R v S HC Auckland CRI-2008-019-5776

[2010] NZHC 870

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2008-019-5776

THE QUEEN

v

S

Hearing:         28 May 2010

Appearances: Y Yelavich for Crown

P Mabey QC for S 

Judgment:      28 May 2010

JUDGMENT OF ALLAN J

Solicitors:

Crown Solicitor Auckland, Yelena[email protected]

P Mabey QC [email protected]

R V S HC AK CRI-2008-019-5776  28 May 2010

[1]      Mr S  , on 15 April 2010 the jury returned verdicts at the conclusion of your trial on charges arising from an incident involving your former wife.  You were found not guilty of attempted murder, and not guilty by reason of insanity on charges of causing grievous bodily harm, threatening to kill, and breach of a protection order.

[2]      This hearing has been convened in consequence of those verdicts, in order that the Court might make such orders as are appropriate pursuant to the provisions of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the Act).

[3]      It is necessary to deal with the factual background only briefly.  You are now

41 years old, and a Punjabi Sikh who has been resident in New Zealand for about the last 15 years.  The victim was your former wife, with whom you have two children, and with whom you have maintained a largely amicable relationship.  But over the past few years you have encountered difficulties in respect of your mental health.

[4]      In July 2008 (long after you separated) you persuaded your wife, then living in Hamilton, to accompany you on a trip to Auckland where you stayed for two nights in a motel.  You were then on bail on other charges;  the motel was near your bail address which was the residence of your brother.

[5]      On the second evening, when you were together with your wife in your car, you attacked her by wrapping your scarf around her neck and attempting to strangle her.   You considered that she had been engaging in sexual activities with gang members and prostituting your two young children by making them available to adults for sexual purposes.  Allegations of this sort were not new.  And indeed there had been a very similar attack on her on a previous occasion.  You believed that your wife had been engaging in such conduct even when you were living together, and in the room in which you were both sleeping.  It seems that in attacking your wife you were endeavouring to extract a confession from her.   These delusional beliefs occurred in the context of a range of other psychotic symptoms which included auditory hallucinations and paranoid beliefs concerning other close family members.

[6]      You have been under the care and general oversight of the Mental Health Services in this country since about 2006.  Initially you were thought to be suffering from a delusional disorder, but more recently paranoid schizophrenia has been diagnosed.

[7]      At your trial you accepted the Crown account of what had occurred, but pleaded not guilty by reason of insanity.  The jury accepted that plea;  its verdict was thoroughly understandable in the circumstances.

[8]      Where a jury has made a finding of insanity, s 23 of the Act requires that the Court must order that inquiries be made to determine the most suitable method of dealing with the person concerned under ss 24 or 25.  When sufficient information is available, the Court must consider all the circumstances of the case and the evidence of one or more health assessors, as to whether a person’s detention is necessary.  If it is, then the Court may, in circumstances such as the present, either direct the person concerned to be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992, or if that is considered to be unnecessary, order the person concerned to be treated as a patient under that Act.

[9]      Technically the Court has jurisdiction under s 25(1)(c) to make no order where, as here, you are serving a sentence of imprisonment, but that is not a viable alternative in the present case.

[10]     Dr Krishna Pillai, a consultant psychiatrist who gave evidence on your behalf at your trial, has furnished to the Court a detailed report dated 11 May 2010.  The report, which is of very considerable assistance, is received by the Court for the purposes of s 24(1)(b).  His insight is particularly valuable because you have been at times under his clinical care.

[11]     Dr Pillai reviews your personal and offending history at some length, and provides the following advice:

To mitigate the risk he may pose to others Mr S   requires a sustained period of hospital based treatment to better treat his schizophrenic illness notably targeting the treatment resistant delusions and ongoing auditory and visual somatic hallucinations which he believes are black magic.   Further,

such treatment should be accomplished under conditions of compulsion not only to safeguard adherence to medication but also to allow close monitoring so signs of future relapse (to mental illness or violent offending) can be detected early.   Mr S   requires considerable education around mental illness, substance abuse and the relationship between the two.   This may contribute to a greater degree of insight and engagement with treatment and ultimately greater safety.

[12]     Having reviewed the alternatives open to the Court, Dr Pillai expresses his opinion in the following manner:

… the most appropriate disposition at this time is that of special patient status pursuant to s 24(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003.  Such disposition would allow for inpatient treatment to optimise pharmacological management of his mental illness, allow access to psycho-educational programmes to increase understanding and insight, and access to drug and alcohol treatment programmes and violence prevention programmes geared towards those with severe mental illness.   In addition Mr S   could remain subject to special patient status, and the ongoing monitoring and safeguards this provides, past the end of his current sentence of imprisonment.

[13]     This last comment by Dr Pillai is a reference to a sentence of four years three months imprisonment imposed upon you on 17 July 2008 by Stevens J in the High Court  at  Rotorua  for  serious  drug  related  offending.    Section  28(1)  of  the  Act provides that where a person who is subject to an order for detention under s 24 is serving a sentence of imprisonment, then that sentence continues to run alongside the detention order.

[14]     Ms Yelavich advises the Court that Dr Pillai’s recommendation reflects the Crown’s position.   Mr Mabey likewise accepts that Dr Pillai’s proposals are appropriate.

[15]     Having heard Dr Pillai’s evidence at trial and having carefully read his more recent report, I also am satisfied that his recommendations ought to be adopted.

[16]   I therefore make an order pursuant to s 24(2)(a) of the Mental Health (Compulsory Assessment and Treatment) Act 2003 directing that you be detained in a hospital as a special patient.   I am satisfied that the making of such an order is necessary in the interests of the public generally, and in particular, those who are or

might be most affected by your current mental health problems, namely your closer family members.

[17]     Ms Yelavich has helpfully pointed out to the Court that there is currently in force an interim order suppressing publication of your name or any relevant details. This afternoon Mr Mabey has indicated to the Court there is no issue as to publication.   An order discharging the existing interim suppression order is not opposed.  Accordingly, that order will be discharged.

C J Allan J