R v Schuster
[2015] NZHC 2725
•4 November 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-090-5632 [2015] NZHC 2725
THE QUEEN
v
CORRIE RON SCHUSTER
Hearing: 22 October 2015 Appearances:
K Lummis for the Crown
A Maxwell-Scott and L Mulder on instructions from R Mansfield for the Defendant
Judgment:
4 November 2015
JUDGMENT OF THOMAS J
This judgment was delivered by me on 4 November 2015 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
Solicitors:
Meredith Connell, Auckland.
Counsel:
A Maxwell-Scott, Auckland.
R v SCHUSTER [2015] NZHC 2725 [4 November 2015]
Introduction
[1] Mr Schuster has pleaded guilty to charges of aggravated burglary, careless discharge of a firearm and unlawful possession of ammunition.
[2] It is not in dispute that Mr Schuster was delusional at the time of the offending. This judgment deals with two issues: (1) whether Mr Schuster’s heavy use of methamphetamine was the major cause of psychosis or whether his use of methamphetamine had triggered an underlying mental illness; and (2) whether a disposition order should be made on sentencing under s 34(1)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the CPMIP Act).
The offending
[3] On 12 October 2014, at about midday, Mr Schuster was at 8 Easton Park Parade in Glenfield on the North Shore. His brother was residing at this address though he was not present on the day of the offending.
[4] Mr Schuster was in possession of a single barrel pump action shot gun. While in the lounge, he fired a single round into the television. The round went through the television and into the wall. He then entered the first victim’s bedroom. The first victim asked him what he was doing. Without saying a word, he raised the firearm, pointed it at the victim and fired one round at the wall behind her bed. The impact of the shot forced her back onto the bed. Her ears were ringing. She did not know where the shot had gone.
[5] Mr Schuster then pointed the firearm at the first victim’s head and told her to search something on Google. He also pointed the firearm at the second victim and demanded he give Mr Schuster his shoes. He demanded that the first victim drive him where he wanted to go. She refused and Mr Schuster said he would “blow her fucking head off” and then demanded the keys to her vehicle. The first victim threw her keys at Mr Schuster’s feet. Both victims managed to escape from the address.
[6] Mr Schuster left the address in the first victim’s vehicle. He drove to Waitakere Hospital and parked in the ambulance bay near the entrance to the emergency department. He walked up to a marked police patrol vehicle which was unoccupied. Using the shotgun, he fired three shots into the vehicle from different angles. The shots shattered the front passenger window, sprayed the vehicle interior and exterior with dents and holes and caused a large hole in the boot.
[7] At the time, the emergency room was full with at least 17 members of the public and seven hospital staff members. They all feared for their safety. Due to the direction of Mr Schuster’s firing at the police car, people around the front of the hospital and carpark were in the direct line of fire from any stray shotgun rounds. Mr Schuster returned to his vehicle and drove away. He was stopped by the Police and arrested. Numerous live shotgun cartridges were found in the vehicle.
[8] It is clear from subsequent health assessor reports that Mr Schuster was in the grip of paranoid delusions during this offending, in which he thought he was being tracked and surveilled by government agents.
Issues
[9] The issues for me to determine are:
(a) Was the major cause of that psychosis Mr Schuster’s heavy methamphetamine use prior to the offending or had use of methamphetamine triggered an underlying mental illness?
(b)Should the Court should invoke s 34 of the CPMIP Act and make what is commonly called a ‘hybrid order’ whereby Mr Schuster would be sentenced to a term of imprisonment but also detained as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992 (the Mental Health Act)?
[10] The question of Mr Schuster’s mental state at the time of the offending is effectively a disputed fact hearing under s 44 of the Sentencing Act 2002, which relevantly provides:
24 Proof of facts
…
(2) If a fact that is relevant to the determination of a sentence or other disposition of the case is asserted by one party and disputed by the other,—
(a) the court must indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case:
(b) if a party wishes the court to rely on that fact, the parties may adduce evidence as to its existence unless the court is satisfied that sufficient evidence was adduced at the trial:
(c) the prosecutor must prove beyond a reasonable doubt the existence of any disputed aggravating fact, and must negate beyond a reasonable doubt any disputed mitigating fact raised by the defence (other than a mitigating fact referred to in paragraph (d)) that is not wholly implausible or manifestly false:
(d) the offender must prove on the balance of probabilities the existence of any disputed mitigating fact that is not related to the nature of the offence or to the offender’s part in the offence:
(e) either party may cross-examine any witness called by the other party.
(3) For the purposes of this section,—
aggravating fact means any fact that—
(a) the prosecutor asserts as a fact that justifies a greater penalty or other outcome than might otherwise be appropriate for the offence; and
(b) the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case
mitigating fact means any fact that—
(a) the offender asserts as a fact that justifies a lesser penalty or other outcome than might otherwise be appropriate for the offence; and
(b) the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case.
[11] Section 24(2)(d) applies. That is, the disputed mitigating factor is not related to the nature of the offence or to Mr Schuster’s part in the offence but is related to Mr Schuster, himself. Accordingly, Mr Schuster must prove on the balance of probabilities that his methamphetamine use triggered a latent psychosis in order to receive a significant discount1 for mental impairment as a mitigating factor.
Prior assessments as to fitness to stand trial
[12] Following his first Court appearance in the District Court on 13 October
2014, Mr Schuster was remanded to the Mason Clinic under s 38(2)(c) of the CPMIP Act for an assessment report to be prepared as to his fitness to stand trial. Various reports were prepared.
[13] Initially, he was assessed as being unfit to stand trial.2 A consultant psychiatrist, Dr Pillai, considered he had developed a psychotic mental state over the preceding 10 months associated with methamphetamine use and posed a serious danger to himself and others. Dr Pillai considered, however, that this situation was likely to resolve in time to the extent that he would eventually be fit to stand trial.
[14] Mr Schuster remained at the Mason Clinic and, in February 2015, he was assessed as being fit to stand trial.3 Dr Lokesh, who then examined him, considered that, at the time of the offending, he showed clear evidence of features suggestive of mental illness in the past and presented with a prolonged psychotic state that had been developing for approximately a year. He considered he would fulfil the criteria for schizoaffective disorder, mixed subtype, though symptoms of mental illness were
in remission at the time he saw him. Dr Lokesh identified alcohol and substance abuse as relevant, noting he would fulfil the criteria for cannabis abuse disorder in early remission and methamphetamine abuse disorder in early remission. He also referred to longstanding behavioural problems which he considered would support a diagnosis of an anti-social personality disorder. Dr Lokesh considered that he was
mentally disordered within the meaning of the Mental Health Act.
1 The Court of Appeal in E (CA 689/10) v R [2010] NZCA 13 at surveyed a range of cases and, at [71], said the discounts that have been seen as appropriate when mental illness has contributed to offending range from 12 per cent to 30 per cent.
2 Report of Dr Pillai dated 23 October 2014.
3 Report of Dr Lokesh dated 23 February 2015.
[15] A month later, however, a consultant psychiatrist, Dr Karayiannis, concluded that he was no longer mentally disordered within the meaning of the Mental Health Act and was fit to be released from the Mason Clinic.
[16] On 25 March 2015, Lang J recorded that the Court had received a letter from the Mason Clinic confirming that Mr Schuster was not mentally disordered and was fit to stand trial. On 3 June 2015, Lang J recorded that two psychiatrists confirmed that Mr Schuster was fit to instruct counsel and to stand trial. He then recorded Mr Schuster’s guilty pleas to the three charges and the remaining charges were withdrawn by the Crown.
[17] Mr Schuster’s sentencing was set down for 4 August 2015. However, the hearing was adjourned after Mr Mansfield, counsel for Mr Schuster, informed the Court that he had received a report dated 29 July 2015 from Dr James Cavney, which recommended a further report be ordered from the Mason Clinic pursuant to s 35 of the CPMIP Act. The purpose of the report would be to canvas whether the Mason Clinic was prepared to support an order under s 34(1)(a) of the CPMIP Act.
[18] Mr Schuster has responded to anti-psychotic treatment and abstinence from methamphetamine. He was discharged back to prison on 25 March 2015. Since that time, he has been regularly followed by the prison team of Regional Forensic Psychiatry Services. He has remained on anti-psychotic medication.
Mr Schuster’s background
[19] Mr Schuster left school at age 16. He trained as a butcher and, when not in prison, has achieved reasonable employment stability at times. He worked for five years in a supermarket’s butchery and last worked as a butcher for a year until he resigned in early 2013.
[20] Prior to the offending, Mr Schuster did not have any previous psychiatric history. He had, however, previously attempted suicide twice in the context of relationship breakdowns.
[21] Mr Schuster received a custodial sentence in 2009 and, while in prison, was recruited by the Rebels Motorcycle Club. He became a patched member in November 2013.
[22] Mr Schuster attended twice at Community Alcohol and Drug Services (CADS) following court orders. In March 2013, he was assessed as unsuitable for treatment due to lack of motivation and an unwillingness to address his substance abuse issues. He was re-referred in June 2013 and attended 10 sessions of group based treatment. At that time, only minor use of methamphetamine was noted but substantial use of alcohol and cannabis was also noted.
[23] Mr Schuster has maintained a long term relationship of over a five year period which ended in July 2014. However, the relationship was unstable and complicated by both partners using methamphetamine.
[24] Mr Schuster has a positive family history of mental illness, being bipolar disorder in his maternal grandmother.
Mr Schuster’s account of the offending
[25] Mr Schuster had become increasingly paranoid for a number of months prior to the offending and had developed a number of beliefs, including that the Police, the Central Intelligence Agency and other Government agencies were following him. He also believed that he had a number of biological implants which enabled drones to follow him and that his health was failing.
[26] He believed that other people (including family members) were involved in this plot. Mr Schuster found this very stressful and began to use more and more methamphetamine.
[27] Mr Schuster said that he obtained a rifle and ammunition for self-defence and to shoot down a drone. On the day before the offending, he drove to Riverhead to do so in response to messages he received from number plates. He said he had also been shooting at street signs and was generally fearful for his life, preparing to defend himself against imagined assailants.
[28] He said he went to his brother’s flat to confront him about the harassment and to make it stop. Mr Schuster said that he next drove from his brother’s flat to a friend’s house, smoked some cannabis and began to feel sick. He was convinced it was the result of the implants and so went to the Waitakere Hospital to have them removed. Mr Schuster clearly recalled that he knew he was shooting a police car at the hospital. He said he did so in part for “revenge” for what he perceived as their surveillance of him but also to show them that he was “not going to go down without a fight”. He was convinced the Police were trying to kill him and saw his actions in some way as self defence.
[29] Mr Schuster denied any intention to hurt anyone.
[30] Mr Schuster expressed regret but emphasised he had been extraordinarily paranoid and absolutely convinced that others were following him.
Mr Schuster’s mental state
Dr Goodwin’s opinion
[31] Dr Goodwin is a consultant psychiatrist with the Regional Forensic Psychiatry
Service of the Waitamata District Health Board.
[32] Dr Goodwin was the on-call forensic psychiatrist on 13 October 2014 when Mr Schuster was admitted to the Mason Clinic. The offending occurred on the night of 12 October 2014.
[33] Dr Goodwin described Mr Schuster’s state at the time of his admission as “floridly psychotic” and said he had an extensive persecutory delusional system. Mr Schuster reported heavy use of methamphetamine over the six months prior to the offending and said he used methamphetamine within 24 hours of the offending.
[34] Dr Goodwin interviewed Mr Schuster on 14 August 2015 and prepared a report in relation to the possible imposition of a hybrid order pursuant to s 34(1)(a) of the CPMIP Act.
[35] Dr Goodwin assessed Mr Schuster’s thought form (the way in which he constructed sentences and expressed his ideas) as not being abnormal. He noted his thought content was markedly different from the last time he had interviewed him.
[36] Mr Schuster remained insistent that he had been subject to Police surveillance over a number of months prior to the offending and that he had footage on his cell phone of drones following him. Dr Goodwin said, however, that Mr Schuster presented this information with much less conviction and vehemence than previously. Mr Schuster acknowledged he had developed a number of “paranoid ideas” about people close to him. He no longer considered he had any biological implants but gave reasons as to why he had believed this at the time he first presented to hospital.
[37] Mr Schuster denied any current perceptual abnormalities or any passivity phenomena, such as having thoughts placed into or taken out of his mind. He denied feeling as if he were being controlled by any external agency.
[38] Dr Goodwin said Mr Schuster’s judgement did not appear to be impaired and
he was willing to continue with his current treatment regime.
[39] Dr Goodwin noted there was no history of major early maladjustment; rather there was a history of prior supervision failure.
[40] Dr Goodwin’s opinion was that Mr Schuster’s presentation could be explained largely by methamphetamine induced psychosis. Mr Schuster was also intoxicated on methamphetamine at the time of the offending.
[41] While previous opinions had suggested that Mr Schuster might be suffering from a serious underlying mental illness such as a schizoaffective disorder, his presentation on 14 August was such that Dr Goodwin was of the opinion that was unlikely.
[42] He said:
44. There has been considerable conjecture around whether [Mr Schuster] suffers from a major Mental Illness, or whether this is all largely substance induced.
45. I tend towards the latter formulation, and there appears to be very little evidence in his clinical notes or history for him having a primary psychiatric disorder.
Dr Goodwin ’s e vidence
[43] When he gave evidence, Dr Goodwin said he was sure Mr Schuster’s offending was a result of methamphetamine induced psychosis, pointing out that he had assessed Mr Schuster within 24 hours of his arrest. Initially, he assessed his mental state as either a methamphetamine induced psychosis or psychosis uncovered as a result of methamphetamine use. He then followed Mr Schuster’s progress, monitoring him until he gradually improved. He said that Mr Schuster has a number of false beliefs which remain entrenched but this is not unusual. He has seen this on several occasions before.
[44] Dr Goodwin referred to what he said was considerable literature on the issue which had begun post-war, originally out of Japan, and had been consistent since. Studies showed, he said, that 10 per cent of daily users of methamphetamine will develop psychotic symptoms. Most recover but a small group has persistent symptoms lasting for years. The symptoms are very similar to schizophrenia. In Dr Goodwin’s opinion, based on his experience and Mr Schuster’s behaviour, Mr Schuster is part of a small group with those persistent problems.
[45] Dr Goodwin confirmed that there is an association between those whose symptoms last for years and the length and extent of their use of methamphetamine. The more extensive the use, the more likely it is that the user develops longer lasting psychotic symptoms, he said.
[46] Mr Schuster self-reported to Dr Goodwin that he had used approximately one gram of methamphetamine per day over a six month period prior to the offending, including binging on occasion. Dr Goodwin described this as indicating heavy and persistent use.
[47] Dr Goodwin accepted that Mr Schuster still has residual psychotic symptoms but, as he had explained, these can persist for a number of years and he has seen such a condition before. He said he would want Mr Schuster to be on medication for at least two years.
Dr Cavney’s opinion
[48] Dr Cavney, a consultant forensic psychiatrist, was retained on behalf of Mr Schuster and prepared a report dated 30 July 2015 to address sentencing considerations. Dr Cavney assessed Mr Schuster on 28 July 2015 for 20 minutes (his time was curtailed due to a prison lock-down). He had previously assessed him on 17 April 2015 when Mr Schuster was an inpatient at the Mason Clinic. Dr Cavney is not involved in the clinical care of Mr Schuster.
[49] In summary, Dr Cavney was of the opinion that Mr Schuster probably experienced a psychotic illness in relation to methamphetamine abuse although his final diagnosis was not clear.
[50] Dr Cavney said, as at 28 July 2015, Mr Schuster denied any overt delusional persecutory ideas. Mr Cavney said it was notable, however, that Mr Schuster felt the only reason the drones had stopped harassing him was because he was in custody. He was unsure if they would trouble him in future.
[51] Dr Cavney described Mr Schuster’s insight into the nexus between his mental health issues, offending and methamphetamine abuse as partial because he did not consider he had a problem with methamphetamine anymore. Mr Schuster acknowledged that he may have had psychosis relating to methamphetamine in the past but not a major mental illness.
[52] Dr Cavney discussed Mr Schuster’s history of psychotic symptoms, characterised by persecutory and referential delusions, formal thought disorder, visual hallucinations, and disorganised behaviour, which significantly impacted on his social and occupational functioning. He referred to the different diagnoses of
methamphetamine induced psychosis, schizophrenia, and schizoaffective disorder. Dr Cavney’s preferred diagnosis was of a schizoaffective disorder.
[53] Dr Cavney described Mr Schuster as now presenting with residual persecutory ideas that the drones he once saw were real although he accepted other aspects of his beliefs at the time were delusional. Mr Schuster also presented with a blunted affect and avolition likely contributing to a degree of self neglect which Dr Cavney said could be considered to be the negative symptoms of a schizophrenia illness. However, notably, he also presented with prominent side effects from his current high dose of antipsychotic medication which could mimic these symptoms. In Dr Cavney’s opinion, Mr Schuster’s definitive diagnosis remained unclear.
[54] The motivation for Mr Schuster’s offending, Dr Cavney said, stemmed entirely from a serious psychotic illness and delusions. Mr Schuster’s psychosis likely had its onset several months before and the symptoms persisted well beyond the time of the offending and in the absence of methamphetamine.
[55] In his report, Dr Cavney agreed that Mr Schuster’s psychosis was likely precipitated by his methamphetamine abuse but considered his mental illness was a very significant contributing factor.
[56] When he gave evidence, Dr Cavney accepted that his views had become more entrenched since those outlined in his report. He said Mr Schuster stood out for Dr Cavney in comparison with many other methamphetamine users in prison because of what Dr Cavney considered to be his serious mental illness and the nature of his offending. Although methamphetamine use commonly leads to irritability and aggression, he described Mr Schuster as being in the smaller group where its use had led to significant offending. Dr Cavney said it was not possible to be definitive about the cause of Mr Schuster’s psychosis but noted that Mr Schuster’s symptoms persisted despite abstinence from methamphetamine use.
Dr Karayiannis’s opinion
[57] Dr Karayiannis is a psychiatrist based at the Mason Clinic. He has been
Mr Schuster’s treating psychiatrist between December 2014 to March 2015 and from
12 September 2015 to the present time while Mr Schuster is held at the Mount Eden
Correctional Facility. He has assessed Mr Schuster on four occasions since
12 September 2015 and saw last him on 20 October 2015.
[58] Dr Karayiannis described his experience of people with methamphetamine induced psychosis as following one of the following patterns:
(a) those who do not experience psychosis the day following use; (b) those whose psychosis lasts about six weeks after use; or
(c) those who develop long lasting psychosis.
[59] In his experience, the latter group is not limited to those who have used significant amounts of methamphetamine.
[60] In Dr Karayiannis’ opinion, it would be pure speculation as to whether Mr Schuster’s condition had resulted from methamphetamine use or whether methamphetamine use had triggered underlying problems.
Risk assessment
Dr Goodwin
[61] Dr Goodwin discussed his application of structured professional judgement tools such as the HCR-20 to Mr Schuster’s situation. He noted Mr Schuster has convictions for previous violence but did not begin offending at a particularly young age. He has shown some capacity for relationship and employment stability. Mr Schuster does, however, have a history of significant substance use problems.
[62] He described Mr Schuster as currently demonstrating a reasonable degree of insight into how he has reached his current situation and is willing to engage with Mental Health Services. In Dr Goodwin’s opinion, there are currently no significant, or significant active, symptoms of a major mental illness.
[63] Dr Goodwin noted that Mr Schuster’s history of previous impulsivity was largely while under the influence of substances and he has clearly, since then, been responsive to treatment.
[64] Dr Goodwin’s application of HCR-20 scores places Mr Schuster in the low to moderate risk of offending group. Dr Goodwin added the caveat that the offending occurred in the context of both significant methamphetamine abuse and a methamphetamine induced psychosis. While psychotic, Mr Schuster clearly lacked insight and was acting upon his delusional beliefs and views of the world.
[65] Should Mr Schuster return to methamphetamine abuse, his risk of similar
reoffending would be high, in Dr Goodwin’s opinion.
[66] The primary interventions which would mitigate Mr Schuster’s future risk are continued drug and alcohol treatment, with a goal of complete abstinence, particularly from methamphetamine or methamphetamine-like substances.
Dr Cavney
[67] In Dr Cavney’s opinion, Mr Schuster’s ambivalence to accept long term psychiatric treatment and other clinical interventions, his history of prior supervision failure (in relation to sentencing requirements and completion of alcohol and drug interventions) and his impulsivity make it less likely that he would comply with any treatment or assessment without some form of compulsion to do so.
[68] Dr Cavney described Mr Schuster’s current treatment under the prison forensic team and the lack of access to illicit substances in prison as adequate to contain his risk and his current risk of violence related to psychosis is low.
[69] Dr Cavney said that Mr Schuster has indicated he would likely re-engage with his gang acquaintances on release from prison. In Dr Cavney’s opinion, this would be a significant destabilising influence on his longer term recovery and may potentially expose him to methamphetamine again which could very quickly
precipitate a psychotic relapse, regardless of whether he was on prescribed medication.
[70] In Dr Canvey’s opinion, Mr Schuster presents with a number of mental health rehabilitation needs. He recommended that the Court consider imposing the minimum non-parole period to maximise the time frame for a multi-agency response to his complex needs within a community setting to optimise the chance of his successful reintegration to the community.
Dr Karayiannis
[71] Dr Karayiannis described Mr Schuster as being a danger to others, saying he had only partly recovered from the mental state which contributed significantly to the offending.
Disposition
Dr Goodwin
[72] Dr Goodwin is not of the opinion that a disposition order pursuant to s
34(1)(a) of the CPMIP Act can be made, or is appropriate in this case. In his report, he said:
58. Mr Schuster currently presents well in a prison setting. … He does not,
… at this stage, fulfil the criteria for Mental Disorder as per Sections 2 and 4 of the Mental Health (Compulsory Assessment and Treatment) Act 1992, and could not as such be detained under that act. This is of relevance in examining potential dispositions for Mr Schuster. Mr Schuster is currently fully compliant with voluntary treatment, and is willing to remain engaged with such treatment in the prison setting.
59. Mr Schuster’s current presentation is such that it is unlikely the Court would see him as suffering from Mental Impairment. There is no doubt, however, that at the time of the offending Mr Schuster was presenting with a Methamphetamine Induced Psychosis.
[73] When he gave evidence, Dr Goodwin discussed the practical implications of admitting someone in Mr Schuster’s position. He said that it would not be the correct use of resources if all methamphetamine induced psychotic prisoners were taken down this path with scarce resources committed to them when these problems resolve themselves. He emphasised that Mr Schuster will still receive care for his
mental health while in prison. He referred to s 45 of the Mental Health Act whereby prisoners can be transferred to a psychiatric hospital for treatment if necessary. This effectively would be the first step in making a compulsory treatment order. In other words, he said, not making a s 34 order would not preclude Mr Schuster being made subject to a compulsory order if it transpires this is in fact required.
[74] Dr Goodwin agreed that the trial of the medication suggested by Dr Karayiannis is reasonable and that it is appropriate for Mr Schuster to be admitted to the Mason Clinic at some stage to enable this to occur.
[75] Dr Goodwin explained that Mr Schuster would continue to be seen in prison fortnightly by a psychiatric nurse and once every two to three months by a psychiatrist. If his condition deteriorates, he can be seen more frequently.
[76] Dr Goodwin discussed the practical results of a s 34 order. He said in many instances, offenders are returned to prison within a short time, even weeks. Others stay long term. For that reason, he does not accept that s 34 orders lead to greater protection for the public by providing an infinite sentence.
Dr Cavney
[77] In Dr Cavney’s opinion, Mr Schuster meets the criteria for a mental disorder albeit a diagnostically unclear mental illness. There are clear intermittent psychotic symptoms which constitute delusions and a disorder of cognition (formal thought disorder).
[78] Dr Cavney said that Mr Schuster’s mental disorder was directly causal in relation to the offending, and as such, irrespective of its aetiology, when unwell, he poses a serious risk to both himself (attempts at suicide) and others (as evidenced by the offences).
[79] In Dr Cavney’s opinion, the most appropriate disposition for Mr Schuster, given his complex needs, would be pursuant to s 34(l)(a) of the CPMIP Act.
Analysis
Was the major cause of Mr Schuster’s psychosis his heavy methamphetamine use prior to the offending or had use of methamphetamine triggered an underlying mental illness?
[80] The question is relevant in determining whether, and to what extent, Mr Schuster is entitled to a discount at sentencing.4
[81] It is clearly very difficult to distinguish between drug induced psychosis and drug use triggering or kindling a latent disorder. As I understand the evidence, the clinical presentation in both instances is the same. The difficulty is exacerbated because a drug induced psychosis can subsist for quite a long time after use.
[82] Dr Cavney had to accept that Mr Schuster’s use of methamphetamine, approximately one gram a day for six months prior to the offending, constituted heavy usage and he was of no doubt that its use was a significant contributor to Mr Schuster’s psychosis. He remained adamant, however, that it was not possible to say whether the offending had resulted from a drug induced psychosis or whether it precipitated a latent vulnerability to developing mental illness.
[83] Both Dr Goodwin and Dr Karayiannis said that methamphetamine use can result in persistent symptoms lasting for years, with symptoms very similar to schizophrenia. Dr Goodwin classified Mr Schuster’s methamphetamine use as heavy and persistent over a six month period prior to the offending, leading to the view that Mr Schuster still has residual psychotic symptoms as a result.
[84] I prefer Dr Goodwin’s evidence. He described himself as 90 per cent sure
that the psychosis was methamphetamine induced because:
(a) Mr Schuster has no prior history of psychosis;
4 No discount can be attributed to the immediate effects of intoxication with drugs at the time of the offending (Sentencing Act 2002, s 9(3)) but a mental disorder falling short of exculpating insanity may be capable of mitigating a sentence (see E (CA689/2010) v R [2010] NZCA 13 at [68] and Lewis v R [2015] NZCA 444 at [24]).
(b)Mr Schuster has twice in the past been referred to CADS with no reports of any mental health disorder. If there had been any indication of an underlying psychiatric illness, Dr Goodwin would have expected that to have been picked up, although accepted it was dependent upon the observational skills of those involved;
(c) Mr Schuster’s two suicide attempts can be described as transitory.
Dr Goodwin discussed them with Mr Schuster and did not consider them indicative of a depressive condition. He described attempted suicide as relatively common and it does not mean there is necessarily a psychological disorder;5
(d)the extent of Mr Schuster’s use of methamphetamine at the time of, and leading up to, the offending;
(e) Mr Schuster displayed no significant thought disorder when he was admitted to the Mason Clinic;
(f) Mr Schuster on admission was preoccupied with being followed but did not display classic schizophrenia presentation. He was still somewhat intoxicated on methamphetamine at the time of the initial interview; and
(g)Mr Schuster has displayed what Dr Goodwin described as longitudinal partial recovery and some ideas have gone completely.
[85] Dr Goodwin’s evidence had added weight given he was the only expert able to follow Mr Schuster’s progress from the date of his first assessment within 24 hours of his arrest (at which time Mr Schuster was still intoxicated).
[86] In conclusion, I am not satisfied on the balance of probabilities that
Mr Schuster’s use of methamphetamine triggered an underlying mental illness.
5 Dr Goodwin discussed his experience at Auckland Hospital where, in one year, there were 1000 attempted suicide cases dealt with by the emergency department. He said that suicide attempts by those under 30 are most commonly because of relationship difficulties.
Should an order be made on sentencing under s 34(1)(a) of the CPMIP Act?
[87] Section 34 provides:
34 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.
Is Mr Schuster mentally disordered?6
[88] Before an order under s 34(1)(a)(i) can be made, I must be satisfied on the evidence of at least one psychiatrist that Mr Schuster is mentally disordered.
[89] The term “mental disorder” is not defined in the CPMIP Act but s 2 of the
Mental Health Act defines it as:
mental disorder, in relation to any person, means an abnormal state of mind (whether of a continuous or an intermittent nature), characterised by delusions, or by disorders of mood or perception or volition or cognition, of such a degree that it—
(a) poses a serious danger to the health or safety of that person or of others;
or
(b) seriously diminishes the capacity of that person to take care of himself or herself;—
and mentally disordered, in relation to any such person, has a corresponding meaning
[90] The experts agree that Mr Schuster still has active psychotic symptoms, although they disagree as to the cause of them.
[91] In Dr Cavney’s opinion, the duration of Mr Schuster’s symptoms, including delusions, mood disturbance, erratic and unpredictable behaviour, means that Mr Schuster meets the criteria for a major mental illness, being schizophrenia or a schizoaffective disorder.
[92] Dr Cavney discussed Mr Schuster’s current treatment in prison where he is in a unit used primarily by those with mental health issues. He described Mr Schuster as being on an unusually high dose of his medication, above the recommended maximum, but still displaying sub-acute symptoms with residual delusional beliefs (about drones).
[93] Dr Karayiannis is of the opinion that Mr Schuster suffers from a serious mental illness. Depending upon the diagnostic model utilised, Mr Schuster suffers
either from schizophrenia or substance induced persistent psychotic disorder.
6 Section 34(3).
[94] Dr Karayiannis opined that the labels are somewhat academic and that the issue is his ongoing treatment. He considered that Mr Schuster continues to manifest features which are suggestive of active psychotic symptoms and are disabling for him. He considered that Mr Schuster could potentially and effectively be treated by the powerful anti-psychotic medication Clozapine which cannot be started in prison. For this reason, he has placed Mr Schuster on the waiting list for planned admission to the Mason Clinic.
[95] Dr Karayiannis described Mr Schuster’s active symptoms as abnormal beliefs, delusional in nature, perception abnormalities and thought disorder. After treatment, Mr Schuster has reached what Dr Karayiannis described as a level of wellness but he still considered his mental health could be optimised. He referred to an incident in February 2015 where Mr Schuster took a turn for the worse after not taking his medication for a couple of days. In Dr Karayiannis’ opinion, this demonstrated that Mr Schuster’s illness is still active.
[96] Dr Karayiannis is therefore of the opinion that Mr Schuster is mentally disordered because of his delusions, perceptual abnormalities, thought disorder and lack of insight.
[97] Dr Goodwin does not consider that Mr Schuster is currently mentally disordered.
[98] Mr Schuster clearly suffers from an abnormal state of mind, whether continuous or intermittent, characterised by delusions. The question is whether it is to such a degree that it poses a serious danger to himself or others or seriously diminishes his capacity to take care of himself. These questions also arise in the context of a consideration as to whether Mr Schuster requires compulsory treatment which is discussed in more detail in following section. There is certainly evidence that Mr Schuster meets the test for being mentally disordered, and for that reason, I will proceed to consider whether compulsory treatment is required.
Does Mr Schuster’s mental impairment require the compulsory treatment or compulsory care of the offender either in his interests or for the safety of the public or for the safety of a person or class of person?7
[99] The term mental impairment is not defined in the CPMIP Act. However, mental impairment under s 34(2) must include mental disorders under s 34(3). Whether or not Mr Schuster meets the criteria for a mental disorder, a s34(1)(a)(i) disposition order cannot be made unless the Court is satisfied of the matters set out in s 34(2).
[100] There are obviously differences in treatment for a person detained as a special patient as opposed to in prison even if the prisoner is in what can be considered a more specialist mental health unit. The prison units remain staffed by Corrections’ personnel rather than mental health professionals. The reviews from psychiatric nurses and psychiatrists are less frequent as is the continuity and professional nature of observations.
[101] There are also differences in the approach to rehabilitation with a much longer term focus on an offender’s rehabilitation in the Mason Clinic (which is where Mr Schuster would be held as a special patient) as against prison, where often a prisoner receives rehabilitative treatment only close to or as a result of parole.
[102] In Dr Cavney’s opinion, Mr Schuster’s rehabilitative needs are such that a long term planned response is required. He noted that while Mr Schuster might be engaged with treatment now, that will not necessarily remain the case. He referred to Mr Schuster’s lack of insight regarding his primary delusion, his low motivation to distance himself from his gang affiliation and the high risk he will relapse into drug use. For those reasons, it is, in Dr Cavney’s opinion, in Mr Schuster’s interest for those needs to be addressed sooner rather than later.
[103] However, Mr Schuster’s rehabilitative needs, high as they are, are not a reason to impose an order under s 34. The purpose of s 34 is not to overcome any
deficiency there might be in rehabilitative programmes offered in the prison system.
7 Section 34(2).
The focus must be on whether the Court is satisfied there is the necessary causal connection between mental impairment and the need for compulsory treatment or compulsory care either in the offender’s interests or for the safety of others.
[104] The focus is not on the risk Mr Schuster posed at the time of the offending, which was clearly substantial, but on his current risk.
[105] There is no evidence that, at present, Mr Schuster is a risk to himself. I note that, prior to the offending, Mr Schuster had operated at a relatively high level of functioning being employed as a butcher, independently living and caring for himself.
[106] Dr Cavney described Mr Schuster as a massive potential public risk given his impulsivity and his ambivalence to accept long term psychiatric treatment and clinical intervention, as well as the possibility that he will reengage with gang associates who will expose him to methamphetamine use again.
[107] This must be balanced against Dr Goodwin’s opinion which is that Mr Schuster’s risk lies in his potential return to drug use. Dr Goodwin did not consider Mr Schuster’s impulsivity to be of risk given it arose in the context of being under the influence of substances. He emphasised that any sentence needs to have a drug treatment option. He said that, although the Mason Clinic provides good alcohol and drug treatment, often those treated under the Mental Health Act receive poor alcohol drug treatment.
[108] Dr Cavney acknowledged that there were competing priorities and was not saying that Mr Schuster needed to be admitted to the Mason Clinic urgently. He accepted that Mr Schuster is currently accepting treatment on an informal basis but noted that could change.
[109] In Dr Goodwin’s opinion, Mr Schuster does not require compulsory treatment, describing him as very engaged with his treatment. Dr Goodwin described Mr Schuster as being on the recovery trajectory he would expect. He said there is no real evidence he cannot care for himself. There is no acute mental health
need and Dr Goodwin said he would struggle to justify admitting Mr Schuster to the
Mason Clinic over others on the waiting list.
[110] Even if Mr Schuster is mentally disordered, I am not satisfied that he requires compulsory care or treatment. Mr Schuster is currently compliant in taking his medication and is described as having gained some insight. He has been responsive to treatment and, in my assessment, does not cross the threshold for compulsory treatment.
[111] The experts agree that Mr Schuster will pose a high risk should he return to methamphetamine use. At present, however, given his abstinence from drug use and acceptance of treatment, I am not satisfied he requires compulsory treatment for either his safety or that of others.
Conclusion
[112] For the reasons provided, my conclusions are:
(a) I am not satisfied on the balance of probabilities that Mr Schuster’s
use of methamphetamine triggered an underlying mental illness.
(b)I am not satisfied that a disposition order under s 34(1) of the CPMIP Act should be made.
Thomas J