Beazley v Police
[2015] NZHC 99
•18 February 2015
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2014-488-48 [2015] NZHC 99
BETWEEN HALIM TEONEORA BEAZLEY
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 4 February 2015 Counsel:
C Muston for Appellant
M B Smith for CrownJudgment:
18 February 2015
ORAL JUDGMENT OF FOGARTY J
This judgment was delivered by me on 18 February 2015 at 4.30 p.m., pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date: ………………………….
Solicitors: Marsden Woods Inskip & Smith
BEAZLEY v POLICE [2015] NZHC 99 [18 February 2015]
[1] Mr Beazley appeals against a decision of the District Court Judge, Judge D Davis, on 11 November 2014 which sentenced him to one year home detention, he having pleaded guilty to one charge of robbery and one of burglary. In respect of the robbery, the victim was a school boy who was walking to his car. He was standing beside the door when Mr Beazley approached him, asked him for his name, punched him on the side of the face and grabbed the car key out of his hand. There was a small amount of swelling on the cheekbone and did not require medical attention.
[2] In respect of the burglary, on 1 April Mr Beazley went to an address in Kamo. The occupants were away at a course and at school. The premises were locked and secure. He kicked in the front door, destroying the front door lock in order to gain access. He moved around the house taking items of interest, including clothing and electrical items. He admitted the burglary, when spoken to by the police, and $3,000 is sought for the property which was taken. I was told from the bar, in the course of the appeal, that he knew the occupants of that home.
[3] At the time of the offending, Beazley was 17 years old. At the time of sentence, he was 18 years old.
[4] He received a sentence indication from Judge Davis with three years imprisonment as a starting point but with the comment it would be infinitely preferable to sentence a 17-year-old to a sentence other than imprisonment, provided all the necessary factors were in place.
[5] In the intervening period between the sentence indication and the sentence, questions were raised as to Mr Beazley’s fitness to plead and, as the law required, two mental health reports were obtained of each of Dr Seth and Dr Karayiannis, both of which advised that he was fit to plead.
[6] Judge Davis also used the reports to answer a question in his mind (not put to Dr Seth or Dr Karayiannis) as to whether the mental health issues that were the subject of the enquiry as to fitness to plead had provided any causative link to the offending. In other words, did the mental health issues cause the offending?
[7] Judge Davis relied on para 38 of Dr Karayiannis’ report, saying:
Mr Beazley acknowledges he was telling lies because he did not wish to be held responsible for the crime when he had said earlier he was hearing voices.
[8] Paragraph 38 of Dr Karayiannis’ report comes under the heading “Mental health examination as of 27 June 2014” and paragraph 38 needs to be read with paras
39 and 40 and also with para 7 and 8. I set out these paragraphs:
38.Mr Beazley told me he was not experiencing voices. He told me he was not experiencing any unusual ideas. When asked about previous descriptions of possible hallucinations and unusual ideas he said “I was just telling lies because I wanted to get out of doing a crime”
39.On examination of his cognitive function Mr Beazley was alert and orientated.
40.Mr Beazley told me he did not have a mental illness. He told me he was not experiencing any symptoms which would be described as pathological. He told me that he did not have any concerns about issues of cannabis.
[9] Paragraph 7:
OPINION – EXECUTIVE SUMMARY
7.Mr Beazley does have a mental impairment; namely psychosis not otherwise specified.
8. Mr Beazley was in my opinion, fit to stand trial.
[10] What is not immediately apparent from the report but is apparent from para 9, under “sources of information”, Dr Karayiannis was not the clinician responsible for the mental health care.
[11] Dr Seth provided the second report as to fitness for trial. Like Dr Karayiannis, Dr Seth was not the patient’s clinician at the time. In para 30 of his opinion, he recorded:
30.Mr Beazley acknowledged that he was no longer suffering from any psychotic symptoms such as “voices”. He stated that previously he had been hearing voices inside his head, one female and two male.
… He stated that previously the voices used to say things such as,
“the world belongs to you, go mash people, steal cars, steal
whatever you want, the world is your playground”. He stated that he
had not heard any of these voices since his time in the Mason Clinic in June 2014.
[12] Dr Seth concluded he was fit to stand trial.
[13] It would appear that Judge Davis had also drawn from these decisions the inference that he is either not mentally ill or not particularly mentally ill. Certainly, that opinion was available from Dr Seth’s report in paras 41 and 42 where Dr Seth said:
41.Mr Beazley has previously been diagnosed as suffering from a psychosis not otherwise specified due to the short duration of his illness however the working diagnosis of his clinical team in the community is one of either schizophreniform disorder (less than six months duration of psychotic symptoms) or schizophrenia, paranoid type currently in relative remission. His illness has been complicated by his use of illicit substances namely cannabis and synthetic cannabis and thus he could be diagnosed as suffering from a cannabis and synthetic cannabis use disorder which is currently in remission as a result of his abstinence.
42.Mr Beazley’s illness is currently in remission as a result of treatment with oral and intramuscular risperiodone and is [h]is abstinence from illicit substances.
[14] What is clear is that neither of these opinions in any way address or express an opinion on the type and length of sentence that might be imposed on him. In [8] of his decision, Judge Davis said:
[8] From a starting point of three years in prison Mr Poutai-Beazley would be entitled to credit for his remorse, would get him four months off the sentence. I will also give him the maximum credit that I can for his guilty plea of eight months off the sentence which would leave an end sentence of two years in prison. In my view, given the suitable electronic address available, that would convert to one year of home detention and that is the sentence I intend to impose today.
[15] There is no reference in his reasoning to the recommendation by the probation officer which was of intensive supervision and community detention. The appeal is against the sentence imposed of home detention.
[16] The home detention sentence commenced in November, consequent upon the judgment of 11 November. The home detention was with his family. Over the summer, the family went away on summer holidays partly to have a break from
looking after Halim. That left Halim in the house on his own. He took off his electronic bracelet and left it on the driveway of the house. The Ministry’s subcontractors found the bracelet on the driveway. They apparently did not enter the house but he also did not come to the door. On these facts, he was charged by the New Zealand Department of Corrections with two offences, one being of cutting off his electronic monitoring anklet and the other being that he left his electronic boundary and his address without written authorisation.
[17] There now appears to be real doubt as to whether he ever left the home. He was found eventually by the police in the home. I understood from discussion in the Court that the probation officers of the Department of Corrections are inclined to think he never left the home. But, rather, the cutting off of the electronic monitoring anklet and placing it on the driveway was in truth a cry for help. In any event, in respect of those two charges, he was sentenced by Judge Davis to 40 hours community work on each of the charges.
[18] While he has been on home detention, Mr Beazley has not been able to leave the property to participate in any mental health programmes. I understand that one of the reasons for this is the Department of Corrections’ interpretation of the conditions. Two are relevant:
3.If directed by the probation officer, you are to undertake a rehabilitation programme as administered by the Department of Corrections, you are to attend and participate in any maintenance group required by the probation officer.
5.If directed, you are to attend the Mental Health Services and engage in their services to the satisfaction of the probation officer.
[19] I was advised on 4 February that his probation officer considers that cl 7 should be changed to read:
7.To undertake and complete any other programmes to the satisfaction of the probation officer and the programme provider. The details of the programme to be determined by your probation officer.
[20] I was advised that this would allow more scope in the management of the sentence. Halim could then be considered for a programme such as the Ti Kanga
Maori programme and possibly even a regional training programme (job training provider).
[21] Throughout all this time, Mr Beazley remains a patient of the Northland District Health Board. On 15 September 2014, Dr Vernon Reynolds, the psychiatrist, of whom Halim is a patient, advised as follows:
I am the Psychiatrist dealing with the care of Halim Beazley in the community along with his case manager Bart Van Gaalen and the Early Intervention for Psychosis Team. We have been closely involved with Halim and his family over the last few months and have a good relationship with them. I am pleased to say that Halim has responded well to treatment for a psychotic illness (namely Schizophrenia) and is currently doing quite well according to his family and to our assessment. He is well engaged with us and attends follow up regularly. He is also adherent to his medication regime. I am also pleased that he has abstained from use of substances including cannabis and alcohol.
Halim is currently on fairly restrictive bail conditions where he is only able to be out in the community for limited hours and in the company of either of his parents. We would like to support Halim and his family in their application to the Court to have these bail conditions adjusted so that Halim is able to engage in a wider range of activities and be supported and supervised by a wider range of people. I would be grateful if you could request this from the Court and in particular request that Halim is able to attend some of our community group programmes while in the supervision of mental health workers such as his case manager or other support workers. Halim has expressed interest in attending such group programmes as gym, music or art. These therapeutic programmes offer a number of benefits to people recovering from a serious psychotic illness.
[22] None of this has happened.
[23] On 13 June, Dr Reynolds advised Mr David Sayes, a solicitor then acting for Halim, among other things, that he had only recently taken over his care as his community health server’s psychiatrist. But that from his reading of the notes and his meeting with him and his parents:
It is extremely clear to me that Halim is presenting with an acute psychotic illness. From my discussions with the family, it seems there have been signs suggestive of his illness dating back as far as October 2013 … Currently Halim presents with intense delusional beliefs, auditory hallucinations and irritable mood. Although his definitive diagnosis is as yet unclear, he appears to be experiencing a schizophreniform psychosis complicated by poly substance abuse.
He then goes on to describe the medication.
[24] In summary, here is a young man who has been diagnosed as having a psychosis of a schizophrenic character, who may be in remission but who has been placed for one year in home detention with his family without express provision being made for him to participate in the therapeutic programmes that the Health Board had been positively wanting him to engage in.
[25] One year is the maximum term of home detention. It is very rarely imposed. It is generally recognised it is a long time for anyone to serve, let alone for someone who has or is recovering from mental illness.
[26] I am of the view that there needs to be a multi-disciplinary engagement as the best way to appropriately punish Halim for his offences consistent with restoring him to health.
[27] Section 251 of the Criminal Procedure Act provides:
251 Orders, etc, on successful first appeal
(1) This section applies if a first appeal court allows an appeal under this subpart.
(2) The first appeal court must, within the limits allowed by law,—
(a) set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate; or
(b) vary the sentence, vary any part of the sentence, or vary any condition of the sentence; or
(c) remit the sentence to the court that imposed it and direct that court to take any action of a kind described in paragraph (a) or (b) as specified by the first appeal court.
(3) In remitting a sentence under subsection (2)(c), the first appeal court may give the sentencing court any further directions it considers appropriate about the manner in which the specified action is to be taken by the sentencing court.
[28] I am satisfied that Judge Davis used the opinions as to fitness to plead for the wrong purpose when judging the ability of Halim to serve a sentence of one year of home detention. This was an error of law and justifies the Court allowing this appeal. I am also of the view that I cannot elect to proceed under paras (a) or (b) of
subs (2) for want of an up-to-date psychiatric assessment. The Criminal Procedure
(Mentally Impaired Persons) Act 2003, s 38(1) provides:
38 Power of court to require assessment report
(1) When a person is in custody at any stage of a proceeding against the person, whether before or during the hearing or trial, or while awaiting sentence or the determination of an appeal, a court may, on the application of the prosecution or the defence or on its own initiative, order that a health assessor prepare an assessment report on the person for the purpose of assisting the court to determine 1 or more of the following matters:
(a) whether the person is unfit to stand trial:
(b) whether the person is insane within the meaning of section
23 of the Crimes Act 1961:
(c) the type and length of sentence that might be imposed on the person:
(d) the nature of a requirement that the court may impose on the person as part of, or as a condition of, a sentence or order.
(Emphasis added.)
[29] Section 38(1) enables me to act upon the powers in this section in the determination of an appeal. Section 38(1)(c) enables the Court to order a health assessor to prepare an assessment report for the purpose of assisting the Court to determine the type and length of sentence that might be imposed on the person. I so order. I would prefer that report to be written by the psychiatrist currently dealing with his care. That may still be Dr Vernon Reynolds.
[30] I know there is a practise of internal assignation of such orders of the Court to clinicians, be they psychiatrists or psychologists, who are not dealing with the care of the patient. This I can understand when the issue is an objective one as to whether the person is fit or not to stand trial or whether the person is insane.
[31] But where the concern of the Court is as to the type and length of sentence that might be imposed, it is a therapeutic concern, the Court is looking for therapeutic advice which, it seems to me, should best come from the clinician currently responsible for the therapeutic treatment of the patient.
[32] I accordingly order that the health assessor be a person giving therapeutic care to Halim. If there are difficulties accepting that order, leave is reserved for application by the Crown for an amendment of this order.
[33] Pending this advice, I exercise s 251(2)(c) of the Criminal Procedure Act and remit the sentence back to the District Court and direct the Court to take any action of a kind described in (a) or (b), after considering the assessment report consequent upon the order I have made under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act.
[34] But this is with one qualification. The current sentence is immediately varied by deleting cl 7 and substituting the following:
To undertake and complete any other programmes to the satisfaction of the probation officer and the programme provider, including but not limited to programmes offered by the Northland District Health Board, including their community group programmes, while in the supervision of mental health workers such as gym, music or art but not limited to the same.
[35] Leave is reserved to the appellant or the respondent to apply to this Court to vary the terms of either the orders under s 38(1)(c) of the Criminal Procedure (Mentally Impaired Persons) Act or of the orders made under s 251(2) of the Criminal Procedure Act 2002.
[36] It goes without saying that there ought to be a degree of urgency in respect of this matter. I regard the conditions under which the appellant is detained as unsatisfactory and in need of urgent attention in the interests of the appellant, his family and the community’s safety.
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