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Carruthers v Police

Carruthers v Police

Case [2018] NZHC 187 19 February 2018

Criminal Liability

Mental Health Assessment

Discharge Without Conviction

Mental Disorder

Proportionality

Judicial Review

Abnormal State of Mind

Specific Performance

Criminal Law

Mental Health Law

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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2017-419-77 [2018] NZHC 187

BETWEEN
SIMON DAVID CARRUTHERS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 7 February 2018

Counsel:

Appellant in person

T Needham for Respondent

Judgment:

19 February 2018

[REDACTED] JUDGMENT OF WHATA J

This judgment was delivered by me on 19 February 2018 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors: Crown Solicitors, Hamilton

CARRUTHERS v POLICE [2018] NZHC 187 [19 February 2018]

[1] Mr Carruthers pleaded guilty to one charge of unlawfully taking a child with intent to deprive a parent of a child and one charge of breaching a parenting order. He sought discharge without conviction pursuant to s106 of the Sentencing Act 2002. Judge Simon Menzies declined the application, entered the convictions, and made an order committing Mr Carruthers as a patient under s34(1)(b) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CP (MIP) Act). Mr Carruthers appeals the decision refusing the s106 discharge. Mr Carruthers was late filing his notice of appeal. However, the Police have raised no issues with this. Accordingly, leave to appeal is granted.

[2] The central issue on appeal is whether fresh evidence of Mr Carruthers mental health condition both at the time of the offending and now means that he should have been discharged without conviction.

Background

[3]Judge Menzies succinctly sets out the background, which I adopt:1

[3] The background circumstances as set out in the summary of facts describe events stemming from the making of a parenting order in October 2016 in the Wellington District Court. On Wednesday 8 December the conditions of the parenting order were varied to allow the defendant supervised contact with an approved provider with the victim.

[4] The summary describes that on Saturday 29 April 2017 at 2.00 pm the defendant was at an address on Vista Grove, Lower Hutt. This is the agreed address for supervised visits. During the visit the supervisor left the room to go to the bathroom. This left the victim alone with Mr Carruthers. At that point Mr Carruthers has taken the victim without approval and left the address. Numerous attempts were made to contact and locate both Mr Carruthers and the victim. Mr Carruthers made no attempt to contact any persons or return the victim.

[5] On 1 May 2017 Mr Carruthers and the victim were located in the rural outskirts of Whakatane. He was taken to the nearest police station by a member of the public who had concerns for his mental state and the reason for being in that location with the victim. Local police became involved and the defendant was arrested.

[6] Prior to the entry of pleas, a report was directed under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 to determine whether Mr Carruthers was fit to stand trial or whether he was insane within the meaning of the Crimes Act 1961.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Carruthers v Police

Details

AGLC: Carruthers v Police [2018] NZHC 187
Case: [2018] NZHC 187
Decision Date: 19 February 2018

CaseChat Overview and Summary

Simon David Carruthers appealed against the decision of Judge Simon Menzies to refuse his application for discharge without conviction. Mr Carruthers pleaded guilty to unlawfully taking a child with intent to deprive a parent of a child and breaching a parenting order. The District Court Judge declined the application for discharge without conviction, entered the convictions, and made an order committing Mr Carruthers as a patient under s 34(1)(b) of the Criminal Procedure (Mentally Impaired Persons) Act 2003. The central issue on appeal was whether fresh evidence of Mr Carruthers’ mental health condition both at the time of the offending and now meant that he should have been discharged without conviction. The High Court allowed the appeal, set aside the conviction, and discharged Mr Carruthers without conviction. The Court held that the consequences of the convictions were out of all proportion to the gravity of the offending given the mitigating impact of Mr Carruthers’ mental health issues at the time of the offending, and the absence of any ongoing risk to the public. The Court also found there was no evidence that publication of Mr Carruthers’ name would cause him or the victim extreme or undue hardship for the purposes of s 200(a) and (c). The Court was however prepared to redact those parts of the judgment which specifically refer to the detail of Mr Carruthers’ mental health issues. The reasons for the Court’s decision were delivered by Whata J.

Orders