Burling v Police
[2015] NZHC 2526
•14 October 2015
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2014-463-68
CRI-2014-463-69 [2015] NZHC 2526
BETWEEN JESSICA BURLING
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 13 October 2015 Counsel:
T Ellis for Appellant
C H Macklin for RespondentJudgment:
14 October 2015
JUDGMENT OF BREWER J
This judgment was delivered by me on 14 October 2015 at 11:00 am pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors: Carole Curtis (Auckland) for Appellant
Gordon Pilditch (Rotorua) for Respondent
BURLING v POLICE [2015] NZHC 2526 [14 October 2015]
Introduction
[1] Ms Burling appeals her convictions and sentence on three charges brought under s 112(2)(a) of the Telecommunications Act 2001 (“the Act”). Ms Burling pleaded guilty to those charges. The issues in this appeal revolve around Ms Burling’s mental health. As a preliminary hurdle, Ms Burling must obtain leave to appeal out of time.
Background
[2] In early October 2012, Ms Burling created a false profile in Facebook in the name of the victim who had been one of her school teachers. Ms Burling placed a number of inappropriate comments on the Facebook page as though they had been posted by the victim. The victim had the profile closed down and, following a complaint to the Police, Ms Burling was warned that a repetition could result in prosecution.
[3] Ms Burling was 19 years old at the time.
[4] In November 2012, Ms Burling created two further false profiles in the
victim’s name and these were closed down after further complaints from the victim.
[5] In March 2013, the victim discovered another false profile, this time in the
name of the victim’s mother. It was shut down at her request.
[6] Some days later, Ms Burling created yet another Facebook profile in the name of the victim. Again, inappropriate and offensive comments were posted as though made by the victim. Some of them referred to the victim’s eight year old son.
[7] The Police lost patience and brought two charges under s 112(2)(a) of the Act of “using a telephone device for the purpose of annoying by wantonly transmitting communications–sound with the intention of offending the recipient”. The maximum penalty is imprisonment for a term not exceeding three months or a fine not exceeding $2,000.
[8] The summary of facts does not specify what type of “telephone device” was
allegedly used. It might well have been a computer.
[9] Ms Burling first appeared in the District Court on these charges in April
2013. It was clear that she has mental health difficulties. Accordingly, having been seen by the Forensic Court Liaison Nurse, Ms Burling was remanded for a report under s 38(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (“CPMIP”). The report was for the purpose of assisting the Court to determine:
·the type and length of sentence that might be imposed on the defendant as part of, or as a condition of, a sentence or order;
·the nature of a requirement that the Court may impose on the defendant as part of, or as a condition of, a sentence or order.
[10] On 6 May 2013, Ms Burling, represented by Ms Cooper (who had appeared on her behalf at her two earlier appearances), entered pleas of guilty to the two charges.
[11] The s 38 report, prepared by Dr Tina Proffitt, a senior registered clinical psychologist and clinical neuropsychologist, is dated 26 June 2013.
[12] On 28 August 2013, Ms Burling appeared again in the District Court. Her counsel told the Court she would seek a discharge under s 106 of the Sentencing Act
2002. The Judge then presiding noted that the Police would be happy with an outcome whereby Ms Burling would come up for sentence if called upon.
[13] On 18 October 2013, Ms Burling’s case came before Judge CJ McGuire in the District Court at Rotorua. In a helpful Minute of 14 October 2014 setting out the chronology of events, Judge McGuire records:
18 October 2013 The matter came back before me. After discussion with Ms Burling, her mother and Ms Cooper, her counsel, it was agreed that there should be a referral to Restorative Justice and that the matter come back before the Court on 9 December 2013. At that stage, I was considering that the matter be put off for a
further six months (from 9 December 2013) pending final disposal and pending final consideration of the s 106 application, as I have noted on the file, “to see how she behaves”. I directed that the psychologist’s report of 6 June be released to the Restorative Justice providers, Mana Social Services.
[14] However, on 7 November 2013, Ms Burling came before Judge McGuire again. Ms Burling had again set up a false Facebook profile in the name of the victim. Ms Cooper represented Ms Burling who pleaded guilty to that third charge. Judge McGuire went immediately to sentence. The Judge’s sentencing notes are short and I set them out in full:
[1] Ms Burling, this lady that you are targeting needs a break and the reason why we put this case on, as you have colourfully said, “We keep fuckin you around” was to try and get you to stop what you are doing.
[2] Now you told me that you do not like jail. Would not the smart thing then be to do things to make sure you do not go back to jail? But you are not because you were told you were not to have alcohol and you have, on numerous occasions, and you have been tormenting this victim via Facebook. What does that leave me with, Ms Burling? [I don’t know].
[3] Just follow this with me, I have to stop you getting drunk and contacting this lady and I have failed, haven’t I? What do you think I have to do to stop you doing this? The other way I can stop you doing it is to keep you locked up, isn’t it? You agree? [Yes].
[4] On all matters today, you will be sentenced to one month in prison. That is to be followed by a six month release condition:
(a) You are not to consume alcohol or drugs.
[15] In an addendum to the sentencing notes, his Honour ordered Ms Burling not to associate with the victim for one year after her release from prison.
Issues
[16] The issues for me to decide are:
(a) Should leave be given to appeal out of time? (b) Was the appellant fit to plead?
(c) Is a computer a telephone?
(d) Was the sentence manifestly excessive?
Should leave be given to appeal out of time?
[17] Ms Cooper, who was at all times counsel for Ms Burling, did not appeal either the convictions or sentence. I do not know her reasons. Privilege has not been waived. Mr Ellis, now appearing for Ms Burling, has decided not to ask Ms Burling to waive privilege partly, as I understand it, because he is not sure of her intellectual ability to give him proper instructions on the point. However, I record that Mr Ellis has been explicit in making no criticism of Ms Cooper’s representation of Ms Burling.
[18] The case came to Mr Ellis in 2014. It was referred to him by an advocacy group promoting the interests of people with mental or intellectual disabilities. The notice of general appeal is dated 26 August 2014. The further delay in progressing the appeal has been due to Mr Ellis suffering a serious bout of ill health.
[19] I grant the application for leave to appeal out of time. I do so on an interests of justice basis. The gravamen of the appeal is the effect on the criminal process as applied to Ms Burling of her mental and intellectual status. It is argued that that status resulted in the criminal process miscarrying. This is an issue which should be explored.
Was the appellant fit to plead?
[20] Mr Ellis submits that Dr Proffitt’s report of 26 June 2013 should have prompted Judge McGuire to call for a further report under s 38(1)(a) of CPMIP to assist in determining whether Ms Burling was unfit to stand trial. In his submission, Dr Proffitt’s report raises a real concern that Ms Burling was unfit to enter her pleas of guilty and that this amounts to a ground of appeal justifying her convictions being overturned.
[21] I note that there is no new report by an expert to consider. What I have to do is look to see whether a miscarriage of justice might have occurred as a result of the Court accepting pleas of guilty by Ms Burling to the three charges she faced.
[22] Mr Ellis relies on the decision of the Court of Appeal in R v Te Moni.1 This case dealt with the procedure to be applied to determine if a defendant is unfit to stand trial.2 The issue here is different. It is whether the report which was obtained should have triggered an inquiry into fitness to stand trial.
[23] As to that, counsel are agreed that Dr Proffitt’s report, covering 23 pages, is comprehensive and exacting. The only (relatively minor) criticism Mr Ellis makes is that for part of it Dr Proffitt relied on intellectual testing of Ms Burling in 2010 when she was 17 years old. The minimum age of intellectual maturity for testing for the purpose of assessing intellectual disability under s 7 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 generally commences when a person turns 18 years. I do not have any reason to think that this criticism carries any weight in the overall circumstances of the case.
Dr Proffitt’s report
[24] Dr Proffitt reviews the extensive history Ms Burling has had with various psychological services throughout her life. The first psychological assessment report was completed in 2006 and various reports went through to January 2010. Dr Proffitt, through her observations and testing, agrees with the consistent diagnosis that Ms Burling has a mild intellectual disability. As Mr Ellis points out, the word “mild” should not be used as a synonym for “insignificant”. A person with a mild intellectual disability can have a very significant impairment in their processing of information and their ability to comprehend and communicate.
[25] Further, Ms Burling was, as long ago as 2001, diagnosed with Reactive Attachment Disorder. I will come to the relevance of this when I discuss the validity of the sentence.
[26] Dr Proffitt, based on testing done in 2006 and 2010, gave her opinion that
Ms Burling:
1 R v Te Moni [2009] NZCA 560.
2 Criminal Procedure (Mentally Impaired Persons) Act 2003, ss 9 and 14.
… falls just above the cut-off of 70 required to meet criteria for Intellectual Disability under Section 7 the IDCCR Act 2003. As such the defendant does not meet the criteria required for disposal under the IDCCR Act 2003.
[27] Under the heading “Court Proceedings”, Dr Proffitt detailed the outcome of testing specifically designed to assist in the assessment of “adjudicative competence” which Dr Proffitt clarified as “also known as competence to proceed, fitness to stand trial, etc”:
Ms Burling accurately listed her current charges and her plea as well as the date of her last court appearance. She could recall her lawyer’s name (“Aroha”) and approximately how many times they had met (“6-10”, corroborated by her mother). She provided a reasonably detailed account of her experience of the arrest process including where and when she was arrested (“December last year, on a Monday, I think it was the first week”), and she recalled having been read her “rights”.
Ms Burling’s understanding of the nature of her current charges was adequate and she demonstrated very good knowledge of her bail conditions. She stated that she had breached her bail conditions of 1) not consuming alcohol, and 2) not using facebook “a couple of times”, and her mother Mary reported this was difficult for her “to police”. Ms Burling’s friend Maria had blocked her from her facebook account, which assisted Ms Burling in keeping to one of her bail conditions of not associating with her. However, Maria continues to send text messages to Ms Burling, which she finds it difficult to not respond to as Maria was her only friend during her years at high school and Ms Burling has a desire to remain in this friendship out of “loyalty” and because she lacks other relationships with age peers. Ms Burling is aware of the range of possible punishments, listing these as a “$2000 fine and/or 3-6 months” imprisonment. Both Ms Burling and her mother were keen for her not to be given a criminal record and hoped that some other option might be possible.
Ms Burling stated that her offending has occurred partly because she is “bored” and “lonely”. In relation to the current charges she stated that she had felt “betrayed” by the complainant when she rang her mother to state that she was “doing drugs”. Ms Burling stated that prior to this she had been able to “go to her for help”, and “she’s a nice lady you know”. At other times she has been alcohol affected and in the company of others engaging in offending behaviour. In addition, having been told so many times how she has a “disability” part of her thought that being able to create fake facebook profiles made her think that she “was clever”. Ms Burling reported that she frequently got into trouble when in the company of her “friend” Maria, but that Maria is not a good friend to her because she is not “loyal” like Ms Burling herself. She indicated that she regretted her actions towards the complainant in the current matter; that her behaviour stemmed from emotional upset and rejection. She stated that harassing the complainant was “a dumb thing to do” and “I have a brain, I just don’t use it wisely”.
[28] Dr Proffitt concluded:
In relation to the current charges Ms Burling demonstrates basic adjudicative competence, albeit with the exception of being likely to have some difficulty instructing counsel and actively taking part in proceedings on account of her markedly slowed speed of information processing (i.e., performing more poorly than 99.9% of her age peers) and difficulty expressing herself clearly due to, primarily, her non-verbal intellectual skills and language comprehension deficits. Ms Burling’s intelligence scale subtest and composite scores have not changed significantly from when she was assessed in 2010. As such her initial diagnosis of mild intellectual disability is supported by the writer on the basis of the current brief neuropsychological assessment. Ms Burling can repeat facts that she has been told, however she does not necessarily make sense of the material or grasp the ‘gist’ of what is being conveyed. Anxiety is also likely to reduce her ability to sustain her concentration for lengthy periods of time, medication non-compliance is associated with notably off-task and disruptive/impulsive behaviour. Proximal factors in relation to Ms Burling’s alleged current offending include: 1) a trigger of perceived betrayal and interpersonal rejection by the complainant towards the defendant, 2) limited means with regard to effective coping mechanisms that Ms Burling could utilize to manage her distress, 3) aimless use of time and feelings of boredom, loneliness and low self-worth, 4) misuse of alcohol, primarily when in the company of non pro-social peers, 5) a resultant sense of accomplishment that is a rare, but rewarding experience for Ms Burling.
[29] Dr Proffitt went on to make recommendations as to how best to engage
Ms Burling in the Court process:
Further, she has considerable attention and processing speed and expressive language difficulties that undermine her ability to participate fully in court proceedings and to acquit herself well when questions are directed at her. I respectfully ask that the following modifications, if practicable, are made to assist Ms Burling in this [Court] should the need arise:
1. She remains in the presence of her primary caregivers at all times.
2. She is given more time than would typically be needed for the ‘average person’ to process questions and formulate her response.
3. That questions are posed to her in the simplest possible language, and if she seeks clarification, the information is repeated in an even more basic format rather than re-phrased as the latter will confuse her further.
4. That a break in proceedings be allowed should she become disorganised or inappropriate in her responses, or appear distressed. Note that elevated distress and anxiety in the defendant’s case will most likely manifest as using humour inappropriately/appearing ‘cheeky’, or becoming uncooperative or belligerent.
[30] In my view, Dr Proffitt’s report, which is one of the most thorough I have read in this area, deals sufficiently with the issue of fitness to plead and stand trial such that no further report was necessary. The report makes clear that Ms Burling
would have difficulties with the Court process but these difficulties could be addressed by modifying the Court procedure if necessary. There is no indication that she did not understand her situation or was unfit to enter her pleas of guilty. I do not consider that a miscarriage of justice occurred through the Court receiving and acting on Ms Burling’s pleas of guilty. Counsel for Ms Burling, and the Judge, were entitled to regard Dr Proffitt’s report as answering concerns that Ms Burling might not be fit to plead. This ground of appeal does not succeed.
Is a computer a telephone?
[31] This ground of appeal comes from the wording of the charge. To found a conviction, Ms Burling must have “used a telephone device”. The definition of “telephone device” is:3
Any terminal device capable of being used for transmitting or receiving any communications over a network designed for the transmission of voice frequency communication.
[32] It is clear that this definition, when read with s 112 of the Act, is directed towards the traditional telephone and by extension to mobile devices such as cellphones. There is nothing in the summary of facts to say how it was that Ms Burling accessed the internet so as to create the false Facebook profiles. Mr Ellis submits that if this was done by computer then the computer may or may not have been capable of a voice frequency communication. He submits that Ms Burling could have defended the charges on these grounds.
[33] In my view, this ground of appeal cannot succeed. Ms Burling, who was assisted by counsel, pleaded guilty to the charges. In doing so, it must be taken that she admitted the essential legal ingredients of each charge. It does not matter that the summary of facts does not specify the type of telephone device which Ms Burling used. Ms Burling did not plead guilty to the summary of facts which is no more than an outline of the prosecution’s case and which is not binding on her.
[34] As I said, privilege has not been waived and there is nothing before me to suggest that some error was made by counsel advising Ms Burling.
3 Telecommunications Act 2001, s 5.
Was the sentence manifestly excessive?
[35] The Judge sentenced Ms Burling to imprisonment because she had not stopped “tormenting” her victim and he considered that locking her up would help to achieve this. With respect, the situation called for a more considered approach. Ms Burling was not a defiant adult for whom the least restrictive sentencing option appropriate was imprisonment.
[36] Dr Proffitt’s report goes into Ms Burling’s relevant personal history in detail. Partly out of concerns for privacy and partly in the interests of brevity, I will not go through it in detail. I think it sufficient to observe that Ms Burling was born in Russia to a mother who reportedly abused alcohol during her pregnancies. She was placed in an orphanage where the conditions were such that when she was brought to New Zealand at the age of 10 months by her adoptive parents she was seriously affected both psychologically and physically. The diagnosis of Reactive Attachment Disorder accounts for effects such as socially inappropriate behaviour and an inability to control herself. Medication can help.
[37] Ms Burling, because of her mental health condition, takes longer than most to process information. As Dr Proffitt noted, elevated distress and anxiety in Ms Burling’s case will most likely manifest in the use of humour in an inappropriate way and she can appear “cheeky” or become uncooperative or belligerent. It seems that Judge McGuire encountered this behaviour, and reacted to it.
[38] Dr Proffitt gave this guidance:
It is my considered opinion that a custodial sentence is less suitable than a community sentence or lesser order as applies to the defendant given there is considerable risk of causing her further psychological harm by incarcerating her in an institution i.e., given her traumatic early experiences and recent re- traumatisation [this is a reference to a trial in which Ms Burling gave evidence as a victim]. The potential benefits of a custodial sentence e.g. temporary removal from some of the key proximal triggers of offending e.g. antisocial peers and alcohol misuse are in the writer’s opinion, far outweighed by the aforementioned risk of elevating Ms Burling’s level of psychological distress by removing from accessing her primary caregiver and placing her in a punitive situation given her longstanding disrupted attachment style. In addition, considerable improvement in Ms Burling’s
behaviour has already been achieved within the community due to the actions of her mother and other interested parties.4
Notwithstanding the above, the defendant’s continued offending behaviour is causing some nuisance and she has not yet taken full responsibility for her actions (e.g. in adhering to bail conditions) a clear consequence in the form of punishment is indicated. I believe that a fine is justifiable and the more suitable of the disposal options available to the Court in this particular set of circumstances.
[39] Dr Proffitt made recommendations as to the nature of requirements that the Court might impose on Ms Burling as part of, or as a condition of, a sentence or order. These included providing ongoing psychological intervention focused on willingness to harass others and relapse prevention. Dr Proffitt recommended exploring options for additional support, such as obtaining a farming placement for Ms Burling, and named organisations which might be able to do this.
[40] Ms Burling was a first offender. She was a young offender. Her offending was in the nature of harassment and there was a very real underlying mental health problem which diminished her responsibility. There was a need to consider the least restrictive sentencing option which would address the community’s concern at her offending and best provide for her rehabilitation. In my view, a community based sentence was clearly indicated, with supervisory conditions tailored to give effect to Dr Proffitt’s recommendations.
[41] I find that the sentence of one month’s imprisonment was manifestly excessive.
[42] Ms Burling has, of course, long ago served the sentence. I was advised by Mr Ellis that her period of imprisonment did re-traumatise her and she has had to have significant therapy as a result. Happily, she has now been placed on a farm and is working as a milker. I am told this is proving a good arrangement.
[43] I quash the sentence and convict and discharge Ms Burling on the three charges to which she pleaded guilty.
4 This last observation was, of course, made before the third incident of creating a false Facebook profile occurred.
[44] I quash also the order contained in the addendum to the sentence imposing non-association orders. Section 112 of the Sentencing Act 2002 provides that if the Court makes a non-association order, it must not at the same time impose on the
offender a sentence of imprisonment.
Brewer J
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