R v Goodlet
[2011] NZCA 357
•2 August 2011
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| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA269/2011 [2011] NZCA 357 |
| BETWEEN THE QUEEN |
| AND TERRI-JEAN GOODLET |
| Hearing: 12 July 2011 |
| Court: O'Regan P, Arnold and Stevens JJ |
| Counsel: M F Laracy for Applicant |
| Judgment: 2 August 2011 at 10.00 am |
JUDGMENT OF THE COURT
A Leave to appeal is granted.
BThe Solicitor-General’s appeal against the order made in the District Court is allowed.
CThe order made under s 34(1)(b)(i) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 is quashed.
DThe respondent is sentenced to two years intensive supervision effective from the date of this judgment.
EPursuant to s 54G and s 54I of the Sentencing Act 2002, the following special conditions will apply in addition to the standard conditions. As special conditions the respondent shall:
(a)Attend all scheduled appointments with the Consultant Psychiatrist and other Community Mental Health Services employees.
(b)Take all prescribed medication and undergo all treatment as directed by the treatment provider and Probation Officer.
(c)Undertake a psychological assessment and any further treatment if assessed as suitable as directed by the Probation Officer.
(d)Undertake training in basic work and living skills as directed by the Probation Officer.
(e)Refrain from the consumption or possession of alcohol and illicit drugs for the duration of the sentence of intensive supervision.
(f)Attend all counselling and other treatment for anger management and alcohol and drug addictions as directed by the Consultant Psychiatrist and the Probation Officer.
FThe respondent must report in person to a Probation Officer in the Gisborne area as soon as practicable and not later than 72 hours after the date of this judgment.
____________________________________________________________________
REASONS OF THE COURT
(Given by Stevens J)
Table of Contents
Introduction [1]
Factual background [6]
Procedural history [10]
The statutory context [20]
Legislative provisions [20]
Legislative history [24]
Submissions of the parties [27]
Solicitor-General [27]
Respondent [33]
Discussion [35]
What constitutes an offence justifying orders under s 34(1)(a)? [37]
Application to this case [46]
The sentence that ought to have been given in this case [47]
What should this Court do now? [53]
Result [58]
Introduction
This is an application by the Solicitor-General for leave to appeal against an order made against the respondent, Ms Goodlet, in the District Court under s 34(1)(b)(i) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP). The respondent pleaded guilty to one count of wounding with intent to cause grievous bodily harm (by repeatedly slashing at the face of the complainant with a broken bottle) and one count of conspiring to pervert the course of justice (by deliberately misleading the police as to the role she and another had played in the bottling incident). The Solicitor-General contends that such offending was serious enough to warrant a sentence of imprisonment of around three years six months. But due to her acknowledged mental health issues, the Court imposed no sentence. The Judge ordered that the respondent should be treated as a patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992 (MHA).[1]
[1] R v Goodlet DC Gisborne CRI-2010-016-0312, 8 April 2011.
The Solicitor-General seeks to ensure that public safety is properly protected by means of a sentence of imprisonment under s 34(1)(a)(i) of the CPMIP, as opposed to making an order under s 34(1)(b)(i). The Solicitor-General submits that such disposition is contrary to principle and a long standing body of case law requiring a sentence of imprisonment. The failure to impose imprisonment elevates the medical and therapeutic needs of the respondent above the interests of public safety. He contends that both of these aspects could have been accommodated by dealing with the case by a sentence of imprisonment, together with an order under s 34(1)(a)(i) of the CPMIP.
The issue on appeal is whether the Judge erred in principle in not imposing a sentence of imprisonment. The appeal is complicated by two factors. First, the sentence imposed was in accordance with a sentence indication.[2] Second, following treatment received by the respondent as an inpatient under the MHA, her condition has significantly improved. Having shown no evidence of mental illness,[3] the respondent was in May 2011 granted leave pursuant to s 31 of the MHA, on the basis that her health could be safely monitored in the community. The respondent remains subject to the compulsory treatment order[4] and may be recalled if she does not comply with the conditions upon which she was granted leave.
[2]This could give rise to the need for the respondent to be given an opportunity to vacate her guilty pleas, if the sentence were to be increased on appeal: see R v Sipa [2006] NZSC 52, (2006) 22 CRNZ 978 and R v Smail [2008] NZCA 6, [2008] 2 NZLR 448 at [17].
[3] As confirmed in a report of Dr J Marks, Consultant Psychiatrist, dated 29 June 2011.
[4] Under s 31 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (MHA).
These two factors give rise to the question of what sentence this Court should impose, if it were to uphold the Solicitor-General’s appeal. For reasons developed later in this judgment, we have concluded that, although the appeal must be allowed, it is now inappropriate to impose a sentence of imprisonment in the particular circumstances of this case. Given the time already served in prison and the period during which the respondent was detained as a patient under the MHA, as well as the 22 weeks spent on E-bail, we are satisfied that a sentence of two years intensive supervision is the appropriate sentence. On this basis, counsel for the respondent confirmed that the respondent does not seek to vacate her guilty pleas.
The case has a somewhat complex factual and procedural background. It also concerns provisions of the CPMIP that have so far received little attention from appellate courts. We will deal first with the facts and then summarise the relevant procedural history. A key focus of the judgment will be how the powers in s 34 of the CPMIP ought to be exercised and in particular what factors ought to be applied in deciding whether to impose a sentence of imprisonment (together with an order under s 34(1)(a)) or, instead of passing sentence, to make an order under the MHA or the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.
Factual background
There is no doubt that the respondent has, in the past at least, suffered from a serious mental illness. Specifically, clinicians who have examined her have concluded that she suffers either from paranoid schizophrenia or a psychotic disorder secondary to multiple drug use. The respondent also has a history of violent offending. She was 19 years old at the time of the offending in this case and is now 20.
On 13 December 2009 the respondent was involved in a street brawl in Gisborne. The brawl was broken up by police. Earlier, text messages had been sent from the respondent’s cellphone to a young man in another group suggesting the groups meet for a fight. A short time afterwards, as the respondent and some friends walked down the street three cars pulled up next to them. The complainant got out of one of the cars and started punching the respondent who returned punches. Both women ended up on the ground. While fighting on the ground the respondent bit the complainant on her right thigh. The respondent then smashed a bottle she had on the ground and used the broken bottle end to slash at, and stab, the complainant’s face. During the fight the respondent’s 16 year old cousin, Stacee Fraider also began punching the complainant. The respondent and the complainant were eventually pulled apart, at which point the respondent used another bottle to smash the rear window of one of the vehicles. The complainant was admitted to hospital after the fight and received approximately 30 stitches. She has permanent scarring on her face from the attack. The attack with the broken bottle was the basis of the charge of wounding with intent to cause grievous bodily harm.
On 14 December 2009 the respondent was interviewed by police in relation to the fight. She denied that she had assaulted the complainant and said that Ms Fraider had taken responsibility for inflicting the complainant’s injuries. Ms Fraider was interviewed separately and said she had thrown a bottle at the complainant, causing the injuries to the complainant’s face. The respondent and Ms Fraider also provided the police with the items of clothing they said they had been wearing on the night.
However, cell phone text data indicated that Ms Fraider, her boyfriend, James Winder, and the respondent had conspired together for Ms Fraider to take the blame for the complainant’s injuries. The respondent had exchanged her bloodied sweater for Ms Fraider’s clean one prior to being interviewed by the police. The attempt to have Ms Fraider take the blame for the assault is the basis of the charge of conspiring to pervert the course of justice.
Procedural history
The respondent was initially remanded in custody after assaulting the complainant. However, she was granted bail in mid-January 2010. But the respondent breached her bail conditions and was again remanded in custody in June 2010.
On 1 July 2010 the respondent was seen by a general medical practitioner who referred her to the Forensic Mental Health Service. The respondent presented as acutely psychotic and a psychiatric report was ordered. On 2 August 2010 the respondent was transferred to a medium secure mental health unit. At about this time the respondent’s counsel first sought a sentence indication from the District Court.
However, over the next few months several further psychiatric reports were prepared. The reports determined that the respondent was unfit to appear in court on 27 August and 12 October. A report of 12 November found that there had been no substantial improvement. Two further reports were prepared on 21 February 2011. Both psychiatrists concluded that the respondent was fit to stand trial. However, they also both considered that the respondent remained mentally unwell. Because no plea had been entered, neither psychiatrist commented on how the Court should dispose of the case or whether an order under s 34 of the CPMIP would be appropriate.
The sentence indication hearing occurred before Judge Hubble on 11 March 2011. The respondent’s counsel suggested that an order under s 34(1)(b)(i) of the CPMIP, which would impose compulsory treatment instead of imprisonment, would be appropriate.
Mr Russell Collins, the Crown Solicitor for Napier and Gisborne, has provided the Court with an affidavit as to what happened at the sentencing indication and sentencing. The Crown did not express a view on whether an order under s 34 CPMIP would be appropriate because the psychiatric reports to that point had not expressed an opinion on the issue. The Crown intimated that, if an order were to be considered, further psychiatric reports may be required. At the oral hearing the Crown again submitted that a further report ought to be obtained before deciding whether to impose an order under section 34.
Judge Hubble gave a sentencing indication of “time served and a s 35 (sic) order provided a report supports that”.[5] The Judge emphasised “We are really looking at a compulsory treatment order, that she will not be released back into the community until the health authorities think she is not going to be a danger to the community, but imprisonment is no answer”.[6]
[5]R v Goodlet DC Gisborne CRI-2010-016-312, 11 March 2011 at 4. The reference to s 35 no doubt is incorrect, the Judge should have referred to an order under s 34.
[6]At 5.
Counsel for Ms Goodlet accepted the sentencing indication and guilty pleas were entered. In his affidavit, Mr Collins accepts that during the sentence indication hearing the prosecutor ought to have advised the Court that the indication of “time served” combined with an order under s 34(1)(b) of the CPMIP was inappropriate and that the Crown contended for an order under s 34(1)(a) by way of a term of imprisonment together with an order that the respondent be detained as a special patient.
Sentencing of the respondent occurred on 8 April 2011 before Judge Moore. Prior to sentencing the Court was provided with a report with a psychiatrist’s opinion as to the appropriate order under s 34 of the CPMIP. The report recommended an order pursuant to s 34(1)(b). We pause to observe that we do not consider it was proper for the report writer to make such a recommendation: that is not the role of the report writer under s 34.
The prosecutor who had appeared at the sentencing indication hearing was away overseas. She left no file note as to whether the sentencing indication was accepted by the Crown. Immediately before the sentencing, a second senior prosecutor became unavailable and the file was reallocated to a junior prosecutor the night before the sentencing hearing. With inadequate briefing, counsel assumed that the Crown agreed with the sentencing indication and the recommendation in the final psychiatric report. Accordingly, at sentencing the Crown made no oral submissions apart from acknowledging the recommendation in the report.
In accordance with the defence counsel’s submission and the recommendation in the final psychiatric report, the Judge made an order under s 34(1)(b) of the CPMIP. The Judge also specified that the order should take effect as an inpatient order.[7]
The statutory context
Legislative provisions
[7] Section 36 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP).
Section 34 of the CPMIP provides:
34 Power of court to commit offender to hospital or facility on conviction
(1) If the court is satisfied of the matters specified in subsection (2), the court may deal with an offender who is convicted of an imprisonable offence—
(a) by sentencing the offender to a term of imprisonment and also ordering that the offender—
(i) be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992; or
(ii) be detained in a secure facility as a special care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003; or
(b) instead of passing sentence, by ordering that the offender—
(i) be treated as a patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992; or
(ii) be cared for as a care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.
(2) For the purposes of subsection (1), the court must be satisfied, on the evidence of 1 or more health assessors, that the offender's mental impairment requires the compulsory treatment or compulsory care of the offender either in the offender's interest, or for the safety of the public or for the safety of a person or class of person.
(3) Before the court makes an order under subsection (1)(a)(i) or (b)(i), the court must be satisfied on the evidence of 1 or more health assessors (at least 1 of whom must be a psychiatrist) that the defendant is mentally disordered.
(4) Before the court makes an order under subsection (1)(a)(ii) or (b)(ii), the court must be satisfied on the evidence of 1 or more health assessors that the defendant—
(a) has an intellectual disability; and
(b) has been assessed under Part 3 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003; and
(c) is to receive care under a care programme completed under section 26 of that Act.
(5) No order may be made under this section in respect of an offender who is, at the time of the conviction, subject to a sentence of imprisonment.
Broadly s 34 gives the Court power to order treatment under mental health legislation either in addition to or instead of imposing a term of imprisonment.[8] Under s 34(1)(a)(i) the Court may sentence the offender to a term of imprisonment and order that the offender be detained either in a hospital as a special patient under the MHA or be detained in a secure facility as a special care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act. Time spent detained as a special patient counts as time served under the prison sentence.[9] Section 36 of the CPMIP provides that an order under s 34(1)(b)(i) is to be regarded as a compulsory treatment order for the purposes of the MHA. The Court must specify whether the order takes effect as a community treatment order or as an inpatient order.
[8] Geoffrey G Hall Hall’s Sentencing (online ed, LexisNexis) at [CPA34.1].
[9] Section 48 of the MHA.
The practical difference between the two options in s 34(1)(a) and (b) is that where a sentence of imprisonment is imposed in addition to a compulsory treatment order under s 34(1)(a), then if the offender is assessed as no longer requiring treatment during the currency of the prison sentence, the offender will still have to serve the remainder of their sentence.[10] Additionally, if having been returned to prison, the offender is then released, the offender will be subject to any release conditions imposed under ss 18 or 29 of the Parole Act 2002 or s 93 of the Sentencing Act 2002.
[10] Section 47 of the MHA.
Conversely, if under s 34(1)(b) no sentence is imposed and only compulsory treatment is ordered, then once the offender is assessed as no longer requiring treatment there are no further restrictions. If the compulsory treatment order is for treatment as an inpatient and at any time during its currency the responsible clinician considers that the patient can be treated adequately in the community, the clinician must direct that the patient be discharged from detention in hospital and treated in the community.[11] Accordingly, if an offender’s mental health stabilises quickly, the offender will be back in the community soon after the making of the order under s 34(1)(b) (although the offender will still be subject to the restrictions of their community treatment). Thus the Court has no control over the length of time the offender is detained. Section 35 of the MHA provides that a person subject to a compulsory treatment order must be released from all treatment conditions if the responsible clinician, at any time during the currency of the order considers that the patient is fit to be released. Section 33 of the MHA provides that a treatment order expires after six months. However, the treatment order can be extended through an application under s 34 of the MHA.
Legislative history
[11] Section 30(2) of the MHA.
Section 34 of the CPMIP replaced the former s 118 of the Criminal Justice Act 1985 (CJA). The Court’s ability to impose a sentence of imprisonment in addition to ordering detention as a special patient is an extension of the powers under the former s 118. Under s 118 the Court only had power to make a compulsory treatment order instead of passing a sentence of imprisonment. In R v Satherley[12] this Court explained that s 34 was enacted partly in response to inadequacies in s 118:
[22] … Under s 118 of the Criminal Justice Act 1985 the Court could order a mentally disabled person on conviction to be detained in a hospital as a special patient. However, as the Court had no control over the period of time a mentally disordered person was detained, there was a reluctance to make an order under s 118 - see R v Redmile [1987] 1 NZLR 157 at 163–4 and the discussion in Hall Hall’s Sentencing (looseleaf ed) at [CPA34.3].
[23] Section 34 meets these concerns by providing under subs (1)(a) for an offender to be detained as a special patient or in a secure facility in addition to being sentenced to a term of imprisonment. … The underlying sentence of imprisonment provides protection against premature release and ensures that the sentencing Court retains control over the length of sentence.
[12] R v Satherley [2007] NZCA 381.
Section 34 of the CPMIP was originally contained in the Criminal Justice Amendment Bill (No 7).[13] In its select committee report the Health Committee noted that the purpose of the amendments is:[14]
First, they will enable a Court to order psychiatric treatment and to impose a sentence upon an offender simultaneously in order to recognise the separate nature of the concepts of treatment and punishment. Secondly, the amendments will allow the Court to ensure that the offender does in fact receive treatment in a hospital (or care in a secure facility) rather than joining a backlog of persons in penal institutions awaiting transferral for treatment.
[13] Criminal Justice Amendment Bill (No 7) 1999 (328–2).
[14] Criminal Justice Amendment Bill (No 7) 1999 (328–2) (select committee report) at 9.
In Satherley this Court accepted that, given the scheme of the statute and its legislative background, orders under s 34(1)(b) should be “reserved for less serious offending, where deterrence and protection of the public are not imperative”.[15]
Submissions of the parties
Solicitor-General
[15] At [29].
The Solicitor-General submits that the circumstances of the offending were serious and a sentence of imprisonment ought to have been imposed, together with an order under s 34(1)(a) of the CPMIP. The facts of the offending are too serious to permit an order under s 34(1)(b), meaning that no sentence is imposed. Such an order should only be an option to facilitate compulsory treatment or compulsory care, thus providing therapeutic disposal where punishment is a lesser priority. But in this case deterrence and public safety are important factors.
The Solicitor-General points out that, where an offender is found to be mentally disordered and would otherwise be sentenced to imprisonment, there are three options available to the sentencing Court. First, the Court may make an order under s 34(1)(a) of the CPMIP. The offender is sentenced to a term of imprisonment but, initially at least, is detained as a “special patient” under the MHA. If the offender’s mental health improves then the offender will be returned to prison.
The second option is to make an order under s 34(1)(b) of the CPMIP. No sentence is passed and instead the offender becomes subject to a compulsory treatment order under the MHA. Because a person must be discharged from a compulsory treatment order when the responsible clinician considers that the person is “fit to be released from compulsory status”, an order under s 34(1)(b) does not keep an offender in detention or subject to community treatment for any particular length of time.[16]
[16] Section 35(1) of the MHA.
The third option is to impose a sentence of imprisonment with the offender’s mental impairment assessed in mitigation in the normal manner. If at any time while in prison there are reasonable grounds to believe that the offender is mentally disordered the offender may be assessed pursuant to s 45 of the MHA to determine whether they should be detained and treated in hospital as a special patient.
The Solicitor-General submits that, once the three sentencing options are identified, it is clear that an order under s 34(1)(a) should not be treated as a remedy of last resort. It is required in cases like this one where, although a therapeutic response is required, the offending is objectively serious and where punishment, personal deterrence and protection of the community are priorities.
On the basis of this Court’s judgment in R v Taueki,[17] the Solicitor-General submits that the respondent ought to have received a sentence of about three and a half years’ imprisonment, together with an order under s 34(1)(a) of the CPMIP.
Respondent
[17] R v Taueki [2005] 3 NZLR 372 (CA).
Mr Simperingham, for the respondent, agrees that the offending in this case can be analysed in terms of Taueki. However, he emphasises the mitigating factors in the offending, namely:
(a)The respondent’s age, 19 years, at the time of the offending.
(b)The fact that earlier on during the night the offending took place the respondent telephoned the police, which led to another brawl being broken up. This indicates that the respondent was not a protagonist of the violence that ensued and that (initially at least) she sought to avoid confrontation.
(c)The fact the attack was a case of excessive self-defence.
(d)There was assistance given by the respondent to the police during an investigation into illicit drugs.
Mr Simperingham submits that when the mitigating factors are taken into account a starting point between two and three years was appropriate and, given that starting point, an order under s 34(1)(b)(i) could not be seen as manifestly inadequate.
Discussion
The first aspect of the statutory context is that s 34 gives the Court a discretion where an offender is convicted of an imprisonable offence. A finding that an offender is mentally disordered or intellectually disabled does not require the Court to make an order under s 34.[18] Accordingly, a Court sentencing a mentally ill offender is entitled to take the mental illness into account in applying the usual sentencing principles in the Sentencing Act 2002. This is the third option referred to in the Solicitor-General’s submissions. In E v R this Court explained that an offender’s mental illness may be relevant to sentencing in several ways.[19] The Court held that mental illness may mitigate a sentence either because:[20]
if causative of the offending, it moderates the culpability; it renders less appropriate or more subjectively punitive a sentence of imprisonment; or because of a combination of those reasons. The moderation of culpability follows from the principle that any general criminal liability is founded on conduct performed rationally by one who exercises a willed choice to offend. (Footnotes omitted)
[18]R v Redmile [1987] 1 NZLR 157 (CA) at 163. Redmile was decided under the former s 118, which like the current section stated that the Court “may” make an order under the section.
[19]See E(CA689/2010) v R [2010] NZCA 13 at [68]–[70].
[20]At [68].
However, this Court also held that, if mental impairment creates a risk of repetition of offending, this may direct attention to issues of personal deterrence or public protection, which would tend to increase the sentence.[21]
What constitutes an offence justifying orders under s 34(1)(a)?
[21]At [69].
This Court in Satherley has held that orders under s 34(1)(b) should be reserved for offending at the less serious end of the scale where deterrence and protection of the public are not imperative. It follows that cases that can be characterised as more serious (and likely to call for deterrence and community protection) would normally warrant being dealt with under s 34(1)(a). The question then is: what factors ought to be considered when determining how a particular case should be dealt with?
There has hitherto been little guidance on what constitutes an offence requiring the application of the powers under s 34(1)(a). The section itself provides no guidance on when an order should be made under s 34(1)(a) or s 34(1)(b). In Satherley, this Court did not go beyond suggesting that s 34(1)(a) should be used where the offending is “serious”. We consider that there is no need to be over prescriptive. Rather, we propose to identify some factors that should be considered in deciding whether an offence is serious. We emphasise that, although some guidance can be provided, in the end each case will turn on its own facts.
Although given in the context of s 118 of the CJA the comments of this Court in R v Batt apply equally to the new regime under s 34 of the CPMIP Act:[22]
The sentencing of offenders with a mental disorder for serious crimes can be a difficult exercise. On the one side there is the public interest which calls for a sentence which reflects the community's abhorrence of crimes of that nature and acts as a deterrent to an extent which no other sentence can achieve. On the other side is the concern which would move any civilised society to ensure that mentally disordered persons are kept in a place where their disturbed psychiatric state can be treated in a humane way. In this exercise a Judge must keep the competing factors in their proper proportions. He must weigh the gravity of the offence against the need for treatment and see how each can best be achieved.
[22] R v Batt [1987] 1 NZLR 760 (CA) at 766.
We consider that there are four factors that should be taken into account when deciding whether an offence is serious enough to warrant an order under s 34(1)(a).
First, the Court should consider the nature of the offence. Offences involving the intentional infliction of grievous bodily harm, for example, will almost always be serious. Some assistance in determining what offences are serious can be found in the enactment of the “three strikes” regime in s 86A – s 86I of the Sentencing Act 2002. Section 86A provides a list of “serious violent offences” to which the regime applies. This list is an indication of what, in the eyes of Parliament, amounts to serious offending. However, because the definition of “serious violent offences” covers a broad range of offences, inclusion in s 86A will not necessarily be a factor indicating that an order under s 34(1)(a) is appropriate. Offences such as murder and sexual violation which are included in the section are clearly serious. However, the circumstances of an offence like robbery, which is also included in the section, may make the offending less serious and suitable for an order under s 34(1)(b).
Second, the Court should look to the circumstances of the offending. This is a fact based inquiry. Where applicable, the provisions of the Sentencing Act 2002 and guideline judgments of this Court may be useful in identifying features of the offending that make it more or less serious.
The third consideration is the circumstances of the offender that impact on the seriousness of the offending. The Court will need to consider factors such as the offender’s previous record and history of similar offending, and any effect the offender’s mental impairment has on the seriousness of the offending.
Finally, the Court should consider whether the case calls for a sentence requiring deterrence or denunciation or community protection, as opposed to rehabilitation alone being appropriate. In particular, where there is a risk of reoffending that gives rise to a need to protect the public, an order under s 34(1)(a) may well be justified.
Measured against the factors set out above, the less serious the offending the more likely it is that the case could fall within s 34(1)(b), which involves the imposition of no sentence on the offender. What is required is an evaluation of relevant factors as part of the exercise of the Court’s broad discretion under s 34. In most cases of serious offending, use of the powers under s 34(1)(a) will be appropriate. We should add, however, that there might be a case involving exceptional circumstances where, despite serious offending, the power under s 34(1)(b) might be used.[23]
Application to this case
[23] Compare Police v GSR HC Christchurch CRI-2007-409-0188, 2 November 2007 at [28].
Applying the approach outlined above, we are satisfied that the circumstances clearly involve serious offending that would have warranted the imposition of a sentence of imprisonment, together with an order under s 34(1)(a) of the CPMIP. Wounding with intent to cause grievous bodily harm is among the most serious of violent offences and is included within s 86A of the Sentencing Act. The use of a broken bottle as a weapon in a street attack makes the circumstances of the offending serious. As for the circumstances of the offender, her previous record and recent history of very similar offending increased the seriousness. Although the respondent has acknowledged mental health problems, the other aspects of the offending mean that deterrence, denunciation and community protection were required.
The sentence that ought to have been given in this case
This question requires the application of the standard analysis called for in Taueki.[24] Bearing in mind the aggravating features of the offending, including the seriousness of the injuries inflicted and the use of a weapon to attack the victim’s head, the Solicitor-General submits the offending falls within band two (with a five to ten year starting point). Given that the offending features two or three aggravating factors, an initial starting point of around five to six years should apply. Ms Laracy accepts that under a generous discretionary analysis the lower figure may be taken.
[24] R v Taueki [2005] 3 NZLR 372 (CA).
The sentence then needs to be adjusted to reflect the mitigating feature that the respondent did not start the fight and her response was initially one of excessive self-defence. This would give a putative starting point of between four to four and a half years. The lower figure can be adopted for the purposes of analysis.
We agree with the Solicitor-General that an uplift was required to reflect the charge of conspiring to pervert the course of justice. This involved another person and significant deception of police officers conducting an investigation into the incident. A conservative approach would involve an uplift of 12 months to make a sentence of around five years, based on the totality of the offending. Further uplifts are required to take into account first the respondent’s previous offending of a similar type and second the fact that the respondent was still the subject of post‑release conditions at the time of the offending. A general approach would see nine months added for these aspects, giving a total of five years nine months imprisonment.
The Solicitor-General accepts that there are mitigating factors warranting the application of discounts from this figure. These involve allowances for the respondent’s mental health and for the guilty pleas. An allowance for the former of around 20 per cent is suggested and around 25 per cent for the latter. This would result in an end sentence of about three years six months imprisonment.
Mr Simperingham does not take issue with the approach taken. While emphasising the various mitigating features, he does not disagree with the seriousness of the offending concerned.
We are satisfied that an application of Taueki principles, coupled with a generous approach to take account of the respondent’s mental illness and other mitigating features, would have resulted in a sentence of imprisonment in the area suggested by the Solicitor-General. In short, a sentence of imprisonment ought to have been imposed for what was undoubtedly serious offending by any measure. Accordingly, we are satisfied that the appeal against the order made under s 34(1)(b) of the CPMIP must be allowed.
What should this Court do now?
The context in which this question must be considered includes the fact that both prior to and since she was dealt with in the District Court in April 2011, there has been considerable improvement in the respondent’s condition. A report of Dr Short, Consultant Forensic Psychiatrist, dated 6 April 2011 indicated some improvement as a result of the treatment the respondent had been receiving prior to sentencing. Dr Marks, whose reports dated 29 June and 7 July 2011 were available to the Court, confirmed that there had been “positive developments in her mental outlook”. Dr Marks added:
The bitter reversal of these successes that imprisonment could produce may provoke Goodlet to revert to her previous antagonistic mien and indulge in psychoactive drug taking with fellow criminals. This runs the risk of provoking mental disturbance again.
A further aspect is that since the time of the offending the respondent has spent a total of 382 days either on remand or in a secure mental health unit. In addition, she was released on E-bail conditions for a period of around 22 weeks. There is no dispute that these matters need to be taken into account in determining the nature of any sentence to be imposed following this appeal.
Given these contextual features, particularly the progress made by the respondent and the risks to her mental health from a possible custodial sentence, we are reluctant to impose a custodial sentence at this time. This Court in R v Nathan[25] has explained why, on a successful appeal against sentence by the Solicitor-General, the Court may be loath to translate a community-based sentence into a custodial one. Although the order made under s 34(1)(b) was not a community-based sentence, the respondent has recently been granted leave from her inpatient status and has been living in the community. Therefore, similar principles apply.
[25]R v Nathan CA209/06, 29 November 2006 at [24] quoting R v Donaldson (1997) 14 CRNZ 537 (CA) at 549–550.
We canvassed with counsel for both parties what might be an appropriate sentence in the present circumstances. The possibility of home detention was floated, but there are jurisdictional aspects[26] which preclude this. A short sentence of imprisonment, to create an appropriate mark on the respondent’s record, was also suggested and rejected. Ms Laracy accepted that a statement from this Court that the respondent ought to have been sentenced to imprisonment, which we have made,[27] would be an equally appropriate way to mark the seriousness of the respondent’s offending.
[26]Under s 15A(1)(b) of the Sentencing Act 2002 a sentence of home detention can only be imposed if “the court would otherwise sentence the offender to a short-term sentence of imprisonment”. This Court cannot sentence the respondent to imprisonment. If the Court thought that a sentence of imprisonment was appropriate then in accordance with R v Sipa the Court would have to remit the case to the District Court to allow the respondent to vacate her guilty plea. In any case s 4 of the Sentencing Act defines a short term sentence of imprisonment as a term of imprisonment of less than two years duration and as we have set out above at [50] the appropriate term for the offending in this case would have been around three and a half years.
[27] At [52].
In the end, both counsel agreed that a sentence of intensive supervision for two years with special conditions would best meet the somewhat unusual requirements of the case. We agree that this meets the needs of justice. It marks this Court’s denunciation of the respondent’s serious offending. It limits the risk of her mental health progress being reversed. Finally, it will assist in her eventual rehabilitation back into the community.
Result
The Solicitor-General is granted leave to appeal against the order made. The appeal is allowed. The order made in the District Court under s 34(1)(b) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 is quashed. In its place, the respondent is sentenced to two years intensive supervision to commence on the date of this judgment.
In addition to the standard conditions for intensive supervision, the following special conditions will apply. The respondent shall:
(a)Attend all scheduled appointments with the Consultant Psychiatrist and other Community Mental Health Services employees.
(b)Take all prescribed medication and undergo all treatment as directed by the treatment provider and Probation Officer.[28]
(c)Undertake a psychological assessment and any further treatment if assessed as suitable as directed by the Probation Officer.
(d)Undertake training in basic work and living skills as directed by the Probation Officer.
(e)Refrain from the consumption or possession of alcohol and illicit drugs for the duration of the sentence of intensive supervision.
(f)Attend all counselling and other treatment for anger management and alcohol and drug addictions as directed by the Consultant Psychiatrist and the Probation Officer.
[28]Section 54I(5) of the Sentencing Act states that no offender may be made subject to a special condition that requires the offender to take prescription medication unless the offender has given their informed consent to taking medication in accordance with the section. Since the hearing, Mr Simperingham has provided us with a memorandum confirming that the respondent has been advised about the medication she will have to take by her psychiatrist in accordance with s 54I(5) and that she consents to taking it.
The respondent must report in person to a Probation Officer in the Gisborne area as soon as practicable and not later than 72 hours after the date of this judgment.
Solicitors:
Crown Law Office, Wellington for Applicant
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