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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Satherley

Details

AGLC: R v Satherley [2007] NZCA 381
Case: [2007] NZCA 381
Decision Date: 31 August 2007

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal against a sentencing order made by Judge McKegg. Daniel Satherley was convicted of raping a 16-year-old girl and sentenced to three years of compulsory care under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003. The Solicitor-General sought leave to appeal against the order made by Judge McKegg, arguing that the finding of intellectual disability was incorrect, the order under s 34(1)(b)(ii) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 was not appropriate given the seriousness of the offending and the risk posed by the respondent to the public, and a sentence of imprisonment of at least six years ought to have been imposed after making due allowance for the respondent’s mental impairment. The Court found that Judge Zohrab erred in concluding that the respondent was of significantly sub-average general intelligence. However, the Court concluded that even if the powers under s 34 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 were available to Judge McKegg, he should not have exercised them in the circumstances. The Court agreed that an order under s 34(1)(b)(ii) should not have been made in this case as the order should be reserved for less serious offending, where deterrence and protection of the public are not imperative. The Court quashed the order made under s 34(1)(b)(ii) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 and sentenced Satherley to supervision for two years on the special conditions specified in the judgment.

Orders