R v K
[2017] NZHC 518
•21 March 2017
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-090-1397 [2017] NZHC 518
THE QUEEN
v
K
Hearing: 21 March 2017 Appearances:
K Lummis for Crown
C P Merrick for DefendantJudgment:
21 March 2017
JUDGMENT OF LANG J
[on disposition of proceeding under the
Criminal Procedure (Mentally Impaired Persons) Act 2003]
This judgment was delivered by me on 21 March 2017 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
R v K [2017] NZHC 518 [21 March 2017]
[1] Mr K faces several serious charges, including attempted sexual violation by rape and sexual violation by unlawful sexual connection. He also faces a charge that he dealt with a young girl for the purpose of sexually exploiting her.
[2] On 31 July 2015, I made a finding under s 14 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the Act) that Mr K was mentally impaired to the extent that he was unfit to stand trial.1 Since that time there have been numerous adjournments of the proceeding. All of these have been made with the objective of ensuring that the appropriate form of disposition is available.
[3] I am now finally in a position to make those orders.
The offending
[4] The charges alleged that the offending occurred between February 2009 and February 2014. It involved Mr K going to the address where the complainant and her mother lived. The complainant was aged between 9 and 14 years at the time of the offending. Sexual activity would then occur between the complainant and Mr K with the consent and encouragement of the mother. The mother was also charged but she, too, has been found to be unfit to stand trial on the ground of mental impairment.
[5] Before I found Mr K unfit to stand trial, I was required to make a determination under s 9 of the Act that Mr K committed the physical acts giving rise to the charges. In order to do so, I considered witness statements provided to me by the Crown and I viewed two evidential videotaped interviews of the complainant. In my judgment I described the alleged offending in the following terms:2
[5] As will already be obvious, the complainant’s evidence is critical. I consider the manner in which she described events during the videotaped interviews was convincing. During the first interview, she described how Mr K would come to her house because he was a friend of her mother. Her mother would then encourage her to go into the bedroom with Mr K. Mr K would then either undress her himself or get her to take her clothing off. He would then lie on top of her and endeavour to insert his penis into her vagina. She used dolls to demonstrate how that occurred. She also marked
1 R v [K] [2015] NZHC 1813.
2 R v [K] [2015] NZHC 1105.
on drawings the location of Mr K’s penis and the location of her vagina. She said that on occasions she would tell Mr K that his penis was inside her vagina. She was adamant, however, that his penis never actually entered her vagina. Having regard to this evidence, I am satisfied that it is more likely than not that Mr K attempted to rape the complainant on several occasions during the period referred to in the charge.
[6] In the first interview the complainant did not make mention of Mr K having oral sex with her. During the second interview, however, she described several incidents in which Mr K licked her vagina. Again, I found her evidence on this point convincing. I am satisfied that it is more likely than not that on several occasions during the period referred to in the charge Mr K sexually violated the complainant by licking her vagina.
[7] The complainant described a consistent pattern of conduct involving Mr K and her mother. This involved Mr K giving the complainant money on the occasions when he engaged in several activity with the complainant. The complainant said that she did not keep the money and gave it to her mother so that her mother could buy cigarettes and other items with it. She said that if she resisted going into the room with Mr K, her mother would get angry and would insist that she go into the bedroom with him. The complainant said her mother had told her on these occasions that she needed to go with Mr K or he would stop giving them money. On the basis of the complainant’s evidence, I see a clear connection between the payment of money and Mr K engaging in sexual activity with the complainant. That would constitute dealing with the complainant for the purpose of her sexual exploitation. For that reason, I am satisfied that it is more likely than not that Mr K committed the acts giving rise to the third charge.
Mr K’s mental impairment
[6] In the judgment issued on 31 July 2015, I described Mr K’s mental
impairment as follows:3
[8] The four health assessors were in agreement regarding this issue. All are satisfied that Mr K has a significant cognitive impairment. This may have several causes. First it may be a result of the fact that he has a very low IQ. Secondly, it appears that he sustained a head injury at the age of 10 and this may have contributed to his current state. Thirdly, Dr Sakdalan was also of the view Mr K displays symptoms of both dementia and Alzheimers disease.
[9] The cause of the impairment is immaterial for present purposes. The important feature about the impairment is that it restricts Mr K from understanding and processing information, and it also has a significant effect on his memory. The level of the impairment has variously been described as mild, moderate and severe. The experts appear to agree, however, that the impairment is such that he falls within the second percentile of the adult population in terms of cognitive function. Given the unanimous views of the experts regarding this issue, I see no basis upon which I could reach a
3 R v [K], above n 1.
contrary conclusion. I am therefore satisfied that Mr K suffers from a mental impairment for the purposes of the Act.
[7] Mr K continues to suffer from the mental impairment. It appears to be currently stable, but the health assessors confirm there is no prospect of his condition improving. Rather, it is likely that it will deteriorate over time. As a result, there is little or no prospect of Mr K being found fit for trial in the future.
The alternatives open to the Court
[8] 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. They relevantly provide as follows:
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.
…
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.
…
[9] Where the Court makes an order under s 25, it has the power under s 27(1) to order that the proceeding in which the finding of unfitness was made to be stayed.
[10] The seriousness of the current charges means that a cautious approach is required. The Court is required to balance the need to manage the risk that Mr K might reoffend against the appropriate use of mental health resources. Rehabilitation and treatment are not issues that need to be addressed in the present case because Mr K’s condition cannot be treated.
[11] The difficulty in the present case is that all of the options provided by ss 24 and 25 have drawbacks. The health assessors who have provided reports to the Court agree that it would be pointless making an order that Mr K be detained in a hospital as a special patient under s 24(2)(a). This would require him to be detained, probably for the rest of his life, in the Mason Clinic. The Mason Clinic is designed primarily to manage the risk posed by offenders with serious mental health issues. The level of risk that Mr K poses does not require the high level of security that detention in the Mason Clinic would provide. As a result, Mr K would needlessly take up a bed that could be better used in treating persons who require the level of the care and security offered by that facility.
[12] Similarly, Mr K’s current level of risk is sufficiently low that it would be inappropriate to require him to be detained in a secure facility as a special care recipient under s 24(2)(b).
[13] The Court has no power to make an order under s 25(1)(a), because Mr K’s mental impairment does not meet the criteria for mental impairment as that term is defined in s 2 of the Mental Health (Compulsory Assessment and Treatment) Act
1992.
[14] Mr K’s mental impairment would, however, enable him to meet the definition of being “intellectually disabled” as that term is defined in s 7 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003. It would therefore be possible to make an order under s 25(1)(b) of the Act. However, the health assessors question the appropriateness of such an order on the basis of Mr K’s lack of rehabilitative potential. It would, however, be the appropriate option in the event that the Court Mr K’s risk of offending in the future needed to be addressed through constant supervision by professionals trained to manage risk in this way.
[15] The Court has no ability to decide not to make any order in terms of s 25(1)(c), because Mr K is not currently facing any other charges. As a result, he is not presently liable to a sentence of imprisonment.
[16] The only remaining alternative is that provided in s 25(1)(d), namely an order that Mr K be immediately released. This is the option sought by Mr K and not opposed by the Crown. If released, he proposes to continue to live with and be cared for by his son and daughter-in-law. He has been living in his son’s household for the last nine months.
[17] Section 25(1)(d) does not, however, permit the Court to order a defendant to be released subject to conditions. I consider this to be a serious shortcoming in the statutory regime because it effectively prevents the Court from having any oversight in respect of a defendant’s future activities notwithstanding the fact that criminal charges remain in existence. This deficiency could easily be remedied by adding the words “upon such conditions as the Court may deem fit” at the end of s 25(1)(d).
This would enable the Court to impose conditions designed to cater for the possibility that release back into the community may not prove to be a satisfactory outcome.
[18] I have considered whether the Court has the power to release Mr K into the care of his family, but to require him to be subject to ongoing bail conditions. This may be technically feasible given the fact that the charges remain in existence even though they may be stayed. On balance, however, I do not consider the Court has the power to require Mr K to remain on bail subject to conditions. A grant of bail is a release on terms designed to ensure that the defendant appears when a criminal proceeding is next called. Once charges are stayed, however, the criminal proceeding has no future event. It might be possible to bail Mr K to appear before the Court in, say, five years time, but I consider that would be an artificial use of the Court’s powers.
[19] I acknowledge that the amendment I have recommended would impinge on the liberty of a defendant in respect of whom charges have been stayed. I consider such restrictions to be justified, however, on the basis that criminal charges remain in existence even though they have been stayed. In addition, the Act is clearly concerned with the protection of the public. By way of example, s 23(2)(a) provides the Court with the power to make it a condition of a grant of bail that a person found unfit to stand trial must go to a place approved by the Court for the purpose of enquiries to be made into the most suitable method of dealing with that person. Section 23(3) provides that, in deciding whether or not to grant bail for that purpose, the need to protect the public is the paramount consideration.
[20] I am aware that the present case is not an isolated example of this problem. At least one other proceeding involving similar issues is currently being considered by the Court. The problem therefore needs to be addressed as a matter of urgency. For that reason I direct that a copy of this judgment is to be forwarded to the policy division of the Ministry of Justice responsible for considering possible amendments to the Act.
Decision
[21] Over the last 18 months the Court has been greatly assisted by updating reports periodically provided by Dr James Gardiner, a psychiatrist and specialist assessor attached to the National Intellectual Disability Care Agency. Dr Gardiner points out that, in assessing risk, health assessors generally use structured professional judgment tools that have been developed for this purpose. These are of extremely limited utility in the present case, however, because Mr K’s language and mental impairment mean that it is not possible to obtain a full history from him. Furthermore, they have not been able to obtain any medical and criminal records that might be held in Samoa. As a result, the health assessors have not been able to obtain any meaningful information about significant periods of his life when he lived in Samoa. Furthermore, to the extent that they have been able to discuss the alleged offending with Mr K, he has denied responsibility for it. This prevents an assessment of the static and dynamic risk factors normally examined in respect of offending of this type.
[22] Dr Gardiner considers that Mr K remains at some risk of reoffending in the future should certain circumstances arise that enable offending to occur. However, those tools that Dr Gardiner has been able to employ suggest that Mr K is at low risk of reoffending. Several factors contribute to this. The first is Mr K’s age. Mr K will be 74 years of age in November 2017. The second is that Mr K did not offend in an impulsive or disinhibited fashion, thus indicating a significant lack of impulse control that is sometimes seen in sex offenders. Rather, his offending was deliberate and planned. It also required the assistance of his co-offender. Without that assistance the offending would not have occurred. It is highly unlikely that this type of situation will re-occur in the future, especially if he is adequately supervised.
[23] Furthermore, Mr K does not speak English and he speaks limited Samoan. His disability also makes it very difficult for him to converse with other people. As a result, the prospect of Mr K meeting a potential victim and gaining his or her trust to the point where sexual activity occurs is remote. They wish to meet their obligation to care for Mr K in the future.
[24] Furthermore, Mr K is also subject to oversight by the Intellectual Disability Offender Liaison Service. That organisation will monitor the risk of Mr K reoffending, and will address this by providing psychiatric care to Mr K or referring him to another organisation that can provide assistance appropriate to his needs.
[25] Finally, Mr K has now been on bail for more than 18 months. During that period he has lived with members of his family who have agreed to be responsible for supervising him. No incidents have occurred to suggest he remains at risk of future offending. The family has therefore demonstrated over a number of months that they are able to consistently monitor Mr K’s activities. This leaves Dr Gardiner cautiously comfortable with the suggestion that Mr K should now be released into the care of his son and daughter-in-law.
[26] Mr K’s son and daughter-in-law have four young children, and another child is about to be born. This has not prevented them from being able to maintain oversight over Mr K’s activities over the last nine months. They also gain respite through occasional visits that he makes to a rest home operating a daytime care programme specialising in the care of elderly persons. The rest home is familiar with and used to managing participants who suffer from mental impairments such as dementia. Mr K’s son and his wife have been careful to make sure that the rest home is aware of Mr K’s background and the need to ensure he is supervised. On occasions, they have also prevented him from attending functions where they have anticipated that young persons might be present.
[27] Mr K’s son and his wife also point to another factor that they say makes it important for them to be able to care for Mr K in the future. Through their counsel they have advised the Court that in the Samoan culture the care of elderly parents by their children is seen as an obligation that children are required to undertake. This is taken seriously, and failure by children to meet the obligation carries with it ignominy in the context of their cultural standing. Mr K’s son and his wife firmly believe they have the ability to minimise the risk of future offending by constantly supervising Mr K notwithstanding the fact that they will also shortly be looking after five young children.
[28] All of these factors persuade me that Dr Gardiner is correct in his conclusion that Mr K is at low risk of reoffending in the future provided he remains in the care of his son and daughter-in-law and is adequately supervised by those who are aware of his risk profile and need for supervision. The Crown does not oppose that outcome. As a result, I am prepared to direct that Mr K is to be immediately released into their care notwithstanding the fact that I can impose no conditions on his release.
Result
[29] I make an order under s 25(1)(d) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 that Mr K is to be immediately released into the care of his family. He is no longer subject to the bail conditions that were currently in force. I make a further order under s 27(1) of the Act that this proceeding be stayed pending further order of the Court.
Suppression
[30] This Court has already made an order under s 202 of the Criminal Procedure
Act 2011 that Mr K’s name and identifying particulars be permanently suppressed to
prevent the victim of his offending from being identified.
Lang J
Solicitors:
Crown Solicitor, Auckland
Merrick Law, Manukau
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