R v R HC Rotorua CRI 2005-019-3496

[2006] NZHC 202

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2005-019-3496

THE QUEEN

v

R

Hearing:         16 February 2006

9 March 2006

Counsel:         F Pilditch for Crown

D L Bates for Accused

Judgment:      9 March 2006

(ORAL) JUDGMENT (NO. 2) OF HEATH J

Solicitors:

Crown Solicitor, Rotorua
Counsel:

D L Bates, Papamoa

R V R HC ROT CRI 2005-019-3496  9 March 2006

[1]      On 16 February 2006, following his arraingment, Mr R   entered pleas of not guilty on the grounds of insanity to four counts set out in an indictment presented by the Crown Solicitor at Rotorua.   The crimes charged in the indictment were manslaughter,  dangerous  driving  causing  death  and  two  charges  of  dangerous driving causing injury.

[2]      The two persons who suffered injury were the driver of the vehicle, Mr Pringle, and an adult passenger, Mr Cooper.  Sadly in the course of the driving event which gave rise to those injuries, Mr Cooper’s eight year old son, Liam, was killed.

[3]      When the pleas were entered before me on 16 February I was satisfied that the defence of insanity that had been raised was established.  Accordingly, verdicts of not guilty on account of insanity were entered on each charge.  I adjourned until today, with provision for further evidence to be filed, the inquiry required by ss23,

24 and 25 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the Criminal Procedure Act).  That inquiry is designed to determine the order pursuant to which Mr R   will be detained following today’s hearing.

[4]      To  deal  with  that  inquiry,  I  received  two  further  reports.    One  from  a psychiatrist and the other from a psychologist.   I have had the benefit today of submissions from both Mr Pilditch and Mr Bates.   I have also heard Mr R   provide an apology for his actions and eloquent statements from Mr and Mrs Cooper (whose son was tragically killed) and Mr Pringle which have put into sharp focus the losses and injuries they have suffered and the tragic consequences of the events upon them.  Words cannot express those losses.  I hope they will forgive me for not trying to do so.

[5]      In this decision, I intend to do two things.  The first is to provide reasons for my decision to enter verdicts of not guilty by reason of insanity on all the charges faced by Mr R  .   The second is to deal with the appropriate outcome of this inquiry to determine the way in which Mr R   ought to be dealt with following his acquittal.

[6]      I start with a summary of the facts.  This is the summary to which the pleas were entered.

[7]      On 13 May 2005 Mr R   was reported to the Police as a missing person by the Mental Health Unit at Rotorua Hospital.

[8]      At about 12.30pm the following day, Saturday 14 May 2005, the Police received information that Mr R   had left his home address in a Holden Commodore motor vehicle and was driving to Taupo.  Police took up static positions with a view to stopping Mr R   when he passed them just nearer to Taupo.

[9]      However, instead of driving to Taupo, Mr R   drove at speeds estimated to have been between 150km/h and 200km/h northward on State Highway 1 towards Tokoroa.  Drivers from several vehicles, travelling both north and south along that State  Highway,  reported  incidents  of  dangerous  overtaking  manoeuvres  and excessive speed by that vehicle.

[10]     Around the State Highway 1 and State Highway 30 intersection, Mr R  ’s vehicle overtook a northbound vehicle causing a southbound approaching car to take evasive action swerving off the road to avoid collision.

[11]     A second motorist, travelling on State Highway 1 approximately 4 kilometres south of Tokoroa, witnessed Mr R  ’s vehicle drift across the centre line into his lane forcing him to swerve off the side of the road to avoid hitting the Commodore.

[12]     A third motorist, travelling north, described Mr R  ’s car as “flying past him as if he was standing still”.  He reported that it continued to overtake other cars and trucks in front of him.

[13]     A fourth motorist, also heading north along State Highway 1, described Mr R  ’s vehicle passing her at excessive speed.  She witnessed a dangerous passing manoeuvre of a truck on a right hand corner just before Tokoroa.

[14]     Mr R   entered a 60km/h hour of State Highway 1 in Tokoroa.  That part of the highway intersects with other streets.

[15]     A fifth motorist, travelling south in the 60km/h area, witnessed Mr R  ’s vehicle coming towards him in his lane.  He thought that the driver was going to pull back into its own lane but soon realised he was not and had to swerve left to avoid a collision.  The vehicles passed so close that the wing mirrors on either car almost hit each other.

[16]     Mr R  ’s vehicle then hit the rear of a Ford Laser motor vehicle travelling in a northerly direction.  The impact occurred a short distance from a packed netball facility and opposite a busy service station.  There was light pedestrian movement in the immediate area and State Highway 1 was busy.

[17]     The impact of the crash caused the Ford Laser to veer off State Highway 1, across a grass verge through a mains power transformer onto a side street parallel to the highway, coming to rest on the side facing southward.  Extensive damage to the vehicle ruptured the fuel tank causing it to ignite into flames.   The fire was extinguished by members of the public attending prior to arrival of fire appliances. The occupants of the car were trapped inside and later cut from it.

[18]     Mr  R  ’s  vehicle  continued  forward  after  the  initial  crash  and  hit  the second northbound car, a Mercedes Benz.  That caused the Mercedes to spin out of control and across into the southbound lane hitting a Rover motor vehicle travelling south.

[19]     Travelling in the front seats of the Ford Laser motor vehicle were the victims in this case.  The driver was Mr Pringle.  He was with Mr Cooper, whose eight year old son Liam was in the back of the car.

[20]     Liam died at the scene as a result of the injuries he received when the vehicle was  struck  from  behind  by Mr R  ’s car.    Both  Mr  Pringle  and  Mr  Cooper received serious injuries.   They were admitted to Waikato Hospital for extensive periods.   Mr Pringle is a paraplegic as a result of the incident.   Mr Cooper was seriously injured and will carry those injuries with him for the rest of his life.

[21]     In the case of Mr Cooper and his wife, nothing can be done to bring back their son.  The loss of their son is something from which they will never recover.

[22]     The emotional and physical scars of this incident, I am sure, will never go away.

Reasons for finding of not guilty on grounds of insanity

[23]     The purpose of a verdict of not guilty by reason of insanity is to ensure that those who have no criminal intent or capacity to form a criminal intent due to mental illness are not regarded as or treated as criminals.

[24]     It is for that reason that this hearing is not described as a sentencing.  Rather, it is to determine what should be done with a person who was impaired by mental illness at  the time  of  the  incident  and  is  therefore  regarded  by the  law  as  not responsible for it.

[25]     The law requires everyone to be presumed sane at the time of doing any act until the contrary is proved.  However, no person can be convicted of an offence by reason of an act done when labouring under a “disease of the mind” to such an extent as to render that person incapable of understanding the nature and quality of the act involved or of knowing that the act was morally wrong having regard to commonly expected standards of right and wrong.   That summary is taken from s23 of the

Crimes Act 1961 which is the section that I had to apply in determining whether to accept the plea of not guilty on the grounds of insanity.

[26]     Before the Criminal Procedure Act was enacted, any verdict of not guilty on the grounds of insanity for serious crime had to be entered following a jury determination, whether or not the Crown agreed that such a verdict was inevitable.

[27]     The new law has changed that position so that a Judge may make an insanity finding without the need for a jury trial.  The preconditions to such an order being made are that the accused indicates that he or she intends to raise a defence of insanity, the prosecution agrees that the only reasonable verdict is one of not guilty on account of insanity and the Judge is satisfied, on the basis of expert evidence, that the accused was insane within the meaning of s23 of the Crimes Act at the time of the commission of the offence.

[28]     Section 20 of the Criminal Procedure Act provides:

20    Finding of insanity

(1)      If, at a hearing or trial, the defendant gives evidence as to his or her insanity and the jury or (if there is no jury) the Judge finds the defendant not guilty on account of his or her insanity, the Judge must record that finding.

(2)     Before or at a hearing or trial, the Judge must record a finding that the defendant is not guilty on account of his or her insanity if—

(a)       the defendant indicates that he or she intends to raise the defence of insanity; and

(b)      the prosecution agrees that the only reasonable verdict is not guilty on account of insanity; and

(c)     the Judge is satisfied, on the basis of expert evidence, that the defendant was insane within the meaning of section 23 of the Crimes Act 1961 at the time of the commission of the offence.

(3)     If, at a trial before a jury, the defendant gives evidence as to his or her insanity and the jury finds the defendant not guilty, the Judge must ask the jury whether or not it has acquitted the defendant on account of his or her insanity.

(4)      In a case where it appears from the evidence that the defendant may have been insane at the time of the commission of the offence, the Judge may  ask  the  jury  to  find  whether  the  defendant  was  insane  within  the meaning of section 23 of the Crimes Act 1961, even though the defendant

has not given evidence as to his or her insanity or put the question of his or her sanity in issue.

[29]     The new procedure enacted in 2003 has the ability to bring closure to all concerned, including victims and their families, within a much shorter period than would have been possible had it been necessary for a full jury trial to be held.

[30]   In making the finding of insanity I had regard to evidence from two psychiatrists, Dr Majeed, a forensic psychiatrist based at the Henry Bennett Centre in Hamilton, and Dr Tapsell, a consultant forensic psychiatrist based at the Auckland Regional  Forensic  Psychiatry  Service.    Both  psychiatrists  are  well  qualified  to provide evidence to the Court on the issues raised.   They have extensive practical experience in assessing the criminal responsibility of those said to be insane at the time of the alleged offending.

[31]     Both Dr Majeed and Dr Tapsell concluded that Mr R   was legally insane at the time of the incident on 14 May 2005.

[32]     The psychiatrists agree on relevant aspects of Mr R  ’s medical history. Mr R   began to experience early symptoms of psychosis around the age of 22 years.  The frequency and intensity of those experiences led him to be admitted to the  Rotorua  In-Patient  Psychiatric  Unit  in  October  2004.    Following  a  short admission and partial treatment he was discharged.   Mr R   presented himself again to the same Unit, several months later.  His state was described by Dr Tapsell as “acutely psychotic and presenting a risk of danger to himself and potentially to others”.   Following a short period of compulsory in-patient assessment Mr R   absented himself from the hospital, ultimately being discharged.

[33]     Dr Tapsell was of the opinion that Mr R   suffered from schizophrenia, complicated by alcohol and cannabis abuse.  It seems reasonably clear that there had been a failure on the part of Mr R   to take prescribed medication to control his condition.  That plainly increased the risk of offending.

[34]     Dr Tapsell expressed the opinion that at the time of the offending Mr R   continued  to  suffer  a  serious  psychiatric  disorder,  namely  schizophrenia  of  the

paranoid subtype.   Dr Tapsell believed that the use of alcohol and cannabis were independent of the illness, rather than causative of it.

[35]     Schizophrenia has been accepted as a disorder that falls within “a disease of the mind” for the purposes of the Crimes Act definition of insanity.

[36]     Mr R  , in the course of examination, described his major motivation for driving so fast as to escape an imminent threat to his life.  He thought that he had special powers that enabled him “to pass through other cars at a subatomic level, not causing them, or anyone in them, any form of harm”.

[37]     Dr Tapsell concluded from the medical history and from his examination of Mr R   that Mr R   was incapable of understanding the nature of his actions and of understanding them to have been morally wrong at the time of the tragic driving incident.

[38]     Dr Majeed also diagnosed Mr R   as suffering from schizophrenia which he described “as responding well at that time to anti-psychotic medication”.   Dr Majeed described Mr R  ’s condition as “characterised by delusions, auditory hallucinations and impaired insight and judgment”.

[39]     Dr Majeed concurred with Dr Tapsell’s opinion to the extent that he opined that at the time of the driving incident Mr R   was influenced by an abnormal state of mind whereby he was suffering from “a marked delusional system which was of such an intensity that he was unable to consider any moral or legal consequences to his behaviour”.

[40]     Dr Majeed presented a favourable prognosis, provided Mr R   remained as an in-patient at the Regional Forensic Psychiatric Services at the Henry Bennett Centre in the short to medium term.

[41]     In terms of s20 of the Criminal Procedure Act, I was satisfied from the evidence of Dr Tapsell and Dr Majeed that Mr R   was suffering from a disease of

the mind at the time of the driving incident and that he was incapable of understanding the nature and quality of his actions at that time.

[42]     Mr Pilditch, on behalf of the Crown, accepted that no other verdict than not guilty on account of insanity could be reached having regard to the expert evidence.

[43]     For those reasons, I ruled on 16 February that the defence had been made out and entered acquittals on the ground of insanity to each charge.

Inquiry into disposition

[44]     The next step on which I have heard from counsel today involves disposition of the case.   In this particular context it involves the question of the status under which Mr R   will be detained pending release.   Sections 24, 25 and 26 of the Criminal Procedure Act provide:

24       Detention 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.

25     Alternative 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 (at 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.

26     Effect 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.

(2)         An  order  made  under  section  25(1)(b)  is  to  be  regarded  as  a compulsory care order for the purposes of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, and, in making the order, the court must—

(a)       direct whether the defendant is to be detained in a secure facility; and

(b)     specify the term of the order in accordance with section 46 of that Act.

[45]     Counsel accept that there are two options open to the Court.  One is to detain Mr R   as a special patient.   The other is to detain him as an ordinary patient, albeit in in-patient care.  My decision must reflect the policy that underlies s24 and

25 of the Act.

[46]     Sections 24 provides that when the Court has sufficient information on the condition of a defendant who has been acquitted on account of his or her insanity the court must consider all the circumstances of the case, the evidence of one or more health assessors as to whether the detention of the defendant in accordance with one of the orders specified in s20(2) is necessary and make one of the orders referred to in s20(2)(b) if it were satisfied that the making of such an 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.

[47]     In this case, the only relevant order under s24 that I have to consider is whether Mr R   ought to be detained in a hospital as a special patient under the Mental  Health  (Compulsory  Assessment  and  Treatment)  Act  1992  (the  Mental Health Act).  If, having regard to the factors to which I have referred, I come to the conclusion that detention in that form is necessary I am required to make an order to that effect.

[48]     The alternative disposition is under s25 of the Act and only comes into play if the Court is not satisfied that an order detaining Mr R   as a special patient is necessary.  The option under this provision is to order that Mr R   be treated as a patient under the Mental Health Act: in this case in-patient treatment is agreed should that option be taken.

[49]     In addition to the reports I received from Dr Tapsell and Dr Majeed I have received two further reports on the inquiry.  They are from Dr Goodwin, a consultant psychiatrist based at the Auckland Regional Forensic Psychiatric Service.  He is also Deputy Director of the Mason Clinic.  The second is from Ms Te Huia, a registered clinical psychologist, based in Hamilton who has worked closely with Mr R   in her professional capacity and has been involved in the formulation of an appropriate treatment programme.

[50]     Both Dr Goodwin and Ms Te Huia have expressed views that Mr R   is responding well to treatment, now recognises the nature and quality of the actions which led to the tragic death of Liam and the injuries suffered by Mr Cooper and Mr Pringle and realises the devastating consequences he has wrought on the families of those involved.

[51]     Mr R   has expressed remorse for the consequences of his actions in Court. I record that Mr Cooper has concerns about the genuineness of those expressions of remorse.  It is unnecessary for me to resolve that issue.  It is for Mr R   and the victims to make their own assessments in that regard.  Those issues are not ones I can lawfully take into account in determining the outcome of today’s hearing.

[52]     Both  Dr  Goodwin  and  Ms  Te  Huia  are  of  the  opinion  that,  using  an acceptable assessment tool, Mr R   can properly be characterised as at low risk of re-offending.  They recommend therefore that he be detained as an in-patient under s25 of the Criminal Procedure Act, with consequential orders being made under the Mental Health Act, permitting a transitional period before he is reintegrated into the community.   A detailed management plan has been  developed  to  address  those issues.

[53]     The risk assessment is, however, based on two underlying assumptions which I need to treat with some caution.   The first is that, as Mr Pilditch submitted, Mr R   is currently detained in a controlled environment in which his therapy can be closely supervised.  In the past there have been episodes in which he has neglected or forgotten to take medication and has been involved in cannabis use.   The concern must be that whatever reaction he gives within a controlled environment may not be

repeated within the community.  If that should eventuate then the potential risks to members of the public are increased.

[54]     So, there are two underlying assumptions.  The first is that medication will continue to be taken to control the mental disorder.  The second is that there will be no reactivation of cannabis or alcohol abuse.

[55]     As counsel have said this is an unusual case.   In many cases of this type, involving death, the acts of someone who is found legally insane generally relate to something that is done to inflict harm deliberately on another person.  In this case Mr R  ’s psychosis led him not to deliberately inflict harm on others, but rather to drive  in  an  irresponsible,  dangerous  manner  which  caused  the  collision  which resulted in the injuries and death to which I have referred.

[56]     I do not see, however, any real difference between the two types of situations. On the one hand, one has a person who lacks the ability to form criminal intent, who nevertheless does a deliberate act that results in death.  In the other situation, the one in which Mr R   is, a person who has no capacity to understand the nature and quality of their act, drives their vehicle in a manner akin to launching a missile at others and that results in the tragic consequences that we see in this case.

[57]     The way in which a Court should approach an assessment of what order ought to be made involves the assessment of societal safety concerns, the risk of further safety concerns arising out of the management of a medical problem and the need for the person before the Court to be treated in a manner which will enhance his or her rehabilitation and the prospects of reintegration into the community at the earliest possible time.

[58]     The nature of the status of special patient is set out helpfully in Bell & Brookbanks, Mental Health Law in New Zealand (2nd  ed, 2005, Brookers) at 101-

103:

If a person is made a special patient under s24(2)(a) CP(MIP)A a change of status (and ultimately the person’s release) may occur by the person’s being made a patient subject to a compulsory treatment order under s33 of that Act or being discharged after a certificate of clinical review from a responsible

clinician under s77 Mental Health (Compulsory Assessment and Treatment) Act 1992.  Under s33(3) the certificate must satisfy the Minister of Health that the person’s continued detention under the order is no longer necessary in the defendant’s own interests or for the public’s safety or of a person or class of persons.  The Attorney-General has no role in the decision in such cases because, unlike cases where a finding of trial unfitness has been made, the court proceedings have been terminated by the acquittal.  The effect of these provisions is that they are sufficiently wide to permit the continued detention in mental health custody of a person who may be dangerous but who is not “mentally disordered” provided there is some “mental condition”.

In addition, in the preliminary question  of  whether  to place  an  insanity acquittee under special patient status, the fact that the accused poses no danger to the public   interest is not conclusive of the matter.   In R v GH [[1977] 1 NZLR 50, 52] the court talked about a “wider element of public interest, quite apart from its safety and quite apart from what might be in the best interests of the individual involved” which might justify a person’s detention as a special patient. The “wider element of public interest” was not expanded upon, but presumably relates to the gravity of the charge, considered in the light of political and not just medical factors. For example, where a person’s mental condition may have been medically cured, but where the criminal act in respect of which insanity is pleaded was of a grave nature and raised important questions of public security and safety, or where the early release of the person might cause political embarrassment.

However, in the light of recent developments in human rights jurisprudence and   the   effect   of   various   international   covenants   and   instruments guaranteeing minimum due process rights to mentally disordered offenders, it may be timely to revisit the criterion established in R v GH.  In any event, it may be doubted whether such a broadly formulated test could now withstand critical scrutiny.  It is objectionable because it justifies detention without  reference to  an adequate  determining  principle  which,  arguably, amounts to arbitrary detention, contrary to s22 New Zealand Bill of Rights Act 1990.

Furthermore, where a person has been acquitted of a crime and no longer meets the criteria for detention under mental health legislation, it is difficult to justify that  person’s  indefinite  detention,  particularly  where  offenders convicted of similar crimes are automatically released from prison at the expiration  of  their  sentences,  regardless  of  their  future  dangerousness. Perhaps the time has come in New Zealand for legislation to provide a statutory “cap” or limit on the duration of detention as a special patient acquitted on account of insanity, similar to that provided for persons found to be unfit to stand trial.

[59]     It is important, when considering the question of special patient status to have regard to s33 of the Act.  That is a section to which both Mr Pilditch and Mr Bates referred in submissions.  It states:

33      Duration of order for detention as special patient or special care recipient if person acquitted on account of insanity

(1)     This section applies to a defendant who has been acquitted on account of his or her insanity and who is detained as a special patient or a special care recipient in accordance with an order under section 24 (the defendant).

(2)      The order under which the defendant is detained continues in force until—

(a)      a direction is given under this section that the defendant is to be held as a patient or as a care recipient; or

(b)       the defendant is discharged in accordance with a direction given under this section.

(3)     If, at any time while the order continues in force, a certificate is given under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 to the effect that the defendant's continued detention under the order is no longer necessary to safeguard the interests specified in subsection (4), the Minister of Health must—

(a)      consider whether, in the Minister's opinion, the defendant's continued detention is no longer necessary to safeguard those interests; and

(b)        if,  in the Minister's  opinion,  that detention is  no  longer necessary to safeguard those interests, direct—

(i)     that the defendant be held as a patient or, as the case requires, as a care recipient; or

(ii)    that the defendant be discharged. (4) The interests referred to in subsection (3) are—

(a)    the defendant's own interests; and

(b)      the safety of the public or the safety of a person or class of person.

(5)    A direction under this section—

(a)      that the defendant be held as a patient is to be regarded as a compulsory treatment order for the purposes of the Mental Health (Compulsory Assessment and Treatment) Act 1992, and the provisions of that Act apply accordingly:

(b)     that the defendant be held as a care recipient is to be regarded as a compulsory care order for the purposes of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, and the provisions of that Act apply accordingly.

[60]     The section applies to any person who has been acquitted on account of his or her insanity and who is detained as a special patient in accordance with an order made by the Court.

[61]     The status of special patient continues in force until a direction is given that that person is to be held as a patient or as a care recipient or he or she is discharged in accordance with a direction given under the section.   Any discharge following clinical assessment is in the discretion of the Minister of Health who, naturally, takes account of public interest issues.  The Minister of Health must consider whether in his or her opinion, the continued detention is no longer necessary to safeguard public interest and may, if so persuaded, direct that the person from that point be held as a care recipient or be discharged from the special patient order.  There is, therefore, a continuing supervision subject to further controls that are in place when a special patient order is made.

[62]     In this case the seriousness of the offending cannot be under-estimated.   It was appalling driving that led to death of an eight year old boy who, from what I have heard today, had a very promising future; and that has been taken away.  It also involved serious injury to two people who will no longer be able to interact with their families and with other members of the community in the same way that they did before.  Those are the consequences of the actions of Mr R   and are matters which I believe I can properly take into account as part of the “circumstances of the case” as required by s24.

[63]     I also have regard to the recommendations that are made by the responsible clinicians.  I must give weight to the opinions expressed by experienced psychiatrists and a psychologist.

[64]     The real issue, however, is whether it is necessary to make a special patient order  because  of  the  interests  of  the  public.    Notwithstanding  the  uncontested opinions of Dr Goodwin and Ms Te Huia I have concluded that an order detaining Mr R   as a special patient is necessary in the circumstances of this case.   My reasons for reaching that view are these:

a)       First, the judgment I am required to make is a judicial assessment of all the circumstances, including the risks to the public associated with any other order that the Court may make.  That judgment is different in kind from the medical judgments formed by the psychiatrists and

the psychologist.  The considerations that I must take into account are wider than those which influence their judgments.  The order I make must reflect the need to manage potential risk to the community, in both the short and long term, to minimise the risk of a person with a mental illness from causing harm to others in a like manner in the future.

b)Second, although circumstances have changed in the sense that Mr R   is now co-operating in his treatment regime, he has previously absconded while undergoing treatment and failed to take medication. It is not beyond the realms of possibility that in a more uncontrolled environment Mr R   may forget to take medication and may begin to use alcohol and cannabis again.  I am concerned at the short time that has elapsed between the incident in question and the present time. I think that the interests of the public require a more long term assessment before consideration is given to releasing Mr R   back into the community.

c)       Third, although Mr R   did not, even under the disease of the mind from which he laboured, intend to kill or harm someone, his irresponsible acts had tragic consequences that cannot be repaired.  I am wary, on the present evidence, of allowing Mr R   to be dealt with under a regime less regulated and with fewer public safeguards attaching to them than would apply if he had the status of special patient.

[65]     Having regard to the particular risks I have identified, I regard the need for any risk to public safety as the most influential factor in my decision.

[66]     I recognise that my decision will not bring back Liam.  Nor will it mend the scars, both emotionally and physically, suffered by Mr Cooper and by Mr Pringle.  I also recognise that the order I make may seem as inhibiting Mr R  ’s ability to recover quickly by both Mr R   and his family.  But that is not the intent.  The intent is to minimise risks to the community while allowing Mr R   to undergo

proper treatment so that when he is released back into the community, as I suspect he will be eventually, it can be with the knowledge that he is unlikely to cause the type of mayhem that occurred in May 2005.

[67]     In order to facilitate those needs on the part of Mr R  , I recommend to the appropriate authorities that he remain in the Henry Bennett Centre under his current treatment programme, subject to the overview of the Regional Forensic Services.  I think in the long term an approach of that type will be the most beneficial for both the community and for Mr R   personally.

[68]     It goes without saying that a person who can be said to have a controlled mental health disorder (just like any person who suffers from a physical disability that is controlled by medication) ought to be released into the community when that stage has been reached.  It is wrong in principle to regard the status of special patient as one which will continue to have force even after that state of treatment has been reached.

[69]     I am sure that the health professionals who have cared for Mr R   in the short term will be able to assist him fully in the long term.  The order I make today should not be seen as a punitive response.  It should be seen as a response which is beneficial to both community and to Mr R   long term.

Result

[70]     For the reasons I have given, I make an order under s24(2)(a) of the Act that Mr R   be detained as a special patient under the Mental Health Act with all the consequences that flow from that.

[71]     I conclude today’s hearing by thanking both Mr Pilditch and Mr Bates for the assistance they have given to me in a difficult case.  I thank the families who have attended today and the friends of the victims for the dignity that you have shown

today at this hearing.   And, I thank also Mr R   and his family for dignity you have shown.  I am sure that all of you will do your best to help those who have been

involved in this tragic incident as much as possible in the future.

P R Heath J