Barnes v The Queen

[2005] NZCA 155

IN THE COURT OF APPEAL OF NEW ZEALAND

CA69/05

THE QUEEN

v

NATHAN ERNEST JOHN BARNES

Hearing:15 June 2005

Court:Hammond, Baragwanath and Potter JJ

Counsel:P F Gruar for Appellant

H D M Lawry for Crown

Judgment:16 June 2005 

JUDGMENT OF THE COURT

The appeal is allowed to the extent that the orders made under s 34(1)(a)(i) and s 24(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 are vacated.

REASONS

(Given by Potter J

Introduction

[1]       Nathan Ernest John Barnes appeals against a sentence imposed on him by the High Court on 26 November 2004.  In particular he appeals against the order for his indefinite detention as a Special Patient pursuant to s 24(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (“the Act”).

Convictions

[2]       The appellant was convicted following trial by jury of one count of wounding with reckless disregard under s 188(2) Crimes Act 1961 (Count 2 in the indictment). 

[3]       He was found not guilty by reason of insanity on two counts of possession of an offensive weapon under s 202A(4)(b) Crimes Act (Counts 3 and 4 in the indictment).

[4]       He entered a guilty plea to one charge of possession of a knife in a public place under s 202A(4)(a) Crimes Act (Count 5 in the indictment).

[5]       He was acquitted of a charge of wounding with intent to cause grievous bodily harm.

Sentence

[6]       The sentence imposed in the High Court was as follows:

a)On Count 2 a “hybrid” sentence of nine months imprisonment and detention as a Special Patient under s 34(1)(a)(i) of the Act;

b)On Counts 3 and 4 detention as a Special Patient under s 24(2)(a) of the Act.

c)On Count 5 convicted and discharged.

Jurisdiction

[7]       At the hearing of the appeal it was agreed by Mr Gruar, counsel for the appellant, and Mr Lawry, counsel for the Crown that:

a)It was not open to the High Court to make an order under s 34(1)(a)(i) because pursuant to s 47(2)(a) of the Act, s 34(1)(a) does not apply to any offence committed before the commencement of the Act.  The Act came into force on 1 September 2004.  The relevant offending by the appellant occurred on 11 October 2003.

b)It was not open to the High Court to make an order under s 24(2)(a) because the medical certificate furnished in response to the request of the High Court Judge for a report pursuant to ss 23 and 35 of the Act, did not on its face establish that detention of the appellant in accordance with s 24(2)(a) was necessary. 

[8]       Section 24 of the Act provides:

Detention of defendant found unfit to stand trial or insane as special patient or special care recipient

(1)When the court has sufficient information on the condition of a defendant found unfit to stand trial or acquitted on account of his or her insanity, the court must-

(a)consider all the circumstances of the case; and

(b)consider the evidence of one or more health assessors as to whether detention of the defendant in accordance with one of the orders specified in subsection (2) is necessary; and

(c)make one of the orders referred to in paragraph (b) if it is satisfied that the making of the order is necessary in the interests of the public or any person or class of person who may be affected by the court’s decision.

(2)the orders referred to in subsection (1) are that the defendant be detained –

(a)in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992; or

(b)in a secure facility as a special care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.

(3)Before the Court makes an order specified in subsection (2)(a), the court must have received evidence, under subsection (1)(b), about the defendant from at least 1 health assessor who is a psychiatrist.

[9]       Dr Galpin, who provided a report to the Court pursuant to ss 23 and 35 of the Act, stated:

Mr Barnes requires assertive psychiatric care under the auspices of the Mental Health Act.  I do not believe that, at the present time, it is safe for Mr Barnes to be returned to live in the community.

[10]     Dr Galpin made recommendations for disposition under s 34(1) and s 25(1), but there was no reference or recommendation for an order pursuant to s 24 of the Act.

[11]     In R v Elliot [1998] 1 NZLR 295 this Court considered an order pursuant to s 39J of the Criminal Justice Act 1954. The Court cited from Woodhouse J in Mitchell v Allen [1969] NZLR 110, 113:

Obviously it is a fundamental importance that whenever the Mental Health Act is invoked to detain a man against his will, a high degree of care must be exercised to see that the facts of the case are within the strict boundaries which the Act defines.

The Court then continued at p 300:

Having regard to those matters it is readily understandable why the legislation has taken pains in s 39J to ensure that a committal order may be made only where the medical certificate establishes on its face that the offender’s mental condition requires his detention either in his own interest or for the safety of the public.

[12]     We consider the principle recognised and applied by this Court in Elliot is equally applicable when the Court is considering an order for detention under s 24.  In the absence of a recommendation by Dr Galpin on the face of his report that an order for detention be made under s 24, the Court did not have jurisdiction on which to found such an order.

[13]     Further, the judgment in Elliot refers at p 295 to the need for reasonable proportionality between the offending and the severe curtailment of liberty inherent in an order for detention. Imposition of an order under s 24 cannot be viewed as a proportional response to charges of possession of an offensive weapon, and for that reason also, the order made on sentencing was not well founded.

[14]     The powers of this Court on appeal are limited by s 29 of the Act which grants a right of appeal to the defendant and the prosecution from an order or decision under (inter alia) s 24, as if it were a sentence.  Section 29(3) provides that on appeal the Court may –

(a)       dismiss the appeal;

(b)vary the order appealed against;

(c)cancel the order or decision appealed against and substitute another order or decision under s 24 …

Neither s 29 nor s 385 Crimes Act permits the matter to be remitted to the High Court for re-sentencing (as was initially submitted by the Crown).

Sentence of imprisonment

[15]     There being no jurisdiction for the orders purported to be made under the Act, they must be vacated.  There remains only the sentence of nine months imprisonment, which the appellant has now served. 

[16]     We see no case for varying that sentence by increasing the term.  In determining the length of the custodial sentence to be imposed, the sentencing Judge took account of the appellant’s mental health problems, recognising that by reason of his mental state the sentence ought to be very considerably reduced from that otherwise called for.  The Judge’s approach is supported by authority: (R v Tuia (CA312/02 18 November 2002; R v Bridger [2003] 1 NZLR 636, 647-8 at [42]), and was appropriate. Count 5 on which the appellant was convicted and discharged was concurrent offending and provides no basis to increase the sentence. Counsel do not dispute this finding.

Result

[17]     The appeal is allowed to the extent that the orders made under s 34(1)(a)(i) and s 24(2)(a) of the Act are vacated.

Mental Health disposition

[18]     The outcome of the appeal leaves for urgent resolution the appropriate disposition of the appellant within the Mental Health regime.  Having served his custodial sentence, upon the appeal being allowed there is no basis for his continued detention.

[19]     Mr Gruar was at pains to assure the Court that if the appeal was allowed steps could and would be taken urgently to ensure the assessment and appropriate disposition of the appellant under the Mental Health legislation.  In accordance with the urgings of the Court it was agreed by counsel that pursuant to ss 8, 8A and 8B of the Mental Health (Compulsory Assessment and Treatment) Act 1992 application would be made forthwith to the Director of Area Mental Health Services, for assessment of the appellant, and the procedure to obtain a Compulsory Treatment Order in respect of the appellant pursued as expeditiously as possible thereafter. While the matter is for the Director, it appears to us, on the information presently available to us, that in all the circumstances of the case this would be an appropriate course to adopt.  Of course we have no jurisdiction in that respect, but no doubt Mr Gruar will see that this view is conveyed to the Director.  To facilitate the initial steps to be taken, the Court indicated to counsel at the close of the hearing yesterday, that the Court would allow the appeal but would deliver its judgment to that effect at 2.15 p.m. today. 

Solicitors:           

Crown Solicitors, Auckland