R v Tofilau
[2019] NZHC 2437
•26 September 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-004-11745
[2019] NZHC 2437
THE QUEEN v
SOLOMONA TOFILAU
Hearing: 26 September 2019 Counsel:
E J Walker for Crown
N P Chisnall (on instructions from A S Bloem) for Defendant
Judgment:
26 September 2019
JUDGMENT OF BREWER J
Solicitors:
Meredith Connell (Auckland) for Crown
Bloem & Associates (Albany) for Defendant
R v TOFILAU [2019] NZHC 2437 [26 September 2019]
Introduction
[1] In my judgment of 29 August 2019,1 I found Mr Tofilau unfit to stand trial but that he caused the act that forms the basis of the charge of attempted murder which has been brought against him. I ordered that inquiries be made to determine the most suitable method of dealing with Mr Tofilau under s 24 or s 25 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (“the Act”). This judgment decides that issue.
The law
[2]I set out ss 24 and 25:
24 Detention of defendant found unfit to stand trial or insane as special patient or special care recipient
(1)When the court has sufficient information on the condition of a defendant found unfit to stand trial or acquitted on account of his or her insanity, the court must—
(a)consider all the circumstances of the case; and
(b)consider the evidence of 1 or more health assessors as to whether the detention of the defendant in accordance with one of the orders specified in subsection (2) is necessary; and
(c)make one of the orders referred to in paragraph (b) if it is satisfied that the making of the order is necessary in the interests of the public or any person or class of person who may be affected by the court's decision.
(2)The orders referred to in subsection (1) are that the defendant be detained—
(a)in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992; or
(b)in a secure facility as a special care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.
(3)Before the court makes an order specified in subsection (2)(a), the court must have received evidence, under subsection (1)(b), about the defendant from at least 1 health assessor who is a psychiatrist
1 R v Tofilau [2019] NZHC 2145.
25 Alternative decisions in respect of defendant unfit to stand trial or insane
(1)If, after considering the matters specified in section 24(1)(a) and (b) concerning a defendant found unfit to stand trial or acquitted on account of his or her insanity, the court is not satisfied that an order under section 24(2) is necessary, the court must deal with the defendant—
(a)by ordering that the defendant be treated as a patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992; or
(b)by ordering that the defendant be cared for as a care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003; or
(c)if the person is liable to be detained under a sentence of imprisonment, by deciding not to make an order; or
(d)by ordering the immediate release of the defendant.
(2)Before the court makes an order under subsection (1)(a), the court must be satisfied on the evidence of 1 or more health assessors (a least 1 of whom must be a psychiatrist) that the defendant is mentally disordered.
(3)Before the court makes an order under subsection (1)(b), 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.
(4)In the exercise of its powers under subsection (1), the court may take into account any undertaking given by, or on behalf of, the defendant that the defendant will undergo or continue to undergo a particular programme or course of treatment.
Discussion
[3] I have received a comprehensive and helpful report from Dr Jeremy Skipworth, a highly experienced consultant forensic psychiatrist.
[4] Dr Skipworth describes Mr Tofilau’s clinical progress since he was admitted to the Mason Clinic from prison on 15 August 2019. On 23 August 2019 Mr Tofilau
was placed under the controls permitted under the Mental Health Act 1969 because of his intermittent threatening behaviour. He was prescribed a low dose of antipsychotic medication as well as sedating medication on an as-required basis. Gradually, Mr Tofilau’s behaviour has improved. Dr Skipworth says:
By 4 September 2019 he had settled sufficiently that he was taken off the Mental Health Act. Although he has been less aggressive, he has remained confused with grandiose, religiose and paranoid themes to his thought content.
[5] Dr Skipworth’s opinion is that Mr Tofilau has mild cognitive impairment which attracts a clinical diagnosis of neurocognitive disorder due to multiple aetiologies (dementia). It is very unlikely he will improve.
[6] Dr Skipworth’s recommendation is that Mr Tofilau be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992.2 That would result in Mr Tofilau being admitted to the Mason Clinic, most likely for a period of months or years, whilst potential community placement options are investigated.
[7] Dr Skipworth has considered the alternative of an order under s 25(1) of the Act that Mr Tofilau be treated as a patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992. Dr Skipworth’s view is that such an order could be justified on the basis that Mr Tofilau satisfies the definition of “mental disorder” in that he has a disorder of cognition which leads to a serious risk of harm to others. However, Dr Skipworth does not find this an appropriate outcome for Mr Tofilau because it would not manage his future risk in the community. For example, he could not be required to live at any specified residential address, he would likely continue drinking alcohol (a major problem for Mr Tofilau) and it would be difficult to obtain Court orders under relevant statutes which might establish a residential placement and institute a care plan. Dr Skipworth concludes:
Accordingly, I have concluded that a special patient order provides the best option which can manage the assessed risk while considering future community placement options. This will allow Mr Tofilau to be appropriately assessed for an order under the [Protection of Personal and Property Rights Act 1988], for secure residential community placements to be explored, and for his potential discharge from the Mason Clinic and/or the Special Patient
2 Section 24(2)(a).
Order to be considered at such a future time as all of the aforementioned legislative and another protective mechanisms for both Mr Tofilau and the community are in place. The risk is that these processes will take longer than anticipated, and Mr Tofilau could remain at Mason Clinic for several years.
[8] I note that counsel for Mr Tofilau and for the Crown agree that Mr Tofilau should be detained as a special patient.
[9] I have considered all the circumstances of Mr Tofilau’s case. On their face, they raise very serious concerns for the safety of the public if Mr Tofilau is released into the community. I have no doubt Mr Tofilau attempted to murder his victim by using a machete. He intended to cut off the victim’s head. He inflicted serious wounds in making the attempt.
[10] Accordingly, I find myself in complete agreement with Dr Skipworth. In my view, detention as a special patient is the best way of ensuring Mr Tofilau gets the care he needs, and that the safety of the public is best catered for.
[11] I note that pursuant to s 30 of the Act the maximum period for which Mr Tofilau will be detained as a special patient is seven years, being half the maximum term of imprisonment for the offence of attempted murder.3
Outcome
[12] I order that Mr Tofilau be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992.
Brewer J
3 Section 30(1)(b).
0