K v The Queen
[2016] NZHC 906
•29 April 2016
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 COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.
IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY
CRI-2015-485-83 [2016] NZHC 906
BETWEEN K
Appellant
AND
THE QUEEN Respondent
Hearing: 8 and 16 March 2016
(Heard at Wellington)
Counsel:
N Levy for Appellant
M L Wong for RespondentJudgment:
29 April 2016
Reasons:
6 May 2016
Reissued:
16 December 2016
JUDGMENT OF ELLIS J (Reasons)
I direct that the delivery time of this judgment is
11.45 am on the 6th day of May 2016
K v THE QUEEN [2016] NZHC 906 [29 April 2016]
[1] K is a 33 year old man who was born with an extra Y chromosome which, in his case, is linked to learning difficulties and a degree of mental impairment. His IQ is said to be somewhere between 53 and 61. His disabilities have been exacerbated by other events in his life, including being the victim of a number of assaults and serious gang intimidation which, in turn, has led to a diagnosis of Post Traumatic Stress Disorder (PTSD).
[2] In 2014 K himself was charged with sexual violation, breach of a protection order, breach of supervision order and possession of an offensive weapon. As I understand it, all charges essentially relate to the aftermath of the breakdown of his relationship with his former wife, who is also intellectually disabled.
[3] On 28 May 2015 there was a hearing in the District Court under s 9 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the CPMIP Act) as a result of which the Court was satisfied that K had committed the actus reus of the sexual violation offence, namely that he had had sexual intercourse with the complainant without her consent. Judge Walsh subsequently found that K was mentally disordered and therefore unfit to stand trial on that charge, under s 14 of the CPMIP Act. There was no finding of unfitness made in relation to the lesser charges.
[4] Pursuant to s 23(5) of the CPMIP Act the Court then ordered that K was to be assessed under Pt 3 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (the IDCCR Act). After considering that assessment Judge Walsh made an order under s 25(1)(b) of the CPMIP Act that K be cared for as a care recipient under the IDCCR Act. Such an order is deemed to be a compulsory care order for the purposes of the IDCCR Act.1 He also ordered under s 26(2) of the CPMIP Act that K was to be detained in a secure facility for the purpose of providing
him with compulsory care under the IDCCR Act, for a period of one year.2
1 CPMIP Act s 26(2).
2 R v K [2015] NZDC 24676.
[5] Mr K appeals against both the decision under s 25(1)(b) and the decision under s 26(2).3 Pursuant to s 29 of the CPMIP Act, the appeal proceeds as if the orders were a sentence.
[6] Before turning to consider the merits of his appeal it is necessary to set out
the statutory and factual background to Mr K’s case in a little more detail.
Statutory background
[7] As will be evident from the brief summary above, Mr K’s case involves the rather mind-bending interaction of CPMIP Act and the IDCCR Act. Both those statutes begin with “purpose” provisions. Thus:
(a) Section 3 of the CPMIP Act provides that:
The purpose of this Act is to restate the law formerly set out in Part 7 of the Criminal Justice Act 1985 and to make a number of changes to that law, including changes to—
(a) provide the courts with appropriate options for the detention, assessment, and care of defendants and offenders with an intellectual disability:
(b) provide that a defendant may not be found unfit to stand trial for an offence unless the evidence against the defendant is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence:
(c) provide for a number of related matters.
(b) And s 3 of the IDCCR Act provides:
The purposes of this Act are -
(a) to provide courts with appropriate compulsory care and rehabilitation options for persons who have an intellectual disability and who are charged with, or convicted of, an offence; and
(b) to recognise and safeguard the special rights of individuals subject to this Act; and
3 Although the appeal as filed referred only to the s 25(1) decision that was because Judge Walsh’s judgment appeared only to relate to that section. It was only upon further inquiry from the Court that it became clear that he had also intended to make an order under s 26(2).
(c) to provide for the appropriate use of different levels of care for individuals who, while no longer subject to the criminal justice system, remain subject to this Act.4
[8] As the Court of Appeal noted in RIDCA Central v VM:5
There is no reference in this provision [s 3 of the IDCCR Act] to risk or to the protection of the community, which could have been expected if the test for the making of or extension of compulsory care orders was undue risk. Rather, the focus is on the availability of appropriate measures to Courts dealing with intellectually disabled offenders, recognising that these measures will also apply in some circumstances to intellectually disabled persons who are no longer subject to the criminal justice system. That indicates that a nuanced approach to the application of these measures is called for. This is confirmed by the explicit statement of the purpose of protecting the special rights of intellectually disabled persons to whom the IDCCR Act applies.
[9] The Court also noted that the purpose set out in s 3(a) underscores the importance attributed to rehabilitation by Parliament, which is reflected throughout the IDCCR Act.
The CPMIP Act gateway into the IDCCR Act
[10] In terms of the more specific statutory provisions relevant to K’s case, the starting point is that, having found him unfit to stand trial under the CPMIP Act, the Court was required to order under s 23(1) of that Act that “inquiries be made to determine the most suitable method of dealing with” him under s 24 or s 25. Because the psychiatric evidence relating to his fitness to plead had made it reasonably clear that he was suffering from an intellectual disability (as opposed to a mental disorder) the relevant s 24 and s 25 options were:
(a) an order under s 24(2)(b) that he be detained in a secure facility as a special care recipient under the IDCCR Act; or
(b)an order under s 25(1)(b) that he be cared for as a care recipient under the IDCCR Act; or
4 A person (such as K) who is the subject to an order under s 25(1)(b) of the CPMIP Act is, by virtue of s 6(3) of the IDCCR Act a “care recipient who is no longer subject to the criminal justice system”.
5 RIDCA Central v VM [2011] NZCA 659, [2012] 1 NZLR 641 at [30].
(c) an order for immediate release into the community under s 25(1)(d).
[11] If (as in K’s case) an order is made under s 25(1)(b) (the second, “care recipient”, option above) s 26 of the CPMIP Act deems it to be a compulsory care order under the IDCCR. Section 26 also requires the Judge to decide whether to direct that the care recipient is to be detained in a secure facility under that Act, and
for how long.6 As I have said, Judge Walsh did make such a direction in K’s case.7
[12] Before a Court can adopt the first, “special care recipient” option, s 24(1) of the CPMIP Act requires it to consider the evidence of one or more health assessors and satisfy itself that the order is necessary “in the interests of the public or any person or class of person who may be affected by the court’s decision”.
[13] Before a Court can adopt the second, “care recipient”, option, s 25(3) of the CPMIP Act requires it to be satisfied, on the evidence of one or more health assessors, that the defendant:
(a) has an intellectual disability; and
(b) has been assessed under Pt 3 of the IDCCR Act; and
(c) is to receive care under a care programme completed under s 26 of the
IDCCR Act.
[14] In K’s case, the assessment for the purposes of ss 24 and 25 was undertaken by Mr P Robertson, a specialist assessor under the IDCCR Act.8 His report will be discussed in more detail later in this judgment. It is necessary first to say something
about the Pt 3 assessment processes.
6 Section 46 of the IDCCR provides that the maximum term for a compulsory care order is three years, although the term can be extended under s 85 of that Act.
7 Regardless of whether a direction is made that the subject be detained in a secure facility, however, an order made under s 25(1)(b) would mean that he or she becomes subject to the compulsory regime under the IDCCR Act.
8 A specialist assessor under the IDCCR Act is included in the definition of “assessor” in the
CPMIP Act.
The processes under Pt 3 of the IDCCR Act
[15] In terms of the processes under Pt 3 of the IDCCR Act, s 15 of that Act first charges a nominated compulsory care co-ordinator with ensuring that a “needs assessment” is prepared. In K’s case the compulsory care co-ordinator was Mr Ngatai.
[16] The purposes of the needs assessment process are:9
(a) to assess the kind of care that the care recipient needs; and
(b) to identify 1 or more suitable services capable of providing care of that kind for the care recipient; and
(c) to prepare a care and rehabilitation plan for the care recipient.
[17] In the course of such an assessment the co-ordinator is required to consult (if possible) with a number of people, including:
(a) under s 20:
(i) the assessor who assessed the care recipient’s condition (in K’s
case, Mr Robertson); and
(ii) the assigned care manager; (b) under s 21:
(i) the care recipient himself;
(ii) the care recipient’s family; and
(iii) the care recipient’s lawyer.
[18] Once a care recipient's care needs have been assessed, s 24 of the IDCCR Act requires the co-ordinator to instruct the care manager to arrange for the preparation
9 IDCCR Act s 16.
of a care and rehabilitation plan, which is to be approved by the co-ordinator. By s 25, every care and rehabilitation plan is to identify:
(a) the social, cultural, and spiritual needs of the care recipient:
(b) any medical or psychological treatment that the care recipient requires:
(c) any requirements for medication needed to manage the care recipient's condition:
(d) the circumstances in which the care recipient is likely to behave in a manner that endangers the health or safety of the care recipient or of others:
(e) any aptitudes or skills of the care recipient that should, if practicable, be maintained and encouraged:
(f) any special concerns or aversions of the care recipient: (g) any special dietary needs of the care recipient:
(h) any other special needs of the care recipient.
[19] Section 25(4) provides that:
Every care and rehabilitation plan must deal with the kind of supervision the care recipient requires to avoid undue risk to the health or safety of the care recipient and of others.
[20] And s 26 requires every care and rehabilitation plan to set out a care programme that provides for the following matters:
(a) the objectives of the care proposed to be provided to the care recipient, and the approach or approaches to be followed in achieving those objectives:
(b) the general nature of the care proposed to be provided to the care recipient:
(c) the degree of security required for the care of the care recipient and for the protection of others.
[21] Again, I shall return to the contents of the needs assessment and the care and
rehabilitation plan that were prepared in K’s case later.
The various compulsory care options
[22] As will be apparent from the purposes of the IDCCR Act and the needs assessment process itself, the Act contemplates different levels of care and supervision. In particular, a distinction is drawn between “supervised” and “secure” care. Thus s 4(1) provides that:
Persons subject to this Act are known as care recipients. Care recipients who are special care recipients must receive secure care, while other care recipients may be eligible for supervised care, that is care that may be given in a place other than a secure facility.
[23] Section 5(1) defines:
(a) “secure care” as meaning: “care given to a care recipient who is required to stay in a secure facility”; and
(b)“supervised care” as meaning: “care given to a care recipient who may be directed to stay in a facility or in another place”.
[24] In turn, s 9(1) and (2) define:
(a) a secure facility as a facility that—
(a) has particular features that are designed to prevent persons required to stay in the facility from leaving the facility without authority; and
(b) is operated in accordance with systems that are designed to achieve that purpose.
(b) a “facility” as:
… a place that is used by a service for the purpose of providing care to persons who have an intellectual disability (whether or not the place is also used for other purposes).
[25] And s 9(3) further provides that:
A facility that is not a secure facility need not have any particular features and, accordingly, a building (such as a residential house) that is not an institution can be used as such a facility.
[26] That there is a sharp distinction between secure and supervised care is, unsurprisingly, reflected in the placement options contained in subpt 3 of Pt 5 of the IDCCR Act. Section 63 deals with secure care, and provides that a person who is either a special care recipient or a care recipient no longer subject to the criminal justice system who is required to receive secure care must:
(a) stay in a secure facility that the co-ordinator designates by written notice given to the care recipient and the care recipient's care manager; and
(b) may not leave the facility without authority given under this Act.
[27] By contrast, s 64 provides that:
(1) The co-ordinator may direct a care recipient who is required to receive supervised care to stay in a designated facility or in a designated place.
…
(3) A care recipient may be directed, under subsection (1), to stay in a secure facility only for the purpose of receiving care that—
(a) is required to deal with an emergency; and
(b) is of a kind provided for in the care recipient's care and rehabilitation plan.
(4) While a direction under subsection (1) is in force, the care recipient to whom the direction relates must stay in the facility or place designated by the direction.
(5) If a direction under subsection (1) requires the care recipient to stay in a facility, the care recipient may not leave the facility without authority given under this Act.10
[28] Section 64(3) thus emphasises that a secure care order entails a much more serious restriction on the liberty of the care recipient than a supervised care order.
That point is further confirmed by the provisions in Pt 6 of the IDCCR Act, which
10 As well as this specific obligation to comply with a direction to stay in a designated facility or place there is a wider obligation under s 47(2) and (3) to (a) accept the care properly given to the care recipient under the care recipient's court order or the care recipient's care and rehabilitation plan and (b) comply with every lawful direction given by the care recipient's co-ordinator or care manager.
provides for regular reviews of the condition and status of care recipients.11 In particular, ss 85 and 86 provide that in considering an application to extend or vary a compulsory care order, the Family Court must consider and determine whether the care recipient must receive supervised care or secure care,12 but:
The Court may order that a care recipient no longer subject to the criminal justice system receive secure care only if it considers that supervised care would pose a serious danger to the health or safety of the care recipient or of others.
[emphasis added]
[29] That the Court is required to give due regard to the important liberty interests at stake before making a secure care order is confirmed by s 4(2) of the IDCCR Act which provides that the principles set out in Pt 2 of the Act must guide courts and persons exercising power over care recipients under the Act. Those principles include that which is set out in s 11, namely:
… the principle that the care recipient should be treated so as to protect— (a) the health and safety of the care recipient and of others; and (b) the rights of the care recipient.
[30] And in VM the Court of Appeal noted that although s 11 of the IDCCR Act appeared not to apply to the making of an initial compulsory care order for someone in K’s position under the CPMIP Act, it remains an important contextual component of the statutory scheme applying to orders under the CPMIP Act.13 The Court said:14
Its approach of balancing community protection against individual rights will be relevant to initial orders, even if s 11 does not make that approach compulsory. However, we think it is likely that Parliament intended that s 11 should apply expressly to initial compulsory care orders whether they are made under the CPMIP Act or the IDCCR Act itself. If we are right about that, a legislative amendment to state that clearly should be considered.
11 The IDCCR Act makes provision for regular reviews of care recipients by specialist assessors under Pt 6, sub-pt 2. Section 79 requires that the specialist assessor issue a certificate as to whether the status of the care recipient needs to be continued or needs to be changed at the conclusion of this review. For a care recipient who, like Mr K, is a care recipient because he or she was found to be unfit to stand trial, the certificate must comply with s 82.
12 This provision is in both s 85(3) and s 86(4).
13 Although an order of this kind made under the CPMIP Act is regarded as a compulsory care order for the purposes of the IDCCR Act, it does not involve the exercise or proposed exercise of a power under “this Act” ie the IDCCR Act, as s 11 requires.
14 RIDCA Central v VM, above n 5, at [33].
[31] The Court also noted that the reference to the rights of a care recipient in s 11(b) is not specific, but said:15
… we think the focus of the principles set out in s 11(b) is on more fundamental rights, particularly rights ensuring basic freedoms of the kind described in the New Zealand Bill of Rights Act 1990 (the Bill of Rights) such as the right to freedom of movement, the right not to be arbitrarily arrested or detained, and the right to be free from discrimination on the grounds of disability. In a similar context, the Supreme Court of Canada used the phrase “liberty interest” to describe these rights and we will adopt the same term.
What s 11 calls for, therefore, is a balancing of the legitimate interest of the community in protecting the health and safety of the care recipient and others (we will call this the community protection interest) against the liberty interest of the care recipient. That balancing exercise will enable the Court to achieve the purposes described in s 3, because it will lead to the selection of the appropriate compulsory care and rehabilitation option for the care recipient and recognise his or her rights appropriately.
[32] And later, the Court said:16
We consider it to be beyond argument that the compulsory care order (including the level of compulsory care and the term) must not be disproportionate to the need to protect the community or the care recipient. We did not understand any of the counsel before us to contest that proposition. Similarly, there was consensus that the balancing of the need to protect the community against the rights of the individual care recipient requires that a compulsory care order be made only if it is the least restrictive response available to the Court to satisfy the community protection need.
[33] It is against the above statutory background that I now turn to consider K’s
case in more detail.
Mr Robertson’s assessment and evidence
[34] As I have said, a specialist assessor’s report about Mr K was prepared by
Mr P Robertson and is dated 7 September 2015.17
[35] The purpose of Mr Robertson’s report was:
15 At [36]-[37] (footnotes omitted).
16 At [59] (footnotes omitted).
17 There was an addendum issued later but not material for present purposes.
(a) to provide evidence to assist the Court in determining whether it was necessary in the interest of the public to make Mr K a special care recipient who was required to be detained in a secure facility under s 24(2)(b) of the CPMIP Act; and
(b)in accordance with s 25(3) of the CPMIP Act to confirm that K: (i) had an intellectual disability; and
(ii) had been assessed under Pt 3 of the IDCCR Act; and
(iii)was to receive care under a care programme completed under s 26 of the IDCCR Act.
[36] I assume that his report also formed part of, or a platform for, the consultation required by Pt 3 of the IDCCR Act as part of the needs assessment process in relation to K.
[37] It is worth setting out Mr Robertson’s conclusions more or less in full. He
said that:
Mr [K] has many strengths including a close and supportive family and a history of successful participation in vocational activity, some good interpersonal skills and some insights into his past behaviour and current practical and psychological needs. While Mr [K] has had positive experiences throughout his formative years as evidenced by his current strengths, his early experience also included some experience of physical and sexual abuse and bulling at school and in the community. Although his family has always been close and he has secure attachments to his parents and siblings he also had some exposure to challenges and emotional volatility in his home environment. Mr [K]’s XYY syndrome may also be a factor in some of his presenting problems. He has also experienced gang assaults and police interactions that have been highly traumatic and resulted in ongoing anxiety and PTSD symptomatology including re-experiencing the trauma, avoidance of feared locations and high physiological arousal. These factors in the context of an intellectual disability are likely to have perpetuated his anger and poor coping, communication and decision making skills particularly in the context of stressful life events, substance use and antisocial influences of peers whose esteem Mr [K] is likely to have craved.
The index charge of rape was laid following the breakdown of a highly valued marital relationship which left him in a state of grieving for his former partner and step children. The marital relationship appears to have
been volatile with Mr [K] and his former wife both being charged in the past for assaulting each other. It seems that Mr [K] sexual relationship within the marriage was also somewhat volatile and characterised by aggression, poor boundaries and perhaps some confusion on Mr [K]’s part about appropriate, consensual sexual behaviour. His substance use and poor emotion regulation were also likely to have been factors in the events leading to the charges. During his marriage, and following its breakdown, Mr [K] appears to have been unable to safely negotiate a complex changing and sometimes ambiguous relationship between two intellectually disabled individuals with complex needs and vulnerabilities.
The index charges have had a significant impact on Mr [K]. They have resulted in … several months in prison which was highly aversive for him as have his concerns about a potential custodial sentence and his view of himself as a “bad” person. These experiences have led to some nightmares and anxiety but also a determination to avoid future offending and other problematic behaviour and focus on pro-social activities and positive relationships.
At the current time Mr [K] needs to live in a safe environment where his support needs are catered to, he is able to undertake vocational activity and to participate in appropriate social and leisure activity. He also needs to undertake some therapeutic work in which he has the opportunity to work through past issues and learn strategies to cope more effectively with his emotions. It will also be important that Mr [K]has the opportunity to explore his experience and knowledge of relationships and sexuality so that he is not vulnerable or unsafe in this area in the future.
The question is whether rehabilitative activity could take place in his current setting without the compulsory framework of a care order under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, whether a care order under that act is more appropriate. Mr [K]’s intellectual disability diagnosis means that he is also eligible for intellectual disability service that would be able to provide some of the accommodation, support and programmes that he needs without the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003. For this to be successful a full timetable of vocational and therapeutic activity would need to be facilitated by service funders and providers and Mr [K] would need to unequivocally commit (and/or be mandated) to participate in such a programme. A community based non-compulsory option would allow Mr [K] to remain … at home with the family which is his wish and that of his family. It would also mean that he does not have to tolerate the extreme anxiety that would come with having to live away from his family in the company of people he does not know.
However, without the Act Mr [K] and his care providers would not have the compulsion, resourcing, review processes and rehabilitation expertise that are part of the ID(CC&R) process. The seriousness of the charges indicate that a community based option might not be acceptable to the court in which case a compulsory care order under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 is recommended. Although Mr [K] is likely to settle in well, a secure care order would allow a measure of security and support should Mr [K] not be able to accept the restrictions of a care order without resistance or absconding.
[38] Mr Robertson recommended secure care “if a community based option is not acceptable to the Court”. He does not, however, go into any detail about what community based options might look like, no doubt because that was a matter that would be addressed if necessary in the Pt 3 care plan.
[39] But by way of summary the following points may be noted:
(a) the principal two alternatives considered by Mr Robertson were the release of K into the community (which was K’s desire) or compulsory care under the IDCCR Act;
(b) Mr Robertson considered:
(i) a community based option would avoid the “extreme anxiety”
that being away from home causes K; but
(ii)compulsory care had the advantage of compulsion which, the Court might consider was necessary given the “seriousness of the charges”;
(c) throughout his report Mr Robertson does not discuss or distinguish between the different levels of compulsory care that are available under the IDCCR Act;
(d)his suggestion of secure care appears to have been made solely because of concerns that K might resist other forms of compulsory care or abscond (presumably in the event that he were directed to live in a non-secure facility other than his home).
[40] The notes of evidence of the November 2015 hearing reveal that Judge Walsh was plainly concerned to explore the community based and supervised care options
further.18 There was the following exchange between the Judge and Mr Robertson:
18 The notes of evidence relating to Mr Robertson were, unfortunately, incomplete.
Q. Mr Robertson, we’re just talking about whether [K] can remain in the community or have to go into the supervised care environment. At this stage, are there facilities and resources available which would enable him to remain in the community and be able to address the issues that you have expressed concerning, perhaps the Wellstop programme and also vocational programmes?
A. There would be services available and facilities available.
Q. And would it be possible to ensure that a plan was co-ordinated which would ensure [K] got all the support he required within the community? Is that possible?
A. I would assume that a plan could be undertaken by the providers, or the agencies.
[41] And in terms of any risk that might be posed by K, there was then the following exchange:
Q. If we look at the issue of risk affecting [K], as far as the sexual violation charge is concerned, is it important that we look at the actual context in which the alleged offending occurred?
A. Yes, absolutely.
Q. And it appears that the complainant in this matter was intellectually disabled, that – for want of a better term – their relationship was dysfunctional, and there is a reference to confusion about appropriate sexual boundaries. So, if we look at those sorts of factors, is there really a dynamic that is confined to [K] and his former wife that we must look at when we assess the issue of risk?
A. Yes, I would agree with that in the context of an intimate relationship.
[42] Mr Robertson had previously said in his evidence that the “one thing” he regarded as most important was: “therapy with an agency perhaps like Wellstop, who are specialised in sexuality and relationship work”.
[43] The Judge then went on to ask questions about the existence of some wider danger posed by K, and Mr Robertson confirmed that, to his knowledge, there was no suggestion that K was unable to control his sexual urges in a way that put members of the public at risk.
[44] The Judge then asked Mr Robertson about voluntary as opposed to compulsory care:
Q. Is the next step your concern that while it’s possible to devise such a plan, we can’t make [K] do it in the community?
A. That would be my – yeah, my understanding of it.
Q. So do you say, to ensure that happens we place him under the Act, then we’re able to effectively compel him to undertake that, as it were, rehabilitation programme?
A. That’s correct, yes. Yes.
[45] Mr Robertson went on, however, to confirm his view that K’s family would be “proactive” in ensuring K got help and was cooperative and that K would have the will to engage, although maintaining long term would be challenging.
[46] No doubt because the existence of “intermediate” options involving compulsory supervised care in (or partly in) the community were not explored by Mr Robertson in his report, the availability of such options were also not canvassed with him at the hearing. Again, they were care plan matters.
K’s needs assessment and the care and rehabilitation plan
[47] As Judge Walsh noted in his judgment, the needs assessment and the care and rehabilitation plan prepared for K were comprehensive. A number of “behaviours of concern” were identified the most serious of which related to the “inappropriate sexual behaviour” involving his former wife which had led to the rape charge. The “needs assessment” also recorded that K had, for some time, been seeing a one on one counsellor once a week which he enjoyed but, sometimes, was reluctant to attend. Other interaction with the Mental Health Disability team in 2011-2012 was said to have been characterised by K defaulting on appointments, which was said to be “a common feature of his treatment and support history”.
[48] The needs assessment recorded that K’s mother (with whom he has been
living) emphasised the importance of regular family contact for K. It noted that K:
… requires support to live in an environment that can support him to live safely in the community, with adequate supervision to support him to live with minimal risk of harm towards himself and others.
[49] The care and rehabilitation plan dated 7 September 2015 identified the following risks:
[K] has no history of absconding but he has not adhered to guidelines set out by his mother regarding safety issues for him in the community around drinking and places that he would be best to stay away from such as the park. This was 5 years ago – now isolates himself.
Criminal Behaviour
[K] has previous interactions with the police as an adolescent, over
threatening to stab himself with a knife and stealing a chocolate bar
(17years). Since 2000 [K] has been in front of the Judicial Services on five charges for possession of a weapon, sexually inappropriate behaviours and assaults. He has attended Anger Management sessions.
Harm to self and others
[K] has stated many times he will self harm and has prepared himself with
rope and shoe laces to hang himself. He has carried around in his car metal pipes and bats to protect him. He has carried out assaults on male and female.19
Social Isolation
[K] isolates himself from going into the community due to ‘bullying’ that
has occurred as well as assaults towards him. When he does go into the community he wears dark glasses, a cap and hoody. [K] does attend ‘family’ occasions and copes well with people he knows. He also prefers to work on farms doing manual work on his own.
Substance abuse
[K] was brought up in a family/community where alcohol and drugs were
the norm. [K] used drugs and alcohol as a means of coping with his difficulties, mainly speech impediment, PTSD and to be accepted by his
peers. He is currently smoking.
He has been involved in Drug & Alcohol counselling.
Property Damage
Minor property damage has occurred at times of frustration and altercations
with family.
[50] The factors that are identified as increasing any risk posed by [K] were:
· Large groups of people
· People he does not know
· Being told what to do
· Condescending voices
· Not allowing him to express himself and shutting him down when expressing himself
19 His sister and his ex-wife’s new partner (who was formerly K’s friend).
[51] And the only “potential victims” of K’s behaviour are identified as:
Anyone with whom [K] comes into contact … in a care capacity could be a potential victim in the context of his aggression and anger. He has verbally abused persons who have been seen to be in authority who he perceives as telling him what to do and interrupting his taking part in a chosen activity.
[52] The plan does not ever expressly discuss the level of supervision or security required to “avoid undue risk” to K and to others although it seems to be predicated on the assumption that compulsory, 24 hour, one on one residential care (ie secure care) is required. That is confirmed by the fact that a formal recommendation of secure care was made by the care co-ordinator, Mr Ngatai, in his affirmation to the Court dated 7 September 2015. Mr Ngatai also approved the care plan.
[53] Due to a bereavement Mr Ngatai was unavailable to attend the hearing before Judge Walsh to answer questions about the assessment or the plan. Another compulsory care co-ordinator, Mr Sayer, attended and answered questions in his stead. Mr Sayer had, however, had no direct dealings with [K] or his family.
[54] In terms of the various care options, Mr Sayer was asked the following question by the Crown:
Q. Now, obviously we’ve heard from Mr Robertson in relation to a community-based – Mr Robertson said that there can be an order made where it’s community-based in the sense that there can be an order made that [K] is ordered to be under a care recipient order but to reside at his family home. Do you agree with that?20
A. No, I do not agree with that. That is not something that is available to us under the Act. Under section 63 of the Act it talks about designations, notices relating to secure care, and as the description under part 1, section 9, they have to be designated facilities. So they are not able to be within a client’s home. It has to be with a provider.
[55] With respect, that answer was plainly wrong. Section 63 relates to secure care only. Where supervised care is concerned, a private home can be designated as a “facility”.
[56] Later, the Court asked Mr Sayer:
20 The part of Mr Robertson’s evidence in which he made that statement does not appear to have
been recorded.
Q. …. This is a theoretical question, but given your knowledge of the issues relating to [K] and your knowledge of facilities in [X] region, would it be possible to devise a comprehensive plan for him on the basis that he would be still in the community? Is that a possibility?
A. It would be a possibility to look at the range of services through
NASC.21
[57] Mr Sayer then went on to explain:
A. NASC. So they deal with people who have physical or intellectual disabilities, and they assess them for levels of support within the community. For some people that may be residential care with 24/7 support. For other people that might mean supported living, just as [K] has experienced in the past living with a CCS disability action or Idea Services. There [are] also options for support to family around full-time caregivers to be able to have elements of respite to be able to look at alternatives to them doing the 24/7. There is the option of making a referral through to Explore Services, which is a behaviour support specialist service, to look at issues around behaviour of problems which are problematic and looking at ways of supporting the network and the individual with behavioural change. The access to WellStop, if he was under an ID(CCR) order, would be automatic through our contract we have with them. …
Q. And again, just looking at timeframes here … but getting all those resources, as it were, on stream, that could take a minimum of at least six weeks, or possibly longer?
A. That’s correct.
[58] Under further questioning from the Crown Mr Sayer’s evidence about the available options became somewhat less clear, although he confirmed that the fact that K came under the IDCCR Act umbrella via the CPMIP Act (because he had committed a criminal offence) was not an impediment to an NASC process. For example, he said:
So, regarding the risk related to the offending behaviour, I am sure that that would create some anxiety for providers, but through careful and close work, I am sure that they would be able to look at and work through that with family and come up with an appropriate plan.
Judge Walsh’s decision
[59] The Judge noted that the charge of sexual violation needed to be understood
within the context of K’s dysfunctional marriage. He was satisfied that K did not
21 The Needs Assessment and Service Co-ordination Agency.
pose an unacceptable risk to members of the public in relation to that kind of offending. He found there were no grounds for making an order under s 24 of the CPMIP Act.
[60] He then turned to s 25 of the Act and whether an order should be made for secure care as submitted by the Crown. He noted that:
(a) there were complex issues around K’s intellectual disability, PTSD factors arising from historic abuse, traumatic gang assaults and confrontation with police, difficulties with anger management, coping, communication and decision-making, and substance abuse;
(b)K’s family had struggled to get help for him in the past. Significantly, he said: “There is no evidence about what community resources are available and whether a comprehensive plan for care and rehabilitation is possible in the community”;
(c) there were concerns about K’s ability to sustain a voluntary
commitment to addressing his issues over a prolonged period;
(d)the care and rehabilitation plan was comprehensive, and (again) there was no evidence that such a plan could be devised or implemented in the community;
(e) the risk of further offending by K was likely to be the result of stress, particularly in relation to an intimate partner; and he was vulnerable to the influence of anti-social associates;
(f) K had been on e-bail since July 2015 and there had been no breaches, although he noted that K was aware that he would have to comply to avoided being remanded in custody;
(g)Mr Robertson was concerned that if released into the community, there were no legal means to ensure compliance with any care and rehabilitation plan; and
(h)compliance was a particular concern due to the various factors outlined above.
[61] Although the Judge expressly stated that the decision was a difficult one, he made an order that K be cared for as a secure care recipient under the IDCCR Act. Although the term which had been recommended by Mr Robertson was two years, the Judge determined that one year was appropriate. He said that, at that point, it might be possible for the defendant to be released into the community, if appropriate care was in place.
Discussion
[62] In my view the appeal should be allowed, and the secure care order quashed, for the reasons that follow.
[63] First, the notes of evidence taken at the hearing and the terms of Judge Walsh’s judgment give rise to a strong sense that the Judge’s decision was, at least in part, driven by a lack of sufficient information about suitable alternative care options. As I have recorded above, the Judge questioned the witnesses at some length about these but the answers were necessarily theoretical and, at times, confusing. Given the very significant impact that a secure care order has on a care recipient’s liberty interest, a Court should not be placed in a position where it has no choice but to make a secure care order simply because it has inadequate information about other options. In my view that is what happened here.
[64] Secondly, and as I have said, the care plan does not seem to me to have been squarely based on an assessment of the degree of security that was required to avoid any “undue risk” that K poses either to himself or the members of the public. Although a number of risks are identified, the plan seems to make it clear that it is K himself who is most at risk (which is, admittedly, relevant under the IDCCR Act) and that that risk would be exacerbated by taking him away from his family and requiring him to mix with people he does not know. Moreover the identified triggers for [K]’s behaviours of concern appear to be ones which can be as easily avoided at home as they could be in care; indeed it seems clear that placing him into secure care is likely to be the biggest trigger of all.
[65] Thirdly, I have a residual concern that the seriousness of the rape charge assumed too much importance here.22 The charge is not, in my view, a particularly helpful indicator of risk. That is because the very specific circumstances giving rise to the incident underlying it no longer exist; and the risks evidenced by the charge are now very limited, particularly given he is living at home and has no partner. And importantly, the evidence was that the specific treatment programme that was seen
by Mr Robertson as particularly important in terms of helping K to address the behaviour that led to his offending would be available to K as an adjunct of a compulsory care order; secure care was not required.
[66] Lastly, to the extent that secure care was recommended and adopted because, based on historic incidents of K’s disengagement with health providers, there was a perceived risk he might refuse to co-operate with other forms of compulsory treatment or abscond, that ignores the fact that such treatment is, indeed, compulsory. He is required by the IDCCR Act to comply with his care co-ordinator’s direction and if he does not, there are steps under the Act which can be taken (including seeking a secure care order if the level of risk warrants it).
[67] But most importantly, I consider that the Court did not have before it the information necessary to enable it to determine whether the level and terms of the compulsory care order sought was proportionate to the need to protect K and the community. Given the clear dicta of the Court of Appeal in VM and the statutory recognition of K’s rights and liberty interests that absence was, in my view, critical.
Result
[68] I therefore allow the appeal in part. The secure care order made under s 26(2)
of the CPMIP Act is quashed.
[69] I do not, however, consider that K should simply be released into the community with no compulsory care plan in place; an order under s 25(1)(b) remains
appropriate. The details of the care plan, together with the duration of the order may
22 The seriousness of the charge appeared to carry some weight with Mr Robertson, in particular.
need to be the subject of further discussions with counsel and, potentially, K’s care
co-ordinator.
Postscript
[70] On 12 May 2016, and with the agreement of the parties, I recalled my results judgment dated 29 April and my reasons judgment above. The reason for the recall was that, in ordering that K was to be a supervised care recipient, I had assumed that such care would be available to K while he remained at home. That assumption was based on my reading of the Act and also my understanding of certain of the evidence given in the District Court. But I was subsequently advised that the Crown position
is that that is not possible, at least as a practical matter.23
[71] The Crown position was reflected in the updated care plan provided to the Court after the release of my judgments, which would have required K to live in a designated facility some distance from his home and family. It was accepted that this could cause K very considerable distress and (as noted in my judgment above) exacerbate any risk that he poses to himself and to others.
[72] In light of the concerns raised by these circumstances, Ms Levy and Mr La Hood were essentially agreed that a practical and sensible way forward would be not to make any formal orders pending the resolution of the outstanding charges against K in the District Court (referred to at [2] and [3] above). That is because the resolution of those charges was thought potentially to provide an opportunity for ensuring that K received the supervision and care he required without the need for a compulsory order under the CPMIP Act.
[73] As things transpired, the resolution of the outstanding charges against K provided just such an opportunity. Following the recall of my judgment he pleaded guilty in the District Court to those lesser charges and was sentenced to 10 months’
supervision. That sentence provided the opportunity for the development of a plan
23 The Crown also relies on the High Court decision in M v RIDCA Central (2009) 28 FRNZ 669 (HC), although, in my view, that decision is entirely consistent with my judgment, which was predicated on supervised care being available to K in his own home. M was concerned with (and rejected) the proposition that the Act contemplated some kind of third compulsory care option which did not involve supervision at all. I agree entirely with Simon France J that that is not so.
involving inter-agency collaboration whereby K could be required to attend community based programmes of the sort he needs as part of that sentence without the need for a compulsory care order. As a result, counsel were agreed that I could make an order for his immediate release pursuant to s 25(1)(d) of the CPMIP Act and I did so.
[74] I record that I am very grateful for the co-operative and constructive approach by all involved.
Solicitors: N Levy for Appellant
Crown Law for Respondent
“Rebecca Ellis J”
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