R v K
[2020] NZHC 1403
•19 June 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-092-11229
[2020] NZHC 1403
THE QUEEN v
K
Hearing: 19 June 2020 Appearances:
A F Devathasan for Crown K Allen for Defendant
Judgment:
19 June 2020
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 19 June 2020 at 4.50 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date: ...................................
Solicitors:Kayes Fletcher Walker Ltd, Crown Solicitor, Manukau Public Defence Service, Manukau
R v K [2020] NZHC 1403 [19 June 2020]
Introduction
[1] In my judgment of 12 March 2020, I found K mentally impaired but fit to stand trial on the various charges he faced. In my judgments of 25 March and 16 June 2020 (Result and Reasons respectively), I found K not guilty on account of insanity pursuant to s 20 Criminal Procedure (Mentally Impaired Persons) Act 2003 (“CPMIP”).1 Thereafter, I ordered that inquiries be made to determine the most suitable method of dealing with K under ss 24 or 25 CPMIP. This judgment decides that issue.
The law
[2]Sections 24, 25 and 26(1) CPMIP provide:
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
1 R v K [2020] NZHC 504; R v K [2020] NZHC 646; and R v K [2020] NZHC 1350.
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
(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 (a 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.
26Effect of alternative orders
(1) An order made under section 25(1)(a) is to be regarded as a compulsory treatment order for the purposes of the Mental Health (Compulsory Assessment and Treatment) Act 1992, and, in making the order, the court must specify whether, for the purposes of that Act, the order takes effect as a community treatment order or as an inpatient order.
Discussion
[3] I have received comprehensive reports from Dr Surendhraj Naidu, an experienced consultant psychiatrist, and Dr Michael Easden, a senior clinical psychologist, dated 22 April and 21 May 2020 respectively. These reports address what is best in terms of dealing with K.
[4] Dr Easden has come to this matter fairly recently but Dr Naidu has been involved from the outset. In his report, Dr Naidu describes K’s progress since he was admitted to the Mason Clinic in late-March 2020, K having been on remand at Mt Eden Corrections Facility.
[5] In short, K’s mental health is much improved. K is taking his medication and, in addition, beneficial changes have been made in K’s regime, in that the medication is now given in the form of fortnightly intra-muscular injections. A constant refrain in the reports to the Court to date has been K’s history of poor compliance with taking the medication prescribed for him. K’s health deteriorates rapidly if he is non-compliant.
[6] I am first required to consider s 24(1). In particular, having regard to all the circumstances of the case and the evidence of the health assessors to whom I have referred, I must decide whether it is necessary to detain K in accordance with one of the orders specified in s 24(2). I must make one of those orders if satisfied that such an order is necessary in the interests of the public or any person or class of person who may be affected. Those orders are that K be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992 (“MHA”) or in a secure facility as a special care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.
[7] The Court of Appeal has previously stated that an order under s 24(2) will be “necessary” if it is more than expedient or desirable, although such an order need not be “essential”.2
2 M (CA819/2011 v R [2012] NZCA 142.
[8] I am not persuaded it is necessary in that sense to make an order pursuant to s 24(2) in the present circumstances.
[9] First, both of the experts consider such an order is unnecessary. Secondly, although K’s offending (fully documented in my earlier judgments) was serious, there was no violence in fact, nor any real suggestion such might occur. Thirdly, K appears unlikely to present a risk if he is medicated and steps can be taken to ensure that happens, short of an order under s 24(2).
[10]Accordingly, I decline to make an order pursuant to s 24(1)(c) CPMIP.
[11]This brings me to s 25.
[12] Sections 25(1)(b) and (c) are not applicable and I am not willing to order K’s immediate release pursuant to s 25(1)(d). However, and consistent with the expert advice of the health assessors, I am satisfied that an order should be made pursuant to s 25(1)(a), namely that K be treated as a patient under the MHA. I am satisfied K is mentally disordered (see s 25(2)). At the very least, he is afflicted with Bipolar Affective Disorder and, in my earlier judgment regarding K’s sanity (or lack of it) at the time of the offending, I referred to an alternative diagnosis proposed by Dr Karayiannis that K may suffer from a Schizoaffective Disorder. In either case, K is mentally disordered.
[13] Section 26(1) CPMIP provides the Court must specify whether an order under s 25(1)(a) will take effect as a community treatment order or as an inpatient order. Mr Hutchinson, on behalf of the Mason Clinic, was present in Court today and advised that, if the order takes effect as an inpatient order, it will be for K’s treating physician(s) to determine if and when K is released into the community, and indeed K may be recalled if that should prove necessary, including if he is non-compliant with his medication. In my view, it is desirable the treating physician should have that option available, particularly given the expertise he or she will possess. Moreover, an inpatient order appears to be what Dr Naidu is proposing. I shall order accordingly.
[14] Mr Hutchinson and Ms Allen, counsel for K, also proposed I authorise the release of the reports of Drs Naidu and Easden referred to above, and Dr Naidu’s updating letters to the Court of 18 and 19 June 2020 to any future treatment team of K’s. I shall make that order also.
[15] I also extend the existing order for interim suppression of K’s name pending further order of the Court. Ms Allen will file and serve a memorandum within two weeks if an order for permanent suppression is sought.
Result
[16] Pursuant to ss 25(1)(a) and 26(1) Criminal Procedure (Mentally Impaired Persons) Act 2003, I order K be treated as a patient under the Mental Health (Compulsory Assessment or Treatment) Act 1992, with this order to take effect as an inpatient order.
[17] I order the release of the reports of Drs Naidu and Easden dated 22 April and 21 May 2020 respectively, and Dr Naidu’s updating letters to the Court of 18 and 19 June 2020, to any future physician or team treating K.
[18] I extend the existing order for the interim suppression of K’s name pending further order of the Court.
[19]I reserve leave to apply.
Peters J