HALL v R [2021] NZCA 314

HALL v R [2021] NZCA 314 [12 July 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA622/2020[2021] NZCA 314BETWEEN KERRY RICHARD HALLAppellantAND THE QUEENRespondentHearing: 16 June 2021Court: Clifford, Thomas and Muir JJCounsel: D J Matthews for AppellantC Ure for RespondentJudgment: 12 July 2021 at 10.30 amJUDGMENT OF THE COURTA The appeal is allowed.B The sentence of two years and seven months' imprisonment is quashed.C A sentence of two years and one month's imprisonment is substituted.____________________________________________________________________REASONS OF THE COURT(Given by Muir J)Introduction[1] 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 forthe appeal to be heard.2 It did so on the basis that:3A miscarriage of justice may arise if the sentence was manifestly excessivebecause of the starting point adopted and the extent of the discount allowedfor Mr Hall's mental health issues.Background[2] Mr Hall was the sole tenant of one of 20 single-level social housing units ina Christchurch complex. On the afternoon of 24 March 2020, while he was in the unitalone, he used a lighter to set fire to his bedding materials. The fire took hold andcaused substantial damage to the dwelling. The repairs cost $38,000.[3] Mr Hall's neighbours noticed the fire and called Fire and EmergencyNew Zealand. One neighbour controlled the spread with a garden hose until theemergency services arrived. The statement of facts to which Mr Hall pleaded guiltynoted his behaviour to emergency service staff as "agitated" and "aggressive". He wassubsequently restrained by a member of the public.[4] By way of explanation, the statement of facts records that Mr Hall "admittedlighting the fire and stated that he was angry and frustrated with living at theflat complex".[5] 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 trialand/or whether he was insane pursuant to s 23 of the Crimes Act 1961. Reports wereprovided by Dr James Foulds and Mr John Carrell. Both concluded that Mr Hall wasfit to stand trial and was not insane at the time of the offending.1 R v Hall [2020] NZDC 15535 [District Court decision].2 Hall v R [2021] NZCA 125 [Leave decision].3 At [18].[6] The reports also recorded Mr Hall's advice to health professionals that, at thetime 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 inhabitedsome of the other tenants in the complex and that he decided "something had tobe done". He said that he believed fire "would make the spiritual activity stop".[7] This account is consistent with the observations of a witness who reported thatMr Hall appeared disturbed earlier in the day, "screaming and saying things like thespirits are going to kill him and that he needs to kill everyone to get rid of the spirits".[8] Dr Foulds and Mr Carrell referred to Mr Hall's long history of mental healthproblems, severely exacerbated by substance abuse. Dr Foulds recorded that althoughMr Hall is known to have brief periods of psychosis, this was "thought to arise in thecontext of substance intoxication rather than forming part of an enduring majorpsychotic disorder such as schizophrenia". Although noting one countervailing view,4he stated that the consensus of those who had cared for Mr Hall was that hisprimary problem was a mixed severe personality disorder complicated by severeaddiction problems.[9] Both report writers expressed concerns about whether elements of Mr Hall'snarrative were genuine or whether his descriptions were influenced by hislegal situation. Mr Carrell referred to the fact that although, on first presentation toadult mental health services, Mr Hall was diagnosed as having episodic psychosis,that diagnosis was later changed to antisocial personality disorder and substance abusedisorder "due to Mr Hall admitting to fabricating psychotic symptoms in an attemptto [be admitted] to hospital and to be sent to prison due to cold weather and lack ofaccommodation". Mr Carrell recorded advice from Mr Hall's most recent casemanager that Mr Hall consistently attempted to have his needs met by way ofinappropriate means, reporting that he presented on numerous occasions to theEmergency Department and/or contacted Crisis Resolution and reported vaguepsychotic symptoms. On each such occasion, it was decided that his presentation was4 That of Canterbury District Health Board clinician Dr Tegwyn Williams who did consider Mr Hallto have "an enduring major psychotic illness".secondary to him having spent his available money on illicit substances, running outof food and seeking access to respite care.The District Court decision[10] In the District Court, Judge O'Driscoll accepted there was "not a great deal ofpremeditation" in the offending and that it was "fair to say" Mr Hall's mental healthissues were "a significant contributing factor" in the offending.5 He concluded thatMr Hall's actions posed a "real and significant risk" to other tenants present in thehousing complex,6 although there was no evidence before him that anyone was asleepat the time of the fire.7[11] He concluded that an appropriate starting point (absent recognition of theextent to which Mr Hall's mental health issues impacted on his culpability) was fouryears and six months' imprisonment,8 having regard particularly to the extent of thedamage and the risk to other tenants. From this notional starting point, he recogniseda deduction of 10 months (approximately 18.5 per cent) on account of the fact thatcriminal liability is founded on conduct that is performed rationally by a person whoexercises a wilful choice to offend and that he did not think that "[could] be said tohave occurred here because of [Mr Hall's] mental health issues".9 He recognised afurther discount of 13 months (approximately 24 per cent) on account of Mr Hall'sguilty plea.10[12] He therefore imposed a sentence of two years and seven months'imprisonment. He noted that Mr Hall had no realistic means by which to payreparation and that any such order would accordingly be futile.115 District Court decision, above n 1, at [12].6 At [13].7 At [14].8 At [15].9 At [17].10 At [18].11 At [18].The High Court decision[13] On appeal to the High Court, Osborne J considered the District Court startingpoint "stern but within range".12 His Honour stated that, on the basis of the casesreferred to by counsel, he would have regarded a starting point of between four andfour and a half years' imprisonment as appropriate.13[14] His Honour accepted that in terms of the authorities, a mental health discountcould be available at two separate stages of the sentencing process, being relevant bothto culpability and, for example, the extent to which a custodial sentence may be moreonerous for the defendant than others. He said that he was "satisfied that is whatthe Judge did".14 Subsequently, however, he said that he did not consider the Judgeto have erred in not doing so in this case because:15His Honour accounted for it significantly in adjusting the starting point andthe potential for a further allowance by way of personal mitigating factors hasto be offset against what would otherwise have been an appropriate upwardsadjustment for Mr Hall's relevant record of wilful damage offending.The appellant's case[15] Mr Matthews, counsel for Mr Hall, submits that an (unadjusted) starting pointof four and a half years' imprisonment was beyond the appropriate range and resultedin a sentence which was manifestly excessive. He refers, in particular, to the decisionsof 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 whereit was obvious there were occupants sleeping in the targeted properties and where therewas an extreme risk to life.16 He contrasts those situations with the present case where12 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 healthis likely to have affected his actions": at [29]. In the District Court, the four-and-a-half yearstarting point was identified as appropriate prior to adjustment for culpability factors. If OsborneJ 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 wouldregard that as significantly too high. In upholding the District Court's sentence and its essentialmethodology, Osborne J must be taken, however, as recognising that the four and a half yearsadopted by it and recognised by him as "stern but within range" was prior to theculpability adjustment.14 At [25].15 At [29].16 See Munro v R CA132/02, 24 July 2002; and Skeens v R CA341/01, 26 February 2002.the fire was lit during daylight hours where, he says, there was no more than an outsidechance of risk to life and where, unlike Skeens, no individual was being specificallytargeted.[16] He further submits that Mr Hall's mental illness entitles him to discretediscounts at both stages of the sentencing process. First, by way of a reduction to thestarting point because of reduced culpability and secondly, because as a convictedarsonist, his accommodation options will be severely constrained — a factor likely toweigh heavily on the Parole Board.[17] Mr Matthews also submits that Osborne J was incorrect to identify a possibleuplift for previous offending as a countervailing factor to non-recognition of Mr Hall'smental health difficulties at the second stage of sentencing. He submits that althoughMr Hall's history of criminal offending is extensive (running to 14 pages and over100 offences), it is largely at the "nuisance level" of disorderly conduct and wilfuldamage, noting in particular that there have been no previous convictions for arson.[18] Taking these factors into account, Mr Matthews submits that the final sentenceshould have been around the two-year mark.The Crown case[19] Ms Ure submits that the sentence was not manifestly excessive. She says thatthe case does not fit conveniently within the category of cases where starting points offive years and above have been adopted, nor the category where sentences have beenin the three to three-and-a-half-year range. She emphasises that although the fire waslit within Mr Hall's own unit, it was part of a larger complex. She says the fact that itdid not spread further was a function of "good luck, not good management" on thepart of Mr Hall. She points out that, unlike the position in Munro where the damageamounted to just over $5,000, the damage in this case was significant and in respectof an important resource, namely, social housing.[20] As to Mr Hall's mental health problems, she submits that these were properlyaccounted for in both the District Court and High Court decisions, noting thereservations expressed by the various mental health professionals about Mr Hall'sveracity and the fact that Dr Foulds in particular could not rule out the possibility thatsymptoms had been fabricated or exaggerated to avoid Mr Hall taking responsibilityfor his actions.DiscussionStarting point (excluding culpability adjustment)[21] In respect of the starting point, we consider there to be a significant distancebetween 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. Herethe offending occurred by day with other people in the vicinity. This facilitated readyidentification and early control of the fire. Ms Ure's "good luck, not goodmanagement" submission is necessarily tempered by that context.[22] More significantly, whereas in both Munro and Skeens people were asleep inthe targeted premises, there was, as the District Court Judge observed, no evidence ofthat in the present case.17[23] We accept that in Munro (unlike Skeens and Meha v R18), those asleep were notthe specific focus of the offending but, in circumstances where the fire was lit at nightunder a second storey flat there was, at a minimum, a reckless indifference to the fateof persons likely to be sleeping above the seat of the fire. Indeed, it was only as a resultof their ability to escape through a garage door that tragedy was avoided as egressdown their staircase was blocked by flames. It was genuinely a case (as with Skeensand Meha) where there was a real and significant risk to life. By contrast, we considerthat this description overstates the threat to other persons in Mr Hall's social housingcomplex which, as we have observed, was a single level development. There werealso physical separations between various blocks of units.[24] We accept that there was significant damage to the property and considerablymore damage than in Munro, where the repair bill was $5,000 only, but note that in17 District Court decision, above n 1, at [14].18 See Meha v R [2014] NZCA 307 where a starting point of five years and six months' imprisonmentwas regarded as appropriate for multiple arsons against a former partner, the last of which involvedaccelerants placed under his bedroom while he slept.other cases like Erickson v R, this Court has endorsed a starting point as low asthree years despite greater damage.19 That case included a retributive element notpresent in respect of Mr Hall's offending.20[25] Osborne J recognised that cases like Munro, Skeens, Meha and Neal v R21were "more serious than the present case" and that Mr Hall was "clearly at a lowerlevel of culpability than the offenders in those cases" but he, likewise, considered thatpeople and property were at "significantly greater risk" than in cases where three yearstarting points had been adopted.22 He considered that R v Marson-Wood was"perhaps closer" to the index offending.23[26] That case involved a fire lit in a recycling bin outside the Viaduct Events Centrein 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 startingpoint of three and a half to four years' imprisonment on that charge.24[27] Again, the case is a somewhat imperfect analogy. There was no significantdamage, 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 wasa significant aggravating feature not present in respect of Mr Hall's offending.25[28] 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 highand 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;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 riskcannot be completely discounted in this case.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 610.24 R v Marson-Wood, above n 23, at [37].25 A starting point of five years' imprisonment was adopted for all of the offending in Marson-Wood.(b) the relatively low risk of danger to any person;(c) the reasonably significant damage caused to an important communityresource; and(d) the prospect that, absent timely intervention, further housing unitscould have readily become involved.Discounts for mental health[29] In Shailer v R, this Court recognised that mental health disorders may be takeninto account at two stages in the sentencing process.26 First, in evaluating theoffending itself to the extent that it has a causative impact on culpability — criminallegal responsibility being a "juridical response to an offender's willed choiceto offend".27 Secondly, in considering mitigating or aggravating circumstancespersonal to the offender, for example, where there is a serious risk that imprisonmentwill have a significant adverse effect on the offender's mental health or will otherwiseweigh more heavily on them than on a person in normal health.28[30] In this case, the District Court Judge gave a discount of approximately18.5 per cent on account of Mr Hall's "well-documented history of unwellness".29He did not expressly state whether this was at step one, step two or both stages of thesentencing process, although his discussion focuses on the implications in terms ofMr 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 ofMr Hall's unwellness were appropriately recognised.30[31] We consider the Judge's mental health discount appropriate. We share someof the concerns of both the District Court and High Court Judges that although Mr Hall26 Shailer v R [2017] NZCA 38, [2017] 2 NZLR 629 at [44]. See also Orchard v R [2019] NZCA529, [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 thecourse of addressing the "circumstances of the offender".27 Shailer v R, above n 26, at [50].28 Sentencing Act 2002, s 8(h).29 District Court decision, above n 1, at [16].30 Leave decision, above n 2, at [17].was clearly behaving in a manner consistent with psychosis earlier in the day and, inthe course of his CPA assessment, he reported that he had lit the fire to rid himself ofpersecutory delusions, this was not the explanation given to first responders.31However, although the reports indicate that Mr Hall's mental health problems havebeen significantly exacerbated by his addictions and sometimes manipulated to hisadvantage, they are, nevertheless, longstanding. And, as this Court observed whengranting leave to appeal, the very act of setting fire to his own living space might bethought to be irrational and to have justified a "material reduction" in the sentence.32[32] We are unpersuaded that there were any "stage two" considerations sufficientlymaterial to warrant any further adjustment. The reports indicate that Mr Hall barelycopes in the community. He has a history of using benefit payments to fundthe purchase of alcohol and illicit substances,33 not making adequate provision forfood and then seeking incarceration or access to respite care. All of the reports agreethat misuse of substances has been a very prominent feature of Mr Hall's mentalhealth history. In those circumstances, we do not identify imprisonment as having asignificantly adverse effect on his mental health. Nor do we consider it appropriate tospeculate on how the Parole Board is likely to respond to Mr Hall's circumstancesor what accommodation options might be available to him.Implications for end sentence[33] Adopting an (unadjusted) starting point of three years and eight months'imprisonment, alongside the District Court's mental health discount of 18.5 per centand its 24 per cent discount for guilty plea, we arrive at an end sentence of two yearsand one month's imprisonment or approximately 20 per cent less than the sentenceoriginally imposed. We are satisfied this meets the threshold for appellateintervention.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 proximateuse of "magic mushrooms" at some point soon before the index offending but could not sayprecisely when this was.32 Leave decision, above n 2, at [17].33 The substances used by Mr Hall were identified by Dr Foulds to include "cannabis, probablysynthetic cannabinoids (although he denies this), Ritalin, hallucinogens, [and] opioids".Result[34] The appeal is allowed.[35] The sentence of two years and seven months' imprisonment is quashed.[36] A sentence of two years and one month's imprisonment is substituted.Solicitors:Crown Law Office, Wellington for Respondent