Bulman v The Queen

[2017] NZHC 3282

IN THE HIGH COURT OF NEW ZEALAND

PALMERSTON NORTH REGISTRY

CRI-2017-454-8

[2017] NZHC 3282

BETWEEN

SCOTT BULMAN

Appellant

AND

THE QUEEN

Respondent

Hearing:	4 July 2017
Counsel:	S Winter for Appellant M Cooke for Respondent
Judgment:	21 December 2017

JUDGMENT OF WILLIAMS J

Introduction

[1]    On 27 April, Judge Rowe sentenced Mr Bulman to 26 months’ imprisonment for arson following a guilty plea.1 He had set fire to his neighbour’s flat because he was having sexual urges towards young children, and sought to avoid acting on these by being arrested and sent to prison. He appeals against sentence on the basis that  the Judge did not sufficiently discount for mental health, resulting in a manifestly excessive sentence, and that intensive supervision should instead be imposed.

[2]    On 4 July, I heard the appeal and on 6 July I issued a minute requesting further information on what treatment would be available to Mr Bulman in prison,  on parole, or as part of a sentence of intensive supervision. A further PAC report was provided in response to my minute, advising that there would be a 12 week wait for Mr Bulman to see a Corrections Psychologist. The writer also recommended an assessment with an organisation such as Wellstop, an updated neuropsychological report, and an ACC rehabilitation assessment. Mr Winter therefore sought an

1      R v Bulman [2017] NZDC 8657.

BULMAN v THE QUEEN [2017] NZHC 3282 [21 December 2017]

adjournment to enable these assessments to be undertaken. This  was  granted by Cull J on 18 August.

[3]    That information has now been provided, with the exception of the Wellstop assessment.    I  have  also  been  provided  with  an  updated  PAC   report  dated    17 November, which assimilates information from the other three reports. Since then, I have been unwell, which regrettably has caused further delay.

[4]    As a consequence of these delays, and given that Mr Bulman is now eligible for parole, it is impossible to treat this as an orthodox sentence appeal. The task is more complex and nuanced than that. In some ways, the intervening months have meant that the initial arguments are superseded. My task is to identify an approach  to this appeal which produces a safe and just outcome for Mr Bulman in light of what we now know; not to technically assess the usual considerations. As a result, much of this judgment is a summary of the various reports.

Facts

The current offending

[5]    On 22 January 2017, Mr Bulman was at home. He lived in one of three connected flats. He went to a neighbouring flat that he knew to be unoccupied. He opened a window, went inside and set fire to the curtains throughout the flat. He  then left the flat and watched the fire progress. When the fire service arrived to extinguish the fire, Mr Bulman approached a fire officer and told him that he had lit the fire. He was arrested by police. He told police that he lit the fire because he was having sexual urges towards young children, and he had decided that by lighting the fire he would be sent to jail and not carry out those urges.

[6]    The fire caused extensive damage: the flat was gutted and will take several months to repair and rebuild.

Overview of Mr Bulman’s history

[7]    Mr Bulman had an unremarkable childhood until his Tourette’s diagnosis at age 92 having developed motor and phonic tics. He was also diagnosed with Obsessive Compulsive Disorder (OCD) and Oppositional Defiant Disorder (ODD). From that point he became challenging for his teachers at school. However,  a change in schools resolved many of the behavioural problems. He left school at 16 and obtained employment as a security technician. He maintained this position for a number of months until his motor vehicle accident in which he suffered a traumatic brain injury.

[8]    After the accident Mr Bulman was in post-traumatic amnesia for 164 days was unable to walk for a year. He continues to experience impairment in motor functioning. The accident resulted in impaired short and long term memory and planning and organisation, initiation and problem solving. He has poor emotional- self regulation, borderline intellectual functioning, and extremely low adaptive functioning. Mr Bulman’s sexual thoughts towards young girls also began after the accident.

[9]    Mr Bulman was in ABI rehabilitation for six weeks following his injury, and was then transferred to a residential facility in New Plymouth. He was discharged and then went flatting, but did not cope well. He subsequently went into a rehabilitation facility in Hamilton, where he set a fire (in 2008). He was transferred to a facility in Hastings where he set a further fire (in 2009) while awaiting trial. He reported that this offending was an expression of his frustration at being forced to reside at a rehabilitation facility.

[10]   Mr Bulman was sentenced to community detention at his mother’s house, and subsequently went flatting independently. It appears that things generally went well for Mr Bulman in his flat over the following six years. But over time, oversight had fallen away as relevant agencies presumed that support was no longer required.

2      Ms Ratlidge says age 12, but Mr Waide and Ms Reader say age 9.

[11]Mr Bulman’s complex needs arising from the combination of his Tourette’s

and brain injury are discussed in more detail in the reports I set out below.

Reports prior to sentencing

[12]   Initial reports found Mr Bulman fit to plead and without a defence of  insanity. A further report was directed under s 38(1)(c) and (2)(b) of the Criminal Procedure (Mentally Impaired Persons) Act 2003.

Psychologist report (25 April)

[13]   This  was  provided  by  Ms  Reader  on  25  April  2017.  She  noted  that  Mr Bulman presented as amiable, friendly and cooperative. He appeared relaxed and had good focus and attention.

[14]   Mr Bulman agreed with the Summary of Facts and indicated he had initially tried to stop himself committing the offence by going to the ACC offices in Palmerston North and asking to speak to his case manager. He was told to leave a message and that his case manager would contact him. He then ruminated for some time about how to stop his intrusive thoughts. Having been remanded in custody for a prior arson offence, Mr Bulman viewed this as his only option for keeping himself and others safe. He indicated he had no intention of harming others and nor did he gain any enjoyment or arousal from setting the fire. He also did not anticipate a long sentence, having been released after 10 days on the previous occasion.

[15]   He had attempted suicide four times, in 2005, 2006, 2008 and 2009. Collateral information suggested this was precipitated by his parent’s separation and his placement in the rehabilitation facility, which resulted low mood and distress. He had seen a psychologist while in the rehabilitation facility to assist with managing and reducing inappropriate behaviours, but could not recall this. Mr Bulman had been prescribed Quetiapine while in prison, which had been effective at helping him sleep. He advised that he was “happy” most days and had not experienced suicidal ideation since 2010.

[16]   Mr Bulman had had difficulties relating to others at the rehabilitation centres. He said he would “rather die” than be returned to such a centre. He had also struggled to maintain relationships with staff because he did not like being told what to do, and was bored and frustrated by the lack of meaningful activity during the day. He continues to struggle to form close relationships and has maintained a limited social network.

[17]   Mr Bulman was unable to work following his brain injury. He said he would like to gain employment, and would like more activity during the day as a distraction from excessive rumination.

[18]   An assessment in 2009 of Mr Bulman’s intellectual functioning found he was within the borderline range and therefore would not meet the criteria for intellectual disability. He also had extremely low adaptive functioning. He experiences tension reduction and satisfaction from engaging in antisocial behaviour, which positively reinforces this behaviour. His offending was a means of communicating distress rather than a desire to engage in anti-social behaviour or harm others.

[19]   Ms Reader then noted that Mr Bulman was unlikely to reduce his risk of re- offending, including possible sexually motivated offending, unless he engages very closely with a psychologist over a long period of time in an intensive way.  She  noted that this would likely be best achieved in a supported living environment  rather than in prison, and that in prison his access to treatment would be limited due to his complex needs. He would also be vulnerable while in prison. She said that careful liaison would be necessary between Mr Bulman, his family and any individuals involved in his care including ACC. He was highly motivated to engage in treatment, and presented as remorseful in relation to the arson.

[20]   That said, Mr Bulman advised Ms Reader that he was now well-settled into prison life and was coping well with the environment. After initial difficulties he  had found a group of inmates who were “looking after him”.

[21]Ms Reader’s recommendations were that:

(a)he receive intensive psychological intervention, whether in custody or in the community;

(b)he attend a WellStop programme in relation to his inappropriate  sexual thoughts;

(c)he receive a high level of vocational and residential support in the community, perhaps through a supported living placement, and that there is liaison with ACC and other agencies for this; and

(d)her report be sent to any future treatment provider.

PAC report (31 March)

[22]   The PAC report assessed Mr Bulman as at medium risk of reoffending and high risk of harm to others. Imprisonment was recommended. In a further memorandum, the probation officer wrote that home detention was not appropriate, both because of a lack of suitable address (his flat suffered smoke damage as a result of the fire and was uninhabitable) and because of his likely difficulties complying.

District Court decision

[23]   Judge Rowe noted Mr Bulman’s early guilty plea; his convictions for wilfully setting a fire in a way that endangers life in 2008 and 2009 (he was sentenced to community detention on both occasions); his brain injury, Tourettes, and borderline intellectual functioning. He then discussed the psychological and PAC reports which I have set out above.

[24]Turning to starting point, the Judge listed the relevant factors as:

(a)he broke into premises to set them on fire;

(b)the offence was premeditated to some extent, as he broke in for that purpose;

(c)the arson was a determined effort, as he set fire to the curtains throughout the flat, including the final curtain in the window he climbed in and out of (by leaning back in);

(d)the offence cause a high degree of damage and distress;

(e)the fire posed some risk to the adjoining flats, although he knew the flat was unoccupied and he did not intend to risk the safety of others; and

(f)his motivation arose from a disordered thought process.

[25]   The Judge noted the starting point range of three to five years in Erickson v R3 and Howarth v R.4 As the offending was at the bottom end of the range, he adopted a starting point of three years.

[26]He then uplifted by four months for the two previous convictions.

[27]   Turning to personal mitigating factors, the Judge noted the Court of Appeal’s decision in E v R where the Court said that a mental disorder short of insanity can be mitigating because it moderates culpability.5 Conversely, it may also affect the risk  of a repetition of offending. Similar comments were made in R v Lucas-Edmonds.6  In that case, the Court of Appeal looked at the case as a whole and upheld a discount of one third for both diminished responsibility and the guilty plea. Judge Rowe considered the same approach was appropriate in the present case, and reduced the starting point by 14 months, bringing the sentence to 26 months.

[28]  

The Judge then turned to whether he could instead impose intensive supervision, as Mr Winter urged. Mr Winter submitted that intensive supervision would be the least restrictive sentence appropriate in the circumstances, and also that prison would be disproportionately severe. The Crown submitted that his ongoing risk was too high for that to be appropriate.

3      Erickson v R [2012] NZCA 449.

4      Howarth v R [2010] NZCA 523.

5      E (CA689/10) v R [2010] NZCA 13, (2011) 25 CRNZ 411.

6      R v Lucas-Edmonds [2009] NZCA 193, [2009] 3 NZLR 493.

[29]The Judge then said:

[37] This is a very difficult case Mr Bulman.  Where I come  to  is that, while there is a blueprint for a future plan but as yet no firm plan, that you need to receive intensive psychological help followed by a managed transition into supervised residential care, but that is yet to come to fruition, my priority today is to protect the public. That is my paramount concern today.

[30]The Judge declined “with regret” to impose intensive supervision, but urged

the Parole Board to carefully review the psychological report and its suggestions.

Further reports

[31]   In response to my minute I received four further reports: a neuropsychological report, an ACC supported needs assessment, a Corrections psychological report, and an updated PAC report.

Neuropsychological report (31 October)

[32]   Mr Waide set out Mr Bulman’s history, noting he was thoughtful and friendly but at times overly familiar and disinhibited, with social boundary difficulties. He was reported to have made inappropriate sexual advances or comments to support workers and clinicians. He described spending up to half his time watching porn while flatting. He also reported a sexual relationship with a flatmate. He was vulnerable to manipulation and being easily influenced by others; for example he self-harmed during a relationship with a mental health patient but this behaviour ceased after the relationship stopped.

[33]   Mr Bulman reported to Mr Waide that prison had helped to simplify his life and that he was socialising well with fellow inmates and staff. He said he liked  being in prison and reported making a number of friendships, whereas outside he only had acquaintances. He said the other inmates teased him good-naturedly about his Tourette’s Syndrome, and they would talk about why they were in prison. When asked what he would do on release, Mr Bulman said he would get a basic plan for  his phone so he could not look up pornography. He said he had “strong urges” to  “go do something to a girl” with no specific person in mind. He indicated it was  safer for him in prison. He also reported an episode of sexual activity with a 12 year

old when he was 18. It involved oral sex and Mr Bulman described it as consensual. He said his arson offence was driven by his concern that he would otherwise commit sexual offending, but that he now had a better sense of “right and wrong”.

[34]   During the assessment, Mr Waide noted Mr Bulman’s tic behaviours, disinhibition, lewd thoughts, sudden intrusive thoughts and paranoia. He was quick to give up on tests when he encountered difficulty. Mr Waide  undertook psychometric testing, and set out the test results in detail, noting significantly impaired memory, impaired visuomotor processing speed and difficulty with planning and organisation. However, interpretation was difficult because, for example, although his memory profile indicated significantly impaired attention, measures of effort on these tasks were low, and he displayed intact attention span on tasks that were not explicitly memory focussed. He displayed difficulties with inhibition responses and planning and organising information, but was “surprisingly effective” at grasping abstract concepts and utilising feedback to shift his approach.

[35]   In summary, Mr Bulman’s IQ was close to the range for intellectual impairment, but he could not be diagnosed with an intellectual disability because at least some of his impairment was caused by his brain injury after age 18.7 However, Mr Waide said, he was functioning in the range of a mild intellectual disability, and his supports should reflect this while also taking into account specific brain injury sequalae and pre-morbid developmental/psychiatric factors such as his Tourette’s Syndrome.

[36]  

In addition to both the brain injury and the Tourette’s, Mr Waide noted that there is evidence of overlaying personality features contributing to his difficulties. He noted that it appears that it is easier for Mr Bulman to cite cognitive difficulties and Tourette’s symptoms as justifications not to attempt tasks, leading to limited initiation and sense of purpose and as well minimal sense of personal responsibility. Most concerning, he said, was the sense that Mr Bulman is now strongly identifying with other offenders, and has developed friendships with inmates and relationships with staff. He appears more comfortable with his identity inside prison and there is a strong risk of future offending to maintain this identity. In addition, the routine and

7      This appears to be incorrect – his brain injury occured when he was 16.

structure of prison may be more comfortable for him than life on the outside. His history of offending increases this risk, and his talk of desire to sexually offend is “particularly concerning”.

[37]   Accordingly, Mr Waide identified the need for Mr Bulman to be quickly linked to a pro-social network, in order to develop an identity based neither on his offending nor his brain injury. Mr Bulman has expressed a dislike of residential settings, but this would minimise isolation, decrease the risk of contact with other offenders, and provide supervision and daily support. He needed a daily activity programme to keep him busy and engaged, while managing his fatigue. Activities could  involve  engagement  with  Menzshed  or  the  SPCA.  It   would  increase   Mr Bulman’s buy-in if the activity programme could be framed as a parole requirement for criminal rehabilitation rather than related to his brain injury.

[38]   Mr Waide also recommended a referral to the Department of Corrections’ Psychology Service, physiotherapy, occupational therapy, and an ACC “life coach”. A referral for further Behavioural Support Service input was strongly recommended as a means of coordinating these different providers to ensure a cohesive service.   Mr Waide’s final comment was that Mr Bulman’s risk of offending had potentially increased rather than decreased as a result of his prison sentence so it would be crucial to put in place intensive services on his release.

ACC support needs assessment (3 November)

[39]   This is a lengthy report that goes through Mr Bulman’s needs in great detail. As well as physical difficulties resulting from the brain injury, he has difficulty managing his mood, thoughts and behaviour, resulting in suicide attempts, concerning behaviour and (now) incarceration. This necessitates a level of support that Mr Bulman is not always willing to accept. He enjoys social contact which is sensitive to his needs, but is vulnerable to exploitation. His cognitive impairment  has impacted his communication, memory, problem solving, processing speed and executive functioning. He needed support to initiate, plan and sustain meaningful activities, access to specialised service, and oversight and monitoring.

[40]   Mr Bulman was aware of the safety issues with some of his actions; however, his impulsiveness and dangerous behaviours persisted. He was concerned about his sexually inappropriate behaviour and appalled by his thoughts, but was unable to articulate how he would curb them. The writer noted an unreported incident of sexually inappropriate interaction with a minor, involving oral sex, when Mr Bulman was 18. He indicated it was consensual. Mr Bulman admitted his congoing concern with his obsessional behaviour.

[41]   The writer noted it was clear that Mr Bulman was “not amenable” to residential placement, this having led to two incidents of arson in the past. He was not acquiescent to support or assistance beyond what he deemed necessary, but when support and monitoring had decreased in the past, his behaviour had become more concerning. Accordingly, the manner in which assistance was pitched would determine its success. The writer recommended placement in a residential service within a satellite dwelling where he could be supervised, allowing him to access domestic support, supervision, social interaction and activities, but with a degree of independence. Compulsory residential care could be included as a release condition from Corrections, rather than being affiliated with brain injury services.

[42]   Mr Bulman said he had enjoyed some of the social opportunities the prison environment provided. He reported that he was “comfortable” in prison, and recognised he was socially isolated in the community. He needed regular positive social encounters and support to establish and grow relationships.

[43]   Mr Bulman had engaged in work since the accident but was not able to sustain it. He would require assistance to do so. The writer  recommended  immediate engagement in vocational activities that would give him structure, routine, social support and a sense of belonging.

[44]   The writer then noted activities that would assist Mr Bulman’s independence, though he would require support to initiate and maintain engagement with them. They included: routine domestic tasks; correspondence; activities such as at a community garden, the SPCA or Riding for the Disabled; sports, the Green Prescription Programme, meetups, or Manzshed.

[45]   As to funded services, the writer suggested residential care on release from prison, alongside the following:

(a)multi-disciplinary behavioural support, including clinical psychology, physiotherapy, occupational therapy and social work;

(b)vocational activities, noting this would depend how it was pitched to him (as he was not interested in accessing services for people with brain injuries); a service with social contacts, regular activities and access to resources was recommended;

(c)regular psychiatry reviews, supported needs assessments and regular monitoring of concerning behaviour;

(d)medication: he would require support to set up a routine of attending his GP, collecting scripts and taking medication;

(e)Wellstop: who could support Mr Bulman to apply strategies to encourage healthy and respectful thinking;

(f)a review of his crisis management plan, through the behaviourally focussed programme in consultation with Wellstop; and

(g)a collaborative approach between ACC and Corrections: ACC would require access to his psychological reports from the Department.

Corrections Psychologist report (10 November)

[46]   Ms Ratlidge saw Mr Bulman on four occasions in October for a total of four and a half hours. She found him polite and cooperative, answering all questions and offering spontaneous information. He presented with noticeable impairment  in motor functioning and demonstrated motor and phonic tics, which were more prominent when discussing difficult or uncomfortable topics. His short-term  memory impairment was also evident, as his reporting of recent behaviours and events was inconsistent between appointments. However, his thought processes

were clear and logical, with no evidence perceptual disturbances. Nor did he display any symptoms of mood disorder or report thoughts of suicide, self-harm, or harm to others.

[47]   During the assessment, Mr Bulman again disclosed the offending against an unknown 12 year old girl when he was 18. He implausibly reported that it was consensual – further evidence, Ms Ratlidge said, of his impaired functioning. This offending had been disclosed to prison staff, who informed police. Mr Bulman reported that since his brain injury in 2000, he has experienced intrusive sexually deviant thoughts about girls aged between seven and nine, which have become more intense over time. He said these are distressing and he does not want to act on them.

[48]   Mr Bulman’s parents separated following the accident, which Mr Bulman found difficult to process emotionally. He attempted suicide by overdose. He reported that he was pleased that the attempt was unsuccessful. While only reporting one attempt to Ms Ratlidge, she noted that Ms Reader’s assessment recorded four other attempts.

[49]   Mr Bulman reported that during the time he lived independently, he experienced an increase in his deviant sexual thoughts. Since his imprisonment, he reported a decrease, although his reporting as to frequency was inconsistent. He stated that he no longer became aroused when seeing young girls on television, and instead described a feeling of comfort. When asked to elaborate this feeling, he said it was “fatherly” but was unable to elaborate further.

[50]   Mr Bulman reported that prison was a relatively positive experience, and file notes recorded that he is a compliant and polite prisoner. Early concerns regarding bullying appeared to have subsided.

[51]   Ms Ratlidge undertook a cognitive assessment. She said that Mr Bulman put in good effort and his overall score was in the extremely low range. His memory  and attention were in the extremely low range (suggesting that his memory deficits relate to the encoding of information rather than ability to learn). He had relative strength in visuospatial/constructional ability where he performed above average.

His score on the language index was borderline; however his language difficulties were exacerbated by his Tourette’s syndrome.

[52]   On another test, Mr Bulman’s results indicated impaired functioning in tasks requiring self-regulation, switching, inhibition, attention, planning and organisation. He demonstrated relative strength on a task requiring concept formation initiation of problem solving behaviour, learning, and flexibility of thinking. He had completed some similar tests within the same week of this assessment, but did not appear to remember it; however on one occasion he reported remembering a task from three or four years ago. Despite the proximity, his scores were similar on both assessments.

[53]   The tests indicated, Ms Ratlidge said, that if Mr Bulman engaged in treatment he would have difficulty attending to material and maintaining focus, particularly in a group environment. And he would have difficulty recalling and therefore utilising learnings in the future. However, there was some evidence of an ability to learn and apply rules and concepts suggesting he may benefit from treatment. Any skills developed would need support from external agencies.

[54]   Mr Bulman openly discussed his offending and expressed remorse, saying he did not believe he had any other options at the time. His account of the events precipitating the offending had remained consistent. He said his thoughts had become increasingly intrusive and his attempts to get help were unsuccessful. He  had spent about 10 days on remand following previous arson offences, so concluded that setting a fire would be a good strategy to remove himself from the community and get support. He said he had no intention to cause harm to anyone because he knew it was unoccupied, and felt relieved when taken into custody.

[55]   Ms Ratlidge noted that the offending demonstrated some capacity to problem-solve and that Mr Bulman expressed a clear desire to get support so as to not reoffend. She considered him to be at moderate/low risk of reoffending. She noted that further offending would likely follow a similar pattern. She also noted  that given his desire to develop an identity not associated with his brain injury, and his relatively positive experiences of prison, he may reoffend in order to return to

prison. Accordingly, he needed support to develop a pro-social identity not associated with his brain injury.

[56]   She recommended that Mr Bulman be assessed by Wellstop, and that if he met their criteria, that he participate in an individual treatment programme. Alternatively, he could engage in treatment with a Corrections psychologist, in prison or in the community. In the community, he would need support from his Probation Officer and ACC case manager to build an identity not associated with his brain injury; for example, by engaging in volunteer work. Finally, she recommended that a support person is with him to remind him of any information he has been  given and provide him an opportunity to express both deviant thoughts and day to day frustrations.

Updated PAC report (17 November)

[57]   The PAC report noted that Mr Bulman would be best supported “once the optimum supported living in a structured environment can be achieved”. The writer proposed a period of three months from January 2018 for final assessments and referrals to appropriate supported living accommodation providers and programmes. Mr Bulman could then be released to such a provider.

[58]   The writer notes the above reports, and that they identify that intensive intervention and services are required to support Mr Bulman in the community. Routine, support and structure have had a beneficial impact on his behaviour; while social isolation has increased his risk of ruminating on sexually inappropriate thoughts and thus reoffending. A supported residential programme would provide  the necessary supervision, support and treatment.

[59]   The writer noted that ACC would require a period of time to implement a transitional programme. The Behavioural Support Service would provide a central point for liaising with multiple services. A residential programme was available in Auckland. A three month period from January 2018 would allow for placement and supports to be put in place.

Appellant’s submissions

[60]In his initial submissions Mr Winter submitted that:

(a)the overall sentence was manifestly excessive when considered on ordinary sentencing principles; and

(b)the Judge erred in holding that a sentence of imprisonment was required in the interests of community safety, and in declining therefore to depart from the conventional principles.

[61]   As to the first point, the Judge followed Lucas-Edmonds in discounting (in total, including guilty plea) by one third from the starting point. Mr Winter  submitted that the case does not suggest that there is a “ceiling” of one third in cases like this. In E v R, discounts in excess of 50 per cent were applied. Mr Winter accordingly submitted, in line with that case, that the following discounts were available: eight months for mental disorder, four months for remorse, and eight for guilty plea. That would result in a sentence of 21 months.

[62]   Turning to the second point, Mr Winter again noted E v R, for the proposition that once a sentence is arrived at, the Court must still stand back and assess if it is correct. The comments and recommendations in Ms Reader’s report suggested the best prospects for effective management of Mr Bulman’s difficulties are outside of prison. This was accordingly one of the “rare” cases identified in E v R where it is appropriate to depart from conventional principles. Intensive supervision should be imposed instead of imprisonment.

[63]   In further submissions filed after the reports were received, Mr Winter notes that the reports are consistent identifying the need for a coordinated approach by a range of therapeutic providers, and for Mr Bulman to be placed in supervised residential care. Mr Winter notes that Mr Bulman needs to spend more time in custody while the “nuts and bolts” of such a plan are put in place.

[64]   He maintains that the Judge erred in imposing imprisonment; as the blue print for the best option for community protection – structured support and monitoring in

the community – was already identified in Ms Reader’s report. In addition, there is now a further identified risk in Mr Bulman’s prolonged incarceration, namely that he is comfortable in prison and so imprisonment is unlikely to discourage him from further offending. However, Mr Winter concedes that Mr Bulman could not have been released from custody immediately on sentencing and nor could he be now.

Respondent’s submissions

[65]   Ms Cooke submitted that, in terms of Lucas-Edmonds, more than a total one third discount for mental health would result in the unjustified diminution of the  need to consider public risk. And on the conventional approach of discounting first for mitigating factors and for guilty plea as the discrete final stage, there was a discount of around 13 per cent for mental health issues; a figure which is consistent with the cases discussed in E v R. On either analysis, no error has occurred.  She  also submitted there should not be a discount for remorse.

[66]   Finally, Ms Cooke submitted that a sentence of home detention or intensive supervision would only have been available if the Judge had determined that a short- term prison sentence was otherwise appropriate, which was not the case here. In any event, the need to ensure public safety and absence of a plan to manage Mr Bulman’s mental health would still have indicated that imprisonment was appropriate. And  this is not a case, she submitted, where imprisonment was weighing more heavily on Mr Bulman because of his mental health.

[67]   In her further submissions, Ms Cooke maintains her position that the sentence was not manifestly excessive. The recent reports are consistent with Ms Reader’s report and confirm that imprisonment was appropriate, and the Judge was correct to decide that Mr Bulman’s release would be most safely managed by the Parole Board.

[68]   Finally, Ms Cooke notes that there is no provision in the Sentencing Act allowing leave to apply for substitution of imprisonment with intensive supervision (as there is in respect of home detention in s 80I). Accordingly, it is unclear under what provision Mr Bulman could remain in prison while arrangements were put in place for his release. Mr Bulman is now eligible for parole, and the Parole Board  can safely manage his release.

Analysis

[69]   Judge Rowe was correct in identifying that this is a “very difficult” case, and the further information I have received has not made it any easier. Mr Bulman is comfortable and safer in prison but his imprisonment has the potential to compromise his ability to develop pro-social abilities on his inevitable release.

[70]   Mr Winter accepts that it would be inappropriate to release Mr Bulman now, as further work is still required on the details of the plan. And I agree with the  Crown that there is no statutory basis on which I could order that Mr Bulman in prison while a plan is developed and then order his release.

[71]   While I am not satisfied that prison is where Mr Bulman should be,  extracting him will require surgical precision. The better-calibrated tools available to the Parole Board are more suited to that task than the blunt instrument of an appeal allowed, which with the best of intentions could place Mr Bulman and the community in more danger.

[72]   The Board will have access to all the documentation provided to me and will be aware of the need for a carefully structured plan for Mr Bulman’s release. It should also be provided with a copy of this judgment. I note that the earlier he is released, the longer Mr Bulman will remain subject to release conditions. It does seem to  me  that  the  longer  these  conditions  can  apply,  the  more  successful  Mr Bulman’s rehabilitation and reintegration are likely to be. But as I have said that will be for the Parole Board.

[73]I dismiss the appeal accordingly.

Williams J

Solicitors:

WinterWoods Lawyers, Palmerston North for Appellant Crown Law, Wellington for Respondent