedgain of not remembering the crime he was accused of committing.[16] In another report dated 29 August 2018, Dr Street, a consultant forensicpsychiatrist, said that most of the behaviours that had contributed to the initialconcerns about dementia or cognitive issues were likely due to malingering. Dr Streetalso noted that during the evaluation with the clinical psychologist, Mr Thompsonappeared to feign some of his depressive symptoms.[17] The most recent reports available to the Judge prior to sentencing was a furtherreport by Dr Street dated 12 December 2018 and two reports by Dr Lehany, anotherconsultant forensic psychiatrist. One was dated 9 November 2018 and the other8 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 hadindicated were the product of malingering. Dr Street said that this time2 Dr Lehany had also provided an initial screening report in April 2018.the exaggerated mannerisms stopped once Dr Street told Mr Thompson that if he didnot 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 currentlypresenting as depressed but his personality structure (lack of remorse andpre-occupation with injustices against himself) put him at significant risk fordepression in the future.[20] The key aspects of the two reports from Dr Lehany were that Mr Thompsonhad a mild to moderate depressive illness with possible psychotic features anda delusional disorder characteristic of pathological jealousy which might or might notbe related to the depression. The delusional disorder manifested itself in fixed andunshakeable delusional beliefs about Mr Riddle held by Mr Thompson, including thatMr 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 delusionalbeliefs to all the assessors making it likely these delusions were constantly present andsincerely and completely held. The onset of the delusional beliefs was unclear but, inall 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 ofpersecution was heightened by auditory hallucinations. But the decision to shoot wasbased on a loss of temper at his understanding of the circumstances, rather thana 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 intentionto kill Mr Riddle, Dobson J said it was not in the spur of the moment and wascompletely unprovoked. In the Judge's view, the Crown was entitled to call it acold-blooded execution for which Mr Thompson showed no remorse both by hisstatements and his conduct immediately after the shooting.33 High Court sentencing, above n 1, at [7].[23] The Judge went on to say that having regard to the circumstances ofthe offending and Mr Thompson as an offender, there was no way in whichMr Thompson could avoid a sentence of life imprisonment because there were nocredible 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 levelof brutality and callousness.5 It therefore came within the categories of murders whichunder s 104 of the Sentencing Act attract a presumptive minimum period ofimprisonment of 17 years or more unless that would be manifestly unjust.6[25] Turning to Mr Thompson's personal circumstances, the Judge accepted thatMr Thompson "fell apart" after the death of his wife and that over a substantial periodof time, he harboured a serious grudge against Mr Riddle. The grudge was based onapparently delusional concerns which, the Judge said, one of the assessingpsychiatrists considered may have been genuinely held.7[26] The Judge identified three mitigating personal circumstances, Mr Thompson'smild to moderate depression, his age and his guilty plea.8 The Judge said herecognised from the analysis of Mr Thompson's mental condition reported on bythe psychiatrists that there was a "tangential connection" between the pressure onMr Thompson caused by his mental disorder and his deliberate progression fromthreatening to shoot Mr Riddle to carrying the threat out.9 In that regard, the case wassimilar, the Judge thought, to another decision cited by the Crown where althoughthe offender's mental state was not directly causative of the offending, it had made itmore likely the offender would offend in the way she did.10[27] In reflecting on the relevance of Mr Thompson's mental condition tothe appropriate sentence, the Judge said he also took into account Mr Thompson's age4 At [9].5 At [14].6 At [15].7 At [17].8 At [21].9 At [22].10 DD (CA595/2014) v R [2015] NZCA 304 at [20]–[21].and the effect that it would have on the perception of his prospects of ever regaininghis freedom.11[28] He concluded that a combined discount of 15 per cent or 30 months for thosefactors was appropriate after:12[m]aking balanced allowance for the difference in the mental health assessors'opinions on the nature and extent of mental disorder and the impact of age inranking relatively how difficult it will be for [Mr Thompson] to serve a longsentence.[29] As regards Mr Thompson's guilty plea, the Judge considered that warranteda discount of 15 months.13[30] Applying the two discounts to a starting point of 17 years resulted ina minimum period of imprisonment of 13 years and two months. The differencebetween that period and 17 years, made it clear, the Judge said, that it would bemanifestly unjust to impose 17 years. He therefore imposed a minimum period of13 years and two months.14Grounds of appeal[31] Section 102 of the Sentencing Act provides that an offender who is convictedof murder must be sentenced to imprisonment for life unless, given the circumstancesof the offence and the offender, a sentence of imprisonment for life would bemanifestly unjust.[32] It appears that at the sentencing in the High Court, the issue of whether a lifesentence would be manifestly unjust was never raised by counsel then acting forMr Thompson. Accordingly, his counsel on appeal, Ms Hughes QC, contends thatthe Judge's statement there was "no way" a life sentence could be avoided needed tobe seen in that context. The issue was never properly explored.11 High Court sentencing, above n 1, at [23].12 At [24].13 At [27].14 At [31]–[32].[33] It is well established that the threshold to displace the presumptive sentence oflife imprisonment is a high one.15 Examples where manifest injustice has been foundinclude mercy killings, battered offenders, very youthful offenders and wherean offender was a less culpable secondary party.16[34] Ms Hughes acknowledged that it is only in exceptional cases thatthe presumption of life imprisonment will be displaced,17 but submitted this was onesuch case. She argued that in light of all the psychiatric reports, the Judge was wrongto find the delusional beliefs were not directly causative of the offending. In hersubmission, there was no reason to believe that Mr Thompson would have acted as hedid but for his delusions. To have taken up a life of crime for the first time at age 69did not otherwise make sense. That being so, the case was, she said, on all fours withthe High Court sentencing decision in R v Reid.18[35] R v Reid concerned an offender who was suffering from major depression withpsychotic delusions.19 He killed his neighbour whom he (wrongly) believed wasspying on him. The sentencing judge, Brewer J, said it was an act entirely out ofcharacter and he had "no doubt" the offender would not have killed his neighbour butfor the illness.20 Brewer J imposed a finite sentence rather than life imprisonment.[36] In addition to issues of causation, Ms Hughes also argued that in this caseDobson J had erred by regarding the murder as "completely unprovoked". It wasirrelevant, she submitted, that Mr Riddle had not in fact done the things he was accusedof doing by Mr Thompson. What mattered was that Mr Thompson genuinely believedhe had done them and was thereby provoked into killing him.[37] In support of these arguments, Ms Hughes provided an updating report fromDr Lehany dated 20 February 2020.15 See Malik v R [2015] NZCA 597 at [26]; R v Smail [2007] 1 NZLR 411 (CA) at [14]; andR v Williams [2005] 2 NZLR 506 (CA) at [57].16 See for mercy killings R v Law (2002) 19 CRNZ 500 (HC) and R v Knox [2016] NZHC 3136; forbattered defendants R v Wihongi [2011] NZCA 592, [2012] 1 NZLR 775; for youth R v Nelson[2012] NZHC 3570; and for secondary parties R v McNaughton [2012] NZHC 815 (upheld in R vCunnard [2014] NZCA 138) and R v Madams [2017] NZHC 81.17 As held by this Court in R v Rapira [2003] 3 NZLR 794 (CA) at [120]–[122].18 R v Reid HC Auckland CRI-2008-090-2203, 4 February 2011.19 At [5].20 At [12].[38] In the report, Dr Lehany records that Ms Hughes has asked him "to assessfurther the potential impact of abnormalities of the mental state of Mr Thompson atthe time of the offence and to consider the issue of a potential 'but for' circumstancesof Mr Thompson's killing of Mr Riddle as detailed in the judgment of R v Reid".[39] Dr Lehany states that he continues to hold the views he expressed in his earlierreport of January 2019. He then goes on to say that although Mr Thompson'sdelusional beliefs are not such that a defence of insanity was available, nonetheless hedoes consider that the presence of these beliefs was relevant to Mr Thompson's actionsat the time of the offence:His anger at the victim may have had some basis in real conflict betweenMr Thompson and the victim, but is likely to have been increased bythe delusional beliefs There was a clear elevation of anger in Mr Thompsonat the time of the offence which was a direct result of the delusional beliefsMr Thompson held and holds regarding the victim, in the context of his wifehaving deceased and his depression at the time of the offence. In other words,although we cannot know if the offence would have occurred withoutthe presence of the delusional beliefs, the presence of delusions regardingthe victim are likely to have increased his anger towards the victim, and arelikely to have been a significant factor influencing Mr Thompson to act as hedid at the time of the offence.[40] Much of De Lehany's report is a repeat of his earlier reports and therefore isnot fresh evidence. However, the focus of the previous reports was on fitness to standtrial and insanity, those being the issues Dr Lehany was asked to consider at the time.In contrast, as the passage quoted demonstrates, the current report considersthe relevance of Mr Thompson's mental state to his offending more generally,including in particular the extent of the causal connection between the delusions andthe murder. For that reason, we consider the new report should be admitted.[41] We also record that the Crown has not provided any expert report of its own inresponse to Dr Lehany's report.Analysis[42] We turn first to the argument that the Judge should have consideredprovocation.[43] There is no doubt that in principle a sentencing judge is able to takeprovocation into account when determining whether or not a life sentence for murderwould be manifestly unjust under s 102. That was confirmed by this Court inHamidzadeh v R, the Court relying on the legislative history leading to the abolitionof provocation as a defence and to s 9(2)(c) of the Sentencing Act.21 Section 9(2)(c)expressly states that the conduct of the victim may be a mitigating factor and that anyprovocative words or conduct on the part of the victim may be considered.[44] However, we are not persuaded that imagined conduct of the victim canproperly be considered as provocation and know of no authority to support sucha proposition. It would do violence to the language of s 9(2)(c) and is contrary tothe articulation of the relevant principles regarding provocation in Hamidzadeh v R.[45] Ms Hughes suggested that this case was no different from R v Wihongi.22In R v Wihongi, this Court held that a departure from the presumption of lifeimprisonment was justified in circumstances where a woman who had been inan abusive relationship stabbed her former partner after he had demanded sex and theyhad got into an argument. In our view, the case does not support the proposition thatimagined conduct is capable of amounting to provocation. The fact that at the time ofthe stabbing, the offender was not in fact in imminent danger from the victim does notdetract from the fact that she was considered to be a "battered woman" — that is tosay, the Court accepted she had actually been subjected to sustained abuse fromthe victim.[46] Similarly, in another case relied on by Ms Hughes, R v Cole, there had beenactual harassment by the victim.23[47] We acknowledge that the case of R v Reid did involve delusional beliefs aboutthe victim. However, provocation does not feature in the decision.[48] In our view, the present case is not capable of being characterised as a case ofprovocation. Nor do we accept that it is on all fours with R v Reid. We say that for21 Hamidzadeh v R [2012] NZCA 550, [2013] 1 NZLR 369.22 R v Wihongi, above n 16.23 R v Cole [2017] NZHC 517.several reasons. First, while the psychiatric reports including the latest report fromDr Lehany suggest the delusional beliefs likely contributed to the offending, they donot support the claim that but for the delusional beliefs the murder would never havehappened.[49] Secondly, in R v Reid another crucial factor which the Judge relied on inimposing a finite sentence was that by the time of the sentencing Mr Reid was nolonger a risk to others. Ms Hughes argued that because Mr Thompson's delusionalbeliefs focused on Mr Riddle only, there is no reason to believe that he would act ina similar way in the future. We disagree. That submission ignores the very strongadvice from Dr Lehany in his November 2019 report. The advice was that delusionaldisorders with pathological jealously are difficult to treat and if not properly identifiedand treated there is a high risk of harm to others. A failure to adequately treatthe delusional beliefs, Dr Lehany noted, runs the risk that the delusions will at somepoint attach to someone else and that other person may then become subject toviolence from Mr Thompson.[50] We note too that according to another report provided to the Judge,Mr Thompson made several phone calls to Government House and a CabinetMinister's office, threatening to blow up bridges and roads. He told the psychiatristhe did not intend to act on those threats but the fact he should make them in relationto a grievance not involving Mr Riddle is not without some significance.[51] A third important distinction between this case and R v Reid is that in R v Reidunlike Mr Thompson, the offender did not invite his neighbour over with the intentionof killing her and also unlike Mr Thompson the offender in R v Reid was overcomewith remorse, to the point that he attempted suicide. The murder Mr Reid committeddid not come within s 104. As this Court noted in Hamidzadeh v R, where a murderis one of the most serious types of murder and falls within s 104, it is even less likelythat the manifestly unjust threshold will be reached under s 102.24 In our view,the extreme level of callousness and brutality displayed by Mr Thompson and which24 Hamidzadeh v R, above n 21, at [70].brings his murder within s 104 provides further justification for ensuring there isan ability to recall him to prison if he poses an ongoing risk.[52] We conclude having regard to the circumstances of the offence andthe personal circumstances of Mr Thompson that the imposition of a sentence of lifeimprisonment is not manifestly unjust.[53] That however does not entirely dispose of the appeal. Although we aresatisfied that a life sentence was amply justified, we have decided that the length ofthe minimum period of imprisonment should be reduced.[54] It will be recalled that although the Judge's sentencing notes referred tothe delusional beliefs, he did not expressly identify them as one of the three mitigatingcircumstances and nor did he specifically consider their contribution to the offending.[55] Unlike the Judge, we have had the benefit of the further report from Dr Lehany.In light of that report, we consider a discount of more than 15 percent (30 months) formental illness and age was warranted in order to recognise the impact ofMr Thompson's delusional disorder. We consider that a further reduction often months is appropriate, resulting in a minimum period of imprisonment of 12 yearsand four months.Outcome[56] The application for leave to adduce the report of Dr Lehany dated20 February 2020 is granted.[57] The appeal is allowed to the extent that the minimum period of imprisonmentimposed by the High Court of 13 years and two months' imprisonment is reduced to12 years and four months' imprisonment. The sentence of life imprisonment isconfirmed.Solicitors:Crown Law Office, Wellington for Respondent