R v T HC Auckland CRI-2009-090-013287
[2011] NZHC 1468
•20 April 2011
NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985. ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES AND THE CHILDREN [OR ANY IDENTIFIED PARTS OF THE EVIDENCE].
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2009-090-013287
THE QUEEN
v
T
Hearing: 20 April 2011
Counsel: S Moala for the Crown
J J Corby for the Prisoner
Judgment: 20 April 2011
SENTENCE OF DUFFY J
Counsel: J J Corby P O Box 105495 Auckland City Auckland 1143 for the Prisoner
Solicitors: Meredith Connell P O Box 2213 (DX CP24063) Shortland Street
Auckland 1140 for the Crown
R v T HC AK CRI-2009-090-013287 20 April 2011
[1] T is to be sentenced today, having pleaded guilty to and been convicted of a number of charges, all of which relate to an incident that occurred during the afternoon of 26 December 2009 at the home of his former partner, O. The most serious of the charges involve conduct against O. The remaining charges involve conduct against the police officers who came to O’s home that day.
[2] The charges of criminal misconduct against O are: (a) Sexual violation by rape;
(b) Assault with a weapon, namely a knife; (c) Threatening to kill; and
(d) Breach of a protection order.
[3] The charges of criminal misconduct against the police officers are two charges of assault with a weapon, namely an umbrella.
[4] This is the fourth scheduled hearing for T’s sentencing. The earlier hearings had to be postponed because the Court was not as well informed as it should have been about T’s mental health. This is why there has been a considerable period of time between the entry of guilty pleas on 4 October 2010 and the sentencing today. Throughout that time, T has been on bail.
[5] T suffers from paranoid schizophrenia. His contact with the mental health services dates back as early as 1991, though the formal recognition and diagnosis of his mental illness seems not to have occurred until 2001. Throughout the time T has been treated for his mental illness, he has been treated as a voluntary patient, which means that he has never been subject to any compulsory treatment regime.
[6] Ordinarily, offending of this type would result in a sentence of imprisonment. Section 128(b) of the Crimes Act 1961 provides that for the offence of rape, there is a presumption in favour of imprisonment. That is also consistent with R v AM
[2010] NZCA 114; 2 NZLR 750, a decision of the Court of Appeal that sets out the sentencing guidelines for the offence of rape and other serious sexual violations.
[7] The facts of the offending are as follows. Some time after 4.30 pm on
26 December 2009, T entered O’s home. This was contrary to terms of a protection order that had been issued by the District Court on 8 November 2007. Once in the house, he went to the bedroom where O was sleeping. He said to her: “should I kill you now or kill you later?” O asked him to leave. He walked out into the hallway and returned to the room with a knife that he had found on a plate of food. While he was out of the room, O picked up the telephone. On his return to the room, T saw O with the phone. He said: “do it, call them. It’s the last thing you will do”, and “don’t piss me off when I’m drinking”. He left the room and returned the knife to where he had found it. He went downstairs to the kitchen and took a paring knife, and then returned to the room where O was.
[8] He said he wanted to have sexual intercourse with O. She refused him and told him to go away. He then grabbed her arm and dragged her down into the corner of the room. She resisted but it made no difference. He removed part of her clothing. At this stage, she says she was too afraid to resist as she knew it would make him worse, and he began to rape her.
[9] He then pulled out the paring knife, and asked her to reveal her breasts. She said “no”. He held the knife up to her throat and repeated the request. She yelled at him to give her the knife, and said she would accede to his request if he did. He handed the knife to her and she put it under the mattress.
[10] He then pulled up her top and placed his mouth on her right breast. He continued raping her for between three and five minutes before the arrival of other family members. They went downstairs and then while T was outside with other family members trying to start his car, O, who was inside the house, locked the house doors and called the police.
[11] Constables Crawley and Bunting arrived at O’s home. They found T at the rear of the property trying to gain access. Constable Crawley spoke to T, and Constable Bunting spoke to O.
[12] T became aggressive and abusive, and Constable Crawley arrested him. When Constable Crawley tried to handcuff T, he pulled away and grabbed an umbrella. He attacked Constable Crawley with the umbrella, using it in a stabbing motion. Constable Bunting came to assist, and T moved towards him, swinging the umbrella at Constable Bunting and using it in a stabbing motion. Both officers used pepper spray, with no effect. T continued to swing the umbrella at both of them, before he was subdued and handcuffed. Sadly, this scene was witnessed by his 17 year old son, who nearly became embroiled in what was occurring due to his concern for his father. In the victim impact report, O has described the situation which eventuated in this way:
Our son witnessed you being arrested and it was horrible. You were in a psychotic episode and it was really hard for the police officers to handle you. Our son saw the police restraining you and trying to subdue you. [Our son] tried to step in between you and the police to try and protect you. I had to step in between our son and you and get him away. Our son doesn’t express when he’s really upset. He went upstairs to the bathroom and he looked like a scared little boy … I tried to soothe [our son] and let him know that you were unwell. Seeing that happen to his dad really traumatised him.
[13] The offending that I have outlined would fit within the uppermost limit of band one of the sentencing guideline decision in R v AM which sets out the sentencing guidelines for serious sexual offending, including rape. I have placed it there because even though there were the aggravating features of the threats with the knife, the threatening language, the unwelcome entry into O’s home, and the breach of trust, the offending was impulsive. Also, apart from the brief struggle, the threats and the violence of the act of rape, there was little else by way of violence against O. I accept the Crown’s submission that ordinarily, a starting point of eight years’ imprisonment would have been appropriate.
[14] However, because of the very unusual and exceptional circumstances of this case, I have decided that I can approach the sentencing of T outside of the sentencing guidelines and contrary to the presumption in s 128(b) of the Crimes Act. Rather
than sentence him for the sexual offending, I propose to deal with him by making him subject to a compulsory treatment order under s 34 of the Criminal Procedure (Mentally Impaired Persons) Act 2003. In R v AM at [83], the Court of Appeal recognised that there will be cases that are so unusual that they will require a starting point outside of the guideline. In Hessell v R [2010] NZSC 135; [2011] NZLR 607 at [65], the Supreme Court gave a timely reminder that sentencing involves a judgement, rather than a structured and formulaic approach that accords with predetermined rules. The Supreme Court said:
Overall the sentencing task remains one of evaluation that leads to what the Judge is satisfied is the right sentence for offending in light of the offender ’s acknowledgment of guilt and all other relevant circumstances.
[15] Whilst the Supreme Court in Hessell was dealing with the allowances to be made for a guilty plea, I consider that the comment at [65] is capable of being understood to be of more general application to sentencing. Moreover, in R v AM at [36], the Court of Appeal recognised that sentencing required the exercise of judgment and commented to the effect that the sentencing bands it had identified were not to be applied in a “mechanistic” way.
[16] At [38] of Hessell, the Supreme Court referred to Parliament’s concern as expressed in the Sentencing Act 2002 to achieve consistency in sentences, but equally to ensure that the sentence is appropriate in the particular case. In this regard, the Supreme Court had referred to the need for consistency in sentences being to ensure the equal treatment of like offending and offenders, and full evaluation of the circumstances to achieve justice in the individual case.
[17] I consider here that the offending by T, given all the circumstances of the offending, is different from rape offending in general. I also consider that T is different from most rape offenders in general. I consider that these differences warrant T being treated as a special and exceptional case.
[18] I consider that the sentencing tariff bands in R v AM are premised on the wide range of offenders to which they are said to apply being persons who are mentally well and who have insight into their conduct, but who have chosen, for whatever reason, to act contrary to law. Indeed, it is hard to see how the concepts in the
Sentencing Act such as denunciation, deterrence and holding offenders accountable for their actions can have relevance if the offender is not capable of responding to these prompts. I consider that T fell into that category of persons at the time of the offending. I note particularly that O has said in the victim impact report that she considers that T could not see that his behaviour was bad or wrong at the time, due to him suffering a psychotic episode. And I also note the reference of the Court of Appeal in R v D CA177/01, 24 July 2001 at [26] to the decision of the Court of Appeal of Victoria in R v Tsiaras [1996] 1 VR 398 at 400, where the Court said:
Serious psychiatric illness not amounting to insanity is relevant to sentencing in at least five ways. First, it may reduce the moral culpability of the offence as distinct from the prisoner’s legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner’s illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.
[19] In R v D, which also involved a charge of sexual violation by unlawful sexual connection in circumstances where the victim and the offender had been in a relationship, the mental illness of the offender was taken into account and resulted in the Court of Appeal quashing a sentence of four years, and substituting a sentence of imprisonment for two years, suspended for two years, with a sentence of supervision for 18 months.
[20] When I apply the criteria in R v Tsiaras to the present case, I find that the information before me fully satisfies me that the moral culpability of the offence was reduced in this case. O has described T that day as being psychotic and clearly unwell; and I have the comfort of having heard today from Dr Cavney (a psychiatrist from the Regional Forensic Psychiatry Services) that he considers that family members are well suited to express views on the condition of someone who suffers from a mental illness. Dr Cavney also says that in O’s case, he believes she has a good understanding of T’s mental illness. So I accept and rely on her description of how T was on the day of the offending.
[21] As was recognised in Tsiaras, T’s mental illness must affect the choice of punishment that is just in all the circumstances. Whilst there has been an increase in the sentences for rape, which reflects society’s concern about offending of that nature; I also consider that a humane and civilised society that values justice is not one that seeks to denounce the conduct of someone who is suffering from a serious mental illness, who offended at a time when he was experiencing a psychotic episode.
[22] T’s illness must have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. His psychiatrist, Dr Gunawardena, has said she considers there could be a serious deterioration in his condition, were he to be sent to prison. Dr Cavney and Dr Djokvic think differently. However, Dr Gunawardena has been the psychiatrist for T since March 2009 and, in that sense, she may have a better understanding of him than the psychiatrists who interviewed him simply for the purpose of preparing a report for the Court.
[23] I note from T’s criminal history that he has never received a sentence of imprisonment, and so how he would act in a prison environment has not yet been established through experience. But I think that someone who presents as T is described in the psychiatric reports may well find a sentence of imprisonment more difficult to serve than persons who do not suffer from his illness. I consider, therefore, that a sentence of imprisonment would weigh more heavily on someone with T’s illness than it would on a person in normal health.
[24] Like the Court in Tsiaras, I consider that an offender who suffers a serious psychiatric illness is not an appropriate agent for general deterrence. This is because such persons cannot be expected to have the same degree of insight into their behaviour and what society expects of them as other members of our community.
[25] In terms of specific deterrence, I consider that this is best achieved if I make T the subject of a compulsory treatment order, rather than sentence him to imprisonment. He has not been the subject of such an order to date, even though I have heard two psychiatrists say they think he meets the criteria of such an order. My concern if he were sentenced to imprisonment is that whilst he may be treated
for his mental illness in prison, once released he would be at liberty and once more subject to a voluntary treatment regime. Given the past incidents of him becoming acutely unwell through not taking his medication, my concern is that if I do not make him subject to a compulsory treatment order there could in the future be a repeat of the circumstances that have led to the present offending. By this I mean that if he is sentenced to imprisonment and following his release he is treated as a voluntary patient, there is nothing to prevent him stopping his medication, which in turn could lead to a deterioration in his mental health and a consequent repeat of his violent offending. I consider that the cycle of violence that follows him stopping his medication, especially when coupled with his use of alcohol, will continue until he is prevented from stopping his medication. That can only be done through a compulsory treatment order, which I cannot make in addition to imposing a sentence of imprisonment. This is a case where I think that making T subject to a compulsory treatment order is critical to reducing or preventing his violent behaviours. That he has shown no sign of violent behaviour since his arrest is probably due to the fact that he has been subjected to a medication regime which relies on injections, so it has become harder for him to avoid the medication. He has shown throughout the time he has been on bail that when he is regularly medicated, he behaves in a way that does not attract the attention of the criminal justice system.
[26] It follows that I think the relevant considerations outlined in Tsiaras are fully applicable to the sentencing of T.
[27] I have already said, in essence, that the information I have indicates that T does not fit within the general range of offenders. An assessment of his present criminal conduct leads me to conclude that this offending was inextricably mixed with his mental health and how his mental health is managed.
[28] I also consider that linkages may be drawn between him not taking his medication and his past criminal conduct. For example, in October 2005 T was seen by a psychiatric nurse after an assault on O. The clinical notes recorded that since June 2005 there had been no follow up by the mental health team responsible for him. The clinical notes also record that T’s mental illness makes him prone to delusions and persecutory hallucinations and that he had been hearing voices since
July 2005. This suggests to me that his mental health had been deteriorating since then. At the interview with the psychiatric nurse in October 2005, T denied that he had been using alcohol. This suggests to me one of two possibilities. Either T was not being honest with the psychiatric nurse, and there had been use of alcohol which had exacerbated T’s condition; or T was truthful and the violent behaviour was simply the result of T failing to take his medication. The second possibility reveals a more direct link between the mental illness and risk to others. In any event, a point was reached in October 2005 where, due to T not taking his medication and there being no follow up by the mental health team responsible for him, there was a deterioration in his mental health to the point where he had been hearing voices for approximately three months; and then his mental ill health led to him being violent towards O.
[29] In terms of the other offending, no one has compared T’s criminal history with episodes recorded in his clinical notes for the purpose of seeing whether there is a correlation between episodes of him being mentally unwell and his criminal offending. His criminal history list shows offences that started in 1993, and between
1993 and 1999 there are eight offences that have not resulted in serious penalties. The difficulty is that until 2001, there was no full diagnosis of his mental health. This may be consistent with the pattern of his type of mental illness, which can begin to develop during the late teenage years but may only fully reveal itself when a sufferer reaches his or her early twenties. Until the mental ill health is able to be recognised and diagnosed, the earlier offending may not at the time be recognised as being due to a mental health problem. This means that at the time of the early offending, no one would have been in a position to ascertain whether T’s offending prior to 2001 was truly criminal offending, or whether it was criminal conduct resulting from deterioration in T’s mental health.
[30] There is one offence in 2001 and two offences in 2002 which no one has been able to link with any clinical notes, but that is because no one seems to have sat down and done a full analysis of all the available information. I consider I must treat these neutrally. What I do have from my own efforts of attempting to correlate the information before me is that before the present offending, there was a common
assault on O on 9 October 2005, which is linked with a psychotic episode; and there is the present offending, which is linked with a psychotic episode.
[31] The information I have obtained from reading the victim impact report from O, and the reports from the psychiatrists, all of whom have been available for questioning at the sentencing hearing, has led me to conclude that T is someone who, when properly medicated, behaves himself and he is less likely to offend. Indeed, when properly medicated, he may not offend at all. But over time, for whatever reason, be it adverse side effects from his medication, which the psychiatrists have confirmed are present, or perhaps because of a lack of insight on his part; he stops his medication. Because he has always been a voluntary patient, he is free to do this. Once he has been off his medication for some time, this can lead to him self- medicating by using alcohol; and here I refer to comments by Dr Gunawardena that T has used alcohol at times to stop the voices in his head. Dr Cavney has also confirmed that persons who suffer from mental illness may use alcohol as a form of self-medication.
[32] This seems to be a volatile mix. T suffers paranoid schizophrenia and does not take his medication, then starts to use and abuse alcohol, leading to further deterioration which places him in the position of posing a risk to others. Indeed, I consider that this mix of circumstances has led to him committing the present criminal offence. I consider this is the explanation that lies behind what happened in
2009.
[33] The pattern of good behaviour while medicated and bad behaviour when not medicated is outlined by O in the victim impact report. I have relied a lot on O’s comments in forming the conclusions I have done today because from what I have read, she strikes me as an intelligent person with excellent insight into T. She has known him for a long time. Indeed, because O and T have known each other since their early teens, O would have had to witness the person whom she had come to love and trust when they were both 14 years old slowly deteriorate whilst in the grip of a mental illness. That must have been a very sad and horrible experience for her.
[34] I consider the victim impact report makes sobering reading because it shows that T is a man who is a good father, a good provider for his family, and a good worker when he is medicated. That he behaves well when medicated shows the importance of him being medicated. No one seems to have stood back in order to ascertain if there is a pattern to his conduct. T’s use of alcohol to self-medicate shows the need for something to be done to ensure that T does not stop taking his prescribed medication. Because no one has looked at the overall pattern of his conduct, it has meant that T has been left to himself as a voluntary patient, and this has led to the interruption of his prescribed medication, the misuse of alcohol and consequently, the offending and the harm that results for O, T’s family, and for T himself.
[35] From what I have learned and seen of T and his family, I have concluded that the victim in this offending, O, was one of the best friends, and probably still is one of the best friends T has. She has shown her support for him by attending Court, attending interviews with the psychiatrists who have prepared reports on him and in the sympathetic yet insightful comments she has made about him in the victim impact report. Yet at a time when he was mentally unwell due to being off his medication, he has hurt her immeasurably. And he hurt his son when he had to witness his father’s arrest. That there is medication available which stops T acting in a hurtful and harmful way tells me that none of the harm that has occurred to O, to T’s family, or to T need have happened. That he was left with the freedom to stop his medication is not his fault. That he was left while in an unmedicated state with the freedom to abuse alcohol is not his fault. If someone is mentally unwell and, in that state, they resort to abusing alcohol, I fail to see how they can be held accountable in the way that regular members of the community are held accountable for abusing alcohol and the harm that goes with it. The means are available to ensure that T is medicated and, therefore, does not cause harm to others. Those means should have been applied earlier.
[36] As I have said, O has known T since they were teenagers. They met when they were 14 years old. When the victim impact report was written on 6 December
2010, O and T were aged 34 years old. They have two children who were aged 17 years and three years at that time. Throughout the pressures that this family has
experienced since T’s mental illness revealed itself, they have retained contact with each other, and have supported each other. O has attended Court, she has attended visits with psychiatrists. When T was to stand trial, O wrote a letter to the Court informing it that she did not want to give evidence against him. While T has been on bail, at the end of last year, the bail condition which required T to stay away from O was varied to allow contact if initiated by her. This was because it became apparent to the Court at one of the hearings that they were in contact with each other.
[37] I accept what the Crown says that the crime of rape is a public wrong and I accept that, ordinarily, the victim’s wishes can have little bearing in the final outcome of the sentencing. But this is a case where it is not a matter of simply paying additional attention to the victim’s wishes; it is a matter of recognising that this case involves a whole family that has been let down by a failure to ensure that T’s mental illness is treated in a way that stops him from behaving harmfully. O has said she hopes T gets the right treatment for his illness. I understand that she supports the approach that would have T made subject to a compulsory treatment order. To ignore the outcome that O would seek to have applied to T would simply be further harmful conduct towards this family.
[38] This is a special case where what has happened needs to be put in its proper context, and a proper response given to that context. I consider that this can only be through the recognition of how T’s psychiatric condition needs proper treatment, by which I mean compulsory treatment.
[39] O has described T on the day of the offending as being psychotic and “really unwell”. She says she was “shocked” when he raped her because she “couldn't comprehend the monster in him”. On the day of the offending, she realised he had been drinking, and that it was not “going to be a good day”, as his illness means that “any alcohol or drugs severely affects his mental health”. She says that she was “fed up” with him and “wanted him to go away”. She says she told their son she was not scared, but had contacted the police because she didn’t want to deal with this anymore:
I explained to [our son] that his dad was really unwell; I did not feel scared, I
just thought I didn’t want to deal with this kind of crap anymore, he [T]
takes everyone on a roller coaster ride, it affects me, his children and his family.
[40] I also note that she has said that on the day of the offending, it was the first time in a while that T had been drinking. This coincides with what Dr Gunawardena’s evidence that she had been seeing T between March to October
2009 and he informed her that he was not using alcohol, and the family who were present had not contradicted that. So it does not surprise me that O says that on the day in question of the offending, it was the first time he had used alcohol in a while.
[41] I note that O says that she wants T to take responsibility for his actions and to realise the bad things he did, but she says she feels he could not see these bad things he was doing. She said that she did not know if he was justifying what he was doing, or whether it was the mental illness that meant he could not see it. She thinks that he cannot see “this is bad, this is wrong”. She wanted him to realise and take responsibility to change his behaviour, but saw herself as fighting a losing battle because what she was really fighting was his mental illness. She has said that if his mental health is managed correctly with medication and is monitored by doctors and family, he does better. She thinks that the doctors need to have more contact with T and his family, including herself. She says that T was really honest with her about his mental health, and she says that she can spot when his health is not going well. She says that when T is medicated properly and is honest with his doctors, these sorts of problems do not happen. She says that when T assaulted her in 2009, he was not managing his medication, which was then being taken orally, and that he would lie about taking it. She says:
The mental illness can cause people to act in these ways. It should be mandatory for them to be medicated and managed by doctors to ensure this sort of thing doesn’t continue. [T’s] mental illness caused him to do harmful behaviours that need to be managed in a community way to avoid the harm that it causes.
[42] She says that up until the incident:
I don’t feel [T] took responsibility for his illness and wellbeing. I know now he’s on injections that are given to him by the mental health team when they visit him. If that had been implemented from day one, I believe nothing like this would have happened. I think the fact he is in front of the High Court now, that has made him open his eyes.
[43] She says that T told her in a conversation, “I just wish I could fix my stupid head”. Finally, she says she hopes that he gets the right treatment for his mental illness.
[44] The sad point is that O has recognised how much T needs treatment. He does as well. Hence their comments. But that treatment has not been forthcoming in a reliable way. O says she wants T to get better and do well in life. She described him as a “great father when he is not being crazy”. She says he needs to be honest with what is going on in his head. She hopes that he will work hard at whatever advice he is given on how to change, and that he continues to work with the mental health professionals who look after him. She is happy that through this, he will, she hopes, get the necessary rehabilitation, treatment, supervision or whatever he needs to prevent incidents like what happened in 2009.
Pre-sentence report
[45] The pre-sentence report has confirmed that T provides financial support to his children and to O, that he has a supportive family with whom he has returned to live since separating from her. He has a good work record and an employer who appears to be supportive.
[46] The probation officer has identified excessive alcohol consumption, personal
stress and T’s mental state as contributing factors to the offences.
Psychiatric reports
[47] I have had the benefit of reading the three psychiatric reports and hearing from the psychiatrists today. All the psychiatrists agree that T suffers from paranoid schizophrenia. The illness causes him to experience auditory hallucinations, persecutory delusions and low mood. His symptoms have fluctuated in severity over the years, although he has never been admitted to an in-patient psychiatric unit. His compliance with medications is described at times as being erratic, and he has failed to attend appointments but, in general terms, he is said not to have evaded follow-up treatment.
[48] There is a history of him complaining about various medications causing adverse side effects and this in turn, at times, has led him to stop taking the medication. As I have said, since he has never been subject to compulsory treatment, he has always had the freedom to stop taking his medication, and this has been easier for him to do when the medication has been taken orally.
[49] Dr Gunawardena considers he would benefit from being subject to a compulsory treatment regime and that he would qualify for admission to such a regime. She was overseas at the time of the offending. She has since gone over T’s clinical records and noted a correlation between T stopping his medication, using alcohol to reduce the voices he hears, and then displaying violent behaviour. However, in this regard, I note that his criminal history shows that his past offending has not led to him being imprisoned. The types of sentences imposed on him suggest a pattern of low level violent behaviour.
[50] In addition to Dr Gunawardena, Dr Cavney considers that T is someone who fits the criteria for a compulsory treatment order.
[51] The Court’s power to make a compulsory treatment order is set out in s 34 of the Criminal Procedure (Mentally Impaired Persons) Act 2003. Section 34(1) provides that if a Court is satisfied of the matters specified in subsection (2), the Court may deal with an offender who is convicted of an imprisonable offence, instead of passing sentence, by ordering that the offender be treated as a patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992.
[52] The Crown has submitted that the second limb of s 34(1), namely making an order for compulsory treatment under the Mental Health Act, is not to be applied for serious offending such as rape. The Crown has referred me to comments in Adams on Criminal Law regarding s 34, and to a decision where a court for the offence of attempted murder both passed a sentence of imprisonment and made an order that the offender be detained as a special patient. That was done under s 34(1)(a).
[53] My view, looking at s 34, is that Parliament has chosen to give courts discretion to deal with mentally ill offenders in a way that keeps them separate from
the process set out in the Sentencing Act 2002. I consider the criteria for applying s 34(1) requires first that there is a conviction of an imprisonable offence. This criterion is satisfied here. No one considers that T should be detained as a special patient, and so s 34(1)(a) does not come into play. It is simply a question, therefore, of me deciding whether it is appropriate, instead of passing sentence, to make an order that he be treated as a patient under the Mental Health Act. There is nothing in the section that suggests s 34(1)(b) is to be applied to offences that are lower in the hierarchy of seriousness. I do not see why I should allow myself to be constrained by the seriousness of the offence if I am satisfied that the circumstances of the offending justify dealing with T outside the general approach for sentencing of rape offences, and if there is an appropriate alternative available.
[54] I consider that Parliament, in passing s 34, has sought to provide sentencing judges with alternatives when they are faced with persons such as T. The reason for this is that if persons who suffer from serious mental illness and who have offended while they are having a psychotic episode are dealt with under the general sentencing regime, the outcome would be an injustice of the type recognised in Tsiaras. I also consider the result would be an injustice because the Court would be holding the mentally ill to account regarding the purposes and principles of the Sentencing Act when the mentally ill cannot properly comply with and discharge the behavioural expectations and obligations the community places on its members.
[55] The second critical question is does T meet the requirements of s 34(2)? All the psychiatrists agree that he has a mental impairment which qualifies under subsection 2.
[56] The next question is, does this mental impairment require compulsory treatment, either in T’s interest, or for the safety of the public, or for the safety of a person or class of persons? Here, Dr Gunawardena and Dr Cavney have parted company with the opinion expressed by the third psychiatrist, Dr Djokvic. Dr Gunawardena considers that T’s mental impairment qualifies under s 34(2), and her historical analysis of how his mental health deteriorates when he stops taking his medication has caused her to comment as follows:
In my opinion the above examples indicate a direct relationship between [T’s] mental state deteriorating/becoming unwell when he is non-compliant with his medication. Of note he has also reported to the writer that he used alcohol to drown the voices when they were troublesome. During my assessment on 10 February 2011, he reported side effects from the current medication … “twitching of my eyelid, lasting a few seconds can happen daily” and weight gain. On the same occasion, [T] advised that his mother would like the writer to stop the injection. He is aware the injection has been very helpful to control his troublesome psychotic symptoms and the side effects are not bothering him too much. However, he is enquiring about the possibility of changing the medication. This is concerning to me. Notwithstanding that at the current time [T] accepts his injections, I remain very concerned about the similar pattern of request to change his medication leading to non-compliance and non-engagement with services resulting in serious relapses and self-medicating with alcohol to “drown the troublesome symptoms”.
She concludes with the opinion:
In my opinion there is a link between [T’s] mental health state, particularly when untreated and his excessive use of alcohol which in turn may lead to violence. Even though he currently accepts his anti-psychotic medication I am concerned about his recent request to change medication due to side effects most likely leading to non-compliance with his medication. I therefore believe it would be advisable to make him subject to a Compulsory Treatment Order considering the risk of relapse if he is untreated. His compliance with oral medications as well as intramuscular injections in the past has been variable and he tends to discontinue medications without notifying mental health staff. It is on this basis that I am of the view that [T] meets the criteria for a Compulsory Treatment Order.
[57] She also opines that making an order under s 34(1)(b)(i) of the Criminal
Procedure (Mentally Impaired Persons) Act is an appropriate course of action.
[58] In his report dated 14 October 2010, Dr Cavney opined that he considered that T met criteria for compulsory treatment pursuant to s 29 of the Mental Health Act. He considered that the combination of untreated mental illness and alcohol abuse warranted proactive and assertive community treatment. Unlike Dr Gunawardena, Dr Cavney considered that there was no clear historical nexus between T posing a risk to others due to his mental health problems. However, Dr Cavney admitted that he had not attempted to correlate T’s criminal history and his clinical notes to see if any connection between the two was present. Dr Cavney also accepted that there may well be an indirect nexus between T having sub-acute symptoms of mental ill health which predisposed him to increase his use of alcohol, which could lead to increased irritability and then to violent behaviour.
[59] Dr Cavney considered that T’s risk of violence was associated with his use of alcohol. But Dr Cavney also recognised that it was likely that T’s use of alcohol would increase at times when he was most distressed, such as when he was becoming unwell. In his evidence today, Dr Cavney said that he considers there are risks to others when as a result of being unmedicated and using alcohol, T’s mental health deteriorates perhaps with “greater irritability and anxiety” and at that stage “when he is unwell and unmedicated and intoxicated [he is] at a moderate to high risk of aggressive assaultive behaviour”. And when I questioned him (the quotation below is accurate save for an error which has been corrected):
Q. Do you consider that left unmedicated, it would be proper to conclude he posed a risk to himself and others?
A. Yes, certainly the historical risk to self is well established.
Dr Cavney’s view was that it would be reasonable to use compulsory treatment. In evidence he said:
I guess I have an advantage of having a slightly ivory tower view of [T’s] case and from that view I would agree the Mental Health Act seems very appropriate. I would acknowledge however, that within a community treatment setting there are other factors that influence the use of the Mental Health Act.
Here, Dr Cavney was talking about coercive treatment perhaps driving mentally ill persons away from seeking treatment.
[60] The only psychiatrist who considered that there was not some risk to others caused by T’s mental ill health was Dr Djokvic. However, she defined risk posed by mental illness as being when someone in the grip of a delusion or a hallucination lashed out at another. The idea that a mentally ill person only poses a risk if they are going to lash out while in the grip of a delusion or a hallucination seems to me to be an overly narrow view of the risk such persons might pose. It does not look holistically at the total picture of how someone who suffers from mental health problems presents themselves to others.
[61] While the use of alcohol can be seen as a factor in T’s violent conduct, it is
also clear that his mental ill health has, at times, led to him abuse alcohol. It seems
to me that if his mental ill health can lead to him abusing alcohol, which in turn leads to deterioration in his mental ill health; then if he poses a risk of violence, that risk can be tracked back to the mental ill health. In the case of T, the assessment of the risk he poses is not academic. He has demonstrated that the combination of untreated mental illness with alcohol can lead to violent behaviour. He has been violent to O on more than one occasion. So I am satisfied that the opinions given by Dr Gunawardena and Dr Cavney on the appropriateness of compulsory treatment are sound. They satisfy me that the second limb in s 34(2)(b) has been made out.
[62] I am satisfied the current offending happened at a time when T was not taking medication and when he abused alcohol. My assessment of the information I have been given has led me to conclude that he someone who, when left to his own devices, is at risk of not taking his medication, and once he ceases the medication, I am satisfied there is the risk his mental health deteriorates over time. I am satisfied that with that deterioration, there may come a use and abuse of alcohol. I am satisfied that this leads to the cycle of violence he has demonstrated.
[63] I also accept the evidence given to me by Dr Gunawardena today, which may be borne out by the incident of violence in October 2005, that lack of medication with deterioration in mental ill health can, without the abuse of alcohol, lead to violence and cause T to be a risk to others. In this regard, I note the reference in Dr Cavney’s report to the fact that when T becomes mentally unwell, he becomes anxious and irritable. This in itself could cause him to pose a violent risk.
[64] I have already said I consider T falls outside the usual case for sentencing offenders who have committed the type of offences of which he has been convicted. I consider that if I did not make order under s 34(1)(b)(i), the only realistic sentencing option available to me would have been to sentence him to a term of imprisonment. For the reasons I have given, I do not consider a sentence of imprisonment would be appropriate; and I am satisfied that T not only currently needs this, but for some time in the past has needed compulsory treatment. I consider that this offending signals his need for compulsory treatment.
[65] There may be some who see a sentence of compulsory treatment as being a “soft” alternative to a sentence of imprisonment. This view is consistent with the Crown’s submission that an order for compulsory treatment in the community should only be directed at less serious offending. But I would emphasise that T, when properly medicated, appears not to offend. There is no evidence that when T is properly medicated, he still behaves in a violent fashion and is a risk to others. Everything I have seen of him, learnt of him, and what he has demonstrated throughout the time he has been on bail, when he has been properly medicated by injection, has shown that he has not offended and that his behaviour is good. The longstanding nature of his mental illness, coupled with erratic use of medication, suggests to me that his past misconduct may be traced back to a time when he is not medicated. The information I have before me today informs me that ensuring that T is medicated is the simple answer to the problem his offending has posed to date.
[66] I am also concerned to ensure that T and his family receive all the help they can get from the criminal justice system. I consider that such help could be available if T were also to receive a sentence of intensive supervision with conditions that he comply with the direction of the probation officer to undergo counselling for alcohol abuse and that he attend the SAFE Programme or some other such programme to counsel him for sexual abuse. I consider this can be achieved by adopting a course of action which imposes a sentence of 18 months’ intensive supervision for the offence relating to O of assaulting her with a weapon.
It follows that I direct that on each of the offences of sexual violation by rape, threatening to kill, breach of a protection order, and the two offences of assault with a weapon, T is to be made subject to an order under s 34(1)(b)(i) of the Criminal Procedure (Mentally Impaired Persons) Act 2003, instead of serving a sentence. On the charge of assault with a weapon relating to O, he is sentenced to 18 months’ intensive supervision, and he is directed to undergo whatever courses and counselling the probation officer responsible for his supervision directs, including courses on alcohol abuse and attending a programme such as the SAFE Programme
to provide counselling for sexual abuse.
[67] T, you may stand down.
Duffy J
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