R v Satherley

[2007] NZCA 381

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA482/06 [2007] NZCA 381

THE QUEEN

v

DANIEL SATHERLEY

Hearing:         25 June 2007

Court:            Ellen France, Rodney Hansen and Ronald Young JJ Counsel:  A Markham for Appellant

A J D Bamford for Respondent

Judgment:      31 August 2007         at 10 am

JUDGMENT OF THE COURT

A        Leave to appeal is granted and the appeal is allowed.

B        The order made under s 34(1)(b)(ii) of the Criminal Procedure (Mentally

Impaired Persons) Act 2003 is quashed.

CThe  respondent  is  sentenced  to  two  years  supervision  on  the  special conditions set out in the judgment.

R V SATHERLEY CA CA482/06  31 August 2007

REASONS OF THE COURT

(Given by Rodney Hansen J)

Introduction

[1]      When Mr Satherley was 11 he was knocked off his bike by a truck.   He suffered severe head injuries that left him permanently incapacitated and prone to anti-social behaviour.   At age 22, with 27 convictions and a history of drug and alcohol abuse, he was convicted of raping a 16-year-old girl.  He pleaded guilty at his trial at the conclusion of the Crown case.

[2]      In    view    of   Mr    Satherley’s    mental    impairment    the    trial    Judge, Judge DC McKegg, directed that he be assessed before sentence under s 38 of the Criminal Procedure  (Mentally Impaired  Persons)  Act  2003  (CPMIP  Act).    The health assessors who examined him were divided over whether he had an intellectual disability.  The issue was considered at a hearing convened for the purpose before Judge AA Zohrab.   He found that Mr Satherley suffered from an intellectual disability.      His   finding   was   adopted   by   Judge McKegg   when   sentencing Mr Satherley.    He  made  an  order  under  s  34(1)(b)(ii)  of  the  CPMIP  Act  that Mr Satherley  be  cared  for  as  a  care  recipient  under  the  Intellectual  Disability (Compulsory Care and Rehabilitation) Act 2003 (IDCCR Act) for a period of three years.

[3]      The  Solicitor-General  seeks  leave  to  appeal  against  the  order  made  by

Judge McKegg.  He argues that:

(a)       The finding of intellectual disability is wrong.

(b)      The  order  under  s  34(1)(b)(ii)  was   not  appropriate  given  the seriousness of the offending and the risk posed by the respondent to the public.

(c)      A sentence of imprisonment of at least six years ought to have been imposed after making due allowance for the respondent’s mental impairment.

Intellectual disability

The legislation

[4]      Intellectual disability is defined as follows in s 7 of the IDCCR Act:

(1)       A person has an intellectual disability if the person has a permanent impairment that -

(a)       results in significantly sub-average general intelligence; and

(b)      results in significant deficits in adaptive functioning, as measured by tests generally used by clinicians, in at least 2 of the skills listed in subsection (4); and

(c)       became apparent  during  the  developmental  period  of  the person.

(2)       Wherever  practicable,  a  person’s  general  intelligence  must  be assessed by applying standard psychometric tests generally used by clinicians.

(3)       For the purposes of subsection (1)(a), an assessment of a person’s general intelligence is indicative of significantly sub-average general intelligence if it results in an intelligence quotient that is expressed –

(a)       as 70 or less; and

(b)      with a confidence level of not less than 95%. (4)  The skills referred to in subsection (1)(b) are –

(a)       communication: (b)      self-care:

(c)      home living: (d) social sills:

(e)      use of community services: (f)    self-direction:

(g)      health and safety:

(h)      reading, writing, and arithmetic: (i)        leisure and work.

(5)      For the purposes of subsection (1)(c), the developmental period of a person generally finishes when the person turns 18 years.

(6)       This section is subject to section 8.

[5]      Section 8 provides:

Persons who do not have intellectual disability

(1)      A person does not have an intellectual disability simply because the person -

(a)       has a mental disorder; or

(b)      has a personality disorder; or

(c)      has an acquired brain injury; or

(d)       does not feel shame or remorse about the harm that person causes to others.

(2)       To avoid doubt, if –

(a)       a  person  does   not  have  an  intellectual  disability,   the provisions of this  Act relating to compulsory care cannot apply to the person, whether or not the person has any other disability:

(b)       a person does have an intellectual disability, those provisions are to prevented from applying to the person simply because the person also has 1 or more of the characteristics described in subsection (1)(a) to (d).

[6]      The Explanatory Note to the Bill records that the definition of “intellectual disability” is based on one developed by the American Association for Mental Retardation and published in 1992.   That definition is discussed in the Diagnostic and Statistical Manual on Mental Disorders (4ed 2000) published by the American Psychiatric Association which states at 41-42:

The  essential  feature  of  Mental  Retardation  is  significantly  subaverage general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill  areas:  communication,  self-care,  home  living,  social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health and safety (Criterion B).  The onset must occur before the age of 18 years (Criterion C). […]

General intellectual functioning is defined by the intelligence quotient (IQ or IQ equivalent) obtained by assessment with one or more of the standardized, individually  administered  intelligence  tests  (e.g.,  Wechsler  Intelligence Scales for Children, 3rd  edition; Stanford-Binet, 4th  edition, Kaufman Assessment Battery for Children).   Significantly subaverage intellectual functioning is  defined as  an IQ of about  70  or below (approximately 2 standard deviations below the mean).   It should be noted that there is a measurement error of approximately 5 points in assessing IQ, although this may  vary  from  instrument  to  instrument  (e.g.,  Wechsler  IQ  of  70  is considered to represent a range of 65-75).  Thus, it is possible to diagnose Mental  Retardation  in  individuals  who  IQs  of  between  70  and  75  who exhibit significant deficits in adaptive behaviour.

Health assessors’ opinions

[7]      For the purpose of the hearing before Judge Zohrab reports were obtained from three psychologists, Dr Rachel Irwin, Mr Craig Prince and Mr Ian de Terte.  All assessed the respondent’s intelligence quotient by reference to the Wechsler Adult Intelligence Scale, Third Edition (WAIS-III).   We were told it is the most widely used instrument in the western world for assessing intellectual functioning.   (It is referred to  in the passage  from the diagnostic  and  statistical  manual  on  mental disorders quoted in [6] above.)   Mr Satherley’s overall intellectual ability, as determined from the WAIS-III, was 87.  This indicated that he is functioning at a level higher than approximately 19% of same-aged peers with a confidence level of

95%.  This placed him well above the IQ level of 70 or less which, by s 7(3) of the

IDCCR Act, is indicative of significantly sub-average general intelligence.

[8]      Mr Prince and Mr de Terte took the view that the result of the WAIS-III test showed that Mr Satherley is not of significant sub-average intelligence.  They said he did not have an intellectual disability for the purpose of s 7 of the IDCCR Act.

[9]      Dr Irwin disagreed.  She accepted that as a general rule, the WAIS-III test is a fair reflection of most people’s intellectual abilities.  In Mr Satherley’s case she said it does not provide an accurate guide to his intellectual ability.   She discussed its limitations in the following passage of her report:

Because the WAIS-III Full Scale IQ score is a mean (average) of different abilities, however, it does not portray a true reflection of a person’s overall intellectual ability when a person has inconsistent or varied scores on the various subtests. People who have experienced brain damage that resulted in

damage to certain, but not all, parts of the brain, are particularly likely to have variable subtest results on the WAIS-III.

Another limitation of the WAIS-III  is  that additional  neuropsychological tests are required to examine in more depth the skills that the WAIS-III assesses.  Additional neuropsychological tests are also required to examine other, equally important cognitive functions such as visual learning, visual long-term memory, verbal learning, verbal long-term memory and executive functioning.

[10]     Dr Irwin noted that Mr Satherley’s scores on the individual sub-tests of the WAIS-III test varied from within the impaired range of lower than 98% of same aged peers to the superior range, higher than approximately 95% of same aged peers. For this reason she considered it appropriate to administer and rely on additional psychometric tests to assess Mr Satherley’s cognitive abilities.  She found that all of his cognitive functions were significantly impaired; his visual learning, visual long- term memory, verbal learning, verbal long-term memory, and executive functioning skills were all within the impaired range, that is, lower than at least 98% of same aged peers.   Dr Irwin said, in her opinion, Mr Satherley’s level of cognitive (as opposed  to  intellectual)  functioning  is  best  represented  by  the  results  of  the additional tests rather than depending solely on the results of the WAIS-III.    She found that in terms of s 7(1)(b) of the IDCCR Act, Mr Satherley exhibited significant deficits in adaptive functioning in all of the skills listed in subs (4).  She concluded that his cognitive and adaptive impairments were sufficiently broad and severe to result in him functioning at a level consistent with a person who has a WAIS-III Full Scale IQ score of less than or equal to 70.

[11]     Mr Prince and Mr de Terte doubted the accuracy of the results of some of the tests administered by Dr Irwin to measure Mr Satherley’s adaptive functioning, but their substantial area of disagreement with Dr Irwin was in her reliance on cognitive functions as a measure of intellectual ability.  Both accepted that cognitive functions can impact on an individual’s level of intellectual functioning but said they did not constitute intellectual functioning itself.  To quote from Mr Prince’s report:

Whilst it is acknowledged that other cognitive functions, such as memory and executive functions, can impact on an individual’s level of intellectual functioning, they do not constitute “intellectual functioning” per se.

[12]     Mr Prince said that Mr Satherley’s relatively poor performance on a few of the sub-tests in the WAIS-III test was not that unusual.  He said:

In fact, it would be fair to say that the majority of patients who come through the  Forensic  Service  perform  at  a  level  and  fashion  that  is  similar  to [Mr Satherley], and they are not intellectually disabled.

Judge Zohrab’s decision

[13]     Judge Zohrab held that Mr Satherley’s IQ under the WAIS-III test was not determinative of the issue of intelligence, as s 7(3) of the IDCCR Act provides that the IQ measure is indicative only.    He said that s 7(2) contemplated the possibility of general intelligence being assessed by something other than a standard psychometric test such as the WAIS-III test.  In his view it followed that an IQ level of 70 or less with a confidence level of 95% or less is not a prerequisite to a finding of sub-average general intelligence.   Judge Zohrab recognised that Mr Satherley’s score of 87 appeared to indicate that he was not of significantly sub-average intelligence.  However, he accepted Dr Irwin’s opinion that, for the reasons she gave, additional neuropsychological tests were required and indicated that he had significantly sub-average general intelligence.

[14]     The Judge noted the reservations expressed by Mr Prince and Mr de Terte as to the methodology used to assess Mr Satherley’s adaptive functioning but saw no reason not to accept the reported results which indicated significant deficits in all assessed areas of adaptive functioning.   He concluded that the respondent has an intellectual disability because he has a permanent impairment that:

(a)       Results in significantly sub-average general intelligence; and

(b)       Results in significant deficits in adaptive functioning in at least two of the skills listed; and

(c)       Became apparent during his developmental period.

Further reports

[15]     Following Judge Zohrab’s decision, Mr Satherley was assessed under Part 3 of the IDCCR Act by Dr Nick Judson, a consultant psychiatrist.  Dr Judson reported

that, as a result of the serious head injury he suffered, Mr Satherley has deficits in certain areas of his psychological functioning, in particular in his impulsivity, motivation and ability to organise himself.  He also referred to deficiencies in short- term memory, judgment and planning.  He noted, however, that Mr Satherley does not  have  any  significant  difficulties  in  higher  intellectual  functioning  such  as reading, mathematics, communication or other basic cognitive skills.

[16]     Dr Judson reported that Mr Satherley’s head injury has led to some obvious personality changes and to his behaving in a reckless manner with poor judgment, heavy substance abuse and frequent offending behaviour.   But he was clear that Mr Satherley does not have an intellectual disability.  Dr Judson said:

However, it is very clear, both from the psychometric assessments that have been carried out both in the past and recently, and from seeing his current behaviour and interactions, that Mr Satherley does not have an intellectual disability.  He has an overall intellectual level which is far above the cut off point that would be considered indicative of intellectual disability.  He does not have global impairments, but rather has impairments in some specific areas of functioning, particularly frontal lobe functioning (judgment, motivation and impulsivity) which render him particularly vulnerable to anti- social and other behaviours showing poor judgment.  Although his adaptive behaviours have been assessed as being at a very low level on the reports given by Ms Irwin, it is abundantly clear that observing and interacting with him that his overall level of adaptive functioning is far in excess of that which would be seen with anyone with an intellectual disability.  His higher cognitive skills  such as  reading,  communication,  information  processing, number processing, etc, are at a level which is not far below the average and considerably different to what would be seen in any person with an intellectual disability.

It is my firm opinion is that he would not be eligible for an order under the Intellectual Disability (Compulsory Care and Rehabilitation) Act and that it is inappropriate to take the process of this Act any further.

[17]     After receiving Dr Judson’s report, Judge McKegg nevertheless directed that the assessment should continue, and said there should be no further comment on the issue  of  intellectual  disability.     He  said  he  regarded  himself  as  bound  by Judge Zohrab’s decision.  Ms Anne Huddleston, a clinical psychologist, was asked to assess the level of risk Mr Satherley’s behaviour posed to the health and safety of himself and others, together with the level of care required to manage this risk and the need for compulsory care.

[18]   In her report of 5 November 2006 Ms Huddleston said she remained unconvinced  that  Mr  Satherley  is  mentally  retarded  but  accepted  the  Judge’s direction not to comment further in the area.  She reported that Mr Satherley presents a risk both to himself and the community.  She identified a number of dynamic risk factors  that  needed  to  be  addressed,  including  his  impulsive  behaviour,  his dependence on alcohol and cannabis, his lack of clear sexual boundaries and his lack of understanding of finances.  Ms Huddleston also said Mr Satherley is vulnerable to exploitation from others.   She recommended that  he be provided with safe and supervised access to services in order to address the risk factors she had identified and that he be maintained and supported in living accommodation with supervision.

Review of finding on intellectual disability

[19]     We have considerable reservations about the reasoning that led Judge Zohrab to conclude that the respondent has an intellectual disability.  He did not address the crucial difference of opinion as to the meaning of intellectual disability that divided the experts.   Dr Irwin took the view that for the purpose of determining the respondent’s general intelligence, his level of cognitive functioning should prevail over the results of a standard assessment.   The other experts (including Dr Judson and, inferentially, Ms Huddleston) were of the view that, except to the extent that they  impacted  on  a  person’s  intellectual  function,  cognitive  abilities  should  be ignored in assessing general intelligence.

[20]     The issue is one of statutory interpretation and ultimately not a matter of expert opinion.  Our provisional view is that Dr Irwin’s interpretation of s 7 of the IDCCR Act is incorrect and that Judge Zohrab erred in adopting her conclusion that the respondent was of significantly sub-average general intelligence.  However, it is unnecessary for us to come to a final view on that issue as we are satisfied that, even if the powers under s 34 of the CPMIP Act were available to Judge McKegg, he should not have exercised them in the circumstances.

Statutory powers

[21]     The finding that Mr Satherley had an intellectual disability allowed the Court when sentencing him to exercise its powers under s 34 of the CPMIP Act which provides:

Power of court to commit offender to hospital or facility on conviction

(1)       If the court is satisfied of the matters specified in subsection (2), the court may deal with an offender who is convicted of an imprisonable offence—

(a)       by sentencing the offender to a term of imprisonment and also ordering that the offender—

(i)        be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992; or

(ii)       be  detained  in  a  secure facility  as  a  special  care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003; or

(b)      instead of passing sentence, by ordering that the offender— (i)     be  treated  as  a  patient  under  the  Mental  Health

(Compulsory Assessment and Treatment) Act 1992;

or

(ii)      be cared for as a care recipient under the Intellectual

Disability (Compulsory Care and Rehabilitation) Act

2003.

(2)       For the purposes of subsection (1), the court must be satisfied, on the evidence of 1 or more health assessors, that the offender's mental impairment requires the compulsory treatment or compulsory care of the offender either in the offender's interest, or for the safety of the public or for the safety of a person or class of person.

(3)       Before the court makes an order under subsection (1)(a)(i) or (b)(i), 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.

(4)       Before the court makes an order under subsection (1)(a)(ii) or (b)(ii), 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.

(5)       No order may be made under this section in respect of an offender who is, at the time of the conviction, subject to a sentence of imprisonment.

[22]     Section   34   provides   sentencing   options   for   mentally   disordered   or intellectually disabled offenders that did not exist under the legislation it replaced. Under s 118 of the Criminal Justice Act 1985 the Court could order a mentally disabled person on conviction to  be detained  in a  hospital as a  special  patient. However, as the Court had no control over the period of time a mentally disordered person was detained, there was a reluctance to make an order under s 118 - see R v Redmile [1987] 1 NZLR 157 at 163-4 and the discussion in Hall Hall’s Sentencing (looseleaf ed) at [CPA34.3].

[23]     Section  34  meets  these  concerns  by  providing  under  subs  (1)(a)  for  an offender to be detained as a special patient or in a secure facility in addition to being sentenced to a term of imprisonment.  Time served in a secure facility counts as time served under the sentence of imprisonment – s 69(2)(a) IDCCR Act.  The underlying sentence of imprisonment provides protection against premature release and ensures that the sentencing Court retains control over the length of sentence.

[24]     The other options available for an offender who is mentally disordered or has an  intellectual disability are an order under  s 34(1)(b) instead of a  sentence  of imprisonment or a sentence of imprisonment with the offender’s mental impairment assessed in mitigation in the normal way.

[25]     As it happens, it was not open to the Court in this case to make an order under s 34(1)(a) as the offending predated the commencement of the CPMIP Act – s 47(2)(a) of the CPMIP Act, R v Barnes CA69/05 16 June 2005.  Accordingly, the options open to Judge McKegg were either to sentence Mr Satherley to a term of imprisonment or to make an order under s 34(1)(b).

[26]     At sentencing on 8 December 2006, the Crown opposed the making of an order under s 34(1)(b)(ii) on the ground that there was medical disagreement as to Mr Satherley’s condition and a likelihood that there will be moves to bring any order to an end by review.  The Judge said he doubted that an order would terminate in that way as that would require provocation by Mr Satherley which he did not think would occur.

[27]     Judge McKegg noted that Mr Satherley had spent nine months in custody. He said that would mean that “if he were sentenced to imprisonment a release date could be relatively imminent”.   That would result in supervision by way of parole without any of the provisions proposed by Ms Huddleston’s plan.  The Judge saw the preferable course was to  make an order under  s 34(1)(b)(ii)  of the  CPMIP  Act because the proposed plan would provide “a high degree of protection through the physical confinement and supervision of Mr Satherley and the great potential for his advancement to a point where his behaviour becomes more reasoned and therefore more acceptable”.  He fixed the term at three years.

Review of decision

[28]     The  Crown  submits  that,  even  if  the  finding  that  Mr  Satherley  has  an intellectual disability is correct, the sentencing Judge was wrong to make an order under s 34(1)(b)(ii) given the seriousness of the offending and the risk to the public. Ms Markham pointed out that the same concerns about premature release of dangerous offenders that arose under s 118 of the Criminal Justice Act  (referred to in [22] above), apply in the context of orders under s 34(1)(b)(ii).

[29]     We agree that, even assuming that the respondent is intellectually disabled, an order under s 34(1)(b)(ii) should not have been made in this case.  We accept the Crown’s submission that such orders should be reserved for less serious offending, where deterrence and protection of the public are not imperative.   It is clear, as observed by the authors of Robertson (ed) Adams on Criminal Law (looseleaf ed) at

[CM34.04], that in contrast to the more severe alternative in subs (1)(a), subs (1)(b) is a more benevolent option providing therapeutic disposal for less serious offenders, for whom punishment is a lesser priority.

[30]     Mr Satherley was found guilty of a serious crime made worse by aggravating features.  The female complainant was aged 16 and living on the streets after running away from home.  Mr Satherley took her to his derelict inner city flat.  He plied her with alcohol.  She became extremely intoxicated.  He pestered her to have sex with him.  She refused but when she had become so drunk that she was unconscious, he removed her clothing and had sexual intercourse with her.  She awoke and attempted to resist but he continued.  Eventually, she managed to dress herself and left the flat in a distressed state.

[31]     The usual starting point for a defended rape of eight  years applied.   The aggravating features, in particular the exploitation of a young and vulnerable girl, would have justified increasing the starting point to nine years.   We accept that Mr Satherley’s assumed intellectual disability and his cognitive deficiencies would warrant  a substantial reduction  in sentence.    His culpability  is reduced  by such factors as his impulsivity and deficiencies in judgment and common-sense reasoning. On the other hand, to the extent that the offending was contributed to by the continuing abuse of alcohol and drugs and the consumption of alcohol at the time, no reduction is warranted – s 9(3) Sentencing Act 2002.   Mr Satherley’s guilty plea came too late to  be taken  into  account  in  mitigation.    All things  considered,  a sentence of five-six years imprisonment would have been appropriate and should have been imposed.  We agree with Ms Markham that the fact that the more punitive option under s 34(1)(a) was not available to the sentencing Judge should not mean that the more benevolent option under s 34(1)(b) became a valid option by default.

Sentence on appeal

[32]     Had the appeal come before us promptly following conviction and sentence, we would have substituted a sentence of imprisonment.   The passage of time and changes in circumstances since Mr Satherley was convicted,  persuade us that  it would not be appropriate for us to follow that course.  Mr Satherley has spent nine

months in custody.   A further nine months  has passed  since  he was sentenced. Reports show that he has responded positively to the time he has spent as a care recipient.  He has completed a drug and alcohol programme.  He has been working for three days per week in a sheltered workshop programme and due to his good behaviour  that  is  likely  to  increase  to  four  days  per  week.    A  review  of  his assessment as intellectually disabled under s 72 of the IDCCR Act is pending.  It is realistic to expect that review will result in an order discharging him under the Act.

[33]     In the circumstances we adopted Ms Markham’s suggestion that we obtain a report from the probation service under s 389 of the Crimes Act 1961 to ascertain the appropriateness of a sentence of supervision with special conditions that the respondent’s placement and counselling continue.

[34]     That report has now come to hand.   It  advises that, subject to  continued funding by Accident Compensation Corporation, Mr Satherley could, as a condition of a sentence of supervision, remain in the care and rehabilitation programme in which he is currently participating.

[35]     We are satisfied that a sentence of supervision on those conditions is the appropriate outcome.  It ensures that Mr Satherley will continue to receive treatment in secure conditions and avoids the risk of premature release associated with the imminent review of his status as intellectually disabled.  The sentence of supervision should be for the maximum permitted period of two years and, pursuant to s 50 of the Sentencing Act 2002, subject to the following special conditions:

(a)      To reside at the Cavit ABI, Brain Injury Rehabilitation Services Unit at Porirua Hospital or at such other supervised residential facility as may  be approved from time to time as directed by the  probation officer.

(b)      To  abide  by  the  “house  rules”  of  the  residential  facility  to  the satisfaction of the unit manager and the probation officer.

(c)      To participate in the Cavit ABI interdisciplinary rehabilitation plan, or any other rehabilitation plan as may be deemed appropriate by and to the satisfaction of the care manager and the probation officer.

(d)      To complete your current WELLSTOP programme to the satisfaction of the service provider and the probation officer.

(e)      To  take   any  prescription   medication  prescribed   by  a   medical practitioner, in accordance with any direction given by that medical practitioner and with your informed consent.

(f)       Not to purchase, possess or consume alcohol or any other intoxicating or mind altering substance other than medication prescribed for you by a medical practitioner or other appropriately qualified person.

(g)      To undertake any alcohol and drug assessment and any recommended counselling/treatment/education/relapse prevention programme with CARE NZ to the satisfaction of the service provider (or such other treatment provider as may be approved for you from time to time) and your probation officer.

(h)      Not to have contact with the victim(s) of your offending, directly or indirectly, without the prior written approval of the probation officer.

In the event that the special conditions of sentence cannot be met, application may be made under s 54 of the Sentencing Act to vary the sentence.

Result

[36]     Leave to appeal is granted and the appeal is allowed.  The order made under s

34(1)(b)(ii) of the CPMIP Act is quashed.  In its place Mr Satherley is sentenced to supervision for two years on the special conditions specified in [35] above.

Solicitors:

Crown Law Office