IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE	
CRI-2020-409-114
[2020] NZHC 2552	

BETWEEN	KERRY RICHARD HALL
Appellant	
AND	THE QUEEN
Respondent	

Hearing:	17 September 2020	
Appearances:	D J Matthews for Appellant S J Mallett for Respondent	
Judgment:	29 September 2020	

[REDACTED] JUDGMENT OF OSBORNE J

This judgment was delivered by me on 29 September 2020 at 3.30 pm

Registrar/Deputy Registrar Date:

This judgment contains redaction of personal or sensitive information.

Introduction

[1]	The appellant, Kerry Hall, was sentenced to two years and seven months’ imprisonment on a charge of arson.1 He appeals that sentence on the basis that the starting point, and therefore the end sentence, was manifestly excessive.

1	R v Hall [2020] NZDC 15535.

HALL v R [2020] NZHC 2552 [29 September 2020]

Facts

[2]	Mr Hall is the sole tenant of one of 20 units at the Dover Courts social housing complex in Christchurch. On the afternoon of 24 March 2020, he was in his unit alone. At around 3.30 pm Mr Hall used a lighter to set fire to bedding materials on top of his bed. The fire took hold on the bed and spread into the living room.

[3]	Mr Hall’s neighbours noticed the fire and called the Fire Service. One neighbour controlled the spread of the fire using a garden hose until the arrival of the Fire Service. When the Fire Service arrived, Mr Hall was agitated and aggressive towards staff. He was subsequently restrained by a member of the public until police arrived to arrest him. Mr Hall told police that he had started the fire because he was angry and frustrated with living at the flat complex.

[4]	As a result of the fire, the unit’s living room and bedroom were severely damaged. The fire caused approximately $38,000 in damage.

[5]	There was evidence that Mr Hall was suffering from mental health issues at the time of the incident. Occupants of the other units described him as behaving erratically, talking to himself and shouting about evil spirits. Two mental health reports were prepared pursuant to s 38 Criminal Procedure (Mentally Impaired Persons) Act 2003, one of which recorded:

[redacted]

[6]	Judge Gilbert determined that Mr Hall was mentally impaired at the time of the offending but was fit to plead.2 Mr Hall then pleaded guilty.

District Court decision

[7]	In sentencing Mr Hall, Judge O’Driscoll noted that he was 45 years old with an extensive criminal history. He had only one recent conviction (after 2016). His Honour considered the major factor of the offending was Mr Hall’s unstable mental health. He took that factor into account when considering Mr Hall’s motive. He found

2	Police v Hall [2020] NZDC 10470.

that, while the offending was clearly deliberate, there was “probably not too much premeditation involved”.3 The Judge also took into account the “real and significant risk” of danger to the public and the extent of the loss and damage.4

[8]	Judge O’Driscoll referred to the Court of Appeal decision in French v R, in which the Court considered cases where arson had been committed while occupants were asleep in the house.5 Starting points in the vicinity of five to six years’ imprisonment had been imposed. Judge O’Driscoll recognised there was no evidence that anyone in the other units was sleeping, but considered a tragedy could have occurred if not for the actions of the neighbour. He determined an appropriate starting point was four and a half years’ imprisonment.

[9]	The Judge reduced that starting point by 10 months to account for Mr Hall’s reduced culpability by reason of his mental health issues, and a further 13 months for his guilty plea. No reparation was imposed because Mr Hall had no realistic means to pay. The end sentence was therefore two years and seven months’ imprisonment.

Principles on appeal

[10]	Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.6 As the Court of Appeal recognised in Tutakangahau v R (quoting the lower Court’s decision), a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.7 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing

3	R v Hall, above n 1, at [8].
4	At [8] and [12]–[13].
5	French v R [2014] NZCA 297 at [10]–[13], citing R v Munro CA132/02, 24 July 2002; R v Skeens CA341/01, 26 February 2002; R v Neal [2008] NZCA 327; and R v Meha [2013] NZHC 2957 (affirmed following French in Meha v R [2014] NZCA 307).
6	Criminal Procedure Act 2011, ss 250(2) and 250(3).
7	Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

principles.8 The focus on appeal is the end sentence, rather than the process by which the sentence was reached.9

Submissions

Appellant’s submissions

[11]	Mr Matthews, for Mr Hall, submitted that the starting point of four and a half years’ imprisonment was manifestly excessive having regard to other cases. He first distinguished the present case from those identified in French as attracting starting points of five to six years; Mr Matthews argued that those cases involved not only sleeping victims but serious premeditation, imminent danger to life, repeated conduct and deliberate targeting of other persons’ premises for malicious purposes.10 He submitted that the circumstances of the present case comparably warrant a considerably lower starting point than five to six years.

[12]	Mr Matthews cited a number of cases which he suggested demonstrated the appropriate starting point was in the region of three years.11 In Bulman v R, the offender entered an unoccupied flat connected to his own, opened a window and set fire to the curtains.12 When the police arrived he told them he had lit the fire because he was having sexual urges towards young children and wanted to be sent to prison to avoid carrying out those urges. The sentencing Judge considered it was a significant mitigating factor that the offender’s motivation arose from a disordered thought process. A starting point of three years’ imprisonment was not disturbed on appeal.

[13]	In Erickson v R, the offender set fire to an unoccupied farmhouse after being evicted from it, causing $47,000 worth of damage.13 The sentencing Judge took into account the extent of the damage caused, the retributive element of the offending and that the owner was made to be fearful for her life. The starting point of three years was upheld by the Court of Appeal.

8	Ripia v R [2011] NZCA 101 at [15].
9	Islam v R [2020] NZCA 140 at [32].
10	French, above n 5; Munro, above n 5; Skeens, above n 5; Neal, above n 5; and Meha, above n 5.
11	Bulman v R [2017] NZHC 3282; Erickson v R [2012] NZCA 449; R v Marson-Wood [2018] NZHC 610; Cox v R [2013] NZCA 194; and R v Protos CA259/04, 19 October 2004.
12	Bulman, above n 11.
13	Erickson, above n 11.

[14]	In R v Marson-Wood, the offender was sentenced for five arson charges.14 The lead offence related to his having ignited a fire in a paper recycling bin outside the Viaduct Event Centre in Auckland, in close proximity to gas cylinders, while the Centre held more than 900 guests. For the lead offence, Peters J found that a starting point between three and a half to four years’ imprisonment was appropriate.

[15]	Mr Matthews submitted that the danger to life posed in Bulman and Erickson was broadly similar to the present offending, and that Marson-Wood constituted a more serious risk. He contended the cases cited also contained a higher level of premeditation. In Mr Matthews’ submission, the appropriate starting point would be approximately three years.

[16]	In the event this Court decides a starting point higher than three years is appropriate, Mr Matthews alternatively submitted that the Judge should have taken into account Mr Hall’s mental health issues in setting the starting point as well as at the personal mitigating factors stage. He cited cases in which the Court of Appeal recognised that mental health may be relevant at both stages of sentencing.15 Mr Matthews submitted that Mr Hall’s mental health had a significant impact on his moral culpability, and can be seen as causative of his offending to the extent that it should have been reflected in the starting point as well as at the second stage.

Respondent’s submissions

[17]	Mr Mallett, for the Crown, submitted that the starting point was within the range available to the Judge. He submitted that Mr Hall’s offending may be distinguished from the cases cited by Mr Matthews. Here the fire was lit at a social housing complex, meaning the homes of 20 other tenants were jeopardised. Mr Mallett accepted that French and the cases cited therein were more serious than the present offending, but submitted this was properly reflected in the lower starting point adopted by Judge O’Driscoll.16

14	Marson-Wood, above n 11.
15	L v R [2019] NZCA 676 at [48]–[50]; and Shailer v R [2017] NZCA 38, [2017] 2 NZLR 629 at
[44]–[46].
16	French, above n 5; Munro, above n 5; Skeens, above n 5; Neal, above n 5; and Meha, above n 5.

[18]	Mr Mallett referred in particular to R v Munro, one of the cases cited in French.17 In Munro, the appellant and his co-offender set fire to a flat at around 6 am, by placing cardboard and newspaper next to the building and setting that material alight. The property was occupied by a young couple who were asleep upstairs, and who managed to escape out a garage door. The fire caused about $5,030 in damage. The Court of Appeal held that a five year starting point was appropriate. Mr Mallett submitted that Mr Hall’s offending may be seen as more serious than that in Munro because it resulted in $38,000 worth of damage, and created a risk to some 20 residential addresses. Accounting for his mental health and the lack of people sleeping in the complex, Mr Mallett submitted a four and half year starting point was appropriate.

[19]	Mr Mallett noted that Judge O’Driscoll declined to uplift the sentence on account of Mr Hall’s previous convictions when he would have been entitled to do so. Although this was Mr Hall’s first conviction for arson, he had some 36 previous convictions for wilful damage.

[20]	In response to Mr Matthews’ alternative submission, Mr Mallett submitted the existence of those previous convictions indicates Mr Hall’s sanity at the time of the offending and that he therefore appreciated the nature and quality of the acts. Mr Matthews quoted a passage of Dr James Foulds’ mental health assessment where Dr Foulds stated that he “cannot rule out the possibility that [Mr Hall’s] symptoms have been fabricated or exaggerated to avoid taking responsibility for the alleged act”. Mr Mallett noted Mr Hall’s explanation to police that he lit the fire out of anger and frustration, and suggested the Court should be cautious in accepting that his mental health was causative of the offending.

Analysis

[21]	The maximum penalty for a charge of arson is 14 years’ imprisonment.18 In setting a starting point for arson, the primary considerations are the degree of property

17	Munro, above n 5.
18	Crimes Act 1961, s 267(1)(b).

damage, the degree of danger to any occupant or firefighter and the mental state of the offender.19

[22]	The degree of property damage in this case was roughly $38,000, a clearly substantial amount.

[23]	I agree with Judge O’Driscoll’s assessment that the degree of danger posed by Mr Hall’s offending was also significant. The nature and position of the target property makes it so. The fire was started in an housing complex, and jeopardised the safety of the other tenants who were present at the time. There was also a significant risk of greater property damage than was caused. As noted by the Judge, it was only through the actions of the neighbour that the fire was able to be controlled in time to prevent a real tragedy.

[24]	The extent to which Mr Hall’s mental health issues were causative of his offending is unclear. As argued by Mr Matthews, there is indeed evidence that Mr Hall believed the property was inhabited by spirits, and that he needed to set it on fire in order to destroy them. That evidence includes the explanation given by Mr Hall to the mental health assessors, as well as statements made by witnesses that on the day of the offending Mr Hall was talking to himself, behaving unusually and saying that spirits were trying to kill him. On the other hand, there is evidence that Mr Hall told police immediately after the offending that he was angry and frustrated with living at the flat complex. Mr Hall also told both health assessors that his girlfriend had ended their relationship that day, causing him to feel “very upset and hopeless”. Mr Hall admitted to the assessors that he was using cannabis and hallucinogens in the lead up to the offence, and both assessors stated that Mr Hall has been known to behave impulsively when emotionally distressed. The assessors were therefore uncertain as to the veracity of Mr Hall’s representations as to his precise mental condition that day.

[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

19	Meha (CA), above n 5, at [9].

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.

[26]	The issue is therefore whether, given those conclusions as to the gravity of the offending and Mr Hall’s mental state at the time, a starting point of four and a half years was out of the range available to the Judge.

[27]	Mr Matthews is correct in his submission that French, and the cases cited therein which attracted starting points of five to six years, were more serious than the present case. The particular aggravating features of those cases not present here are that there were victims asleep in the buildings, and the various levels of premeditation and malicious intent. Mr Hall is clearly at a lower level of culpability than the offenders in those cases.

[28]	However, I am not satisfied that his culpability is so low as to warrant a starting point in the vicinity of the majority of other cases cited by Mr Matthews. Mr Hall’s offending placed both people and property at significantly greater risk than in Bulman and Erickson, where three year starting points were adopted.20 It is perhaps closer to Marson-Wood, where the risk to life was more substantial but no serious damage was caused.21

[29]	In comparison with the cases helpfully provided by counsel, I would see an appropriate starting point for Mr Hall’s offending as between four and four and half years’ imprisonment. That starting point includes recognition of the extent to which Mr Hall’s mental health is likely to have affected his actions. I therefore view Judge O’Driscoll’s starting point as stern but within range. 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 the adjusting the starting point and the potential for a further allowance by way of personal mitigating factors has to be offset against what

20	Bulman, above n 11; and Erickson, above n 11.
21	Marson-Wood, above n 11.

would otherwise have been an appropriate upwards adjustment for Mr Hall’s relevant record of wilful damage offending.

[30]	The question on an appeal against sentence is whether the end sentence was manifestly excessive. Mr Matthews has raised no issue with the discounts allowed by the Judge and I agree they were appropriate. Although the starting point was at the upper end of that available to the Judge it was within range.

[31]	For these reasons, and standing back to consider the end sentence, I am satisfied the end sentence of two years and seven months’ imprisonment was not manifestly excessive.

Order

[32]	The appeal is dismissed.

Osborne J
Solicitors:
D J Matthews, Barrister, Christchurch Crown Solicitor, Christchurch