R v Ismail
[2015] NZHC 3216
•15 December 2015
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2014-085-005323 [2015] NZHC 3216
THE QUEEN
v
MUHAMMAD RIZALMAN BIN ISMAIL
Hearing: 4 and 11 December 2015 Counsel:
G J Burson and A R van Echten for Crown
D L Stevens QC and J M Robertson for DefendantJudgment:
15 December 2015
JUDGMENT OF COLLINS J [Disputed Facts Hearing]
Summary of judgment
[1] This judgment explains my findings in relation to facts which were disputed when Mr Rizalman pleaded guilty on 30 November 2015 to a charge that he indecently assaulted Ms Billingsley1 in her home on 9 May 2014.2
[2] I have concluded:
(1)Mr Rizalman had a sexual motive when he followed Ms Billingsley to her home on the evening of 9 May 2014 and when he entered her
bedroom naked from his waist down.
1 Ms Billingsley’s name is not suppressed following an order made in the Wellington District
Court, Billingsley v New Zealand Police DC Wellington CRI-2014-085-5323, 9 July 2014.
2 Crimes Act 1961, s 135. Maximum penalty is seven years’ imprisonment.
(2)Mr Rizalman was in an abnormal state of mind when he indecently assaulted Ms Billingsley.
(3)Mr Rizalman’s abnormal state of mind may have diminished his level of understanding when he offended. However, Mr Rizalman’s possible “diminished understanding” is not a mitigating factor because at the time of his offending Mr Rizalman was, in all likelihood, affected by drugs which he had voluntarily consumed.
[3] The Crown accepts Mr Rizalman did not intend to sexually violate
Ms Billingsley or force himself upon her in a sexual sense.
[4] Although Mr Rizalman may have had diminished understanding at the time of his offending he did not suffer from a disease of the mind within the meaning of s 23 of the Crimes Act 1961. Nor is there any suggestion Mr Rizalman suffers mental impairment within the meaning of the Criminal Procedure (Mentally Impaired) Persons Act 2003.
[5] I shall:
(1) explain the charges Mr Rizalman originally faced; (2) set out the accepted facts;
(3) explain the guilty plea;
(4) analyse the onus and standard of proof in a disputed facts hearing; (5) explain the evidence;
(6) explain the analysis that has underpinned my conclusions; and
(7) set out my conclusions.
Original charges
[6] Initially, Mr Rizalman was charged with:
(1) having committed burglary by entering and remaining in
Ms Billingsley’s home without authority with intent to assault her;3 (2) assaulting Ms Billingsley with intent to sexually violate her;4 and (3) indecent assault.
[7] The key areas of dispute concern Mr Rizalman’s intentions when he followed Ms Billingsley home and entered her bedroom, and his mental state at the time of his offending. I formed the view Mr Rizalman’s intentions when he entered Ms Billingsley’s home and bedroom and his mental state were matters that were
likely to carry significant weight in any sentence I imposed.5
[8] I therefore conducted a disputed facts hearing pursuant to s 24 of the Sentencing Act 2002 on 4 and 11 December 2015. Mr Rizalman gave evidence at that hearing, as did Professor Mellsop and Dr Barry-Walsh, who are psychiatrists who examined Mr Rizalman and formed opinions about his mental state at the time of his offending.
Accepted facts
[9] The modified summary of facts records that at about 6.30 pm on 9 May 2014
Ms Billingsley was alone in her bedroom of the house where she and two others lived. At the time, Ms Billingsley’s flatmates were out. Ms Billingsley was sitting on her bed, fully dressed, watching a movie on her laptop.
[10] Mr Rizalman went to Ms Billingsley’s home. He removed his trousers and
underpants near the front door and entered the property through a door which was not locked. Once inside the property Mr Rizalman went into the kitchen where he
3 Crimes Act 1961, s 231(b). Maximum penalty is 10 years’ imprisonment.
4 Section 129(2).
5 Sentencing Act 2002, s 24(2)(a).
removed his jacket. He then went to the door of Ms Billingsley’s bedroom which was adjacent to the lounge. Mr Rizalman knocked on the door and asked if he could come in.
[11] Ms Billingsley looked up and saw Mr Rizalman standing in the entrance to her bedroom, wearing only a shirt and naked from the waist down. She jumped from her bed and yelled at Mr Rizalman, telling him to get out. Mr Rizalman approached Ms Billingsley and grabbed her by the shoulders. Ms Billingsley eventually managed to get Mr Rizalman out of her flat before she locked the front door, and then secured herself in the bathroom and rang the police.
[12] A neighbour in a downstairs flat heard Ms Billingsley’s screams and telephoned one of Ms Billingsley’s flatmates, who in turn telephoned her boyfriend, who lived in a nearby property to Ms Billingsley’s flat. He came to assist Ms Billingsley, as did the person in the downstairs flat. When they arrived Mr Rizalman was standing near the front door to Ms Billingsley’s flat. By this stage he had put his trousers back on. Mr Rizalman was still at the property when the police arrived.
[13] When spoken to by the police Mr Rizalman said he had met Ms Billingsley at a cinema and that she had invited him home, but that she became angry when he began to eat her food.
The guilty plea
[14] Dr Stevens QC, senior counsel for Mr Rizalman, explained Mr Rizalman pleaded guilty to indecently assaulting Ms Billingsley because he accepted:
(1) he intentionally grabbed Ms Billingsley by the shoulders; (2) at the time he was not wearing any trousers or underpants;
(3)right thinking members of the community would consider the circumstances in which Mr Rizalman touched Ms Billingsley were indecent; and
(4)Mr Rizalman knew his actions would be regarded as indecent by right thinking members of the community.6
Onus and standard of proof
[15] Section 24(2) of the Sentencing Act explains the onus and standard of proof in disputed facts hearings in three stages.
[16] First, the prosecutor must prove beyond a reasonable doubt the existence of
any disputed “aggravating fact”.7
[17] An “aggravating fact” is defined to mean any fact that:8
(a) the prosecutor asserts as a fact that justifies a greater penalty or other outcome than might otherwise be appropriate for the offence; and
(b) the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case.
The Crown does not suggest there is any “aggravating fact” in this case.
[18] Second, the prosecutor must negate beyond a reasonable doubt any disputed mitigating fact raised by the defence except a mitigating fact of the kind that is wholly implausible or manifestly false.9
[19] A “mitigating fact” is defined to mean any fact that:10
(a) the offender asserts as a fact that justifies a lesser penalty or other outcome than might otherwise be appropriate for the offence; and
(b) the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case.
[20] Third, the onus on the prosecutor to negate any disputed mitigating fact raised by the defence does not apply to any disputed mitigating fact raised by the
offender “that is not related to the nature of the offence or to the offender’s part in
6 R v Armstrong [2007] NZCA 221; R v Dunn [1973] 2 NZLR 481 (CA).
7 Sentencing Act 2002, s 24(2)(c).
8 Section 24(3).
9 Section 24(2)(c).
the offence”.11 The onus is on the offender to prove this category of mitigating fact on the balance of probabilities.12
[21] Mr Rizalman’s case is that he suffered from an abnormal state of mind at the time of his offending. He says this is a mitigating fact because his abnormal state of mind meant he had “diminished intellectual capacity or understanding” at the time he indecently assaulted Ms Billingsley. I explain “diminished intellectual capacity or understanding” in paragraphs [25] and [89].
[22] The rationale for a defendant bearing the onus of proof in relation to some mitigating facts was explained by the Law Commission when it said:13
… [T]he offender should carry a reverse onus as to facts about himself or herself, which only he or she can be expected to know reliably, and which the prosecution is likely to be incapable of refuting.
The Law Commission also explained where the “fact is ‘extraneous’ and peculiarly within the knowledge of the offender” the defendant should carry the onus of proof.14 Thus, facts which a defendant would carry the onus of proving relate to matters known to the offender such as his or her reason for involvement in the offending15 and his or her motive for offending.16
[23] Section 24(1) of the Sentencing Act provides that in determining a sentence a Court “must accept as proved all facts, express or implied, that are essential to a plea of guilty …”.17
[24] Section 9(2) of the Sentencing Act sets out mitigating factors which the Court must take into account to the extent they are applicable when sentencing a defendant.
[25] Included in the list of mitigating factors is that the defendant “… has, or had
at the time the offence was committed, diminished intellectual capacity or
11 Sentencing Act 2002, s 24(2)(c) and (d).
12 Section 24(2)(d).
13 Law Commission Proof of Disputed Facts on Sentence (NZLC R76, 2001) at [104].
14 At [106].
15 Hillman v R [2010] NZCA 337.
16 Irvine v Police HC Christchurch CRI-2009-409-89, 8 July 2009.
17 Sentencing Act 2002, s 24(1)(b).
understanding”.18 However, a defendant’s diminished intellectual capacity or understanding is not a relevant mitigating factor if at the time of the offending he or she was “affected by the voluntary consumption or use of alcohol or any drug or other substance (other than a drug or substance used for bona fide medical purposes)”.19
[26] Mr Rizalman contends he followed Ms Billingsley to her home and entered her bedroom naked from the waist down because of his abnormal state of mind.
[27] I accept for the reasons I will explain in paragraph [90] that at the time of his offending Mr Rizalman may have “diminished understanding”. However, I am also satisfied that if Mr Rizalman had diminished understanding then this was, in all likelihood, caused by his use of synthetic cannabis. Mr Rizalman has therefore not discharged the onus set out in s 24(2)(d) of the Sentencing Act when he advances “diminished intellectual capacity or understanding” as a mitigating factor.
The evidence
[28] I will explain the evidence under the following headings: (1) Events prior to 9 May 2015.
(2) Events of 9 May 2015.
(3) Events after 9 May 2015.
(4) Mr Rizalman’s psychiatric assessments.
Events prior to 9 May 2015
[29] Mr Rizalman was born in Malaysia in 1976. He enlisted in the Malaysian
Army in 1994 and gained the rank of Warrant Officer Second Class in the Malaysian
Armed Forces. In September 2013, Mr Rizalman was appointed Assistant to the
18 Sentencing Act 2002, s 9(2)(e).
Defence Advisor in the Malaysian High Commission in Wellington. Mr Rizalman moved to Wellington with his wife and three children in late September 2014.
[30] In late January 2015 and during the course of February 2014, Mr Rizalman’s wife started to notice changes in his behaviour. These changes were also noticed by staff in the Malaysian High Commission and others who knew Mr Rizalman. Mr Rizalman apparently became sleepy for no apparent reason, he often appeared confused and was forgetful. Mr Rizalman’s wife has explained her husband’s “… behaviour changed every day. Some days he would be fine. He would play with the children and talk normally” but he would have very little memory of what had
happened on a “bad day”.20
[31] Mr Rizalman’s wife explained her husband is a devout Muslim. He prays five times a day. She says there were occasions when Mr Rizalman appeared to forget the words of his prayer.
[32] Mr Rizalman went to see a doctor on 16 April 2014. The doctor’s notes record Mr Rizalman was worried about work and that he was sleeping excessively. Mr Rizalman returned to the same doctor on 22 April 2014. The doctor noted a slight improvement in Mr Rizalman’s energy levels. The doctor discussed “de-
stressing methods” with Mr Rizalman and recorded he was “not depressed”.21 After
one visit to his doctor Mr Rizalman told his wife about an incident in which he had hallucinated.
[33] At the time Mr Rizalman’s wife and those he worked with thought Mr Rizalman’s changes in behaviour were caused by stress he was suffering at work. One of the causes of that stress was the apparent differences in personality between Mr Rizalman and his commanding officer. Mr Rizalman’s wife noted that Mr Rizalman’s behaviour was “not so bad” when his commanding officer was back in
Malaysia.22
20 Statement of Evidence of Nor Azura Binti Hasim at [21].
21 R Anderson, Consultation, 22 April 2014.
22 Statement of Evidence of Nor Azura Binti Hasim at [57].
[34] On 1 May 2014, Mr Rizalman failed to go to an event he was required to attend as part of his work. The next day Mr Rizalman’s wife discussed her concerns about Mr Rizalman’s behaviour with his doctor. The doctor apparently suggested a cardiac assessment and referral to a counsellor to learn stress management techniques.23
[35] Some of Mr Rizaslman’s work colleagues had also noted changes in Mr Rizalman’s behaviour. Mr Lukman Sayuti, the Second Secretary of the Malaysian High Commission “first noticed changes in [Mr] Rizalman’s behaviour in April 2014”.24 Those changes in behaviour included Mr Rizalman looking “clouded
and blank” and incidents in which “he would just fall asleep anywhere”.25 Similar
observations were made by Jamilah Mohd, the personal assistant to the Malaysian High Commissioner and Nora Ismail, a friend of Mr Rizalman and fellow employee at the Malaysian High Commission.
[36] On Friday 2 May 2014, Mr Rizalman purchased synthetic cannabis from the “Cosmic” Shop in Cuba Street, Wellington. At the time sales of synthetic cannabis were legal in New Zealand.26 Mr Rizalman’s bank records show he spent $18.95 in the Cosmic Shop on 2 May 2014. At the time a high strength synthetic cannabis product was sold in that shop for $15. Cigarette papers were also sold in the shop for about $4.27 When he gave evidence Mr Rizalman accepted this transaction had taken place, although he could not recall going into the Cosmic Shop.
[37] An incident involving Mr Rizalman occurred in the Cosmic Shop in
Cuba Street on one weekend which, in all likelihood was during the course of either
3 or 4 May 2014. The key witness to this incident was Mr Brown, who only worked in the Cosmic Shop on weekends. Mr Brown recalled Mr Rizalman went into the Cosmic Shop at about midday and purchased “Puff Super Strength” synthetic
cannabis.
23 R Anderson, Consultation, 2 May 2014.
24 Statement of Evidence of Lukman Sayuti at [10].
25 At [12].
26 Psychoactive Substances Amendment Act 2014, s 8: psychoactive substances were banned from sale in New Zealand from 8 May 2014..
27 Statement of Evidence of T F Brown, 17 November 2015 at 2.
[38] While Mr Rizalman was in the Cosmic Shop on the weekend Mr Brown was working there, Mr Rizalman engaged in conversation with a female shop assistant (E). Mr Rizalman’s behaviour was considered to be “sexually inappropriate” by Mr Brown.28 After apparently getting nowhere with E, Mr Rizalman turned his attention to Ms K, another female shop assistant and asked her if she had a boyfriend and whether she would go for a drink with Mr Rizalman. At one point Mr Rizalman
tried to grab K by her shoulders. Staff in the Cosmic Shop became concerned for K’s wellbeing and sent her to the back of the shop. In the end Mr Brown asked Mr Rizalman to leave the shop. The female shop assistants were concerned and “shaken up” by what had happened.29
[39] On 8 May 2014, another incident occurred in which Mr Rizalman caused anxiety to a young woman (G) by making a comment to her when he passed her on the street and following her to a shop and staring at her through the window for an inordinate period of time. After G left the shop Mr Rizalman approached her in his car and motioned her to get into the passenger’s seat. Ms G ignored Mr Rizalman’s approaches. She recognised Mr Rizalman from photographs of him which were published in July 2014.
Events of 9 May 2015
[40] In his evidence Mr Rizalman explained that on 9 May 2015 he left home at
8.00 am to go to a bank in the city but in fact did not do so. He found himself at the Brooklyn shops and from there he appears to have gone into the Penthouse cinema in Brooklyn. At one point Mr Rizalman went to an alcohol shop in Brooklyn and purchased a small bottle of bourbon.
[41] At about 5.30 pm to 6.00 pm Mr Rizalman was standing outside the Wing on Chang Foodmarket in Brooklyn. He said in his evidence he had no idea why he was there or how he had managed to spend the day doing very little.
[42] While he was standing outside the Wing on Chang Foodmarket, Ms Billingsley walked out of the shop. Mr Rizalman said that he “… looked at
28 Statement of Evidence of T F Brown, above n 27, at 3.
[Ms Billingsley] and when [he] did [he] was sure she gave [him] a signal to follow
her. She gave [him] the signal with her eyes, a smile and facial expression”.30
[43] Ms Billingsley’s account of her brief encounter with Mr Rizalman outside the Wing on Chang Foodmarket is different from Mr Rizalman’s evidence. She describes seeing Mr Rizalman standing outside the shop looking at her in a strange way. When Ms Billingsley left the shop she noticed Mr Rizalman was still standing on the footpath looking at her and smiling in an unusual way. Ms Billingsley formed the view that something was not right about Mr Rizalman’s behaviour. She headed to her home, which was approximately 400 metres to 500 metres from the Wing on Chang Foodmarket. Ms Billingsley’s home was located up a long flight of steps, on a hillside above a main Brooklyn road. She was not aware Mr Rizalman was following her. By this stage the only lighting would have been from street lamps and passing vehicles.
[44] Ms Billingsley entered the front door of her home. She did not lock it. Ms Billingsley went into her room and started to watch a movie on her laptop. She was sitting on her bed and fully dressed. Amongst other items of clothing, Ms Billingsley was wearing a dress with shoulder straps.
[45] It is clear Mr Rizalman followed Ms Billingsley and watched her leave the main road and walk up the steps to her home. Mr Rizalman followed Ms Billingsley. He waited for approximately 30 to 40 minutes outside the entrance to Ms Billingsley’s home. He says he waited outside expecting to be invited in “to perhaps
share food together and to allow [him] to share [his] problems with her”.31
[46] While Mr Rizalman was waiting outside Ms Billingsley’s home he suffered a bout of diarrhoea. Rather than move to a lawn or to a part of the garden of the property, Mr Rizalman defecated on a concrete area a few metres from the front door
to Ms Billingsley’s home.
30 Statement of Muhammad Rizalman Bin Ismail, 4 December 2015 at [21].
[47] Mr Rizalman explains that he removed his trousers and underpants and decided to enter Ms Billingsley’s home in order to go to the toilet or bathroom in order to wash his hands. He says he knocked on the door and when no one answered he went inside Ms Billingsley’s house. He went into the kitchen area where he removed his jacket. Mr Rizalman then went to Ms Billingsley’s room. He says if “he [had] found a toilet [he] would have cleaned [himself] and left” and that “[he]
did not want to be in the house uninvited as that is not polite or respectful”.32
[48] There is no dispute Mr Rizalman knocked on Ms Billingsley’s bedroom door and politely asked if he could come in. Ms Billingsley thought the person outside her bedroom must be a tradesperson employed by her landlord to carry out repairs to the property. Ms Billingsley appears to have said the person at her door could enter her bedroom.
[49] There is also no dispute that when Mr Rizalman entered Ms Billingsley room he was wearing just his shirt. She reacted decisively by leaping from her bed and screaming at Mr Rizalman to get out. Mr Rizalman then approached Ms Billingsley and grabbed her shoulders. At this stage one of the shoulder straps on Ms Billingsley dress was torn loose. Ms Billingsley managed to push Mr Rizalman through the bedroom door and into the lounge area of her flat.
[50] There is a dispute about the full extent of the struggle that happened in the lounge. What is clear is that Ms Billingsley got to the kitchen where she grabbed a long knife. Mr Rizalman left the flat through the front door. Apparently Mr Rizalman’s foot was jammed in the front door for a few seconds. Ms Billingsley then locked the front door and secured herself in the bathroom from where she called the police.
[51] Mr Batterbee lived in the flat below that occupied by Ms Billingsley and her flatmate. When he heard Ms Billingsley’s screams he went upstairs to the front door of Ms Billingsley’s flat. There, he met Mr Rizalman, who by this stage had put his
trousers back on. Mr Batterbee then telephoned one of Ms Billingsley’s flatmates
32 Statement of Muhammad Rizalman Bin Ismail, above n 30, at [39].
who in turn telephoned her boyfriend, Mr Sutherland, who lived very near
Ms Billingsley’s flat.
[52] Mr Sutherland went immediately to Ms Billingsley’s flat where he met Mr Batterbee. When he got to Ms Billingsley’s flat Mr Sutherland saw Mr Rizalman staring at the front door. When asked what he was doing there Mr Rizalman said “my girlfriend” and gestured with his arm towards the front of Ms Billingsley’s flat.33
[53] The police arrived at Ms Billingsley’s flat at 6.55 pm. They encountered Mr Rizalman on the steps leading from Ms Billingsley’s flat. The first police officer who arrived at the scene ensured Ms Billingsley was safe. One police officer asked Mr Rizalman what he was doing on the steps leading from Ms Billingsley’s home.
Mr Rizalman said “I’ve lost my mind. I don’t know”.34 Another police officer who
arrived at the scene noted the excrement near the front door.
[54] Mr Rizalman was taken to the Wellington Central Police Station. He was informed of his rights under the New Zealand Bill of Rights Act 1990. Initially Mr Rizalman agreed to answer questions. When asked what had happened that night Mr Rizalman said that he “… meet that lady at the movies [and followed] her back to her place, [where] she lets [him] in and [he] eat some food, she invited [him] back”.35 When asked what then happened Mr Rizalman said “I don’t know, she tells
me to go”36 and that she may have become angry when he ate her food.
[55] Mr Rizalman took legal advice after which he elected to exercise his right not to make any further statements to the police.
Events after 9 May 2014
[56] Mr Rizalman was charged with assault with intent to commit sexual violation and burglary. He appeared in the Wellington District Court on 10 May 2014.
33 Statement of H B L Sutherland, 12 May 2014 at [49].
34 Statement of Evidence of J Rodger, 16 May 2014 at [17].
35 At [40].
36 At [42].
[57] On 12 May 2014, Mr Rizalman was seen by another doctor from the one whom he had consulted in April and early May 2014. The notes from the 12 May
2014 medical consultation record Mr Rizalman appeared to have a “mixture of anxiety and depression for which he would very much like to have specialist input”.37 The doctor prescribed Citalopram, an anti-depressant medication.
[58] As a member of the staff of the Malaysian High Commission, Mr Rizalman enjoyed the immunities and privileges set out in the Vienna Convention on Diplomatic Relations.38 Mr Rizalman therefore enjoyed immunity from New Zealand’s criminal jurisdiction unless his immunity was waived by the Government of Malaysia.
[59] Approximately two weeks after his arrest Mr Rizalman flew to Malaysia. Considerable publicity was generated about the circumstances leading to Mr Rizalman’s departure from New Zealand. He returned to New Zealand in August
2014 after electing not to oppose an extradition application by the New Zealand
Police.
Psychiatric assessments
[60] While he was in Malaysia, Mr Rizalman was admitted into a military hospital for 10 days. While he was in that hospital Mr Rizalman was assessed by a “Special Psychiatric Committee” which prepared a report concerning Mr Rizalman’s psychiatric status (Malaysian Psychiatric Report).
[61] The Malaysian Psychiatric Report records:
(1)Mr Rizalman admitted he had abused cannabis since secondary school and before he joined the Malaysian Army.
(2) Mr Rizalman admitted visiting a shop in Wellington, which sold
“cannabis” and that he said cannabis consumption was legal in
37 R Mercier, Re: Mr Muhammad Ismail, 12 May 2014.
38 Diplomatic Privileges and Immunities Act 1968, s 5.
New Zealand but in controlled quantities. Mr Rizalman denied consuming cannabis in New Zealand.
(3)Mr Rizalman admitted going to a strip club in Wellington and watching girls perform.
(4)Drug screening tests taken when he was in hospital showed Mr Rizalman tested positive for cannabis on the first and sixth day of his admission and positive for morphine on the first and second day of his admission.
[62] A psychological test performed by Mr Rizalman when he was in the military hospital suggested a disposition towards lying and faking.39
[63] The Malaysian Psychiatric Report concluded Mr Rizalman had “… no mental illness. He only has psychosocial problems related to drug and substance abuse only”.40
[64] Mr Rizalman was seen by Dr Barry-Walsh on 6 August 2015 at the request of
Dr Stevens. Dr Barry-Walsh was asked to assess Mr Rizalman’s state of mind as at
9 May 2014. Dr Barry-Walsh reviewed all evidence that was provided to him. He delayed issuing his report because he wanted to read the Malaysian Psychiatric Report. It transpired Dr Barry-Walsh did not see the Malaysian Psychiatric Report until after he issued his first report, which is dated 11 October 2015.
[65] In his first report, Dr Barry-Walsh recorded Mr Rizalman informed him he had not used drugs or alcohol since marrying in 2004. Dr Barry-Walsh recognised the challenges of trying to retrospectively assess Mr Rizalman’s state of mind on
9 May 2014. Dr Barry-Walsh formed the opinion that Mr Rizalman “… was in an
abnormal mental state and suffering from a significant mental illness at the time of
the alleged offending”.41 Dr Barry-Walsh also said that Mr Rizalman:42
39 R v Rizalman bin Ismail Notes of Evidence, 4 December 2015 at 41.
40 Report of Department of Psychiatry, Tuanku Mizan Armed Forces Hospital, at [10].
41 Report of J Barry-Walsh, 11 October 2015 at 11.
42 At 12.
… could be considered to have a disease of the mind as it is commonly understood. At the time, as was noted by others, he was in an abnormal mental state, one in which mood disturbance, impairment of memory, disorganisation and quasi-psychotic symptoms were features. It is plausible that within this mental state he would not have been able to reason as to the moral wrongfulness of his actions.
[66] When Dr Barry-Walsh’s report was made available to the Court, I raised with counsel whether or not a defence of insanity should be put to the jury. Dr Stevens expressly disavowed any intention to rely upon insanity. I provisionally formed the view that Dr Barry-Walsh’s first report may form a basis for me to invite the jury to
consider insanity even if it was not advanced by Mr Rizalman.43
[67] Dr Barry-Walsh received the Malaysian Psychiatric Report on 12 October
2015. Dr Barry-Walsh then prepared his second report dated 18 October 2015. Dr Barry-Walsh noted that reference to Mr Rizalman’s apparent history of cannabis use in the Malaysian Psychiatric Report. Dr Barry-Walsh summarised his second report by saying the Malaysian Psychiatric Report did not substantially alter the opinion he had expressed in his first report but referred to the fact the Malaysian Psychiatric Report raised an issue about the extent to which Mr Rizalman had misused cannabis.
[68] Mr Rizalman was seen by Professor Mellsop on 17 November 2015 at the request of the Crown. Professor Mellsop also acknowledged the difficulties of forming an opinion about Mr Rizalman’s psychiatric status almost 18 months after the date of his offending.
[69] After reviewing all evidence presented to him Professor Mellsop concluded that Mr Rizalman was not insane at the time he indecently assaulted Ms Billingsley and that, “on the balance of probabilities” the “symptoms [Mr Rizalman] suffered from are most consistent with the consequences of a combination of anxiety and
ingestion of cannabis or cannabinoid substances”.44
43 R v Cottle [1958] NZLR 999 (CA).
44 Report of G Mellsop, 24 November 2015 at 10.
[70] Mr Rizalman was assessed for a second time by Dr Barry-Walsh on
23 November 2015. Based on the information that was by then available to him,
including Professor Mellsop’s report, Dr Barry-Walsh concluded Mr Rizalman:45
… was in an abnormal mental state at the time of his offending. Contributors to this mental state seem to have been a combination of the stress and pressure he was under at work leading to problems with anxiety and potentially depression and misuse of drugs, presumably synthetic cannabinoids.
Analysis
[71] My analysis will focus on the two factual issues which are in dispute, namely, Mr Rizalman’s motives for following Ms Billingsley home and entering her bedroom, and Mr Rizalman’s state of mind at the time he indecently assaulted Ms Billingsley.
Motive
[72] There are three key reasons why I am satisfied beyond reasonable doubt that Mr Rizalman wanted to have a sexual relationship with Ms Billingsley on the evening of 9 May 2014. I will explain those reasons under the following headings:
(1) Pattern of behaviour. (2) Implausibility.
(3) Other evidence.
Pattern of behaviour
[73] My conclusion is partially based upon Mr Rizalman’s pattern of behaviour in
the week leading up to him indecently assaulting Ms Billingsley.
[74] Mr Rizalman’s pattern of behaviour involved him acting in a “sexually inappropriate” way towards female shop assistants in the Cosmic Shop in
45 Report of J Barry-Walsh, 1 December 2015 at 3.
Cuba Street46 and asking K if she had a boyfriend and whether she wanted to go for a drink.
[75] Mr Rizalman’s pattern of behaviour also involved him trying to pick up G on
8 May 2014, when he encouraged her to accompany him in his car.
[76] Mr Rizalman followed Ms Billingsley home on the evening of 9 May 2014, because he was sexually attracted to her. His interest in Ms Billingsley mirrored his sexual interest in the other three young women he had tried to pick up during the days leading to his offending.
Implausibility
[77] Mr Rizalman’s explanation that he followed Ms Billingsley home because he
wanted to befriend her and discuss his problems with her is implausible.
[78] If Mr Rizalman genuinely wanted to discuss his problems with someone he could have turned to his wife, a trained nurse, who was clearly concerned about her husband’s behaviour. He could have sought assistance from his work colleagues, who were also supportive of him. In addition, Mr Rizalman knew he could seek professional assistance if he required counselling and support.
[79] Mr Rizalman’s explanation for his behaviour was totally unconvincing. I accept Mr Rizalman removed his trousers and underpants after he had defecated outside Ms Billingsley’s home. This incident, however, was not the reason why Mr Rizalman entered Ms Billingsley’s home and bedroom wearing only his shirt.
[80] If Mr Rizalman had genuinely wanted to clean himself after defecating he could have used his underpants for this purpose and left Ms Billingsley’s property. Instead, he entered Ms Billingsley’s home after standing outside for 30 to 40 minutes.
[81] Upon entering Ms Billingsley’s house Mr Rizalman went to the kitchen. If
he had required water to clean himself there was a sink and taps in the kitchen.
46 Statement of Evidence of T F Brown, above n 27.
Instead of cleaning himself in the kitchen, Mr Rizalman removed his jacket before going to Ms Billingsley’s bedroom naked from his waist down. Mr Rizalman did this because he wanted to see if Ms Billingsley would be willing to respond favourably to his sexual interest.
[82] Mr Rizalman’s varying conflicting accounts about his reasons for entering Ms Billingsley’s home have reinforced my conclusion that he was motivated by a sexual interest in Ms Billingsley. When he was first confronted outside Ms Billingsley’s home he tried to say the occupant was his girlfriend. When spoken to by the police Mr Rizalman said he had met Ms Billingsley at a movie theatre and that she had invited him home for a meal. These two accounts were a fictitious and flimsy attempt to try and deflect attention from Mr Rizalman’s real motive.
Other evidence
[83] My conclusion that Mr Rizalman was motivated by a sexual interest is entirely consistent with other evidence.
[84] The other evidence I have relied upon includes the fact Mr Rizalman followed Ms Billingsley home, a distance of 400 to 500 metres without her realising he was following her. Had Mr Rizalman genuinely wanted to only befriend Ms Billingsley in order to talk to her he had every opportunity to do so long before she reached her home.
[85] Other evidence that points strikingly towards Mr Rizalman’s sexual motivation including the fact that he stood outside Ms Billingley’s home for 30 to 40 minutes. I am sure he did so in order to make certain that Ms Billingsley was alone.
[86] It is also significant Mr Rizalman removed his jacket in the kitchen of Ms Billingsley’s home. There was no need for him to do so if he all wanted to do was wash his hands. Mr Rizalman removed his jacket to help facilitate his goal of having a sexual encounter with Ms Billingsley.
[87] I have placed weight on the fact Mr Rizalman did not leave the moment he was told to do so by Ms Billingsley. In fact, Mr Rizalman did not leave
Ms Billingsley’s home until she armed herself with a knife. This aspect of the case is consistent with Mr Rizalman being convinced that he could have a sexual encounter with Ms Billingsley.
[88] Finally, I consider it important Mr Rizalman has pleaded guilty to indecent assault. Implicit in Mr Rizalman’s guilty plea is his acknowledgement that he knows right thinking members of the community would regard his conduct as being indecent. That acknowledgement is consistent with Mr Rizalman having a sexual motive for following Ms Billingsley home and entering her bedroom.
State of mind
[89] Professor Mellsop and Dr Barry-Walsh agree Mr Rizalman was in an abnormal state of mind when he followed Ms Billingsley and entered her bedroom on 9 May 2014.
[90] Section 9(2)(e) of the Sentencing Act refers to “diminished intellectual capacity” and “diminished understanding” being mitigating factors. “Diminished intellectual capacity” and “diminished understanding” are not necessarily the same. My understanding of the psychiatric evidence leads me to conclude there may be a basis for concluding Mr Rizalman suffered from “diminished understanding” on the evening of 9 May 2014. There is, however, not sufficient evidence to enable me to reach any conclusion about Mr Rizalman having diminished “intellectual capacity” on the evening he indecently assaulted Ms Billingsley.
[91] Mr Rizalman’s behaviour during the evening of 9 May 2014 was bizarre and possibly consistent with a person having “diminished understanding” about their conduct.
[92] There are, however, four reasons why I have concluded that if Mr Rizalman had “diminished understanding” on the night of 9 May 2014, then his state of mind was caused by his ingestion of synthetic cannabis. I have reached this conclusion on the balance of probabilities.
[93] First, there is the conclusive evidence Mr Rizalman purchased synthetic cannabis from the Cosmic Shop in Cuba Street on Friday 2 May 2014 and probably again on the weekend of 3/4 May 2014.
[94] Second, there is now the evidence Mr Rizalman had a history of cannabis use when he had previously lived in Malaysia and that he resorted to cannabis on his return to Malaysia in mid-2014.
[95] Third, Professor Mellsop and Dr Barry-Walsh agree Mr Rizalman’s symptoms and behaviour were consistent with having used cannabis or cannabinoid substances. Dr Barry-Walsh, for example, said in cross-examination that it seemed “likely” that drug misuse was a “significant contribution” to Mr Rizalman’s abnormal state of mind.47
[96] Fourth, while Dr Barry-Walsh initially thought Mr Rizalman was suffering a mental illness at the time of his offending, it was significant he reached this opinion before knowing about Mr Rizalman’s history of using cannabis and his access to synthetic cannabis in the period immediately prior to his offending.
[97] In his evidence before me, Dr Barry-Walsh properly acknowledged that Mr Rizalman’s abnormal state of mind did not amount to a mental illness.48 While Dr Barry-Walsh said he could not exclude the possibility Mr Rizalman suffered depression prior to his arrest, the only doctor who assessed Mr Rizalman before
9 May 2014 concluded he was not depressed.
[98] I have concluded Mr Rizalman’s abnormal state of mind was likely to have been caused by his use of synthetic cannabis. It logically follows therefore that if Mr Rizalman’s had “diminished understanding” because of his abnormal state of mind, he has failed to establish his “diminished understanding” was a mitigating factor that can be taken into account when deciding what, if any sentence to
impose.49
47 Notes of Evidence, above n 39, at 71.
48 At 69.
49 Dr Stevens has advised he wishes to apply for a discharge without conviction pursuant to s 106 of the Sentencing Act 2002. That application will no doubt be reconsidered in light of my
[99] In his oral submissions Dr Stevens referred to the provisions of s 9(3) of the Sentencing Act, which I have set out in paragraph [25] of this judgment. Dr Stevens suggested if Mr Rizalman had consumed synthetic cannabis prior to his offending then he did so to “self-medicate” for his anxiety. I reject that submission. Section
9(3) of the Sentencing Act expressly refers to using drugs for “bona fide medical purposes”. There is no evidence Mr Rizalman used synthetic cannabis for a bona fide medical purpose.
Conclusions
[100] Mr Rizalman had a sexual motive when he followed Ms Billingsley to her home on the evening of 9 May 2014 and when he entered her bedroom naked from his waist down. Mr Rizalman may have had “diminished understanding” at the time he indecently assaulted Ms Billingsley. However, Mr Rizalman’s possible “diminished understanding” is not a mitigating factor because at the time of his offending Mr Rizalman was, in all likelihood, affected by synthetic cannabis.
[101] If Mr Rizalman wishes to continue to advance his application under s 106 of the Sentencing Act then I will hear his application on 4 February 2016. In the meantime, I call for a pre-sentence report, including a report concerning Mr Rizalman’s eligibility for home detention.
[102] It may be that I ultimately conclude that the appropriate sentence is one of home detention and that it should be served under careful supervision in the Malaysian High Commission. Before I could reach that conclusion I would need to be satisfied that the Malaysian Government would co-operate with such a sentence. For this reason, I have asked the Registrar to forward a copy of this decision to the Ministry of Foreign Affairs and Trade so that it can initiate inquiries with the Malaysian High Commission to see if it would be willing to co-operate with a
sentence of home detention, if that is the sentence that I ultimately decide to impose.
factual findings.
D B Collins J
Solicitors:
Crown Solicitor, Wellington
McWilliam Rennie, Wellington for Defendant
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