Thompson v R [2020] NZCA 355 (19 August 2020)

Last Updated: 25 August 2020

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA79/2019 [2020] NZCA 355

	BETWEEN	COLIN JAMES THOMPSON Appellant
	AND	THE QUEEN Respondent

Hearing:	27 July 2020
Court:	French, Woolford and Dunningham JJ
Counsel:	S W Hughes QC for Appellant M J Lillico and J M Irwin for Respondent
Judgment:	19 August 2020 at 9 am

JUDGMENT OF THE COURT

1. The application for leave to adduce the report of Dr Lehany dated 20 February 2020 is granted.
2. The appeal is allowed to the extent that the minimum period of imprisonment imposed by the High Court of 13 years and two months’ imprisonment is reduced to 12 years and four months’ imprisonment. The sentence of life imprisonment 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 was sentenced in the High Court by Dobson J to life imprisonment with a minimum period of imprisonment of 13 years and two months.^[1]
• [2] He now appeals his sentence primarily on the grounds that due to a delusional disorder, life imprisonment was manifestly unjust under s 102(1) of the Sentencing Act 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 period of her illness, the relationship between Mr Riddle and Mr Thompson became fraught with arguments over unpaid rent and the state of the property. The situation escalated to the point where Mr Riddle who was in his late seventies felt threatened and would avoid face to face meetings with Mr Thompson.
• [4] Associates of Mr Thompson also became concerned after hearing Mr Thompson state on numerous occasions that he would shoot Mr Riddle if he continued to harass him. This resulted in one of the associates volunteering to be a facilitator or “go-between” to collect the rent.
• [5] The threats continued after Mrs Thompson died. In the weeks leading up to the murder, Mr Thompson told an associate that he had a gun ready and that if Mr Riddle kept harassing him he would shoot him without any hesitation. When another acquaintance commented that Mr Riddle had a right to expect the place to be tidy, Mr Thompson said he was going to shoot the mongrel anyway. On the day before 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 phoned Mr Thompson and spoke to him about the rent arrears. After going into town and withdrawing some money, Mr Thompson got back to Mr Riddle and invited him to the property to collect his rent. Mr Thompson then called two associates — one of whom was the go-between — and told them “I’ve been to the bank to get some more money 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 turned and started to walk back to his own house. Mr Thompson got his 12 gauge double barrel shotgun and confronted Mr Riddle at a side gate. He pointed the gun at Mr 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 when the two associates he had called arrived on the scene. They immediately rushed to Mr Riddle and tried to help him. Mr Thompson told them that the “fucking bastard got what he deserved. Let him die.” He then walked over to where Mr Riddle was lying and kicked him hard in the hip area saying “take that, you cunt, you got what you 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 over the telephone that he had shot Mr Riddle and that there was a truck parked near to where Mr Riddle was lying. He suggested the associate should start the truck up and back 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 previous convictions.

Psychiatric assessments prior to sentencing

• [13] There were a series of reports. The initial reports assessed Mr Thompson as unfit to stand trial and suffering from what was said to be a range of complex inter‑related mental health problems including depression, cognitive impairment, possible psychotic symptoms, vague perceptual disturbances (hearing noises and voices) and an apparent persecutory ideation against Mr Riddle. The reports also recorded a history of heavy alcohol abuse.
• [14] Later reports continued to identify cognitive difficulties and delusional beliefs about Mr Riddle but found Mr Thompson fit to stand trial.
• [15] Cognitive assessments (psychometric testing) undertaken by a clinical psychologist in August 2018 indicated that Mr Thompson was malingering his cognitive impairment. That is to say, Mr Thompson was considered to be intentionally exaggerating his cognitive functioning difficulties, possibly motivated by a perceived gain of not remembering the crime he was accused of committing.
• [16] In another report dated 29 August 2018, Dr Street, a consultant forensic psychiatrist, said that most of the behaviours that had contributed to the initial concerns about dementia or cognitive issues were likely due to malingering. Dr Street also noted that during the evaluation with the clinical psychologist, Mr Thompson appeared to feign some of his depressive symptoms.
• [17] The most recent reports available to the Judge prior to sentencing was a further report by Dr Street dated 12 December 2018 and two reports by Dr Lehany, another consultant forensic psychiatrist. One was dated 9 November 2018 and the other 8 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 had indicated were the product of malingering. Dr Street said that this time the exaggerated mannerisms stopped once Dr Street told Mr Thompson that if he did not 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 currently presenting as depressed but his personality structure (lack of remorse and pre‑occupation with injustices against himself) put him at significant risk for depression in the future.
• [20] The key aspects of the two reports from Dr Lehany were that Mr Thompson had a mild to moderate depressive illness with possible psychotic features and a delusional disorder characteristic of pathological jealousy which might or might not be related to the depression. The delusional disorder manifested itself in fixed and unshakeable delusional beliefs about Mr Riddle held by Mr Thompson, including that Mr 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 delusional beliefs to all the assessors making it likely these delusions were constantly present and sincerely and completely held. The onset of the delusional beliefs was unclear but, in all 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 of persecution was heightened by auditory hallucinations. But the decision to shoot was based on a loss of temper at his understanding of the circumstances, rather than a 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 intention to kill Mr Riddle, Dobson J said it was not in the spur of the moment and was completely unprovoked. In the Judge’s view, the Crown was entitled to call it a cold‑blooded execution for which Mr Thompson showed no remorse both by his statements and his conduct immediately after the shooting.^[3]
• [23] The Judge went on to say that having regard to the circumstances of the offending and Mr Thompson as an offender, there was no way in which Mr Thompson could avoid a sentence of life imprisonment because there were no credible 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 level of brutality and callousness.^[5] It therefore came within the categories of murders which under s 104 of the Sentencing Act attract a presumptive minimum period of imprisonment of 17 years or more unless that would be manifestly unjust.^[6]
• [25] Turning to Mr Thompson’s personal circumstances, the Judge accepted that Mr Thompson “fell apart” after the death of his wife and that over a substantial period of time, he harboured a serious grudge against Mr Riddle. The grudge was based on apparently delusional concerns which, the Judge said, one of the assessing psychiatrists considered may have been genuinely held.^[7]
• [26] The Judge identified three mitigating personal circumstances, Mr Thompson’s mild to moderate depression, his age and his guilty plea.^[8] The Judge said he recognised from the analysis of Mr Thompson’s mental condition reported on by the psychiatrists that there was a “tangential connection” between the pressure on Mr Thompson caused by his mental disorder and his deliberate progression from threatening to shoot Mr Riddle to carrying the threat out.^[9] In that regard, the case was similar, the Judge thought, to another decision cited by the Crown where although the offender’s mental state was not directly causative of the offending, it had made it more likely the offender would offend in the way she did.^[10]
• [27] In reflecting on the relevance of Mr Thompson’s mental condition to the appropriate sentence, the Judge said he also took into account Mr Thompson’s age and the effect that it would have on the perception of his prospects of ever regaining his freedom.^[11]
• [28] He concluded that a combined discount of 15 per cent or 30 months for those factors 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 in ranking relatively how difficult it will be for [Mr Thompson] to serve a long sentence.

• [29] As regards Mr Thompson’s guilty plea, the Judge considered that warranted a discount of 15 months.^[13]
• [30] Applying the two discounts to a starting point of 17 years resulted in a minimum period of imprisonment of 13 years and two months. The difference between that period and 17 years, made it clear, the Judge said, that it would be manifestly unjust to impose 17 years. He therefore imposed a minimum period of 13 years and two months.^[14]

Grounds of appeal

• [31] Section 102 of the Sentencing Act provides that an offender who is convicted of murder must be sentenced to imprisonment for life unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust.
• [32] It appears that at the sentencing in the High Court, the issue of whether a life sentence would be manifestly unjust was never raised by counsel then acting for Mr Thompson. Accordingly, his counsel on appeal, Ms Hughes QC, contends that the Judge’s statement there was “no way” a life sentence could be avoided needed to be seen in that context. The issue was never properly explored.
• [33] It is well established that the threshold to displace the presumptive sentence of life imprisonment is a high one.^[15] Examples where manifest injustice has been found include mercy killings, battered offenders, very youthful offenders and where an offender was a less culpable secondary party.^[16]
• [34] Ms Hughes acknowledged that it is only in exceptional cases that the presumption of life imprisonment will be displaced,^[17] but submitted this was one such case. She argued that in light of all the psychiatric reports, the Judge was wrong to find the delusional beliefs were not directly causative of the offending. In her submission, there was no reason to believe that Mr Thompson would have acted as he did but for his delusions. To have taken up a life of crime for the first time at age 69 did not otherwise make sense. That being so, the case was, she said, on all fours with the High Court sentencing decision in R v Reid.^[18]
• [35] R v Reid concerned an offender who was suffering from major depression with psychotic delusions.^[19] He killed his neighbour whom he (wrongly) believed was spying on him. The sentencing judge, Brewer J, said it was an act entirely out of character and he had “no doubt” the offender would not have killed his neighbour but for 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 case Dobson J had erred by regarding the murder as “completely unprovoked”. It was irrelevant, she submitted, that Mr Riddle had not in fact done the things he was accused of doing by Mr Thompson. What mattered was that Mr Thompson genuinely believed he had done them and was thereby provoked into killing him.
• [37] In support of these arguments, Ms Hughes provided an updating report from Dr Lehany dated 20 February 2020.
• [38] In the report, Dr Lehany records that Ms Hughes has asked him “to assess further the potential impact of abnormalities of the mental state of Mr Thompson at the time of the offence and to consider the issue of a potential ‘but for’ circumstances of 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 earlier report of January 2019. He then goes on to say that although Mr Thompson’s delusional beliefs are not such that a defence of insanity was available, nonetheless he does consider that the presence of these beliefs was relevant to Mr Thompson’s actions at the time of the offence:

His anger at the victim may have had some basis in real conflict between Mr Thompson and the victim, but is likely to have been increased by the delusional beliefs ... There was a clear elevation of anger in Mr Thompson at the time of the offence which was a direct result of the delusional beliefs Mr Thompson held and holds regarding the victim, in the context of his wife having deceased and his depression at the time of the offence. In other words, although we cannot know if the offence would have occurred without the presence of the delusional beliefs, the presence of delusions regarding the victim are likely to have increased his anger towards the victim, and are likely to have been a significant factor influencing Mr Thompson to act as he did at the time of the offence.

• [40] Much of De Lehany’s report is a repeat of his earlier reports and therefore is not fresh evidence. However, the focus of the previous reports was on fitness to stand trial 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 considers the relevance of Mr Thompson’s mental state to his offending more generally, including in particular the extent of the causal connection between the delusions and the 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 in response to Dr Lehany’s report.

Analysis

• [42] We turn first to the argument that the Judge should have considered provocation.
• [43] There is no doubt that in principle a sentencing judge is able to take provocation into account when determining whether or not a life sentence for murder would be manifestly unjust under s 102. That was confirmed by this Court in Hamidzadeh v R, the Court relying on the legislative history leading to the abolition of 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 any provocative words or conduct on the part of the victim may be considered.
• [44] However, we are not persuaded that imagined conduct of the victim can properly be considered as provocation and know of no authority to support such a proposition. It would do violence to the language of s 9(2)(c) and is contrary to the 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.^[22] In R v Wihongi, this Court held that a departure from the presumption of life imprisonment was justified in circumstances where a woman who had been in an abusive relationship stabbed her former partner after he had demanded sex and they had got into an argument. In our view, the case does not support the proposition that imagined conduct is capable of amounting to provocation. The fact that at the time of the stabbing, the offender was not in fact in imminent danger from the victim does not detract from the fact that she was considered to be a “battered woman” — that is to say, the Court accepted she had actually been subjected to sustained abuse from the victim.
• [46] Similarly, in another case relied on by Ms Hughes, R v Cole, there had been actual harassment by the victim.^[23]
• [47] We acknowledge that the case of R v Reid did involve delusional beliefs about the 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 of provocation. Nor do we accept that it is on all fours with R v Reid. We say that for several reasons. First, while the psychiatric reports including the latest report from Dr Lehany suggest the delusional beliefs likely contributed to the offending, they do not support the claim that but for the delusional beliefs the murder would never have happened.
• [49] Secondly, in R v Reid another crucial factor which the Judge relied on in imposing a finite sentence was that by the time of the sentencing Mr Reid was no longer a risk to others. Ms Hughes argued that because Mr Thompson’s delusional beliefs focused on Mr Riddle only, there is no reason to believe that he would act in a similar way in the future. We disagree. That submission ignores the very strong advice from Dr Lehany in his November 2019 report. The advice was that delusional disorders with pathological jealously are difficult to treat and if not properly identified and treated there is a high risk of harm to others. A failure to adequately treat the delusional beliefs, Dr Lehany noted, runs the risk that the delusions will at some point attach to someone else and that other person may then become subject to violence 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 Cabinet Minister’s office, threatening to blow up bridges and roads. He told the psychiatrist he did not intend to act on those threats but the fact he should make them in relation to 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 Reid unlike Mr Thompson, the offender did not invite his neighbour over with the intention of killing her and also unlike Mr Thompson the offender in R v Reid was overcome with remorse, to the point that he attempted suicide. The murder Mr Reid committed did not come within s 104. As this Court noted in Hamidzadeh v R, where a murder is one of the most serious types of murder and falls within s 104, it is even less likely that 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 which brings his murder within s 104 provides further justification for ensuring there is an ability to recall him to prison if he poses an ongoing risk.
• [52] We conclude having regard to the circumstances of the offence and the personal circumstances of Mr Thompson that the imposition of a sentence of life imprisonment is not manifestly unjust.
• [53] That however does not entirely dispose of the appeal. Although we are satisfied that a life sentence was amply justified, we have decided that the length of the minimum period of imprisonment should be reduced.
• [54] It will be recalled that although the Judge’s sentencing notes referred to the delusional beliefs, he did not expressly identify them as one of the three mitigating circumstances 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) for mental illness and age was warranted in order to recognise the impact of Mr Thompson’s delusional disorder. We consider that a further reduction of ten months is appropriate, resulting in a minimum period of imprisonment of 12 years and four months.

Outcome

• [56] The application for leave to adduce the report of Dr Lehany dated 20 February 2020 is granted.
• [57] The appeal is allowed to the extent that the minimum period of imprisonment imposed by the High Court of 13 years and two months’ imprisonment is reduced to 12 years and four months’ imprisonment. The sentence of life imprisonment is confirmed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Thompson [2019] NZHC 72 [High Court sentencing].

^[2] Dr Lehany had also provided an initial screening report in April 2018.

^[3] High Court sentencing, above n 1, at [7].

^[4] 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].

^[11] High Court sentencing, above n 1, at [23].

^[12] At [24].

^[13] At [27].

^[14] At [31]–[32].

^[15] See Malik v R [2015] NZCA 597 at [26]; R v Smail [2006] NZCA 253; [2007] 1 NZLR 411 (CA) at [14]; and R v Williams [2004] NZCA 328; [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; for battered 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 v Cunnard [2014] NZCA 138) and R v Madams [2017] NZHC 81.

^[17] As held by this Court in R v Rapira [2003] NZCA 217; [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].

^[21] Hamidzadeh v R [2012] NZCA 550, [2013] 1 NZLR 369.

^[22] R v Wihongi, above n 16.

^[23] R v Cole [2017] NZHC 517.

^[24] Hamidzadeh v R, above n 21, at [70].