R v Frank

[2017] NZHC 2965

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-Ā-KAHU ROHE

CRI-2017-069-000422 [2017] NZHC 2965

THE QUEEN

v

SIMON HARVEY FRANK

Hearing:	1 December 2017
Appearances:	A Gordon for Crown T Sutcliffe for Prisoner (via AVL)
Judgment:	1 December 2017

ORAL JUDGMENT OF JAGOSE J

Solicitors/Counsel:

A Gordon, Gordon Pilditch, Rotorua

T Sutcliffe, Barrister, Hamilton

R v FRANK NO 2 [2017] NZHC 2965 [1 December 2017]

[1]      Mr Frank, in my judgment of 24 October 2017, I found you not guilty on account of insanity on one charge of murder.1

[2]      I set out the factual background in my judgment:

[4]       Mr Frank was diagnosed with bi-polar disorder in 1987 and has been taking medication for this illness since that time.

[5]       On Friday 14 April 2017, Mr Frank and the victim travelled to Taupo

to stay at a bach owned by one of Mrs Frank’s colleagues.

[6]       Mrs Frank told her colleague she and Mr Frank needed a weekend away because their relationship was sometimes difficult, and Mr Frank could be possessive. She said Mr Frank had recently been agitated as he was starting a new job and adjusting his medication.

[7]       At  around  8:00  am  on  Saturday,  15  April  2017,  Mr  Frank approached the victim while she was sitting in bed. He was carrying a large carving knife. Mr Frank stabbed Mrs Frank twice in the torso, once in her chest and once near her right underarm. One stab wound was 13 cm deep. The other was 15 cm deep. The stab wounds punctured both the victim’s lungs and caused massive internal bleeding.

[8]       At around 8:25 am, Mr Frank called emergency services and told the ambulance operator he had just stabbed his wife. Police soon arrived at the bach. Mrs Frank was found sitting on a couch in the living room, where she was in pain and having difficulty breathing. As a police officer attempted to staunch the bleeding, Mrs Frank said “he did it”.

[9]       Mrs Frank passed away while being airlifted from Taupo to Waikato

Hospital. The post-mortem concluded her injuries were unsurvivable.

[10]      Mr  Frank  is  currently  being  held  at  the  Puna  Maatai2   Forensic

Inpatient Unit at Waikato Hospital, Hamilton.

[3]      I had psychiatric reports by Dr Shailesh Kumar and Dr Rees Tapsell available to me when I issued my judgment. Both authors discussed only in general terms your continued remand to Puna Maatai:

[48]     Both Dr Kumar and Dr Tapsell advocate for Mr Frank to continue receiving treatment at Puna Maatai. Dr Tapsell says Mr Frank is early in the course of his treatment. Further, despite the improvement in Mr Frank’s mental state, Dr Tapsell cautions Mr Frank’s mood “is likely to deteriorate” (to the point at which he may be at “significant risk of self-harm”) once he realises  the  “enormity  of  what  he  has  done”.  Dr  Tapsell  recommends Mr Frank be remanded to Puna Maatai.

1      R v Frank [2017] NZHC 2587.

2      I understand Puna Maatai is part of the wider Puawai: Midland Regional Forensic Psychiatric

Service (“Puawai”).

[49]      Dr Kumar similarly states Mr Frank is “clearly benefiting” from his treatment at Puna Maatai. However, while he is improving, Mr Frank still thinks he can see special signs in the sky and has at times been belligerent towards other patients.

[4]      I was required then by s 23 of the Criminal Procedure (Mentally Impaired Persons Act 2003 Act (“the Act”) to order inquiries to be made to determine the most suitable method of dealing with Mr Frank under ss 24 or 25 of the Act.

The law

[5]      Section 24 of the Act provides:

Detention 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.

[6]      The Court of Appeal in M (CA819/11) v R said of s 24(1)(c):3

3      M (CA819/11) v R [2012] NZCA 142, (2012) 28 FRNZ 773 at [7]-[8], [15].

[7]       … [The court] must determine whether an order under s 24(2) is necessary in the interests of the public. The interests of the public in this context are twofold. First, there is the need to be protected from further offending by the offender. The longer term public interest, and one that the offender obviously shares, is to ensure that the offender is managed and treated in a manner best calculated to achieve the ultimate goals of rehabilitation and reintegration into the community.

[8]       The court must therefore take into account both the immediate and long-term risks that the offender poses, as well as the need to comprehensively manage and treat any medical and/or personality issues that he or she presents. In this way the interests of the public will be properly protected.

…

[15]      The threshold for making an order under s 24 of the CPMIP Act is that detention must be “necessary” in the interests of the public or those who may be affected by the court’s decision. The court must consider all the circumstances of the case and, having considered the evidence of one or more health assessors, decide whether the public interest requires the defendant to be detained as a special patient or a special care recipient. The health assessor’s evidence will obviously be important in this context. It must effectively explain why the treatment and management of the defendant requires him or her to be detained in a secure facility or hospital.

[7]      An order under s 24 detaining Mr Frank in hospital or a secure facility would mean you could only be discharged upon the direction of the Minister of Health.4

[8]      An  order  under  s  25  is  to  be  made  if  an  order  under  s  24  is  deemed unnecessary, and would not require you to be detained. Under s 25, the Court may deal with Mr Frank by ordering him to be treated as a patient or cared for as a care recipient, or ordering his immediate release, or (if liable to be detained for a sentence of imprisonment) deciding not to make an order.5

[9]      An order under s 25 would mean Mr Frank could be discharged at any time by the clinician responsible for his care, if the clinician was satisfied Mr Frank was fit to be released.6

[10]     Consequently, an order under s 24 creates a “further level of protection”, in that you, Mr Frank, would remain subject to detention at an appropriate facility until

discharged by the Minister of Health.7

4      At [11]; Criminal Procedure (Mentally Impaired Persons) Act 2003 s 33(3).

5      Criminal Procedure (Mentally Impaired Persons) Act 2003, s 25(1)(a)-(d).

6      M (CA819/11) v R, above n 3, at [14].

Discussion

[11]     I have been provided with a report from Dr A J M van Zeist-Jongman, dated

29 November 2017. Dr van Zeist-Jongman is a Consultant Psychiatrist at Puawai.

[12]     Her report traverses your psychiatric history, progress during your treatment at  Puawai,  and  your  mental  state.  She  recommends  an  order  be  made  under  s

24(2)(a) of the Act, meaning you should be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment Act) 1992.8

[13]     Dr  van  Zeist-Jongman  considers  Mr  Frank  requires  further  treatment  to reduce and mitigate the risk he will offend again, and discusses in detail how early he is currently in his treatment. She says:9

Considering the extremely serious nature of the offence, how unexpected[ly] the offending occurred and Mr Frank’s current and possibly long-term vulnerability for decompensation in mental state and possibly suicidality, it might be clear that Mr Frank will need an extensive period as an inpatient in a forensic mental health service before we can address his offending and reduce and mitigate the risks for future violent offending. This could most safely be done by making Mr Frank a special patient, that is, to dispose of him  under  a  s  24(2)(a)  of  the  Criminal  Procedure  (Mentally  Impaired Persons) Act 2003 which would have him detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992.

[14]     Amanda Gordon, counsel for the Crown, submits Dr van Zeist-Jongman’s recommendation is the “correct one”. Citing M (CA819/11) v R, Ms Gordon submits making Mr Frank a special patient under s 24(2)(a) of the Act most appropriately meets the interests of the public, as it is the best way to address the circumstances of Mr Frank’s offending (including the high level of violence involved), as well as his

treatment needs.

7      R v Tamati-Moka [2017] NZHC 2235 at [25].

8      Criminal Procedure (Mentally Impaired Persons) Act 2003, s 24(2)(a). Dr van Zeist-Jongman also seeks permission from the Court for Mr Frank to remain at Puawai until the facility can finalise his transfer to Wellington’s forensic mental health service, as that is where his daughter, Sarah, and his Jewish Orthodox community are based. Those clinical decisions are not for the Court to make.

[15]     Thomas  Sutcliffe,  counsel  for Mr  Frank,  also  agrees  with  Dr van  Zeist-

Jongman’s recommendation. Mr Sutcliffe submits making orders under s 24(2)(a) of the Act is the most appropriate outcome in the circumstances of your case, Mr Frank.

[16]     I am satisfied an order under s 24 is necessary in the interests of the public, and in the interests of your treatment, Mr Frank.

[17]     As Dr van Zeist-Jongman notes, you suffer from a serious mental disorder. Your offending was extremely serious and unexpected. While you frequently had problems interacting with others during the course of your life and illness, you had never  used  violence  before.  You  require  further  treatment  to  “address  [your] offending  and  reduce  and  mitigate  the  risks  for  future  violent  reoffending”. Especially given the seriousness and suddenness of your offending, I consider the added protection of a s 24 order (as opposed to treating you as a patient under s 25) is necessary.

[18]     Further, it is clearly in Mr Frank’s interests for an order under s 24 to be made. Dr van Zeist-Jongman’s report states Mr Frank is still in the extremely early stages of his treatment:10

He has not been able yet to attend any of his core treatment programmes, for instance the emotional coping skills group therapy and the individual psychology sessions have not been directed to his offending yet.… Due to his vulnerability Mr Frank has not yet been able to address his offending in detail. This will need a further period of intensive inpatient treatment, probably lasting several years, and this could most safely take place under the umbrella of a special patient status.

Dr van Zeist-Jongman went on, that you could also pose a threat to yourself:11

He remains very vulnerable in mood and tends to depression with sometimes a death wish, which is understandable considering the extreme nature of the offence and the stressful court proceedings. The treating team remains alert on suicidal ideations.

Mr Frank’s disclosures he believed he was “the Messiah the Jewish people are waiting  for”  only  subsided  after  he  began  a  trial  course  of  risperidone,  an

10     Page 3 of report.

antipsychotic medication.12 He has since transitioned to a different medication, olanzapine, due to risperidone’s side effects, and since then no psychotic symptoms have reappeared.13

[19]     For  these  reasons,  I  am  minded  to  follow  the  advice  in  Dr  van  Zeist- Jongman’s report. It is clear to me Mr Frank is at a very early stage in what is likely to be a long journey of treatment. His treatment has not progressed far enough to address and mitigate the risks of future offending. He is yet to address his offending in detail, and his messianic thoughts have only ceased since he began antipsychotic medication. He is in a vulnerable condition, and there exist concerns about suicidal ideation.

[20]     I am satisfied, as are both counsel for the Crown and counsel for Mr Frank, that an order under s 24(2)(a) is necessary to address the immediate and long-term risks posed by Mr Frank, as well as the need to comprehensively manage and treat any medical and/or personality issues that he presents.14

Orders

[21]     I order, pursuant to s 24(2)(a) of the Act, that Mr Frank be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992.

—Jagose J

12     Page 2 of report.