R v Lucas-Edmonds

[2009] NZCA 193

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA585/2008
[2009] NZCA 193

THE QUEEN

v

TRISTAN LUCAS-EDMONDS

Hearing:11 May 2009

Court:Ellen France, Priestley and Miller  JJ

Counsel:R M Gould for Appellant

T Epati and B Charmley for Crown

Judgment:21 May 2009 at 10.30 am 

JUDGMENT OF THE COURT

A        The appeal is allowed. 

BThe sentence of five years four months imprisonment imposed in the Wellington District Court on 22 August 2008, and the imposition of a minimum term of imprisonment, are quashed.

CA sentence of four years eight months imprisonment is substituted.

D        The other concurrent sentences imposed by the Judge remain unaltered. 

REASONS OF THE COURT

(Given by Priestley J)

The appeal

[1]       This appeal raises difficult and perplexing issues relating to the sentencing of offenders who, although not covered by specific provisions of mental health and treatment statutes, are nonetheless significantly impaired.  The interface between culpability and diminished responsibility is perplexing for sentencers.

[2]       Judge Barry sentenced the appellant on three charges of arson and one charge of burglary in the Wellington District Court on 22 August 2008.  The lead arson charge attracted an end sentence of five years and four months.  Other terms of imprisonment were concurrent.  The Judge also imposed a minimum term of imprisonment of one half of the sentence (two years eight months imprisonment).  The appeal challenges both the lead sentence and the minimum term.

Background

[3]       At the time of his offending the appellant was aged 22.  Over the previous six years he had accumulated 19 convictions for burglary, 14 for wilful damage, and eight for being unlawfully on premises.

[4]       We say more about his mental state later.  His life was effectively blighted from birth.  His mother abused alcohol and substances during her pregnancy and abandoned the appellant when he was four weeks old.  He was undoubtedly the victim of foetal alcohol syndrome.  Child Youth and Family files and computer records exceed 1,300 pages.  Short terms of imprisonment imposed have not brought about any discernible modification in his behaviour.

[5]       Early on an April evening in central Wellington in 2008 the appellant, who had not previously committed crimes of this seriousness, had been sniffing glue.  He used glue as an accelerant for two of the three fires he lit.  All three fires were lit within a 45-minute period.

[6]       The first fire involved plywood board which had been erected to block pedestrian access to an overbridge.  Having set fire to the board, the appellant extinguished it with his shoe.  Nonetheless, the plywood board was burnt and charred.  A fire crew was despatched.

[7]       The second fire involved a mattress stored in an open garage underneath a residential apartment in Te Aro.  The fire to the mattress quickly took hold.  The appellant stood nearby, watching the conflagration.  The apartment above the garage was occupied by three people at the time, who fled from the apartment when they noticed heat and smoke coming through the floor boards.  The appellant remained outside the garage, watching as fire appliances arrived to extinguish the blaze.  The wooden floor of the apartment was scorched and its interior damaged by smoke.

[8]       The appellant then walked approximately 500 metres to the historic structure of St Peter’s Anglican Church in Willis Street.  This significant church is a heritage building built in gothic style from heart kauri timber.  The church houses a late 19^th century organ which, quite apart from its antiquity, is a central part of the musical mission of the church.

[9]       The appellant smashed a basement window at the rear of the church, climbed into a meeting room, made his way into the church and set fire to an altar cloth draped over an altar table.  The cloth and equipment stored underneath the table quickly caught alight.  The fire grew out of control, whereupon the appellant fled from the church.  An internal sprinkler system was activated, which contained the fire until fire brigades arrived.  The interior of the church was severely damaged by water and smoke.  Some panels were charred.  The St Peter’s victim impact statement says the cost to the church’s insurers (there being significant damage to the organ which will take at least two years to repair) will be in the region of $750,000.

[10]     The appellant was rapidly apprehended.  He faced four charges laid indictably, one of burglary and three of arson.  There were also minor charges of intentional damage to a police cell wall, on which the appellant wrote with a felt pen, and breach of prison release conditions

[11]     The appellant pleaded guilty at an early opportunity – a week after the offending.

The appellant’s mental health

[12]     The District Court was responsibly concerned over the appellant’s mental state and its forensic consequences.  During the four months which intervened between his pleas and his sentencing (during which time he was in prison on remand), three reports were obtained.  There is no need to detail these reports or their authors.  The first was an alcohol and drug assessment which recommended an updated psychiatric assessment, including a review of treatment plans to date and further recommended assessment for forensic inpatient treatment as part of any custodial sentence.  A psychiatric history was noted, which included chronic solvent abuse, possible cognitive impairment, and possible intra-uterine exposure to alcohol.  A ten-year history of polysubstance dependence and solvent abuse was noted.

[13]     A psychiatric report followed, requested under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003.  Reference was made to the appellant’s bizarre and unusual ideas and experiences, including delusions and hallucinations.  The forensic psychiatrist was not satisfied that the appellant then suffered from an active psychotic illness but observed signs of limited intellectual functioning.  The specialist described him as “a damaged and troubled individual with a complex psychological and potentially psychiatric picture”.  He merited further assessment and treatment.

[14]     A psychological report, the third available to the District Court, opined that there was no intellectual disability pursuant to s 4 of the Criminal Procedure (Mentally Impaired Persons) Act 2003, nor did the appellant appear to be mentally disordered within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992.  The report nonetheless stressed the need for treatment for substance dependence and underlying psychological issues.  Such treatment needed to be residential-based with the imperative of “extensive inter-agency cooperation between the Department of Corrections and the Capital Coast District Health Board and other involved individuals and agencies”.

[15]     Not available to the sentencing Judge was a comprehensive report from Dr AC Immelman, which included a review of all previous reports and details of two interviews and mental state examinations performed on the appellant in Rimutaka Prison.  This report, dated 30 April 2009, was commissioned by the appellant’s counsel.  Leave had been given to produce it for the purpose of this appeal.  We need not detail all of Dr Immelman’s observations and conclusions.  The report lists as significant features of the appellant’s health:

·Various clear-cut delusions and hallucinations.

·Poor insight and judgment.

·An agitated mood and incongruous affect.

·A high ongoing risk to the safety of himself and to others.

·Signs of neurological damage.

·Foetal alcohol spectrum disorder.

·Significant impact on his personality as a result of severe abuse and neglect as a child and disrupted attachments.

·Severe substance use disorder.

·A significant cognitive impairment.

·A psychotic disorder.

[16]     Dr Immelman considered the application to the appellant of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, the Mental Health (Compulsory Assessment and Treatment) Act 1992 and the Criminal Procedure (Mentally Impaired Persons) Act 2003.

[17]     His conclusion across those statutes respectively was that at present the appellant did not meet the criteria of a s 7 intellectual disability, should not currently be subject to compulsory treatment, and would not fit the criteria of being unfit to stand trial. 

[18]     Doctor Immelman referred the appellant for a specialist neuropsychological assessment.  We were thus able to consider Dr Valerie McGinn’s report which diagnosed extensive brain damage as a result of the appellant’s abuse of neurotoxic substances and opined that the appellant would need a high level of supervision and care in the long term.

[19]     Although there are indications in Dr Immelman’s report that the appellant might meet the criteria for compulsory care, his assessment falls short of persuading us the Judge was wrong in his assumption that the appellant might well be released into the community when he became eligible for parole or at the end of his sentence.  There can thus be no criticism of the Judge for the weight he gave to the need to protect the community.  Whether or not the appellant has deteriorated since being imprisoned, and whether he meets the criteria for compulsory care are clinical matters which will need close scrutiny.  But that is not our task.

The sentence 

[20]     Judge Barry accurately set out the details of the offending.  He also referred briefly to the victim impact statements.

[21]     Turning to the three specialist reports, the Judge accepted that the appellant needed “intensive and mandated treatment”.  He observed that voluntary treatments had not worked in the past and was undoubtedly needed to address “deep-seated psychological issues and substance abuse”.

[22]     He acknowledged the appellant’s expression of remorse contained in “a long and thoughtful letter to the Court”.  He accepted that the early guilty pleas justified “significant credit”.

[23]     The Judge identified relevant Sentencing Act 2002 purposes and principles, highlighting denunciation and deterrence.  He correctly decided that the arson on St Peter’s should attract the lead sentence.  With reference to this Court’s judgment in R v Z CA138/00 27 June 2000, the Judge acknowledged there was no tariff for arson and that a consideration of danger to life, property damage and the mental state of the offender would be of significance.  He saw the burglary of St Peter’s as demonstrating the appellant’s “determination to embark on [the church] offending”.

[24]     The Judge, having regard to the “continuum of offending” and the aggravating factors (which he had earlier identified as premeditation and the danger to life), fixed on a start point of seven years imprisonment.  From there he turned to the appellant’s lamentable criminal record.  Although accepting that his past offending was “rooted in his solvent addiction and drug use”, the Judge considered that the appellant’s previous convictions demonstrated the danger he posed to the community.  This warranted the one year uplift to eight years imprisonment.

[25]     The Judge then turned to mitigating factors.  He coupled the early guilty plea with “a history of neglect and abuse that has hard-wired [the appellant] and conditions him to becoming the person he is today, consumed with solvents and drugs”.  Those mitigating factors justified, in the Judge’s view, a one-third discount which moved the sentence from the eight-year start point to an end sentence of five years and four months.  The lead sentence relating to the arson to the church attracted this term of imprisonment.

[26]     Concurrent sentences of 12 months for the burglary and two years for each of the two arsons earlier in the evening were imposed.  On the intentional damage charge, the appellant was convicted and discharged.

[27]     The Judge considered the issue of a minimum term of imprisonment under s 86 of the Sentencing Act.  He considered it was warranted.  His reasons for that conclusion are brief.  He did no more than state that he considered that, having taken into account the provisions of the Parole Act 2002, “any term of imprisonment was insufficient to hold [the appellant] accountable for both the harm done, to denounce his conduct, and particularly to provide some protection for the community”.  The Judge thus ordered that the minimum term imposed was to be half of the end sentence.

Discussion

[28]     Ms Gould’s overarching submission was that the sentence was manifestly excessive because insufficient weight had been given to the appellant’s significant emotional and mental impairment which was the product of a lifetime of abuse and neglect.  Counsel submitted the Judge had given excessive weight to the need to protect the public.  The appellant had no prior history of arson offending.  Neither his current nor previous offending had involved violence.  His offending had not been inspired by malice.

[29]     Counsel referred to the specialists’ reports and, in particular, to Dr Immelman’s report.  There was an urgent need to have the appellant placed in a hospital facility for treatment, which the sentence imposed, particularly the minimum term, would delay.

[30]     An updating report was submitted from Dr JB Barry-Walsh, whose psychiatric report had been before the Judge.  It referred to the current treatment the appellant was receiving from the Forensic Mental Health Services in prison.  It was now recognised the appellant suffered from a psychotic disorder.  Although being treated, he continued to exhibit symptoms of illness.  Dr JB Barry-Walsh has considered the report of Dr Immelman.  He concluded:

The priority [the appellant] has for admission to hospital needs to be balanced against the limited resources we have and the needs for other patients.  However, given his illness and the difficulties of managing him and potential risks once he returns to the community, it is likely that as his sentence nears completion the priority he will be given will increase and our service will seek to transfer him across to hospital for further assessment and treatment if we are able to.

[31]     That conclusion is, with respect, slightly equivocal, suggesting that the optimum clinical outcome for the appellant lies in the future and may be sacrificed to competing needs and resources.  Nonetheless, Dr Barry-Walsh’s views point to the length of the sentence being an obstacle to beginning effective treatment.

[32]     For the Crown, Ms Epati did not dispute the thrust of specialists’ reports on the appellant’s mental health.  She submitted that the Judge had not erred in fixing his start point.  Nor could he be criticised for the one year uplift to reflect the previous offending, given the appellant’s lack of cognitive ability to learn from the consequences of his behaviour.  Quite apart from the various delusional aspirations, the appellant has shared with the specialists his consistent desire, if released, to “get wasted” yet again.  Although accepting there was a degree of diminished responsibility, counsel urged the Court not to lose sight of the fact that the appellant constituted a risk to the community.

[33]     Counsel further submitted that although the post-sentence medical reports provided much greater insight into the appellant’s complex mental health, they amplified the Judge’s concern that the appellant remained a real danger both to himself and to the community.

[34]     Counsel also doubted whether, in terms of s 9(2)(e) of the Sentencing Act, the appellant’s limited mental intellectual capacity could be a potent mitigating factor since it was doubtful there was a causal nexus between his lack of capacity and the offending itself.  Counsel pointed to R v Clarke CA225/98 3 September 1998 and R v Taueki [2005] 3 NZLR 372 at [45] where this Court stressed the need for caution when a sentencing court was faced with any suggestion of diminished responsibility as a result of psychiatric or behavioural disorders. The need for deterrence and protection of the public might well affect the weight to be given to personal circumstances of that type.

Decision

[35]     Given that the second of the three arsons endangered an occupied apartment causing significant risk to human life, we consider the sentence of two years imposed by the Judge was too low.  Undoubtedly, it should have been a concurrent sentence to the lead sentence.  But, in our view, it should have been pitched somewhat higher to reflect the culpability.  It was certainly a more serious arson than the arson to the plywood barrier which was met with the same penalty.  However, there being no cross-appeal, we shall not interfere with it, nor is that sentence relevant to totality.

[36]     We do not consider it necessary to revisit or re-emphasise what this Court has previously said in sentencing appeals where the broad issue of diminished responsibility has been raised.  In  R v Tuia CA312/02 27 November 2002, the Court observed at [15]:

The less the moral capacity for constraint the lower the moral culpability in terms of the spectrum ending with the verdict of not guilty on the grounds of insanity.

Nonetheless, as recognised in Clarke and Taueki, the interface of public safety and diminished responsibility flowing from psychiatric or behavioural disorders requires caution.  In R v Tapueluelu CA 172/99 29 July 1999 at [15] this Court stressed that in some cases reduced moral responsibility might have to be countered by proper considerations of public safety.

[37]     We consider the Judge grappled commendably with the dilemma which sentencing the appellant presented him.  The route by which he arrived at the sentence was clearly marked.

[38]     Unlike the sentencing Judge, we have had the benefit of further reports which reinforce the complexity of the appellant’s mental health and point to the urgent need for treatment.

[39]     We have reached the clear view that, in arriving at a sentence of eight years, before discounting for mitigating factors, the Judge went too high.  The seven year start point was an appropriate reflection of the appellant’s specific culpability.  However, his lack of insight, his damaged state, and the absence of any clear malice have to be weighed.  The one year uplift whereby the Judge reflected the appellant’s persistent previous offending has to be counter-balanced by the appellant’s inability, through lack of insight, to modify his behaviour in response to previous penalties.

[40]     For these reasons, we consider that an appropriate term of imprisonment before applying mitigating factors would have been seven years imprisonment.

[41]     The Judge applied a one-third reduction to reflect both the early guilty pleas and the appellant’s diminished responsibility.  A guilty plea a week after offending would normally justify a discount of one-third by itself.  We consider in the unfortunate circumstances of this case, the Judge was justified in limiting the discount to one-third to reflect both the guilty plea and the appellant’s personal circumstances.  More than a third discount would result in an unjustified diminution of the need to consider public risk.

[42]     For these reasons, we conclude that the sentence of five years four months imprisonment was manifestly excessive and that, applying the same discount to the lower figure of seven years, an end sentence of four years eight months imprisonment is the correct result.

[43]     Given that, on the basis of the reports before him, there was a clear expectation that the appellant would require treatment and that there was to be a concerted effort to bring treatment to him before his release into the community, we do not consider there is much prospect of the appellant being released when he had served one-third of his sentence and achieved parole eligibility.  The imposition of a minimum term and the unusual circumstances of this case add little to the s 86(2) criteria of accountability, denunciation, deterrence and community protection.  With respect, the Judge gave only brief reasons for exercising his s 86(1) discretion in favour of the minimum term.  The only certain consequence of a minimum term would be to delay the arrival of effective treatment to the appellant, there being no dispute such treatment was needed.

[44]     We therefore quash the minimum term.

Result

[45]     The appeal is allowed. 

[46]     The sentence of five years four months imprisonment imposed in the Wellington District Court on 22 August 2008, and the imposition of a minimum term of imprisonment, is quashed.

[47]     On the lead charge, a sentence of four years eight months imprisonment is substituted.

[48]     The other concurrent sentences imposed by the Judge remain unaltered. 

Solicitors:
Crown Law Office, Wellington