R v Hiroti
[2023] NZHC 980
•28 April 2023
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE
CRI-2022-083-1198
[2023] NZHC 980
THE KING v
STANLEY BERNARD ERUINI HIROTI
Hearing: 28 April 2023 Counsel:
J Harvey for the Crown D Goodlet for Mr Hiroti
Judgment:
28 April 2023
JUDGMENT OF GWYN J
(Summary of judgment delivered orally)
Introduction
[1] This is a disposition hearing under s 24 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (Act) in relation to Stanley Hiroti.
[2] Mr Hiroti is charged with manslaughter1 for causing the death of Jeremy Pearcey by an unlawful act, namely driving a motor vehicle in a dangerous manner while intoxicated.2
1 Crimes Act 1961, ss 151(1), 171, 160(2)(a) and 177. The maximum penalty is life imprisonment.
2 Land Transport Act 1998, ss 36AA and 61(1)(b). The maximum penalty is five years’ imprisonment or a fine of up to $20,000.
R v HIROTI [2023] NZHC 980 [28 April 2023]
[3] On 20 February 2023 Grice J found that Mr Hiroti was mentally impaired and unfit to stand trial.3 Justice Grice also concluded that it is unlikely Mr Hiroti will become fit to stand trial given the nature of his mental impairment. Justice Grice went on to conclude, on the balance of probabilities, that Mr Hiroti caused Mr Pearcey’s death by dangerous driving while intoxicated.
[4] The purpose of today’s hearing is to consider the next steps, in light of Grice J’s earlier findings. Before I do so, it is necessary for me to set out the background.
The offending
[5] On 10 June 2022, Mr Hiroti was driving a Ford utility which collided with a Volkswagon Golf driven by Mr Pearcey approximately four kilometres outside of Turakina. Mr Hiroti was driving in the wrong lane towards oncoming traffic at the time of the crash. Mr Pearcey’s driving and his vehicle did not contribute to the accident.
[6] The Police estimated Mr Hiroti was driving 114 kilometres per hour at the time of the crash.
[7] Mr Hiroti had 186 micrograms of alcohol per 100 millilitres of blood — just under four times the legal limit of blood alcohol — and a minimal amount of cannabis in his bloodstream.
[8]Witnesses to the crash described Mr Hiroti as driving dangerously
2.3 kilometres north-west of the scene of the accident. Mr Hiroti was described as having attempted to overtake a vehicle on a blind corner whilst driving south in the oncoming north-west traffic passing lane. He continued driving in a dangerous manner until the fatal crash.
3 R v S [2022] NZHC 273.
Mr Hiroti’s mental impairment
[9] On 20 February 2023, Grice J considered Mr Hiroti’s fitness to stand trial.4 Her Honour considered the evidence of two medical assessors, Dr Andrew Bailey, a consultant forensic psychiatrist, and Mr Paul Carlyon, a clinical psychologist with the Mental Health, Addictions and Intellectual Disability Service of Te Whatu Ora–Health New Zealand. The evidence showed that Mr Hiroti has a significant cognitive impairment which renders him unable to communicate with or instruct counsel, plead or adequately understand the nature, purpose or the potential consequences of the proceeding, or otherwise meaningfully participate in the Court process. Justice Grice noted Dr Bailey’s evidence that Mr Hiroti’s mental impairment means he has a “very limited appreciation” of the court process and the offence with which he is charged.5
[10] Justice Grice concluded that Mr Hiroti is mentally impaired and unfit to stand trial, under s 8A of the Act.6 Justice Grice also concluded that it is unlikely Mr Hiroti will become fit to stand trial given the nature of his mental impairment.7
[11] Justice Grice then considered Mr Hiroti’s involvement in the manslaughter offending under s 10 of the Act. The Judge was satisfied that the evidence — the crash investigation report, the Coroner’s report and a number of formal statements by witnesses who observed Mr Hiroti’s driving immediately before the accident and assisted at the accident scene — was sufficient to establish the basis of the offence. The evidence established that Mr Hiroti caused the death of Mr Pearcey by his dangerous driving while intoxicated, on the balance of probabilities.8
[12] Accordingly, Grice J found that Mr Hiroti caused the death of Mr Pearcey by way of dangerous driving whilst intoxicated by alcohol in terms of s 10 of the Act, the involvement provision.9
4 R v S, above n 3.
5 At [11(e)].
6 At [15].
7 At [15].
8 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 10(2).
9 R v S, above n 3, at [37].
[13] Under s 23 of the Act, Grice J directed that inquiries be made to determine the most suitable course for the disposition of this matter.
The alternatives open to the Court
[14] Sections 24 and 25 of the Act set out the alternatives available to the Court once a defendant has been found unfit to stand trial.
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 of the Act the Court must decide whether Mr Hiroti should be detained in a hospital as a special patient,10 or in a secure facility as a special care recipient.11 If neither option is appropriate, the Court may consider the alternative disposition options in s 25 of the Act.
[16] In deciding on the appropriate order under ss 24 or 25 of the Act, the Court must assess whether such an order is necessary in the interests of the public. The Court
10 Section 24(2)(a), under the Mental Health (Compulsory Assessment and Treatment) Act 1992.
11 Section 24(2)(b), under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.
of Appeal has provided guidance on the approach to such an assessment under s 24(2) of the Act in M (CA819/11) v R:12
[7] In determining whether it is necessary to make an order under s 24(2), the Court undertakes a judicial assessment that is wider in some respects than the medical assessments made by health assessors. It 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.
…
[17] The Court must consider all the circumstances of the case,13 and the evidence of one or more health assessors14 in deciding whether detention is necessary. “Necessity” is a high threshold, described by the Court of Appeal as a standard “between expedient or desirable on the one hand and essential on the other.”15
[18] Because Mr Hiroti is facing a charge of manslaughter, for which the maximum penalty is life imprisonment,16 if detention were ordered under s 24 it would apply for a maximum period of 10 years.17
Further health assessor’s report
[19] For the purposes of today’s hearing the Court has received a psychiatric report dated 8 March 2023 from Dr Nick Judson, a consultant psychiatrist with the Mental Health, Addictions and Intellectual Disability Service of Te Whatu Ora–Health New Zealand. Dr Judson met with Mr Hiroti and his daughter who holds his Enduring Power of Attorney the previous day.
12 M (CA819/2011) v R [2012] NZCA 142, (2012) 28 FRNZ 773.
13 Criminal Procedure (Mentally Impaired Persons) Act, s 24(1)(a).
14 Section 24(1)(b).
15 M (CA819/11) v R, above n 12, at [17], quoting Environmental Defence Society v Mangonui County Council [1989] 3 NZLR 257 (CA) at 260.
16 Crimes Act, s 177(1).
17 Criminal Procedure (Mentally Impaired Persons) Act, s 30(1)(a).
[20] Dr Judson records that Mr Hiroti had a largely uneventful upbringing in Whanganui. He was married for over 40 years to his previous partner who died in 2015. He has two daughters and two sons.
[21] Mr Hiroti was a heavy alcohol user with binge drinking tendencies until his General Practitioner referred him to the Alcohol Service in 2002. After this point his alcohol use reduced although he would consume beer on occasion. He has stopped drinking alcohol since the events of 10 June 2022 and intends to remain sober.
[22] Dr Judson reports that Mr Hiroti has no memory of the events leading up to the incident, and no recollection of the incident itself. He is aware that he has been charged for driving while intoxicated and causing a serious accident, although Dr Judson had to remind him of the seriousness of the situation and prompt him to recollect his charges. Mr Hiroti did not recall which court he attended, nor what restrictions were upon him or his bail conditions. He reported that he no longer drives, and in any event, his driver licence was revoked on medical grounds on 8 November 2022.
[23] Although Mr Hiroti has previously been in motor vehicle accidents, it is not believed that he has previously suffered head injuries.
[24] Dr Judson says Mr Hiroti has experienced difficulties with his memories over the past five or six years although his family perceived these difficulties as a normal age-related condition until relatively recently.
[25] Dr Judson advises that although Mr Hiroti successfully travelled overseas and was independent two years ago, he has experienced significant decline in his memory in the past year. Mr Hiroti cannot recall everyday matters such as how many children he has.
[26] When Mr Hiroti was in hospital recovering from the injuries he sustained during the accident, two Health Assessors examined his fitness to stand trial. Since this time Dr Judson said it has become clear that Mr Hiroti is suffering from a dementing illness, likely of an Alzheimer type, although full investigations of the
pathology are pending. Dr Judson believes Mr Hiroti’s cognitive function has worsened due to the head injury he sustained in the accident.
[27] Dr Judson’s view is that admitting Mr Hiroti to hospital as a special patient18 would be unnecessary because the safety of the public can be adequately managed by the support of the community and Mr Hiroti’s whānau.
[28] Dr Judson’s opinion is that Mr Hiroti’s condition would meet the criteria of mental disorder within the meaning of s 2(1) of the Mental Health (Compulsory Assessment and Treatment) Act 1992 if the Court considered it necessary to make an order for Mr Hiroti to be treated as a patient.19 However, Dr Judson says an order that Mr Hiroti become an inpatient would be inappropriate because he does not need hospital treatment. Therefore, a Compulsory Treatment Order would be unnecessary in a clinical sense.
[29] Dr Judson notes that, if the Court were to order that Mr Hiroti be immediately released without conditions, he believes Mr Hiroti’s family would diligently provide the necessary supervision of Mr Hiroti whether or not they were under a Court order to provide this care. They previously cared for Mr Hiroti’s late wife when she suffered a long illness.
Mr Hiroti’s current position
[30] Mr Hiroti lives with his daughter Melissa and granddaughter. He currently receives carer support on a daily basis from Access Community Health. Both of Mr Hiroti’s daughters now work part-time to support him, and his daughter Leanne has responsibility for Mr Hiroti’s personal and financial decisions as Enduring Power of Attorney.20
[31] Dr Judson in his report describes this as a “very good family network” and observes that Mr Hiroti’s family are committed to providing him with a high level of support and oversight to ensure there is no further risk behaviour of concern.
18 Under the Criminal Procedure (Mentally Impaired Persons) Act, s 24(2)(a).
19 Compulsory Treatment Orders are made under s 25(1)(a).
20 The Court has evidence that the enduring power of attorney has been activated.
[32] In addition, Waka Kotahi has suspended Mr Hiroti’s driver’s licence indefinitely. He will not legally be able to drive a vehicle until he is able to prove medical fitness. Given the nature of dementia, this does not seem plausible.
Victim Impact Statements
[33] Pursuant to s 22 of the Victims Rights Act 2002 I granted leave for victim impact statements to be read by the following family members and friends of Mr Pearcey:
(a)Catherine Joyce;
(b)Alison Eagle; and
(c)Kari Pearcey (read by Alison Lewin from Victim Support).21
[34] In addition, I have read the statements of Kadin Williams, Chris Walker, Stephen Joyce and Brendon Roach.
[35] What is clear from those statements is the profound impact of Mr Pearcey’s death. That impact started with the immediate trauma of the accident and what occurred on that day in the aftermath of the accident; their ongoing sense of loss; and the enduring psychological and physical impact on those who loved Mr Pearcey.
[36] It is also clear that some family members feel a sense of injustice in terms of what has happened in terms of the court process.
[37] The sense of frustration at the process is understandable. However, Mr Hiroti has been found unfit to stand trial by Grice J on the basis of expert medical reports. The question for the Court now relates to next steps. The possible options are contained in ss 24 and 25 of the Act and those are the provisions that I am required to follow.
21 Sadly Ms Pearcey died two days before this hearing.
[38] I want to say also that the counsel involved in this case — Mr Harvey for the Crown and Ms Goodlet for Mr Haroti — have also acted properly within the requirements of those statutory provisions.
[39] Some of the statements have asked the Court to detain Mr Hiroti in a dementia care unit for a length of time comparable to what he could have received if he had been fit to stand trial and if he had been imprisoned as a result of trial. I am mindful of those views as well as the seriousness of the charge of manslaughter.
Submissions
[40] Counsel — Mr Harvey and Ms Goodlet — have filed a joint memorandum about the appropriate next steps. Counsel note that the options open to the Court under s 24 are to make an order detaining Mr Hiroti as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act or in a secure facility as a special care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, if it is considered “necessary” in the interests of the public or any person who may be affected by the Court’s decision.
[41] As counsel note, Dr Judson’s report confirms that Mr Hiroti does not suffer from an “intellectual disability” which means the second option under s 2422 is not available in this case. Therefore, under s 24, the Court can consider only the first option — detention as a special patient.
[42] In considering whether detention as a special patient is necessary, counsel’s submissions focus on the meaning of “necessary”. They note that the risk that Mr Hiroti presents to the public concerns him using or controlling a dangerous object, a vehicle. Although consuming alcohol is problematic, it is the decision to drive a vehicle that is the real risk to the public. The risk of Mr Hiroti driving a vehicle is limited given his driver licence is suspended on medical grounds.
[43] Counsel submit that detaining Mr Hiroti as a special patient is not necessary to protect the community and to promote Mr Hiroti’s rehabilitation and his reintegration
22 Section 24(2)(b).
into the community because there is no cure for his mental condition. His cognitive ability will only continue to decline with time.
[44] If detention under s 24 is unnecessary, then counsel submit the two relevant forms of alternative disposition under s 25 are treating Mr Hiroti as a patient under the Mental Health (Compulsory Assessment and Treatment) Act23 or releasing him into the care of his whānau.24
[45] Counsel have referred the Court to another case where the High Court (in relation to a defendant charged with murder who was found insane under s 20(2) of the Act)25 was satisfied that the treatment the defendant was receiving was working and that a Community Treatment Order would provide oversight to promote continued treatment success. But counsel submit that Mr Hiroti’s situation is different. Here, a Community Treatment Order would not assist the community with respect to the risk arising from Mr Hiroti because his dementia will continue to cause his cognitive function to decline — there is no rehabilitative treatment.
[46] Counsel for both parties agree that an order for the immediate release of Mr Hiroti under s 25(1)(d) is appropriate.
Analysis
[47] I have given careful consideration to Dr Judson’s report. I note that Mr Hiroti’s mental condition makes him unable to effectively instruct counsel and present a defence; that means he cannot participate in the Court process. I also note that Mr Hiroti does not recall the alleged offending and requires prompting to discuss his charges.
Section 24
[48] There is no presumption under the law that a defendant who is found unfit to stand trial will be detained as a special patient.26 To order that Mr Hiroti be treated as
23 Criminal Procedure (Mentally Impaired Persons) Act, s 25(1)(a).
24 Section 25(1)(d).
25 R v SM [2014] NZHC 605.
26 See R v Bayford HC Palmerston North, CRI-2004-254-97, 9 December 2004 at [21].
a special patient under s 24, I must be satisfied that it is necessary in the interests of the public or Mr Hiroti’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 the defendant’s impairment. The test for what is “necessary” involves a high threshold.27 For example, in R v Kingi, the High Court found it was necessary to detain the defendant as a special patient.28 In that case, the defendant was suffering from treatment-resistant paranoid schizophrenia and was likely insane at the time he did acts leading up to his second murder conviction. The Court considered the continued detention would protect the public and the defendant’s family.
[49] I am not satisfied that an order that Mr Hiroti be detained in hospital as a special patient under s 24(2)(a) is necessary in this case. The risk to the public are managed by the cancellation of his driver licence and the ongoing support of his family, which will necessarily include that he does not drive a vehicle again. In any event, the nature of his dementia means he is unlikely to drive a car again. Nor would detention as a special patient assist Mr Hiroti’s rehabilitation. He does not need hospital treatment. There is no treatment available for dementia.
Section 25
[50] I therefore go on to consider whether one of the four alternative disposition options under s 25 would be appropriate.29 Section 25 provides:
25Alternative decisions in respect of defendant unfit to stand trial or insane
(1)If, after considering the matters specified in section 24(1)(a) and (b) concerning a defendant found unfit to stand trial or acquitted on account of his or her insanity, the court is not satisfied that an order under section 24(2) is necessary, the court must deal with the defendant—
(a)by ordering that the defendant be treated as a patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992; or
(b)by ordering that the defendant be cared for as a care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003; or
27 M (CA819/11) v R, above n 12.
28 R v Kingi [2017] NZHC 2938.
29 Observation of Gendall J in RS v Police [2016] NZHC 344.
(c)if the person is liable to be detained under a sentence of imprisonment, by deciding not to make an order; or
(d)by ordering the immediate release of the defendant.
(2)Before the court makes an order under subsection (1)(a), 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.
(3)Before the court makes an order under subsection (1)(b), 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.
(4)In the exercise of its powers under subsection (1), the court may take into account any undertaking given by, or on behalf of, the defendant that the defendant will undergo or continue to undergo a particular programme or course of treatment.
[51] Two of those alternatives are not relevant — Mr Hiroti does not have an intellectual disability30 nor is he liable to be detained under a sentence of imprisonment.31
[52] That means that only two of the alternatives are available here. They are: (a)
To treat Mr Hiroti as a patient under the Mental Health (Compulsory Assessment and Treatment) Act;32 or
(b)
To order Mr Hiroti’s immediate release.33
[53]
The
Court could make an order that Mr Hiroti become a community patient
under s 25(1)(a) if the Court is satisfied based on the evidence of the health assessor that the defendant is mentally disordered. This order would expire after six months unless the Court extended the order or if the responsible clinician considered Mr Hiroti fit to be released early.
30 Section 25(1)(b).
31 Section 25(1)(c).
32 Section 25(1)(a).
33 Section 25(1)(d).
[54] Dr Judson discusses the merits of this option, which would entail treating Mr Hiroti under a Community Treatment Order, under the Mental Health (Compulsory Assessment and Treatment) Act. As Dr Judson notes, there is no compulsory treatment to be ordered in this case and such an order does not give power to compel Mr Hiroti to live at a named place or accept any other level of supervision or intervention. Dr Judson’s conclusion on this option is consistent with the statement in his report, that there is no specific treatment for dementia.34
[55] There is no treatment for dementia and a Community Treatment Order would not provide a useful safeguard for the community. Nor would it provide the Court with any degree of reassurance. Given the expected course of dementia is a gradual decline in memory and other functioning, I consider it would be unlikely that Mr Hiroti would receive early release from his clinician.
[56] I am not satisfied that an order under s 25(1)(a) that Mr Hiroti be treated as a community patient would be appropriate, given he will not recover from his illness. I therefore go on to consider whether he might be better suited for immediate release into the care of his whānau.
[57] Dr Judson notes, and I accept, that Mr Hiroti’s family will diligently provide the necessary care and supervision of Mr Hiroti if he is released into their care.
[58] As Lang J noted in R v Kalolo, the Act does not expressly provide for the Court to impose conditions on an order releasing a defendant.35 As the Court noted there, the disposition options provided by the Act contain “serious shortcomings”.
[59] Dr Judson has suggested that the Court might make further orders under the Protection of Personal and Property Rights Act 1988 to confirm Mr Hiroti’s residence and care arrangements. Such orders would ensure that Mr Hiroti was receiving the necessary supervision, whilst being better suited to Mr Hiroti’s circumstances than a Compulsory Treatment Order.
34 R v SM, above n 25.
35 R v Kalolo [2017] NZHC 518 at [17].
[60] Before me today Mr Harvey for the Crown made an oral application for orders under s 10 of that Act. That application is not opposed by Ms Goodlet.
Name suppression
[61] There is an interim order suppressing Mr Hiroti’s identity in relation to the alleged offending.36 Final suppression is to be dealt with at this disposition hearing.37
[62] Mr Harvey, for the Crown, advised the Court that Ms Joyce opposes Mr Hiroti being granted permanent name suppression, noting that Mr Pearcey’s name has been published. The Crown takes a neutral position on the name suppression matter but made submissions to assist the Court.
[63] Ms Goodlet for the defendant advises that, in light of Ms Joyce’s statement, the clear and unanimous view of Mr Hiroti’s whānau is that they wish to respect those views and not cause any further harm to Mr Pearcey’s family. For that reason, the defendant does not seek final name suppression.
[64]Interim name suppression will now lapse.
[65]I also record that name suppression is not sought in relation to Mr Pearcey.
Orders
[66] I make orders under the Protection of Personal and Property Rights Act 1988, in the following terms:
(a)Mr Hiroti is to reside at the specified address.
(b)Mr Hiroti’s whānau is to keep Mr Hiroti under appropriate supervision.
[67] I order the immediate release of Mr Hiroti, pursuant to s 25(1)(d) of the Criminal Procedure (Mentally Impaired Persons) Act 2003.
36 R v S, above n 3,at [50].
37 At [49].
[68]The interim order suppressing publication of Mr Hiroti’s name will now lapse.
Addendum
[69] I understand that there has been some discussion between counsel and the families of Mr Pearcey and Mr Hiroti about possibly engaging in the restorative justice process. While it is of course for the parties whether they wish to take that further, I would support engagement in that process. In the event that they do so, I would hope that the costs of the restorative justice process might be met pursuant to Mr Hiroti’s legal aid grant.
Gwyn J
Solicitors:
Wilkinson Smith Lawyers, Whanganui
Debbie Goodlet, Whanganui
0
4
0