Jasmine v Police

[2017] NZHC 2861

NOTE: PURSUANT TO S 130 OF THE INTELLECTUAL DISABILITY (COMPULSORY CARE AND REHABILITATION) ACT 2003, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980.  FOR FURTHER INFORMATION, PLEASE SEE US/ABOUT-THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON- PUBLISHING-JUDGMENTS.

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2017-416-18 [2017] NZHC 2861

BETWEEN

JASMINE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	7 November 2017
Appearances:	S Taylor and B Shackell for the Appellant C Stuart for the Respondent
Judgment:	21 November 2017

JUDGMENT OF CULL J

[1]      Jasmine1  pleaded guilty to nine charges of contravening a restraining order.2

On 5 September 2017, Judge Raumati sentenced Jasmine and made an order under s

34(1)(b)(ii) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP Act) that Jasmine be cared for as a care recipient for three years.3  A compulsory care

1      The name of the appellant has been changed in accordance with ss 11B to 11D of the Family

Courts Act 1980.

2      Harassment Act 1997, s 25(1)(b).  Maximum penalty is six months’ imprisonment or a fine not exceeding $5,000.

3      New Zealand Police v [Jasmine] [2017] NZDC 20100.

JASMINE v NEW ZEALAND POLICE [2017] NZHC 2861 [21 November 2017]

order   was   made   under   the   Intellectual   Disability   (Compulsory   Care   and

Rehabilitation) Act 2003 (IDCCR Act).

[2]      Jasmine appeals the length of the care order made, but not the order itself. Jasmine appeals this on the grounds the Judge did not consider all relevant factors (including the psychologist’s recommended term of two years); he failed to make any adjustment for time spent in custody on remand; and the length of the order is manifestly excessive.

[3]      The Crown opposes the appeal and submits the maximum term was appropriate in the circumstances.  Further, an order made pursuant to s 34(1)(b)(ii) of the CPMIP Act is a therapeutic disposal of a criminal offence, imposed as an alternative to passing a sentence. Accordingly, an adjustment to the length of the order to offset time spent in custody inappropriately fuses these different purposes.

Factual background

[4]      In 2013 Jasmine, aged 44 at the time, became fixated with the victim when he was 16 years of age.  She had never met the victim personally but became aware of his status as an achieving young sportsman.  She was aware of his success by reading the newspaper and seeing various posts on Facebook.

[5]      Over a period of three years Jasmine constantly sent letters to the victim’s home address; phoned his family home; contacted him, his family and friends through Facebook; attended public sporting events where he had been; approached him; waited on school routes home to talk to him and other random students; has attended sports practices seeking out the victim; posted photographs; made lewd and sexual comments on Facebook; and contacted various sporting organisations, stores and clubs around New Zealand in an effort to contact the victim.

[6]      After attempting to stop Jasmine’s behaviour by other means, the victim’s family complained to police and Jasmine was arrested in October 2016. She convicted of a representative charge of criminal harassment and a non-association order was imposed to prohibit contact for 12 months.

[7]      On 6 January 2017, Jasmine was arrested and charged with four breaches of the non-association order for her continued contact with the victim and his family. Jasmine was sentenced to a term of 28 days’ imprisonment.

[8]      On 20 January 2017, Jasmine was served with a restraining order under the Harassment Act 1997 to protect the victim and his immediate family members.  The present offending occurred after this restraining order was imposed.

[9]      While  Jasmine  was  serving  her  sentence  at Auckland  Region  Women’s Corrections Facility in January and February 2017, she arranged for Chrisco catalogues to be delivered to the victim’s home. Contact was made with the company to cancel the order and it was advised that it had been initiated by Jasmine from within prison.

[10]     Between 21 February and 25 June 2017, Jasmine posted ongoing and continual public messages and comments in various public forums mentioning the victim.  Due to the concerning and inappropriate nature of the comments the victim was regularly contacted by members of the community in New Zealand and overseas advising him of the things Jasmine was saying about him.  These included statements that she is in a relationship with the victim and it is of a sexual nature.  At one point, Jasmine was operating at least six different Facebook profiles.

[11]     Jasmine has also made contact with Triathlon New Zealand and left voice messages where she has named herself as the caller and tried to get in contact with the victim and his family.  She was trying to invite the victim and his family to her 48th birthday party.   She also commented that the police officer involved in the investigation should not be contacted because she did not want her to know and this would get Jasmine in trouble.

[12]     While at Gisborne Hospital, she approached a teenager wearing a Gisborne Girls’ High School uniform and enquired as to whether she knew a member of the victim’s family, whom Jasmine is also prevented from contacting.   She made inappropriate comments about the victim’s family members.

[13]     On 9 July 2017, further public posts on Facebook were made, also of an inappropriate sexual nature.

[14]     Three of the nine charges stem from events in August 2017.   The victim’s mother, also a protected person under the restraining order, received a letter from Jasmine containing sexual innuendo and statements that she would not be going to see a psychiatrist for help.   On 26 August 2017, the victim received a letter, which contained aggressive and sexual content, including sexual acts Jasmine would like to perform with the victim.  The letter made it clear Jasmine would not desist from her pursuit of the victim.  On the same day, the victim’s mother received another letter from Jasmine which was accusatory and aggressive, setting out all the things she was going to do in Gisborne when she returned.

[15]     After four years of this behaviour and repeated attempts at intervention, the victim and his family believe that Jasmine’s actions will not stop.  Her actions have impacted their lives significantly, causing stress and fear for all of them.

Psychological report under s 35 of the CPMIP Act

[16]     Ms Natasha Moltzen prepared a report as part of the Court’s inquiry under s 35 of the CPMIP Act to assess whether Jasmine has an intellectual disability and whether a compulsory care order was appropriate.  In her report, Ms Moltzen concluded that Jasmine meets the criteria for an intellectual disability under s 7 of the IDCCR Act. Specifically, Jasmine has a significantly sub-average general intelligence, with an IQ level of between 59 and 67.

[17]     Ms Moltzen assessed Jasmine as being at a very high risk of reoffending in the next two years, which would almost certainly involve further harassment of the victim. Civil support and criminal sanction have not deterred further offending.  Ms Moltzen concluded Jasmine requires a robust and structured compulsory care regime to manage recidivism risk.  Compulsory care was considered appropriate, as it offers very close supervision of Jasmine and provides a wrap-around programme of care and rehabilitation, specifically for her intellectual level.

[18]     Ms Moltzen concluded that a period of two years was considered a relevant time frame for addressing Jasmine’s rehabilitative needs.

District Court decision

[19]     After outlining the relevant facts as an “ongoing and relentless pursuit” of the victim,4 Judge Raumati considered the standard required under s 34 of the CPMIP Act, for the Court to order an offender be cared for as a care recipient under the IDCCR Act, instead of passing sentence. On the evidence of one or more health assessors, the Court must be satisfied that an offender’s mental impairment requires the compulsory treatment or care, either in the offender’s interest, for the safety of the public or the safety of a person or class of persons.  Further, on this evidence, the Court must also be satisfied a defendant has an intellectual disability; assessed under part 3 of the IDCCR Act; and is to receive care under a care programme completed under s 26 of that Act.

[20]     The Judge observed that he had heard from Ms Huitema, from Te Korowai- Whāriki National Intellectual Disability Care Agency, at the hearing, as well as receiving a report from Ms Natasha Moltzen, a registered clinical psychologist and a letter from Mr Dean Silver, Compulsory Care Coordinator at Te Korowai-Whāriki.

[21]     The  Judge  considered  he  was  satisfied  that  Jasmine  has  an  intellectual disability; has been appropriately assessed under the IDCCR Act; and is to receive care under a care programme.

[22]     The Judge was also satisfied that a compulsory care order was required in both the interests of Jasmine and for the safety of the victim and his family members, being the victims of the numerous serious breaches of the restraining order. The Judge made the relevant order under s 34(1)(b)(ii) of the CPMIP Act.  A provider was nominated

to undertake Jasmine’s care and the term of the order was held to be for three years.

4      [Jasmine], above n 3, at [2].

Approach to appeal

[23]     This appeal is brought under ss 244 and 250 of the Criminal Procedure Act

2011.  Section 212 of the Criminal Procedure Act specifies that, for the purpose of an appeal under that Act, a sentence is defined as including “any method of disposing of a case following conviction”, but excluding a decision on conviction for costs or suppression orders.

[24]     Counsel for Jasmine and the Crown submit that any order imposed by a Court following conviction, while in the jurisdiction of the criminal justice system, meets the definition of a sentence and can be appealed against under s 244 of the Criminal Procedure Act. This includes the care order imposed in the present case.

[25]     An appeal against sentence is an appeal against a discretion. An appeal against sentence must be allowed if the Court is satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.5  The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.6

Jasmine’s position

[26]     Counsel for Jasmine, Mr Simperingham, appeals the length of the care order made, but not the order itself.   He submits the Judge failed to consider the term recommended in Ms Moltzen’s psychological report, when setting the length of her care order.  In her report, Ms Moltzen recommended a compulsory care order for a period of two years, as this was an appropriate time frame to meet Jasmine’s rehabilitative needs and was the least restrictive option. Although the Judge took the report generally into account in sentencing, the Judge did not consider the recommendation of two years, in deciding the term of the order and gave no reasoning as to why he imposed a three-year term.

[27]     Further, Mr Simperingham submits the Judge failed to consider the time

Jasmine had spent in custody in setting the terms of the order. Jasmine had effectively

5      As confirmed in Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

6      Ripia v R [2011] NZCA 101 at [15].

served a three month sentence of imprisonment, which equates to 50 per cent of the maximum sentence of imprisonment available for this offending.7   Mr Simperingham accepts that a compulsory care order serves a rehabilitative purpose, but he contends, it must still be the least restrictive option in the circumstances.8    It should not be overlooked that imposing a compulsory care order limits Jasmine’s freedom.

[28]     Mr Simperingham submits that the fact the Judge imposed a term of three years for the order, without giving reasons for his decision, demonstrates that he did not properly take into consideration or give due weight to the report recommendation or the length of time Jasmine served in custody.

[29]     Overall, Mr Simperingham submits that the length of the order imposed was manifestly excessive. Section 37 of the CPMIP Act outlines that any order made under s 34(1)(b)(ii) of the CPMIP Act must specify the term of the order.  The maximum term of a compulsory care order is three years.9   While the order imposed was three years and therefore within the available range, Mr Simperingham submits the maximum term was manifestly excessive in this case.   The order severely limits Jasmine’s personal liberty and any order of this sort must be proportionate to the rehabilitative needs it aims to meet in light of this. Although the order can be varied or extended through the Family Court,10 Mr Simperingham asks this Court to remedy the error.

Crown’s position

[30]     The Crown opposes the appeal and submits the maximum term was appropriate in the circumstances.   The sentencing judge did not provide reasons specifically addressing the length of the order, but the Crown submits this is not unprecedented. The Crown submits the length of an order will depend on the circumstances of each case and the Court must consider the nature of the offending, the rehabilitative needs

of the person and the protection of the community.11

7      Maximum penalty is six months’ imprisonment under the Harassment Act 1997, s 25(2).

8      Citing New Zealand Police v J [2006] DCR 526 at [90].

9      Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, s 46.

10     Sections 85 and 86.

11     These factors were considered by the Court of Appeal in R v P (CA400/2008) [2008] NZCA 469 at [46]; and RIDCA Central v VM [2011] NZCA 659, [2012] 1 NZLR 641 at [59] and [68]–[72].

[31]     The Crown draws the Court’s attention to the Court of Appeal’s decision in RIDCA Central v VM to highlight relevant factors that should be considered in the present context.12   In that case, the Court considered whether an extension to a care recipient order should have been made.   The Court highlighted that the term of a compulsory care order must not be disproportionate to the need to protect the community or care recipient and that the level of intrusiveness of the order should be “the lowest necessary to achieve the required community protection.”13    The Court also noted other relevant factors include the nature of the offending, the background to the offending, the nature of the risk posed by the care recipient and whether the duration of the order is disproportionate to the nature of the offending.14   The Crown submits the principles that apply to extensions of compulsory care orders are equally applicable to orders made at first instance under s 34(1)(b).

[32]     In the present case, the Crown submits the Judge undertook a comprehensive analysis of the offending and its background. The Judge gave the psychological report and oral submissions of Ms Huitema consideration.  It was appropriate for the Judge to do so, as it helped determine the nature of the risk posed by Jasmine and the necessary level of protection for the community in future.

[33]     The Crown submits the length of the order was appropriate.  Jasmine has an entrenched behavioural pattern where she fixates on men in the same family.  The offending in this case was for a period of four years. Jasmine had previously harassed the victim’s father for many years before this. The effect of the offending on the victim has been serious.  The psychological report was clear that the likelihood of further offending was high and there were concerns that Jasmine’s behaviour could escalate and place the victim at risk of sexual assault. A three-year term allows the care facility to undertake its interventions at a slow pace, as is recommended in the report; it accounts  for  Jasmine’s  high  risk  of  reoffending;  and  protects  the  victim  from

reoffending and the identified risk of escalation.

12     RIDCA, above n 11.

13 At [59].

14     At [68]–[72].

[34]     The Crown accepts that other cases where a three-year term has been imposed involve serious physical or sexual assault.  However, the Crown submits, that what this case may lack in gravity, is offset by the fact that this offending is prolonged, persistent and pervasive.  The impact on the young victim and his family has been significant.

[35]     The Crown submits that the care coordinator may apply to cancel the order under s 84 of the IDCCR Act, in the event Jasmine rehabilitates and reduces her risk level to the extent her care coordinator no longer believes she requires compulsory care.

[36]     Further, the Crown submits that the request for an adjustment to the order for time spent on remand is misconceived.  The purpose and effect of the two types of detention are substantially different.  An order made pursuant to s 34(1)(b)(ii) of the CPMIP Act is a therapeutic disposal of a criminal offence, imposed as an alternative to passing a sentence. Accordingly, an adjustment to the length of the order to offset time spent in custody inappropriately fuses these different purposes.  Adjustments could potentially undermine treatment plans and may result in a person being released without receiving treatment, if they have been incarcerated for a long time.

Discussion

[37]   The Court of Appeal’s decision in RIDCA, provides guidance in the considerations to be applied in granting a compulsory care order.15    In RIDCA, the Court was considering extension of a compulsory care order (including the length of the appropriate extension) as opposed to the grant of a compulsory care order in the first instance.

[38]     In respect of Jasmine’s order therefore, the relevant factors to be considered in relation to the appropriate term include:

(a)       the nature of Jasmine’s offending, including the background to her offending;

(b)      the nature and extent of the risk posed by the care recipient;

(c)      the compulsory care order must not be disproportionate to the need to protect the community or the care recipient;

(d)the balancing of the need to protect the community against the rights of the individual care recipient requires that a compulsory care order may be made only if it is the least restrictive response available to the Court to satisfy the protection need; and

(e)      the level of intrusiveness of the order should be the lowest necessary to achieve the required community protection.

[39]     Ms Moltzen conducted a thorough analysis as to Jasmine’s treatment and rehabilitative needs and concluded a two-year term was appropriate in her circumstances.  In particular, Ms Moltzen noted that she was at particularly high risk of reoffending in the next two years.

[40]     The Judge has not provided any reasons why Ms Moltzen’s recommended term of two years was not appropriate.  The decision records that the Judge heard from

Ms Huitema from the National Intellectual Disability Care Agency but Ms Huitema, the Crown confirmed, was not engaged with Jasmine on an assessment or personal level. In the absence of the Judge giving reasons why a three year term was imposed, it can be inferred that he has not considered Ms Moltzen’s recommendation and has imposed the maximum length of a care order, by default.16   There appears no reason therefore why the recommended term of two years should not be imposed, particularly if that term is considered the least intrusive or restrictive to achieve the required treatment needs and protection.  Further, this term can be extended by applying to the Court under s 85 of the IDCCR Act if, in two years, Jasmine requires further care.

[41]     I was advised that Jasmine had spent one and a half months in custody, which is the equivalent of an imposition of a three month imprisonment sentence.

[42]     Although time spent in custody is not relevant to the time required under a compulsory care order, it provides some further support for the least restrictive term. I acknowledge that a compulsory care order is a different sentence in kind to a custodial sentence where time spent in custody is usually taken into account.  Clearly the time needed for rehabilitation and protection under a compulsory care order must be assessed in accordance with the treatment needs of the person and should not be subject to discounts in the same way a custodial sentence is calculated at sentencing.

[43]   Nevertheless, here, the assessment of Jasmine’s needs resulted in a recommendation of two years.  It is appropriate therefore that the least intrusive or restrictive term is applied in these circumstances, to achieve the required treatment needs of Jasmine.

Result

[44]     The appeal is allowed.  The order that Jasmine be cared for as a care recipient for three years under s 34(1)(b)(ii) of the CPMIP Act is quashed.   In substitution, Jasmine is to be cared for as a care recipient for two years under s 34(1)(b)(ii) of the CPMIP Act. The compulsory care order under the IDCCR Act remains extant.

Cull J

Solicitors: Woodward Chrisp Elvidge and Partners