R v Buchanan

[2023] NZHC 2373

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2023-041-76

[2023] NZHC 2373

THE KING

v

TIMOTHY DAVID BUCHANAN

Hearing:	29 August 2023
Counsel:	S B Manning for the Crown M J Phelps for the Defendant
Judgment:	29 August 2023

JUDGMENT OF GWYN J

(Disposition under s 24(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003)

Introduction

[1]    On  14  January  2023  Timothy  David   Buchanan   killed   Colin   Blithe. Mr Buchanan was charged with murder. The charge was  that he fatally assaulted  Mr Blithe, by repeatedly placing him in a chokehold until he stopped breathing.

[2]    On 18 July 2023, having received expert reports from Drs Young, Skipworth, Laurenti and Lahani, addressing issues of fitness and insanity, I made the following findings:1

1      R v Buchanan [2023] NZHC 1871 [results judgment]; and R v Buchanan [2023] NZHC 1881 [reasons judgment].

R v BUCHANAN [2023] NZHC 2373 [29 August 2023]

(a)that Mr Buchanan had a mental impairment, but was fit to stand trial;2

(b)that the act with which Mr Buchanan was charged was proven, but that he was insane at the time of the commission of the offence;3 and

(c)Mr Buchanan was not criminally responsible on account of insanity and was acquitted of the charge of murder.4

[3]    I remanded Mr Buchanan to a hospital or secure facility, pursuant to s 23(2)(b) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (Act) and directed that inquiries be made to determine  the  most  suitable  method  of  dealing  with  Mr Buchanan, under ss 24 or 25 of the Act.

[4]    I have now received a report from Dr Greg Young, a consultant psychiatrist. His report is directed at assisting the Court to decide the most suitable way of proceeding.

Victim impact statements

[5]    Before I come to consider possible orders, I want to mention the victim impact statements that we have heard read to the Court. Crown counsel applied pursuant to  s 22 of the Victims’ Rights Act 2002, for leave for victim impact statements to be read by members of Mr Blithe’s family. Counsel for the defendant did not oppose the application. Statements for five family members were read. I have also received a statement from three other members of Mr Blithe’s family who did not wish to read their statement in public.

[6]    There is no right for a victim to provide a statement at a disposition hearing, but the Court may do so in its inherent jurisdiction. I have granted leave for them to give their statements.

2      Reasons judgment, above n 1, at [32].

3      At [57] and [58].

4      At [58] and [59].

[7]    It is important to record, however, that the victim impact statements cannot influence the decision the Court ought to make when considering mental health-related orders.5

[8]    As I will discuss shortly, s 24 of the Act allows the Court to make an order when it is “necessary” in the interests of the public. The most pertinent analysis in making that assessment will be the psychiatrist reports that discuss the risks the defendant poses. Also, a defendant who is found not guilty by reason of insanity (as is the case with Mr Buchanan) is just that — not guilty. That means the sentencing purposes of punishment for committing an offence, or deterrence, no longer logically apply. The crucial factor to consider is the safety of the community and how best to manage the defendant’s risk, and that analysis is not aided by a victim impact statement. Orders made under the Act are not punitive in nature. Their purpose is to protect public safety and aid the offender’s rehabilitation and reintegration.6

[9]    Having said that, I agree that it is fundamentally important for the members of the community who have been affected by an offence — particularly family members

— to speak about the impact that has had on their lives. I thank the Blithe family members for their courage in speaking today and for giving such a clear picture of the man Colin was.

[10]   In my judgment of 19 July 2023 I recorded that Dr Seale and Nurse Wainwright visited and assessed Mr Buchanan at his room in the boarding house on 13 January 2023. Dr Seale considered that Mr Buchanan would benefit from an admission to the Mental Health Inpatient Unit, but no beds were available.7

[11]   I wish to acknowledge, as a number of Mr Blithe’s family members have done, that the truly awful event that occurred the following day may have been prevented if a bed had been available.

5      See for example R v Gilchrist [2019] NZHC 480.

6      RS v Police [2016] NZHC 344 at [36].

7      Reasons judgment, above n 1, at [13] and [14].

Appropriate disposition

[12]   Where a person has been acquitted of criminal offending on account of his or her insanity, the Court must conduct a disposition hearing in order to consider the matters referred to in s 24 of the Act.

Section 24

[13]   At the  disposition  stage,  there  are  several  options  that  are  relevant  to Mr Buchanan’s situation. The first and most restrictive option is an order under s 24 of the Act.

[14]Section 24 provides:

24Detention of  defendant found unfit to stand trial or insane as  special patient or special care recipient

(1)When the court has sufficient information on the condition of a defendant found unfit to stand trial or acquitted on account of his or her insanity, the court must—

(a)consider all the circumstances of the case; and

(b)consider the evidence of 1 or more health assessors as to whether the detention of the defendant in accordance with one of the orders specified in subsection (2) is necessary; and

(c)make one of the orders referred to in paragraph (b) if it is satisfied that the making of 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.

(2)The orders referred to in subsection (1) are that the defendant be detained—

(a)in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992; or

(b)in a secure facility as a special care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.

(3)Before the court makes an order specified in subsection (2)(a), the court must have received evidence, under subsection (1)(b), about the defendant from at least 1 health assessor who is a psychiatrist.

[15]   Under s 24 the Court can order a person found not guilty by reason of insanity to be detained as a special patient under the Mental Health (Compulsory Assessment

and Treatment) Act 1992.8 There is a second option under s 24(2) which applies to those with an intellectual disability. That is not relevant to Mr Buchanan.

[16]   Section 25 of the Act sets out less restrictive options in terms of disposition. If a s 24 order is not considered necessary, the Court can instead make an order under   s 25, that the person be treated as a patient under the Mental Health (Compulsory Assessment and Treatment) Act.9 There can be an inpatient or community treatment order. In that case, there would be ongoing treatment under the control of a responsible clinician. The order would be in force for six months unless the Court extended the order on the application of the responsible clinician.10 The responsible clinician may order a release of the patient.11

[17]   A significant distinction between orders made under s 24(2)(a) and s 25(1)(a) is that, under s 24(2)(a), a defendant is detained as a special patient, reflecting the special procedures that apply in relation to the treatment and management of such patients in order to safeguard the public. Where an order is made under s 24(2)(a), the Minister of Health determines how long the order is to remain in force. Special patient status continues until the Minister of Health directs either that the defendant be discharged or that he or she be held as a patient.12

[18]   The principal advantage of the special patient regime under s 24(2)(a) is that it provides an additional layer of oversight when any decisions are made regarding the status or security of the patient.13

[19]   To order that Mr Buchanan be treated as a special patient under s 24(2)(a), I must be satisfied that it is necessary in the interests of the public or Mr Buchanan’s interests to do so. The need must arise from both the short-term, which primarily concerns protection against reoffending, and the long-term, which primarily concerns managing and treating Mr Buchanan’s condition. The test for what is “necessary” involves a high threshold.

8      Criminal Procedure (Mentally Impaired Persons) Act 2003 [Act], s 24(2)(a).

9      Section 25(1)(a).

10     Mental Health (Compulsory Assessment and Treatment) Act 1992, ss 33 and 34.

11     Section 35(1).

12     Act, s 33(2)(a) and (b).

13     M (CA819/11) v R [2012] NZCA 142 at [35].

[20]   In M (CA819/11) v R,14 the Court of Appeal considered what “necessary” means. The Court said the standard of necessity is a high threshold, describing it as “a fairly strong word falling between expedient or desirable on the one hand and essential on the other”.

[21]In R v Chandler,15 Venning J summarised the approach to s 24 arising from the

M (CA819/11) v R decision in the following terms:

[33]      In M (CA819/11) v R, the Court of Appeal noted that, when conducting a disposition hearing the Court must consider all relevant circumstances of the case. The Court is not a rubber stamp. The Court must consider whether an order under s 24(2) is necessary in the interests of the public. The standard of necessity sets a high threshold. In this context there is a need to consider the protection of the public from further offending by the offender. The longer term public interest, and one the offender obviously shares, is to ensure that the offender is managed and treated in a manner best calculated to achieve the goals of rehabilitation and reintegration.

[34]      The Court must take into account both the immediate and long-term risks the defendant poses as well as the need to comprehensively manage and treat the issues that he presents.

Disposition reports

[22]   Since the hearing on 18 July 2023, the Court has received a disposition report from Dr Greg Young, dated 21 August 2023. Dr Young interviewed Mr Buchanan on 10 August 2023. His report is based on that interview, together with references from an initial assessment interview conducted by Dr Blair Leslie with Mr Buchanan on 18 July 2023.

[23]   Dr  Young’s  report  records  that   since   his   admission   to   Purehurehu, Mr Buchanan is continuing to experience ongoing, active symptoms of schizophrenia, including continuing to experience auditory hallucinations. Dr Young records that Mr Buchanan has only partial insight into his illness.

[24]Dr Young’s report concludes:

Mr Buchanan now requires a prolonged period of intensive rehabilitation and a trial at least of clozapine, a powerful antipsychotic that is used for resistant

14 At [17].

15     R v Chandler [2021] NZHC 1470 at [33]–[34] (footnotes omitted).

schizophrenia and that can only be administered by mouth. His psychological rehabilitation will only start once his thinking becomes more reality-based.

[25]   Dr Young records that Mr Buchanan does not have an intellectual disability so he does not recommend any order that would result in treatment under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003. Nor does he recommend that the Court consider any of the less restrictive orders available under s 25 of the Act. Dr Young recommends that Mr Buchanan be detained in hospital as a special patient under s 24(2)(a) of the Act.

[26]   I note that Dr Skipworth’s report of 2 June 2023, which I considered prior to my findings on 18 July  2023,  also  addressed  the  question  of  disposition.  Like Dr Young,  Dr  Skipworth  recommended  that  the   Court   make   an   order   that Mr Buchanan  be  detained  in  hospital  as  a  special  patient,  under   s 24(2)(a).   Dr Skipworth stated:

106.  Given  the  gravity  of  the  index  offence,  and  the  early  stage  of  Mr Buchanan’s recovery, in my opinion the appropriate order is a special patient order under section 24(2)(a) of the CP(MIP) Act. This will appropriately provide the public with the greatest level of protection, and it will ensure he is managed, treated, rehabilitated and re-integrated into the community with the oversight of Forensic Mental Health Services as a special patient. Special Patient oversight has the advantage of the involvement of the Minister of Health and the Director of Mental Health in the management of patient leave into the community, and ultimately reclassification.

Submissions

[27]   I have received written submissions from the Crown and the defence in advance of today’s hearing. Mr Manning, counsel for the Crown, acknowledges that it is appropriate for the Court to make an order under s 24(2)(a) of the Act, directing that Mr Buchanan be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act.

[28]   Mr Phelps, counsel for Mr Buchanan, also acknowledges that there are a number of factors that point towards making an order for detention as a special patient pursuant to s 24(2)(a) of the Act:

(a)the index offending was violent and serious, culminating in a charge of murder being laid against Mr Buchanan;

(b)the index offence reflected the third instance of violent conduct, where Mr Buchanan acted on his psychotic beliefs or experiences;16

(c)the index offending occurred when Mr Buchanan had not taken his medication for some time beforehand, he had a history of failing to take his medication;

(d)Mr Buchanan’s history reveals a reluctance to engage with mental health services unless compelled to do so;

(e)Mr Buchanan is already subject to an indefinite community treatment order and has been subject to such an order since 2014. That less intrusive approach to managing his illness has been unsuccessful;17

(f)there is now a demonstrated pattern of Mr Buchanan acting violently when engrossed in psychotic thinking and he lacks the insight to recognise this thinking is not real; and

(g)if Mr Buchanan were to be unsupported and his illness were to become more acute, there is clear potential for violent behaviour with fatal results.

Conclusion on disposition

[29]   Mr Buchanan, having regard to your history as set out above, and having read the reports from Dr Young and Dr Skipworth and their recommendations that you be detained in hospital as a special patient, under s 24(2)(a), I am satisfied that that is the

16 In October 2022, Mr Buchanan had assaulted a work colleague and on 30 December 2022 he assaulted a random stranger.

17 In R v Tui [2020] NZHC 2074 the defendant had murdered her mother while already being under secondary mental health service care in the community. The defendant had been found unfit to stand trial and this factor favoured detention as a special patient.

appropriate and necessary course in this case. You will be detained in hospital as a special patient.

Name suppression

[30]   Mr Buchanan has had an interim order for suppression of his name since his arrest. That order was continued pending this disposition hearing.

[31]   Any application for permanent name suppression would be subject to s 200 of the Criminal Procedure Act 2011. Under s 200, the Court must first decide whether one of the threshold grounds in subs (2) has been satisfied. If so, the second step involves a discretionary assessment of the interests of the defendant and the public. The ultimate question is whether the presumption in favour of open justice and publication should yield to suppression.

[32]   The relevant threshold ground in this case is that publication would cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence.18 A very high level of hardship needs to exist before the threshold of “extreme hardship” can be met.19 It is something which is “plainly out of the ordinary” and must be significantly greater than undue hardship.20

[33]   The Court of Appeal has previously confirmed that acquittal by reason of insanity does not, in and of itself, reach the extreme hardship threshold.21

[34]   In this case,  Mr  Phelps,  counsel  for  Mr  Buchanan,  acknowledges  that  Mr Buchanan will now be detained as a special patient with the wrap-around services entailed by such an order. Although Dr Young records that Mr Buchanan has experienced low moods and anxieties associated with the process, there are no indications that he is at risk of self-harm.

[35]   On that basis, and having discussed the question of suppression with Dr Young and with Mr Buchanan himself, Mr Phelps acknowledges that the necessary threshold

18     Criminal Procedure Act 2011, s 200(2)(a).

19     See for example R v N [2012] NZHC 2042 at [21]; and R v Wilson [2014] NZHC 32 at [27].

20     R v Wilson, above n 19, at [27].

21     Pond v R [2019] NZCA 555, (2019) 32 FRNZ 453 at [53].

of extreme hardship cannot be made out. Counsel therefore accepts that the order for suppression of name will lapse.

Orders

[36]Accordingly, I make the following orders:

(a)Mr Buchanan is to be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992, pursuant to s 24(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003.

(b)The previous name suppression order will now lapse.

Charge regarding bail

[37]   At the hearing it became apparent that a charge against Mr Buchanan of failure to answer Police bail had not been dealt with. The Crown offered no evidence and I dismissed the charge.

Gwyn J

Solicitors:

Crown Solicitor, Napier