I v R HC New Plymouth CRI 2009-443-28

[2009] NZHC 2507

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2009-443-000028

BETWEEN  I

Appellant

ANDTHE QUEEN Respondent

Hearing:         15 December 2009

Appearances: S Hurley for the Appellant

J Gurnick for the Respondent

Judgment:      15 December 2009

ORAL JUDGMENT OF PRIESTLEY J

Solicitors:

S Hurley, 62 Powderham Street, New Plymouth

J Gurnick Auld Brewer Mazengarb & McEwen PO Box 738, New Plymouth

I V R HC NWP CRI 2009-443-000028  15 December 2009

[1]      On 28 August 2009 the appellant was tried in the District Court at New Plymouth before Judge D A Ongley.  The charge he faced was laid under s 189(2) of the Crimes Act 1961, being injuring the complainant with intent to injure.   That crime carries a maximum of five years’ imprisonment.

[2]      The appellant was convicted.  The Judge rejected the justification defence of self-defence and gave reasons for that.

[3]      Because  of  rostering  factors  Judge  Ongley was  not  able  to  sentence  the appellant.  That task was performed approximately six weeks later by Judge Roberts on 14 October 2009.   Judge Roberts adopted a two year start point.   He saw no mitigating factors.   His start point was his end point.   A two  year sentence of imprisonment was imposed.

Appeal Against Conviction

[4]      Ms Hurley has filed full submissions on instructions.   The appellant gave evidence at trial.  Evidence was also given by the complainant, Ms Pio, and by the complainant’s then partner, Mr Robyn I  , who is the appellant’s brother.  There was a video interview of the appellant which was also played to the Court.  Another bystander, Mr Noble, gave evidence, as did two police officers.   All prosecution witnesses were cross-examined.

[5]      The  appellant  also  gave  evidence  as  did  another  woman,  who  was  the appellant’s boarder and had arguably been subject to some abuse in the lead-up to the assault.

[6]      It is not necessary for me to traverse factual matters in any detail.  Suffice to say that the assault took place as a culmination of an alcohol-fuelled disagreement involving all participants that evening at various addresses in Waitara.

[7]      The Judge was faced with credibility issues.  The appellant’s evidence was that he had indeed punched the complainant two times or thereabouts.  He denied, however, that he had kicked her.  Evidence available to the prosecution, including

evidence from the complainant herself.  That suggested a much more serious assault than the appellant acknowledged.

[8]      The prosecution case was that the victim heard somebody say “hey bitch” close behind her as she is walking up a driveway.   She was then punched on the forehead, punched again by the appellant and had then fallen to the ground.  As she was lying stunned on the ground she was kicked on the left hand side of her face and head, approximately eight times.  She also received kicks in her rib cage and on her back.  The complainant gave evidence to that approximate effect.

[9]      The appellant’s evidence was to the contrary.  Although, as I have said, he admitted to two punches, he denied that he was physically able to kick the complainant because he had gout and was thus unable, so he said, to stand on one leg.  The appellant in his evidence, and indeed in his interview, was concerned about some garden cabbages which were broken as the complainant fell to the ground.

[10]     Photographs taken of the complainant shortly after the assault, although by no means conclusive, tend to corroborate the complainant’s story.   There are photographs of facial bruising, bruising on her chin, a deep abrasion and other lesser abrasions on her left cheek and in the area of her cheek bone, and bruises on her back, forehead, under her chin, and on her side.

[11]     The Judge rejected self-defence.   His reasons are recorded.   He appears to have accepted that there was enough evidence of aggression on the complainant’s part to suggest that she herself may have offered some physical aggression.  He said:

“There is enough evidence to raise the reasonable doubt that there was a situation in which there was cause for self defence at some level.”

He also said that:

”A punch would have been on the borderline, could hardly have been justified, but might carry the benefit of the doubt.”

[12]     I am slightly puzzled as to why the Judge expressed matters that way.  It is, of course, the job of the prosecution where self defence is raised, to exclude self defence beyond reasonable doubt.  Possibly that is what the Judge had in mind.

[13]     The first component of the defence is whether force was used for the purpose of defence of either the appellant or, in this case, his flatmate Ms Reid.  The second inquiry must be into what the circumstances (subjectively) were as the appellant believed them to be.   The third, and frequently critical issue, is whether the force used was reasonable in all the circumstances.

[14]     The Judge’s inquiry was one of mixed law and fact.  Faced as he was with competing  versions  of  events  he  has  clearly  preferred  the  evidence  of  the complainant and other prosecution witnesses to the evidence of the appellant.  It is abundantly clear that, having preferred the prosecution evidence the Judge was of the view that the assault on the complainant was much more extensive than the appellant admitted at trial.  It was the third aspect, of reasonable or proportionate force, which led the Judge to his conclusion that the self-defence was not available.

[15]     Ms Hurley’s comprehensive submissions traverse the evidence and point to a number of incidents earlier than the assault, such as an assault on Mr Robyn I  , damage to a motor vehicle, threats, and matters of that kind.   Nonetheless, even though I accept that the ultimate assault may have been a culmination of long drawn out events that evening, the Judge’s exclusion of self defence cannot, in the circumstances, be faulted.

[16]     Ms Hurley candidly accepts that the sole issue on the conviction appeal is whether or not the Judge was correct in excluding self-defence.  Having examined the matter I am satisfied the Judge’s conclusion was open to him.

[17]     Accordingly the appeal against conviction fails.

Appeal Against Sentence

[18]     The appeal against sentence is more problematic.  Judge Roberts had before him a pre-sentence report.   He was sufficiently concerned about what he read to specifically draw relevant portions of that report to the attention of the Department of Corrections.

[19]     The first portion is contained in the second paragraph of the pre-sentence report.  The appellant reported serious mental health issues.  He told the Probation Officer that he had been diagnosed as a delusional schizophrenic some years ago and was  managing  his  health  with  assistance  from  Te  Puna  Waiora.    His  mental condition is apparently controlled by fortnightly injection.   The appellant has had some professional relationship with a psychologist, Ms Ester Pagania, whom he sees on a regular basis.  Ms Pagania apparently informed the Probation Officer that the appellant was “severely delusional about many issues, but men in particular”.  In Ms Pagania’s opinion, placing the appellant in prison with other men heightened the risk of violence on his part, and him re-offending by assaulting other inmates.

[20]     The last paragraph of the pre-sentence report is the second portion and says this:

“Mr I   has been strongly advised that given the serious violence within his current offending, the Court may impose a sentence of imprisonment.  He accepts this as highly likely.   It is considered by CPPS that any management of Mr I   in the community would place others, especially those in authoritative positions, at risk.  The prison service would be able to provide Mr I   with a secure segregated unit that would allow his condition to be managed appropriately via the forensic health nurse for prisons”.

[21]     Two issues arise.   The first is a matter of management of the appellant in prison.  This is not really a concern of the Court on a sentence appeal.  However, some updating information may be relevant, particularly when considering the merits or otherwise of the sentence appeal.   I am told by Ms Hurley that, if indeed the Corrections Service had plans to transfer the appellant to some secure unit so his mental health can be monitored and appropriately treated, this is yet to occur.

[22]     I would thus be grateful if the manager of the New Plymouth Prison where the Appellant is currently incarcerated, could provide to the Crown (to be copied in turn to the Court and to Ms Hurley) a brief report covering first, whether there are any special arrangements in terms of segregation, treatment or otherwise for the appellant in prison at the moment, and secondly, whether there is any management plan to transfer him in the near future to some form of segregated unit as seems to have been the assumption made by the Probation Officer.

[23]     The second issue arising out of those comments in the pre-sentence report relates to s 9(2)(e) of the Sentencing Act.  There is ample Court of Appeal authority for the proposition that when a person offends as a result, causal or otherwise, of some form of mental illness or diminished intellectual capacity or understanding, then such diminished intellectual capacity can be properly regarded as a mitigating factor.  It reduces culpability.

[24]     Even if there is no such diminished intellectual capacity mitigating factor available, clearly the mental health of a prisoner is a relevant factor for the Court to consider in crafting the appropriate sentence.   In this particular case there is some evidence which suggest that the appellant’s mental state (assuming that he has correctly reported it to the Probation Service) might make imprisonment for him more difficult than would otherwise be the case.  That is a factor which can be given some (usually light) weight by a sentencing court.

[25]     Unfortunately - and there is no criticism of counsel in this - although Ms Hurley arranged for the appellant to be examined by a forensic nurse immediately after he had been sentenced and before he left the court house, there was no attempt made either by the Court or by counsel to investigate more thoroughly the two portions of the pre-sentence report to which I have referred.

[26]     Section 38(1)(c) of the Criminal Procedure (Mentally Impaired Persons) Act

2003 empowers the Court to order an assessment report from a health assessor to assist in the area of the type and length of a sentence which might be imposed.

[27]     I therefore direct that there is to be an assessment report by a person with special expert knowledge in the field of psychiatry or psychology on the appellant. That report should be in general terms, but in particular should advise:

a)        The nature and extent of the appellant’s current psychiatric health and/or mental health.

b)        Whether any disorder is being treated and, if so, for how long.

c)       Whether any such disorder was operating at the time of the offending (26  March  2009).     In  that  regard  I  note  that  the  self-reported difficulties  of  the  apellant  are  aggressive  responses  towards  other men.  It is significant here that his victim was not male but female.

d)Whether the appellant’s mental health or disorder could appropriately be managed in a home detention situation and/or in a prison environment.

[28]     Counsel are directed to confer on the names of two suitably qualified health professionals and submit a memorandum, at which point I shall issue a minute specifying one of those two professionals to prepare the report in terms of what is contained in this judgment.  It is possible counsel may agree on Dr Peter Dean.

[29]     Such report should be made available to the court, who in turn should release it to counsel no later than 19 February 2010.

[30]     The written consent of the appellant is to be obtained to permit the health assessor to have access to his previous medical and psychological records, and of course to interview him.

[31]     On that basis I adjourn the determination of the sentence appeal.  I shall need to come back to New Plymouth at a suitable time to rehear and resolve the sentence appeal.

......................................

Priestley J