R v Gottermeyer

[2013] NZHC 2599

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF WITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2012-009-7705

[2013] NZHC 2599

THE QUEEN

v

PAUL ANDREW GOTTERMEYER

Hearing:	4 October 2013
Appearances:	C J Lange and A M S Williams for Crown A S Greig for Prisoner
Judgment:	4 October 2013

SENTENCING OF FOGARTY J

[1] Paul Andrew Gottermeyer, you have pleaded guilty to the murder of your separated wife.

[2]      On the 22nd of November 2012, I sentenced you to life imprisonment.

[3] At the time of sentencing you to life, I described the crime as “a horrible attack of the utmost gravity”. In the course of an argument you attacked her with a knife, causing 12 wounds to her head, throat, chest, back and hands. There was a large complex cutting wound across the right side and central throat. The surface characteristics of which indicated that more than one cutting stroke was required. There were stab wounds both to the chest and to the back.

R v GOTTERMEYER [2013] NZHC 2599 [4 October 2013]

[4] You committed that crime when you were sane. You knew the difference between right and wrong. You were responsible for your actions. You have appropriately acknowledged your personal responsibility today, when speaking to the family at the end of the hearing – or the two families, I should say, the family of the deceased and your family.

[5] All civilised societies distinguish between the gravity of a crime and the blameworthiness of the offender. That distinction is contained in the first line of s 8, one of the many sections guiding the Court as to the sentence I impose. Sections guiding the Court here are, for the record, sections 7, 8, 9, 102, 103 and 104. I have read all those, all the provisions in those sections before reaching my judgment as to the sentence that should be imposed on you, today.

[6] Going back to the 22nd of November last year, where I sentenced you to life imprisonment. I was at that time, and spoke about, the difference in law between the gravity of the offending from the degree of blameworthiness of the offender. I decided it was not possible to resolve the issue of your blameworthiness by relying on the clinical report that you were not insane.  I was aware by that time, of course,

of your admission as a patient to Hillmorton Hospital by your wife, the victim, and that admission was on the 27th of November 2011, and of the record made at the time that you were displaying psychotic symptoms, as well as having a diagnosis of depression. I was aware of your release back into the community on the 13th of December 2011, and of the intensive supervision of you by two caregivers, one a psychiatrist, while you were an outpatient of Hillmorton Hospital, continuing to the day before this crime.

[7]     Because the report before me, back in November last year, was directed only to your sanity, rather than to the degree of your mental ill health, short of insanity, I requested further reports. A year has passed. I have before me three reports from three expert forensic psychiatrists.

[8]     These psychiatrists have not personally treated you.  The reason for selection of these forensic psychiatrists is because it is standard practice across New Zealand and, I am told, in similar forensic mental health systems overseas to keep separate

the roles of the expert psychiatrists reporting to the Court from the treating psychiatrist and psychologist who were looking after you when you were under the care of Hillmorton Hospital. This is because of the potential conflict of ethical responsibilities of mental health professionals between acting in clinical and medical roles, and in legal roles giving expert opinions to the Court.

[9] What has happened, however, is that the forensic psychiatrists have not only read your record, but have spoken to the psychiatrists and other clinicians who were caring for you, and had interviewed you.

[10] Before this Court there are three reports, by Dr Helen Austin, Associate Professor Brinded, and Dr D G Chaplow.

[11] In her written report, it was Dr Austin’s opinion that at the time of offending you were in the recovery stage of the major depressive episode which was diagnosed in November 2011. That it appeared, after your initial  presentation  and improvement, you had developed a relapse of symptoms in February and March of 2012, and this was in the context of your decision to discontinue medication, against advice, and ongoing psychosocial stressors.

[12] I am not going to go into all of those stresses. None of them are a defence to your crime. You had the recent breakup of your marriage. You had your property being red zoned, there were issues there. In short, you had many of the stresses that thousands of people in Christchurch live with every day.

[13] Coming back to your mental health, your mood appeared to improve again over the following months, with the recommencement of medication (I am going back to Dr Austin’s opinion here). You described to the clinicians who were treating you having good and bad days, but that your mood was 8 out of 10. You were able to continue working. You were being seen regularly by your psychiatrist and your case manager. They had no significant concerns regarding your mental health, including on the day prior to this crime. You were being considered for discharge back to general practitioner care within the next month. It was Dr Austin’s opinion, and I think remains her opinion, that any ongoing symptoms of depression at the

time of the crime were likely to be mild in severity, and there was no indication you were experiencing symptoms of psychosis.

[14]     Professor Brinded came to a different opinion in his written report.   In his report, he said:

At the time of the homicide it [was] my opinion that on the balance of probabilities Mr Gottermeyer was suffering from a disease of the mind, namely a major depressive episode which was chronic in nature. Whilst Mr Gottermeyer’s description of the attack on his wife was somewhat incomplete, at no stage did he suggest [that] his ongoing psychiatric symptoms caused him to attack his wife. In particular there [was]  no evidence that he suffered from any delusional thinking with respect to his wife nor [that he] suffered [from] any perceptual abnormalities such as command hallucinations ...

Voices, as it were, speaking to you.

...that drove [you] to attack her.  He described the attack as a consequence of a heated and intense argument the like of which [you] had never experienced previously.

He said:

Consequently I believe at the time of the attack on his wife Mr Gottermeyer knew [of] the nature and quality of his actions and was also capable of knowing that they were morally wrong given the normal[ly] accepted standards of right and wrong. [Therefore] I do not [therefore] believe that a defence of insanity would have been sustainable in this case.

[15]     Professor Brinded went on though.  He said:

Mr Gottermeyer’s case however in my view does fall into the category of a homicide which is unlikely to have occurred had Mr Gottermeyer not been mentally unwell in the months leading up to the attack. [While] I am aware that the concept of diminished responsibility is reflected in English law, that is not the case in New Zealand (other than in respect to a charge of infanticide). Mr Gottermeyer’s situation would however appear in my view to be a case where his responsibility was in all probability diminished by his ongoing major depressive episode in conjunction with the multiple stressors [as] he was attempting to manage [which he was attempting to manage] as previously described. I believe that his treating team were unaware of the severity of his ongoing psychiatric symptoms due to his low mood and reluctance to divulge the fact that [he was] he remained significantly unwell at the time of the homicide.

[16] A third opinion was obtained from Dr Chaplow. Dr Chaplow had  the advantage of reading the two reports, from Dr Austin and Professor Brinded. Like them, he also examined Mr Gottermeyer.  In his written report, he said:

It is clear from the history and common consensus that Gottermeyer had a major depressive illness with mood congruent [psycho psychotic form] features that responded to anti depressives and antipsychotic medication. This appeared to be in a context of considerable stress and deterioration of the marriage. It appears on a superficial exploration of his personality that he was more inflexible in coping with stress and [was] generally a poor communicator. He found refuge in work which may [have] paradoxically [have] been to his detriment. His partial insightlessness contributed to his deterioration when he ceased all medication for a short period and in his attempts to hide his symptoms from his care-givers. There is ample evidence of his several suicide attempts. Consistent with his personality structure he attempted to resolve his stress by having [I am inserting “wife” rather than the name here] sign the papers so he could ‘move on’. In the context of intense argument he ‘snapped’, probably dissociated and killed [his wife] in a flurry of knife stabs. Post killing he has been under care in prison where he remains under psychiatric supervision having attempted one serious slashing to his person. At interview, while he evidenced no overt mental illness features I thought his insight to be diminished.

... there is [no] doubt in my opinion that Gottermeyer had a major depression with mood congruent psychotic features. Even without the psychotic features, major depression per se is regarded as a ‘disease of the mind’. His illness has continued with the continuation of medication just holding him. It is conventional wisdom to maintain medication for 6-12 months post resolution of the illness but it is apparent [that] when he stops medication he relapses. It is also apparent he remains vulnerable to life stress, more so now [that he] as he grieves for his ex-wife and the loss of contact with his daughter.

... I agree with all the experts here that there would be no basis for [a defence of insanity]. As stated I am of the opinion he [has had] has/had a ‘disease of the mind’. Nevertheless he knew the nature and quality of his actions causing [his wife’s] death and his illness phenomenology, while being disabling, had no nexus to the killing.

I [do] think that he dissociated immediately before or immediately after he attacked [her]. This is a common phenomenon...

[17]     As to blameworthiness, Dr Chaplow reported:

...this will clearly be a judicial matter but I am in agreement with the final paragraph in Assoc. Prof. Brinded’s report.

Which I have just read out.

[18] Before this hearing commenced, the three psychiatrists conferred. This is, I should say, a regular practice in civil proceedings with experts, now being adopted more and more in criminal cases. This is because the psychiatrists are experts assisting the Court, not acting for one party or the other.

[19] Before going into Court, I was of the opinion that one of the reasons for the difference in opinion between these experts, which are differences by degree only, is a difference between the positive statements Mr Gottermeyer was making to his caregivers immediately prior to the killing and what he has said subsequently. Essentially, Professor Brinded has interpreted the earlier statements as being consistent with the common phenomena of mentally ill patients disguising their symptoms for fear of being returned to hospital, or being placed on some other treatment.

[20] In her evidence to this Court today, Dr Austin drew a distinction between the fact that depression is an incredibly common mental illness, but, on the other hand, homicide is a very rare event. So the majority of people who become depressed do not go on to commit a serious offence in that context. She was  unwilling  to apportion what percentage contribution the depression had to factors which led to this crime.

[21] In his cross-examination, Mr Greig put to Dr Austin that she had left out a suicidal ideation event – that means when you are thinking of committing suicide - which occurred on 10 May 2012 – sorry, 2011. At that time, it is recorded Mr Gottermeyer did not want to go back to Hillmorton. He was sent to live with his father. And for the next 10 days he was visited every day. Dr Austin agreed that it was clearly viewed by his caregivers at the time as a significant event. She also agreed that recovery from depression is a gradual process, and it is not uncommon to have relapses.

[22]    Professor Brinded, in his oral evidence, emphasised that it is a rare event for a person suffering from depression to be admitted to a psychiatric hospital. He said in one of his answers: “In my view, this homicide may not have occurred had it not been for the fact he was still suffering from a major depressive episode.”  I heard that

as being a lesser conclusion than the one I have read out from his written report, where he said: “The homicide was unlikely to have occurred had Mr Gottermeyer not been mentally unwell in the months leading up to the attack”. But the later answers in his oral evidence to the Court, seemed to me, to come back to that conclusion. His last answer in evidence-in-chief was to answer “yes” to the proposition that, but for the depression, the homicide may not have occurred. Which takes us back to the lesser conclusion.

[23]  During his cross-examination, he noted that this was a homicide perpetrated by a man with no prior history of violence. He mentioned it as being out of character, “catastrophically out of character” is how I record him saying it. He was asked the question in cross-examination:

But you can’t quantify the weight you give the depression versus other social stressors and personality factors and so forth?

And he replied:

No, you can’t quantify it, but I guess you look at all the different contributing factors and say, “Well, a major mental disorder is a very significant issue, and when you’re considering trying to explain why  a person might act so catastrophically out of character, then the fact that he [has] a diagnosed mental disorder and was being treated, I think, has to be considered very seriously.

[24] That led me back to his conclusion that in the end his oral evidence was consistent, consistent with his written report.

[25] Dr Chaplow’s written report, as I have noted, adopted the conclusion of Professor Brinded. In his oral evidence, he emphasised that you have got to look at the entire entirety, his words – “the entire entirety”. In other words, all the factors that were in play at the relevant time. Dr Chaplow said, “I think depression was a factor here, in view of his entire life history. And I think depression was a factor in terms of exposing his vulnerability at that time.” He concluded, “I mean clearly the depression is significant, but so were the other very stressful factors”.

The law

[26] I now turn to the law. Both counsel were in agreement as to the principles of law that I have to be guided by. The leading case is a decision of the Court of Appeal, called The Queen and Williams. This decision points out all the statutory provisions that have to be considered, which I listed before. I am guided particularly by paragraphs 52, 53 and 54 of this decision. There, the Court of Appeal said:

[52] An alternative way of proceeding, which often will be more straightforward, would be for the sentencing court in s 104 cases to approach the justified minimum period of imprisonment in two steps. First the Court [will] consider the degree of culpability of the [instance] case in relation to that involved in the standard range of murders... In the course of doing so the Court would take into account in the normal way the pertinent aggravating factors set out in s 104 to the extent they were present, [and] other applicable aggravating factors, and all those in mitigation. As well, the sentencing Judge would have regard to the policy of s 104 that, in general, the presence of one or more s 104 factors establishes that the murder is sufficiently serious as to justify a minimum term of imprisonment of not less than 17 years. This element is necessary to ensure that effect is given to the legislative policy [underpinning] s 104, which requires courts at times to impose higher minimum terms of imprisonment than they might have done had s 104 not been enacted.

[53] The sentencing judge would then decide what minimum term of imprisonment was justified in all the circumstances of the case including those of the offender. As with cases determined solely under s 103, over time comparisons with other relevant sentences for murder will assist in determination of the appropriate minimum term in s 104 cases.

[54]    Where the first step indicates that [an] appropriate minimum period of imprisonment is 17 years or more the minimum term must reflect that assessment. In cases where the first step points to a lesser minimum term being justified, the Court would go on to the second step and consider whether to impose a minimum term of 17 years imprisonment would be manifestly unjust. If it is, the minimum term must be reassessed to what the Court considers to be justified. The Court may not, however, approach sentencing in s 104 cases on the basis that the 17 year minimum can be reduced whenever the Court thinks it is appropriate. There is no warrant to interpret the provision merely as a guide to judicial discretion. The question of whether the outcome of [the] assessment would make a 17 year minimum term manifestly unjust must also be approached in a principled way.

[27]   Following that approach, and I have read other paragraphs on either side of it, in The Queen and Williams, I first consider the degree of culpability (that is the word of the Court of Appeal, distinguishing between gravity, as it appears in section 8), in this case, in relation to what the Court called “the standard range of murders”.  Now,

of course, there is no standard range of murders in one sense of the word. Each murder is different.

[28] But, as I put to Professor Brinded in the course of his evidence, what has stood out for me in the facts of this case, right from the start, is that you are not the sort of person who regularly appears before this Court after a cruel murder and get sentences of 17 years or more. You do not have, to use that jargon, the same profile. You have no criminal history of violence. Very often we have files in front of us, which are not – with facts which are not often reported in the media, showing absolutely dreadful violent histories of men from a very young age. And the question that struck me, right from the start in this case, is, is it just that you should be treated like these men when sentenced for this murder? Particularly when you were clearly suffering from a depressive illness, the only question being the degree. In that sense, I think there is quite a different degree of culpability in this case from those involved in the standard range of murders.

[29] I particularly look at the facts of Queen and Williams, which was dealing with two murders. I refer to the murder committed by a Mr Olson. Mr Olson committed a particularly violent murder. He was in the company of the victim. They had been working together. They were both in good humour. Mr Olson then picked up the head of a metal pick axe and struck the victim with it on the head. He fell to the floor. Mr Olson felt for his pulse. When he did not find it, he picked up the pick axe again and he struck the victim repeatedly on the head with it. He then picked up a metal crowbar and used it to crush the victim’s windpipe. He walked back to the house, showered, changed, and then called the police and told them that he had murdered Mr Weeks. He offered no explanation. There was no indication he was suffering from any mental illness. A psychiatric report stated he had been unable or unwilling to provide any explanation for his violent crime. The psychiatrist – he was further examined. The psychiatrist was unable to find any indication of psychiatric disturbance or any evidence of depression or abnormal mood, mood swings.

[30] That is a case quite different from here. It is actually not one of those cases that I was talking about before, of violent criminals, often drug dealers who have committed violent crimes in satisfaction of drug debts or drug disputes.

Crown argument

[31]    I have heard argument from Mr Williams, who argued that you do qualify for a 17 year minimum term, because this was a murder committed with a high level of brutality, cruelty, depravity or callousness. He focussed on brutality. It was a brutal murder. I have said, in as many words, that, in the sentencing last year and again at the start of this sentencing.

[32]   It is unclear whether Parliament intended brutality to be viewed objectively, as in gravity, or subjectively, as in culpability. In that sense, it is arguable that this case falls within s 104, but the Court of Appeal in Williams points out in paragraph 52, that I read out, that it is a more overall evaluation, that one should not focus on any particular one factor in section 104, and should take into account other applicable aggravating factors, and none were presented in this case. And all those in mitigation, and, of course, here we have your mental illness.

[33] The result then is that I – as a result of this part of the analysis, I am not at all comfortable in the proposition that I should be imposing a minimum period of imprisonment of 17 years or more. It may be that I do not have to consider whether it would be manifestly unjust to do so, because, for the reasons that I have given, I think it would be manifestly unjust to do so, that I would be sentencing you in the same way that I would sentence genuinely evil men who have committed many crimes in their lifetime, culminating in a very serious murder.

[34] For these reasons, I must turn to consider what minimum term will meet the criteria in sections 7, 8 and 9 and in section 103 of the Act. There are numerous criteria there, probably over 20, and it is a question of selecting the appropriate ones. I think in this respect the four criteria contained in section 103 are a useful way of focussing on the merits in this case. I must impose a minimum term of imprisonment which will hold you accountable for this crime - accountable both to your deceased wife and their family, and to the community generally, and to your

young daughter – denouncing the conduct that you were involved in. The other two criteria I do not think apply. I do not think there is any possibility that you will commit the same crime or a similar offence, assuming you recover from this depressive illness. I am assuming that you will recover from this depression over the minimum period of imprisonment that I am shortly to impose on you.

[35] This is conduct out of character.  You - as I have been repeatedly saying, I do not think you are a criminal in the sense that you are likely to offend against the community independently of a serious mental illness.

[36] I have already imposed you to a sentence of  life  imprisonment.  The minimum term of a sentence of life imprisonment under section 103 of the Act may not be for less than 10 years. The question then becomes as to whether it should be for more than 10 years. This is a judgment. I have, in the course of argument with Mr Greig, said that I cannot follow, and it would be wrong to follow, the English method of analysis in cases of these sorts, which Professor Brinded with United Kingdom experience referred to in his evidence.

[37]  I have started with the conclusion that 17 years, or, as effectively invited to by the Crown, something in the order of 15 allowing for the discount for an early sentence of imprisonment, simply cannot be imposed justly in this case. I am left effectively with the decision as to whether I should impose the sentence of 10 years, or whether or not I should increase that sentence because of these other factors that I have referred to, particularly holding you accountable for the harm done to the victim and her family.

[38] I have reached the conclusion – and I know it is not going to be popular to your family in the back of the Court, but I would appreciate it if we can keep calm while I deliver it – that the appropriate sentence is a minimum term of 10 years.

[39]     You are sentenced to a minimum term of imprisonment of 10 years.

Solicitors:

Raymond Donnelly & Co, Christchurch A S Greig, Christchurch

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