R v Pomana

[2007] NZCA 138

IN THE COURT OF APPEAL OF NEW ZEALAND

CA411/06
[2007] NZCA 138

THE QUEEN

v

ADAM SHELFORD POMANA

Hearing:7 March 2007

Court:Ellen France, John Hansen and Williams JJ

Counsel:A Stevens for Appellant

C L Mander for Crown

Judgment:19 April 2007 at 3 pm

JUDGMENT OF THE COURT

A        Extension of time for the filing of the appeal is granted.

BThe appeal against conviction was abandoned and is dismissed accordingly.

CThe appeal against sentence is allowed only to the extent of rescinding the order for a minimum period of imprisonment.

REASONS OF THE COURT

(Given by Williams J)

Appeal

[1]       Following trial in the Dunedin District Court the appellant, Mr Pomana, was convicted on one count of aggravated burglary and another of breaching a protection order.

[2]       On 2 February 2006 Judge O’Driscoll imposed concurrent sentences of four and a half years’ imprisonment on the former and three months’ imprisonment on the latter and directed that Mr Pomana serve a minimum period of imprisonment of 50 per cent of the sentence on the aggravated burglary count.

[3]       Mr Pomana now appeals to this Court on the grounds that the sentence was manifestly excessive.

Facts

[4]       The facts may be conveniently taken from the sentencing Judge’s remarks:

[2]       … the victim in this matter resides at a rural property ….  She resides there with her three children.  She has previously been in a relationship with you and you are the father of her youngest child.  You were served with a Protection Order in 2001.  At around about 11 o’clock on Friday 24 June 2005, you telephoned the victim at your home address.  You wanted to go there because it was her birthday the following day. It seems that the conversation between you and her was cut short and you then arrived at her house at around midnight.  …

[3]       The complainant’s evidence was that while you were inside her house, she was subject to physical abuse by you and emotional abuse. During the course of her evidence, she said that while you were there you accused her of being involved in a relationship with someone else and you underwent a process of intimidating her.  She said that you took a butcher’s knife and threw it in her direction and that it went past her and into the door that was behind her.  She said that you grabbed a pool cue and pushed it up against her.  She said at one stage you kicked her foot and that she had a knee injury prior to that that you were aware of.  She said that you grabbed a necklace that she was wearing and that you used a cigarette lighter to burn it off.  The necklace was then thrown into the fire.  She said that you had a set of hand shears.  … You held that up to her face on several occasions.  You put the shears into the fire and heated the shears.  You then took the shears out of the fire and threatened her with them.  She said that you picked up a hammer and swung it down towards her knee stopping short of hitting her.  She said that these incidents occurred over a period from around midnight to around 8am in the morning when you left.

[4]       When you were spoken to by the police, you accepted being at her address that night but declined to make any statement in relation to those matters.  You gave evidence at the trial.  As I have said, you accepted being there.  You did not accept the complainant’s version of events.  On some matters you accepted you had touched the knife but threw it into the wall out of frustration, away from her.  On other matters, you said you had no contact with those other items.

…

[8]       The view that I have taken and take into account for the purposes of sentencing, was that there was clearly physical abuse on your part.  I find as a fact there was the presence and use of the four weapons as described by the complainant, that is the knife, the pool cue, the hand shears and the hammer.  There was physical evidence consistent with the complainant’s evidence such as the hole in the door where the knife had been thrown that you did not accept and you did not dispute throwing the knife.  There was also the necklace that was placed into the fire and was burnt.  I am satisfied that the evidence given by the complainant and her version is and was correct.

Remarks on sentencing

[5] The Judge accepted the submission that the incident had not involved serious physical abuse but took the view that there was “quite clearly an extreme use and intention on your part to use emotional and psychological violence and intimidation against the complainant”: at [9]. That view must be assumed to have been based, at least in part, on the trial evidence and a number of reports he had before him, including psychiatric reports by a Mr Withington and a Dr Brunet.

[6] The Judge regarded actual and threatened violence against the complainant and the effect on her as aggravating factors together with the appellant’s previous convictions and the commission of the aggravated burglary whilst the protection order remained in force. He took the view that, effectively, there were no mitigating factors and the appellant’s conduct was “designed to cause maximum psychological and emotional harm to the complainant”: at [14]. The minimum period of imprisonment was imposed because the Judge was of the view that the appellant’s possible release after having served only one-third of the aggravated burglary sentence was insufficient to hold the appellant accountable, denounce his conduct, deter him and protect the public.

[7]       We note, as did the Judge, that the appellant’s conviction history included two convictions for male assaults female in August 2001 and March 2005, and two convictions for common assault in 1999 and 1998.  There was also a conviction in August 2001 for contravening a protection order and four more in 2003.  For those he was sentenced to varying terms of supervision, periodic detention and suspended sentences but it is to be noted that he was also imprisoned for 18 months in June 1996 for burglary.

Submissions

[8]       For the appellant, Mrs Stevens first submitted that an extension of time for filing the appeal should be granted, the delay in filing having resulted from the appellant’s psychiatric history later recounted.

[9]       Based on her review of the reports to which the sentencing Judge referred and those obtained since sentencing, Mrs Stevens submitted that the length of the term of imprisonment imposed on the aggravated burglary coupled with the imposition of a minimum period meant that an otherwise appropriate sentence was, in the appellant’s situation, disproportionately severe: Sentencing Act 2002 s 8(h).  She also submitted that Mr Pomana’s long-standing psychiatric disorder played a hitherto unrecognised part in his offending.

[10]     Taking the view, correctly, that the various other reports furnished by Mrs Stevens had to satisfy the test for the reception of fresh evidence on appeal, namely that it would have made a material difference in the appropriate sentence (R v Do CA444/96 and CA445/96 5 May 1997 at 8), Mr Mander for the Crown submitted that neither at the time of sentence nor now was there sufficient evidence that what Mrs Stevens had submitted was the appellant’s mental disorder played any part in his offending.  Accordingly, it could not have affected the sentence imposed. 

[11]     Were that incorrect, Mr Mander then submitted that a factor in the imposition of the appropriate sentence was the need to protect the complainant, her children and the public.  The additional evidence furnished at the hearing before us, Mr Mander suggested, showed the appellant’s psychiatric condition had developed or worsened since being sentenced but not, he submitted, to the point where the Court should reduce the sentence to achieve a merciful result. 

[12]     Both counsel made detailed submissions on the various reports before the District Court but because of the approach we take we do not need to discuss those reports in great detail.

Psychiatric and other reports

[13]     The earliest report was from a Mr Withington, a prison liaison nurse. Mr Withington assessed the appellant twice in August 2005 when he was in custody on remand and again the day before the report of 16 December 2005.  He said that though in August Mr Pomana had thought prison staff may wish to harm him, in Mr Withington’s view he was not unwell mentally.  By December 2005 Mr Pomana’s delusions had stopped and Mr Withington then thought his condition was due to interruption to his long-term illicit drug use.  He again concluded that Mr Pomana was not mentally ill.

[14]     Dr Brunet reported to trial counsel – not Mrs Stevens – on 1 February 2006.  She said that Mr Pomana again “reported beliefs that … Corrections officers are intending to kill him”, a belief which limited his communication with Dr Brunet.  In reviewing his history, she noted that he had no formal mental health history though he had been referred to a Community Alcohol and Drug Service in 2001 as a condition of sentence.  He attended once only.  She took the view the appellant had “issues related to anger management, domestic violence, insecurity, jealousy and power and control, but these may not be related to any mental disorder beyond a possible personality disorder”.  He displayed “typical paranoid behaviour” during the interview and there were “aspects” of his offending that suggested he may have mental health issues.  She finally reached the view that she was unable to provide an opinion as to “whether Mr Pomana has a mental disorder … and whether this played a role in his offending and later behaviour in prison”.

[15]     A report was prepared by a Dr Bevin of the Mason Clinic on 19 July 2006 as a prelude to the hearing of an application under the Criminal Procedure (Mentally Impaired Persons) Act 2003 for a Compulsory Treatment Order (“CTO”).

[16]     Dr Bevin recorded that the appellant’s “persecutory beliefs appear to have been exacerbated greatly once he was incarcerated”, detailing incidents in prison which led to his transfer to Paremoremo in May 2006 and an incident of serious self-harm five days later.  He made deep cuts to both wrists which led to his admission to hospital and later tore out the sutures.  After discharge, his mental condition worsened.  He hoarded food, urine and faeces and would not clean himself.  That led to a psychiatrist’s request for his admission to the Mason Clinic which occurred on 23 June 2006.  Dr Bevin summarised the appellant’s personal history, including violence in his two long-term relationships and drug abuse.  The review of Mr Pomana’s position in the months leading up to his Mason Clinic admission included details of hallucinations and persecutory beliefs but improvement on medication.  Dr Bevin concluded that there was “evidence to strongly suggest that Mr Pomana has become increasingly paranoid since late 2005” and that he was “likely to suffer from schizophrenia given the duration of his symptoms, his family history of this illness and the marked deterioration in his ability to function over the past few months”.  A recommendation was made for the appellant’s retention at the Mason Clinic for treatment of his “presumed major psychotic illness”.

[17]     A further report was prepared, apparently in September 2006, by a Dr Gardiner, a psychiatrist at the Mason Clinic.  He, too, summarised Mr Pomana’s history, noting that, before his transfer to Paremoremo, there were concerns about his “personality disorder and malingering”.  Dr Gardiner said that, after transfer, his condition deteriorated significantly, including the serious episode of self-harm.  That was reported to have led a consultant psychiatrist to the prison, Dr Pillai, to conclude that the appellant may have a “psychotic illness that has developed slowly over the last four to five years”.  Though report writers quoted Dr Pillai, his reports, perhaps surprisingly, were not before us.  After Mr Pomana’s admission to the Mason Clinic, Dr Gardiner reported significant improvement in his condition once he was on an appropriate medication régime.

[18]     Then, on 26 September 2006, Dr Bevin wrote to the Minister of Health about Mr Pomana.  She had also reached the view that the appellant had demonstrated psychotic symptoms over the six to ten months previously and thereafter developed a “marked fear of returning to prison”.  She recommended further hospitalisation by transfer to the Dunedin Forensic Psychiatric Hospital at Wakari. 

[19]     The transfer took place and on 23 February 2007 Dr Akhtar, a Wakari Hospital psychiatrist, reported to Mrs Stevens on the appellant’s condition.  He noted the CTO was due to expire on 20 July 2007 but a renewal would be sought if the appellant’s mental condition remained as it then was.  It was felt the appellant’s return to prison was inadvisable.  Dr Akhtar’s report had a section on schizophrenia although not including a diagnosis of that condition.  The psychiatrist was unable to say whether the appellant’s offending was the product of schizophrenia or his illness.  He concluded:

Because of the peculiar focus of his persecutory beliefs towards the prison staff, the prison environment is likely to be more stressful to him than to other (normal) prisoners and his mental state will have to be monitored closely if and when he is returned to prison.

Discussion and Decision

[20]     We agree with the sentencing Judge that this was certainly serious offending causing significant stress to the complainant and her children and committed in a way designed by the appellant to exert maximum psychological stress on her.  We also agree with the Judge that the offending was so serious, particularly when seen against the history of the previous offending, that imprisonment was inevitable.  Section 8(h) is no more than one of the many factors to which sentencing judges must turn their attention.

[21]     In fairness, we did not understand Mrs Stevens to argue for a sentence other than imprisonment:  the principal thrust of her submission was that the term imposed was manifestly excessive because of the effect of prison on the appellant and accordingly the sentence imposed should be reduced.

[22]     We are unable to agree with Mrs Stevens’ submission that incarceration of the appellant within the prison environment is disproportionately severe.  The examples given in the reports confirm that the appellant’s persecutory delusions are capable of being controlled by appropriate medication administered under the constraints of the CTO.  This is not a case such as R v Verschaffelt CA239/02 8 October 2002 where a sentence of imprisonment is disproportionately severe for an appellant because the prison system is incapable of dealing adequately with him.  In Verschaffelt the consequence of the conditions in which the appellant had to be held meant he was subjectively receiving much more severe punishment than would otherwise have been the case.  This Court has said on earlier occasions that where an inmate’s medical condition seriously deteriorates following sentence, the appropriate régime should be one set up administratively:  R v Hart CA199/93 17 November 1993;  R v Tuoro CA44/94 17 March 1994.

[23]     However, it appears clear that the appellant’s persecutory delusions and their focus in part on prison staff which existed before sentencing did markedly deteriorate over the past year.  In addition, the possibility that the appellant suffers from schizophrenia cannot be discounted.

[24]     We accept that the appellant has posed a difficult problem for psychiatric and prison authorities alike.  He has had delusional persecutory fantasies, including those concerning prison staff, since before sentencing.  Those delusions increased and worsened following sentencing to the point where he undertook serious self‑mutilation.  Close monitoring will be required to ensure he is appropriately managed when returned to prison.

[25]     In those circumstances, our view is that no case has been made out to conclude that the sentence imposed on the appellant was manifestly excessive.  But, in order to ensure maximum flexibility is available to those responsible for the appellant’s management, we rescind the order that the appellant serve at least 50 per cent of the sentence imposed before becoming eligible for parole.

[26]     We should make it clear that our actions in so doing are solely to provide the responsible authorities with as much flexibility as may be appropriate to assist them to decide how best to manage Mr Pomana within the hospital or prison environment without the restrictions a minimum period of imprisonment might impose.  Our views are not intended to suggest to the authorities or, later, the Parole Board, when Mr Pomana might properly be released back into the community.

Result

[27]     In the result, an extension is granted to the appellant for the filing of the appeal out of time and the appeal against sentence is allowed but only to the extent of rescinding the order for a minimum period of imprisonment.

Solicitors:
Crown Law Office, Wellington