North 12 Ltd v Beech Orchard Ltd

[2020] NZHC 1075

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT SUPPRESSED UNTIL NOON, WEDNESDAY, 23 MAY 2018.

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIŌEA ROHE

CRI 2017-054-3448

[2018] NZHC 1075

THE QUEEN

v

LINDA JUDITH POND

Hearing:	16 May 2018
Counsel:	K van der Plas for Crown V C Nisbet for Defendant
Judgment:	16 May 2018

JUDGMENT OF SIMON FRANCE J

[1]    I have previously determined that Mrs Pond was not guilty of the attempted murder of her daughter because she was insane at the time. This is the disposition ruling.1

[2]    Mrs Pond, due to an insane delusion, believed she had transmitted the HIV virus to her daughter by touching her. Mrs Pond does not herself have the virus but it is one of a number of long standing delusions. Then to save her daughter from a

1      R v Pond [2018] NZHC 50.

R v POND [2018] NZHC 1075 [16 May 2018]

lingering painful death, Mrs Pond decided to kill her. When the opportunity arose, Mrs Pond stabbed her daughter in the back.

[3]    I have the benefit of reports from Dr P Darling and Dr S Every-Palmer, both consultant psychiatrists.

[4]    Mrs Pond suffers from a delusional disorder and has done so for many years. At times it has been controlled by medication and at other times it has been comparatively dormant. However, there are several occasions where it has manifested itself in a manner presenting significant risk:

(a)in 2000, Mrs Pond developed a belief she was under constant surveillance because she was suspected of being a paedophile. Eventually Mrs Pond went to a police station where she threatened to kill her daughter by means of an insulin injection if police would not admit to the surveillance. Mrs Pond had obtained insulin for the purpose;

(b)in 2015, Mrs Pond suffered a significant relapse. She was admitted to hospital. At the time she admitted she had been considering killing someone, or herself, in order to be imprisoned and thereby protect the public;

(c)in 2017 she attempted to kill her daughter.

[5]    The reports highlight that Mrs Pond has often been non-compliant with taking her medicine, and has not disclosed that. This is plainly a significant risk factor in someone who needs continued treatment with anti-psychotic and anti-depressant medication.

[6]    Both experts recommend an order under s 24(2)(a) of the Criminal Procedure (Mentally Impaired) Persons Act 2003 that Mrs Pond be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992.

[7]    The Crown supports that recommendation, extracting from the reports several risk factors that point to it being the correct outcome. These include Mrs Pond’s willingness at time to engage with mental health services, her tendency to internalise, and to under-report symptoms, her lack of insight into her mental health issues and the corresponding history of non-compliance with taking medications.

[8]    On Mrs Pond’s behalf Mr Nisbet accepts the correctness of the recommendation. The written submissions disclose careful analysis of the reports. It is plain that in advancing this position thought has been given to the possibility of seeking a “lesser” order. Mr Nisbet notes that Mrs Pond recognises that she could not cope at the moment without the present hospital care arrangements.

Decision

[9]    Mrs Pond suffers from a delusional order which has been with her for many years. Management in the community has not always succeeded, largely due to actions by Mrs Pond. By this I refer to limited engagement with services, not having insight into when she is relapsing, not reporting symptoms and not taking medication.

[10]   Since my finding of not guilty by reason of insanity Mrs Pond has been in a hospital under the care regime that would apply if the recommended order were made. She has responded well but has some way to go. There is an on-going need for medication, and Dr Every-Palmer recommends sessions with a psychologist. In short, both reports note progress, but no more than that.

[11]   The present assault on her daughter demonstrates the very real risk Mrs Pond presents if not in a controlled environment. It was impulsive conduct, but the thought was in her unwell mind prior to it, and so there was planning. Mrs Pond presents a current and real danger, primarily to her near family but not necessarily limited in that way.

[12]   A disposition decision needs to balance the needs of the person suffering from a mental disorder with the need to protect society. I consider with respect that a paragraph from Dr Every-Palmer report captures well where that balance lies here:2

Key features that I have taken into account in coming to this recommendation include the seriousness and intent of the index offence, [Mrs Pond]’s past history of under-reporting symptoms, her difficulty in expressing her internal thought processes based on developmental and psychological factors, her history of intermittent compliance with medication and of stopping and starting medication without medical oversight, and her history of acting impulsively on delusional beliefs in a way that puts herself and others at harm. With the oversight that comes with Special Patient status, and ongoing pharmacological and psychological treatment, I believe she will do well.

Conclusion on disposition

[13]   Pursuant to s 24(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003, I direct that Mrs Pond be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 2003.

Name suppression

[14]Final name suppression is sought.

[15]   The views of the victims have been ascertained. The direct victim, Mrs Pond’s daughter, opposes suppression. She wishes to be able to talk about the case, and advocate on matters of mental health care. Mrs Pond’s husband supports name suppression. He is concerned about the impact of publicity on his wife, his family and his business.

[16]   The focus is s 200 of the Criminal Procedure Act 2011. When the topic is impact on the defendant, a court must be satisfied that publication of the name will cause extreme hardship. It has often been noted what a high threshold is thereby set.

2      At 59.

[17]   I asked the health experts to comment on the issue. Dr Darling felt it would have a detrimental impact as it would be highly stressful. Mrs Pond is worried about the impact of publicity on her family, and her obsessional nature creates a heightened risk of self-harm and relapse.

[18]   Dr Every-Palmer was less inclined to attribute weight to these concerns because of the controlled environment Mrs Pond is in. The hospital is in a position to ensure safety, and to  regulate  medication.  Dr Every-Palmer  felt  the  views  of  Mrs Pond’s daughter would be significant to the stress felt by Mrs Pond. As noted, the victim opposes name suppression, so that suggests one less area of concern for Mrs Pond, and that one potential impact on her health is alleviated.

[19]   A review of cases arising in the same context suggests that the fact of acquittal by reason of insanity, together with the inevitable fears about the consequences of publicity, have not been seen as sufficient to meet the statutory threshold.3 Where suppression was ordered, the cause for concern expressed by the health professionals was noticeably higher than in other cases.4

[20]   On the basis of the reports I conclude the threshold of extreme hardship is not met. The primary source of potential stress, namely the impact on the victim, has been removed. Mrs Pond is in good care, and the impacts will be monitored and managed.

[21]   For completeness I observe the understandable concerns and unenviable position Mr Pond finds himself in is not sufficient to meet the undue hardship test of s 200(2)(c).

3      R v Brown-Howarth HC Whangarei CRI-2006-088-2445, 10 December 2007; R v Silverwool

[2016] NZHC 1496; R v Lam [2016] NZHC 503 and R v Mateparae [2014] NZHC 813.

4      R v B (CA4/05) 21 April 2005.

[22]   These conclusions mean the Court has no discretion to impose name suppression and the application is declined. I do however direct that the order lifting existing suppression will not take effect until noon, 23 May 2018. This is to allow those assisting Mrs Pond a period of time to assist her to adjust.

Simon France J