R v Tamati-Moka
[2017] NZHC 2235
•15 September 2017
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA
KIRIKIRIROA ROHE
CRI-2017-019-1522 [2017] NZHC 2235
THE QUEEN
v
GENIE-LEE TAMATI-MOKA
Hearing: 15 September 2017 (via AVL) Counsel:
R G Douch for Crown
K Burroughs for DefendantJudgment:
15 September 2017
JUDGMENT OF BREWER J (DISPOSITION HEARING)
Solicitors:
Almao Douch (Hamilton) for Crown
Kerry Burroughs (Hamilton) for Defendant
R v TAMATI-MOKA [2017] NZHC 2235 [15 September 2017]
[1] In my judgment of 24 August 2017,1 I found Ms Tamati-Moka not guilty on account of insanity on one charge of attempted murder.
[2] I set out the factual situation in my judgment:
[15] In this case, the factual situation can be described briefly. On
10 January 2017, Ms Tamati-Moka was socialising at a Hamilton address with a friend and with the victim’s grandfather. The victim was a child then aged 18 months. She was in bed.
[16] At some stage, without any apparent motive, Ms Tamati-Moka went into the kitchen, armed herself with a knife and went down to the bedroom where the victim was asleep. She stabbed the victim four times to her back causing very serious injury. There were two further lacerations to the back.
[17] Ms Tamati-Moka then ran from the house and purposely ran in front of a car which was driving on a road. To the first police officer who attended what was reported as a car accident, Ms Tamati-Moka said that she wanted to die. She rambled and talked about hurting a baby. From that date, Ms Tamati-Moka has been receiving mental health treatment at the Henry Bennett Centre.
[3] As a result of my finding, I was required by s 23 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (“the Act”) to order that inquiries be made to determine the most suitable method of dealing with Ms Tamati-Moka under either s 24 or s 25 of the Act.
[4] As I explained in my judgment, the principal difference between an order under s 24 and an order under s 25 is that the former would require that Ms Tamati- Moka be detained.
[5] As at the date of my judgment, the Crown had provided a report from Dr Majeed (dated 21 August 2017) who recommended that Ms Tamati-Moka be considered for disposition under s 25(1)(a) of the Act. In the report, Dr Majeed says:
Her psychiatric treatment needs and risk management needs can in my opinion be sufficiently delivered under the provisions of section 25(1)(a). Disposition under section 24(2)(a) would be unnecessary in relation to her psychiatric treatment and risk management needs and would slow down her reintegration back into the community. Section 25(1)(a) provides sufficient legal grounds to cover the treatment of her psychiatric condition and to cover the management of any risk that arises from her mental condition.
[6] In my judgment, I went on to say:
[39] In cases such as this, the Court will always be mindful of public safety. I respect Dr Majeed’s opinion and I am conscious that he has seen Ms Tamati-Moka very recently. But I am also mindful that Dr Dean, in his report of 5 April 2017, gave this opinion:
Given the severity of her psychiatric condition and the seriousness of the alleged offending a disposal under section 24(2)(a) of [the Act] may be the most appropriate disposal.
[40] I think, given the seriousness of the attack on the victim, I would be assisted by a second opinion from a health assessor on the most suitable method of dealing with Ms Tamati-Moka under s 24 or s 25 of the Act.
[7] Accordingly, I ordered that a further inquiry be made and I remanded
Ms Tamati-Moka to the Henry Bennett Centre pursuant to s 23(4) of the Act.
[8] I now have a report from Dr Kumar dated 13 September 2017. This is the fourth report on Ms Tamati-Moka which Dr Kumar has provided, and I am grateful for it.2
[9] Dr Kumar carefully considers Ms Tamati-Moka’s clinical history and clinical
needs. His recommendations are:
Should the court accept the clinical finding that Ms Tamati-Moka’s needs can be met within Puna Awhi-rua under the existing inpatient treatment order, I respectfully recommend, the court considers disposing of her under the provisions of section 25(1)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003. This will enable Ms Tamati-Moka to continue receiving compulsory psychiatric treatment under the existing inpatient treatment order and through the forensic psychiatric pathway. When deemed appropriate her care can be transferred to another forensic psychiatric ward with a lower level of security and greater access to opportunities for further rehabilitation in the community setting. It is difficult to foresee when this will happen, though her needs, as well as any potential risk, will be assessed on a regular basis. This process of gradual transition may take several months.
Should the court not be satisfied that Ms Tamati-Moka’s care can be managed safely under the provisions of section 25(1)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 the court may wish to dispose of her under section 24(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 and make her a special patient. Provisions of leave or transition to another community facility will need to be approved by the Ministry of Health in such case.
In any event, i.e. whether Ms Tamati-Moka is made subject to section 24(1) or 25(1)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003, a bed will be available for her on Puna Awhi-rua.
[10] Mr Douch for the Crown submits that notwithstanding the clinical assessments of the mental health professionals, I should make an order under s 24(2)(a) of the Act that Ms Tamati-Moka be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992 (“the MHCAT Act”).
[11] The basis for the submission is that Ms Tamati-Moka’s improvements are due to her current enforced regime of medication within a stable, nurturing and professional environment. Her improvement, even under these circumstances, has been quite recent and should she be released into the community the continuation of her present state of mental health would be “entirely susceptible to abandonment by the defendant with the consequent return of the serious risk her underlying condition
poses”.3
[12] Mr Burroughs for Ms Tamati-Moka submits that Ms Tamati-Moka needs to be supported in the best possible way so that she does not pose a risk to herself or to members of the public. Mr Burroughs refers to Dr Dean’s view that s 24 of the Act should be employed for that purpose.
[13] I find myself in agreement with Crown counsel.
[14] Sections 24 and 25 of the Act provide that I can consider an order under s 25 only if I am not satisfied that an order under s 24(2) is necessary. It will not be necessary only if I am satisfied that the making of a s 24 order is not necessary in the interests of the public or any person or class of person who may be affected by the
Court’s decision.4
[15] In my view, the interests of the public in a situation such as this go to the reasonable assurance of public safety.
3 Memorandum of Crown counsel as to disposition following verdict of not guilty by reason of insanity, dated 14 September 2017, at para 30.
4 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 24(1)(c).
[16] Ms Tamati-Moka has been diagnosed with a major depressive disorder, namely schizophrenia. As a result of that illness, Ms Tamati-Moka became suddenly and potentially lethally violent. Thanks to her treatment, she has made excellent progress. But, this progress is relatively recent. In his report dated 21 March 2017, Dr Kumar considered that at that time Ms Tamati-Moka presented with an abnormal state of mind characterised by delusions and disorder of perception of a continuous nature and of such severity that she posed a serious risk to the health and safety of
others.5
[17] Dr Majeed, in his report of 29 June 2017, considered that Ms Tamati-Moka’s abnormal state of mind was of such a degree that she posed a serious risk to the safety of others.6
[18] In his report dated 21 August 2017, Dr Majeed identified a significant improvement in Ms Tamati-Moka’s condition. That improvement was due to her ongoing medication regime within her compulsory care environment.
[19] The report by Dr Kumar dated 13 September 2017 is the most recent report I have. I learn from it that there have been several changes to Ms Tamati-Moka’s medication in order to provide increasing relief from her symptoms and to deal with side effects. One medication (amisulpride) was commenced only last month. Dr Kumar reports:
This appeared to be more effective in controlling Ms Tamati-Moka’s psychotic symptoms. She reported feeling less distressed by auditory hallucinations and no longer reported other psychotic symptoms.
[20] On 6 September 2017 (less than two weeks ago), a further drug (aripiprazole) was added to the combination of drugs Ms Tamati-Moka has been prescribed. Dr Kumar reports that on this combination she has functioned very well. She is not reporting any psychotic symptoms.
[21] As to Ms Tamati-Moka’s behaviour, Dr Kumar reports:
5 Page 5 of report.
6 Page 6 of report.
In terms of her behaviour, until approximately three months prior to writing this report, Ms Tamati-Moka was reported to have displayed low frustration tolerance, frequent irritable outbursts and a strong sense of entitlement. These traits gradually softened and have not manifested for the last month.
[22] As to risk assessment, Dr Kumar gives his opinion as follows:
From a clinical perspective Ms Tamati-Moka has gained sufficient insight into her mental disorder, risk of violence and need for treatment. She does not display any violent ideation or intent. She has expressed remorse for her offending, especially as her mental state has improved. Her symptoms of major mental disorder, namely depression and schizophrenia, appear well controlled with medication. She does not present with any affective behavioural or cognitive instability. She has responded favourably to her treatment and has been compliant with all directions. From a clinical perspective, therefore, Ms Tamati-Moka does not present with any ongoing risk of violence.
[23] In Dr Kumar’s view, Ms Tamati-Moka’s clinical needs are adequately met within the Puna Awhi-rua environment and he notes the existing inpatient treatment order which is due for review on 5 November 2017.
[24] I have to look beyond the clinical situation for which the mental health professionals are responsible. In my view, while I accept the improvement in Ms Tamati-Moka’s situation, and I am satisfied that if she remains in her current situation then that improvement will be maintained, I find that the public interest is in ensuring that Ms Tamati-Moka is not put into a self-regulating situation until she is truly ready for it. I note that Ms Tamati-Moka’s normal living environment, and her personal circumstances, have not been conducive to calm self-regulation.
[25] If I were to make an order under s 25 of the Act by ordering that Ms Tamati- Moka be treated as a patient under the MHCAT Act, her release into the community would be entirely a clinical decision for the mental health professionals. However, if I order her detained as a special patient, then there will be a further level of protection because that status would continue until such time as the responsible Minister, on appropriate advice, was satisfied that it was safe to change Ms Tamati- Moka’s status.
[26] Further, I think that special patient status will be best for Ms Tamati-Moka. She is only 22 years old and she is now in an environment which is nurturing and healing. The extra layer of protection afforded by s 24 will protect her also.
Result
[27] I order, pursuant to s 24(2)(a) of the Act, that Ms Tamati-Moka be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and
Treatment) Act 1992.
Brewer J
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