R v W HC Auckland Cri-2008-092-7733

[2009] NZHC 907

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2008-092-007733

THE QUEEN

v

W 

Hearing:         29 July 2009

Appearances: D A Marshall and I M Brookie for Crown

A C Balme for Respondent

Judgment:      29 July 2009

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Auckland

A C Balme, Auckland

R V W   HC AK CRI-2008-092-007733  29 July 2009

[1]      On 12 December 2007 Mr W   killed two people and severely injured a third.   He was charged with two counts of manslaughter and one of driving dangerously causing injury.

[2]      On 29 April this year, on the basis of the expert medical evidence presented by both defence and Crown, this Court found him not guilty by reason of insanity. Mr W   suffers from bi-polar affective disorder which is commonly known as manic depression.

[3]      Since his recovery from the accident and release from hospital in February

2008 Mr W   has been on bail living with his parents in Tauranga.  He has been seen regularly by a consultant psychiatrist, has adhered to a treatment plan and complied with the conditions of bail.

[4]      The issue for the Court today is what to be done in terms of directions as to the disposition of Mr W  , given the finding of not guilty on account of insanity.

[5]      The  Court  is  required  to  consider  first,  s  24  of  the  Criminal  Procedure (Mentally Impaired Persons) Act 2003.  In this case that section directs the Court to consider all the circumstances, and consider the evidence of one or more health assessors  as  to  whether  the  detention  of  the  defendant  as  a  special  patient  is necessary.  If satisfied that the making of an order is necessary in the interests of the public the Court must make such an order.

[6]      The  circumstances  of  this  case  include  the  incident  which  led  to  the defendant Mr W    being before the  Court,  the  impact  of  his  actions  on  the families of those he killed and the terrible injuries suffered by the survivor Ms Jiyoung Baek.

[7]      The seriousness of the offending cannot be underestimated and should not be lost sight of.  As a result of Mr W  ’s actions in December 2007 two people are dead and one is severely injured.  The victim impact reports of the deceaseds’ family members and of the survivor of the accident clearly show the effect on them of the loss of their family members and as a result of the accident.

[8]      It is not possible to address that loss in the orders that are available to the Court today.  Today is not about imposing a sentence on Mr W  .  He was found not guilty by reason of insanity.  The focus of the Court’s consideration today must be protection of the public and, as part of and allied to that, the rehabilitation of the defendant Mr W  .

[9]      The circumstances of the case also involve Mr W  ’s situation both before the offending and importantly after it.   Before the offending he was living in Auckland away from his family.   He was decidedly  unwell  and  committed  the actions, the driving which caused the death of the two victims and the injury to the third, while suffering from a manic episode with psychotic features.  Since discharge from hospital as noted he has been in the care of his parents.  He has complied with bail conditions, including living with his parents, abstaining from alcohol and drugs and not driving.

[10]     He has been seen by a consultant psychiatrist on average at monthly intervals between February 2008 and December 2008.   Given his stability his psychiatrists then decided to only see him at three monthly intervals, and thereafter saw him on 16

March and 8 June.  In addition Mr W   has had fortnightly contact with his case manager who acknowledged his stability and the treatment adherence and abstinence from illicit drugs and alcohol use.

[11]     The independent report from a consultant psychiatrist required under s 24 of the Act was provided to the Court by Dr Kumar.  As a consequence of Dr Kumar’s intervention those clinicians involved in treating Mr W   and his case manager have agreed to increase the contact with him.

[12]     As noted a report for the purposes of s 24 was obtained from Dr Kumar, an independent consultant psychiatrist.   Dr Kumar has clarified in his supplementary report and in his evidence before the Court this morning that in his opinion it is not necessary to detain Mr W   as a special patient under s 24.  His recommendation is for Mr W   to be managed under a compulsory treatment order but in the community.

[13]     Section 24(3) provides that before the Court can make an order for detention as a special patient the Court must have received evidence about the defendant from one health assessor, who is a psychiatrist.  In this case, Dr Kumar.

[14]     Even where there have been reports that have not recommended the detention as a special patient the Court has on occasions still made orders detaining people in the position of Mr W   as special patients.  But counsel have drawn my attention to the Court of Appeal decision of Barnes v R CA69/05 16 June 2005 in which the Court suggested that in the absence of a recommendation from a psychiatrist that the defendant be detained as a special patient, the Court may not have jurisdiction to found such an order.  This Court is of course bound by the Court of Appeal decision.

[15]     It follows that the option of detention as a special patient may well not be available to the Court.  In any event on the basis of the medical evidence before the Court, particularly Dr Kumar’s supplementary report and his oral evidence today I agree that the appropriate order is a compulsory treatment order rather than detention as a special patient.

[16]     The  issue  for  the  Court  then  is  whether  the  compulsory treatment  order should be a community treatment order or an inpatient order.  Section 28(2) of the Mental Health (Compulsory Assessment and Treatment ) Act 1992 provides that:

Subject to subsections (3) and (4) of this section, the Court shall make a community treatment order unless the Court considers that the patient cannot be treated adequately as an outpatient, in which case the Court shall make an inpatient order.

[17]     Subsection (3) is not relevant in the present circumstances but subs (4) goes on to provide that:

Before the Court makes a community treatment order, it must be satisfied of the following:

(a)The service provides care and treatment on an outpatient basis that is appropriate to the needs of the patient. ... and

(b)The social circumstances of the patient are adequate for his or her care within the community.

[18]     Dr Kumar has recommended a compulsory treatment order in the form of a community treatment order.   Mr Balme has urged on the Court that that is the appropriate order, given Mr W  ’s compliance with the conditions of bail and adherence to his treatment programme since his release from hospital in February

2008.

[19]     Mrs Marshall has expressed some reservations as to the appropriateness of the community treatment order and suggested the Court may wish to consider a compulsory treatment order by way of inpatient order, bearing in mind the risks that Mr W  ’s condition poses to the public.   She notes that while there has been compliance to date, Mr W   has of course been subject to the Court process and that would have provided significant incentive to him.

[20]     There are positive features that Mr Balme has identified and that Dr Kumar referred to in Mr W  ’s present circumstances.   Mr W   is living with his parents at present.  His mother has sworn an affidavit confirming her support for her son.   In it she confirms she and her husband are very settled in their home in Tauranga and plan to remain in it as long as their circumstances render it practical. They are fully supportive of Mr W   and are determined to take all steps within their power to ensure his successful and ongoing wellbeing.  She undertakes to report immediately  to  supervising  clinicians  of  any  deterioration  in  his  wellbeing  or lifestyle circumstances.   If there were signs of drug usage, deterioration in his personal appearance or behaviour or inappropriate associates she says she would immediately take them up and report them.  She and her husband acknowledge it is inappropriate for Mr W   to apply for a driver’s licence.

[21]     Mr W  ’s case manager has put in place a crisis management plan.  His parents are aware of it.  They have been advised to contact the Community Mental Health Services during working hours if they have concerns and to contact the crisis team outside hours.

[22]     Dr  Kumar  has  noted  in  his  supplementary  report  that  the  supportive environment provided by Mr W  ’s parents has been recognised by the case officer.   There is also in place a relapse prevention plan, which has identified the

following factors associated with his unwellness or relapse, getting stressed, taking illicit substances, being involved with the wrong people, being around unfamiliar people and surroundings.  The relapse team identifies early warning signs, including racing speech, hyperactivity, racing thoughts as well as the immediate steps to be taken, such as listening to support people, limiting alcohol  and drug use, using breathing techniques and other coping strategies.  It has to be said, however, that a number of those features are features that might be readily apparent to Mr W  , but would not necessarily be apparent to others particularly if Mr W   is not living with his parents in a supportive environment.

[23]     It also has to be observed that a number of those signs were evident before the incident in December 2007.  No steps were taken to address the matter either by Mr W   or by others.

[24]     As counsel have acknowledged this is a difficult case.  Through his actions Mr W   has killed two people and severely injured another.  He has affected the lives of the families of those victims terribly. However, as a consequence of the not guilty finding by reason of insanity he is held not to be responsible for his actions at the time.

[25]     There is of course the important issue of Mr W  ’s rehabilitation and ongoing treatment.  Balanced against that is the risk that he poses to the community because of his condition and the possibility of relapse.

[26]     As Dr Kumar acknowledged in his evidence there were three occasions when Mr W   lived by himself that he became involved in alcohol and drug use and three occasions when he lived in a stable relationship with others.  When he was not living in stable relationships and was vulnerable to using drugs, then he experienced relapses.  Dr Kumar also accepted that the illness that Mr W   suffers from is an illness he will likely have to have treatment for, for life.  He referred to a number of prognostic indicators which helped clinicians determine the course of the illness. The factors are the early age of onset of the illness.  People who have an onset of this illness  at  an  early stage  tend  to  do  worse  than  others.    People  who  use  illicit substances do worse.  People who take medication and are connected with pro-social

networks and have adequate social and emotional support tend to do better and those who have an acute onset of illnesses tend to do better.  If the episodes are triggered by external events such as illicit substances or identifiable stressors then if interventions can be targeted to those triggers then the outcome is generally better.

[27]     I recall from the evidence at the previous hearings that the opinion of the doctors was that if this condition manifests itself at an early stage and there are a number of episodes at a relatively young age,  as there have been in Mr W  ’s case, it is more likely to be an ongoing problem and pose more difficulties for the patient.

[28]     All of that points to the need for long and ongoing treatment of Mr W   for his condition to ensure his wellness and to protect the public.

[29]     The alternatives for the Court for the provision of such treatment under the compulsory treatment order are, as I have said, a community treatment order or an inpatient order.  The community treatment order would place Mr W   with his parents in the short term but it appears his parents have bought him a home and intend he will live in that home at some stage either on his own or with other people.

[30]     Whatever form the compulsory treatment order takes it is subject to review after six months and, if necessary, can be reviewed thereafter.  If the order is in the form of an inpatient order then at an appropriate time during the currency of that order, the responsible clinician can, if he or she is satisfied Mr W   can continue to be treated adequately as an outpatient, direct he be discharged.  In such a case the inpatient order is deemed to have effect as an community treatment order.   That decision is made by the treating clinician rather than the Court.

[31]     The decision today, however, is for the Court.   My role as a Judge is to consider just not what is in Mr W  ’s interests but to decide what is in the best interests of the community and to protect the community.

[32]     In  the  long  term  of  course  the  best  interests  of  the  community  and  the protection of the community will be served in this case by the rehabilitation of Mr

W  .  That will at some stage involve his living within the community with either him or those close to him being responsible for his treatment.  The issue is whether that should occur now.

[33]     I accept that Mr W  ’s parents are genuine in the support of their son and now no doubt have a better appreciation of the risks that his medical condition pose to him and to the community.  It is of concern that a few days before the incident in December 2007 he was at his home with his family and behaving strangely but it appears no steps were taken to follow that up.   I accept that with the benefit of hindsight his parents would have acted differently and I do not wish to be unduly critical of them for that.  No-one could have anticipated what would happen on that day in December.

[34]     But it is of some concern to the Court that despite the progress Mr W   has made there is an intention and steps have been taken to have him living in his own home albeit not too far away from his parents.  That does cause some degree of concern to the Court in terms of a lack of appreciation of the need for close ongoing supervision of Mr W  .

[35]     I am also concerned that there has been a relaxation in the control over Mr W  ’s condition which I acknowledge after Dr Kumar’s involvement was addressed.  But concerns remain about this matter.  Those concerns are such that I am not satisfied it is appropriate for a community treatment order to be made at this stage in this case.

[36]     I come back to the role of the Court, which is not only to consider Mr W  ’s interests, but to consider the protection of the community.  On balance, in my judgment the interests of the community and Mr W   himself will be served by  my  making  a  compulsory  treatment  order  with  a  direction  that  Mr  W   initially be admitted to a hospital as an inpatient and that he be detained in that hospital for the purposes of ongoing treatment.   In doing so I acknowledge that during the currency of the inpatient order a responsible clinician can, if that clinician is satisfied Mr W   can be continued to be treated adequately as an outpatient,

direct that he be discharged so that there will then essentially be a community treatment order in place.  That is not a decision I am prepared to make today.

[37]     In short I am not satisfied that the social circumstances at this stage are adequate for Mr W  ’s treatment in the community at this time.  As Mrs Marshall pointed out, to date Mr W   has been subject to the strictures and control of bail. The inpatient order will provide a transition period for Mr W   before he is released into the community with the ongoing support that will be required at that time.

[38]     It is of concern that as a young man several episodes have been triggered by serious drug use and abuse in the past.  I would recommend that part of his treatment involve a drug and alcohol counselling course.

[39]     The hospital for the purpose of the inpatient order will be the Henry Bennett

Centre.  Mr W   is to be admitted to that hospital as an inpatient under s 30.  Mr

W   is to be taken to the hospital by his parents.

Venning J