Rikihana v R

[2010] NZCA 405

IN THE COURT OF APPEAL OF NEW ZEALAND

CA764/2009
[2010] NZCA 405

BETWEENADRIAN MANAWANUI RIKIHANA

Appellant

ANDTHE QUEEN

Respondent

Hearing:14 July 2010

Court:Hammond, Chisholm and Andrews JJ

Counsel:J N Briscoe for Appellant

K A L Bicknell for Respondent

Judgment:10 September 2010 at 10 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed. 

____________________________________________________________________

REASONS OF THE COURT

(Given by Chisholm J)

[1]        At trial Adrian Rikihana was found guilty by a High Court jury of causing grievous bodily harm with intent to do so.  He was found not guilty on a charge of attempted murder which arose out of the same events.  Heath J sentenced Mr Rikihana to 12 and a half years imprisonment with a minimum period of imprisonment of five years.[1] 

[1]      R v Rikihana HC Rotorua CRI 2008-063-4316, 30 November 2009.

[2]        Initially Mr Rikihana appealed against both conviction and sentence.  However, his conviction appeal was later abandoned.  His appeal against sentence relies on two primary grounds:  that relevant mental health issues were not presented to, or considered by, the sentencing Judge and that the starting point was too high. 

The offending

[3]        For a short time before the offending Mr Rikihana and the complainant had been in a relationship.  The complainant was two months pregnant and her five year old daughter was staying with them at the time. 

[4]        On 12 September 2008 Mr Rikihana went to bed early because he had to get up for work at 3.30am the next morning.  Mr Rikihana was a driver within the logging and forestry industry at Murupara.  After Mr Rihihana went to bed the complainant took his car without his knowledge and went to a party.  Unfortunately Mr Rikihana’s car was stolen while the complainant was at the party. 

[5]        When the complainant was walking home during the early hours of the morning she became involved in a confrontation with a male who had been at the party and a fight ensued.  Although she was kicked and punched during this fight the only apparent injury was a cut above her eye. 

[6]        By the time the complainant arrived home at around 3.30am Mr Rikihana was ready to go to work.  When told that his car had been stolen Mr Rikihana became angry and physically assaulted the complainant on the head using a lump of wood and an axe handle.  He also kicked and punched her.  Eventually the complainant was rendered unconscious in a pool of blood on the kitchen floor.  Then Mr Rikihana became concerned about her condition and called an ambulance.  He accompanied her to Rotorua hospital. 

[7]        On arrival at hospital the complainant was in a coma and in a serious condition.  She scored only six on the Glasgow scale, which rates levels of brain function.  Fifteen is the highest point and three the lowest point on the scale.  She suffered extensive bruising, numerous facial lacerations and fractures, a fractured left leg, and major brain trauma.  Although she had been involved in violence earlier that morning (when walking home), Heath J sentenced on the basis that it was the violence inflicted by Mr Rikihana that had led to her condition when admitted to hospital.  That is not challenged. 

[8]        In her victim impact statement the complainant said that Mr Rikihana had wrecked her life and that she would never be the same again. 

The appellant

[9]        When he was sentenced in November 2009 Mr Rikihana was 35 years of age.  He had numerous previous convictions for violence:  male assaults female in 2003 (2), 2004 and 2005;  threatening to kill and common assault 2004;  threatening to kill in 2004 and 2005;  common assault 2004;  and assault with a weapon in 2005.  His most recent appearance in 2005 for multiple offending had attracted a sentence of three and a half years imprisonment.  At the time of the index offending the appellant was on parole. 

[10]       The probation officer reported that Mr Rikihana still denied the offending, did not display any remorse, and expressed little victim empathy.  It was considered that he presented a high risk of re-offending.  The probation officer noted that Mr Rikihana had previously served three custodial sentences and had been subject to home detention, parole and community work;  that he had been removed from the domestic violence programme due to disruptive behaviour;  and that although he had started attending an anger management course, he had failed to continue with the sessions. 

[11]       Apart from informing the probation officer that he had been taking anti-depressant medication whilst in custody, Mr Rikihana said to the probation officer that he was “otherwise in generally good health”.  He acknowledged to the probation officer that a major part of his previous offending could be attributed to the consumption of alcohol. 

Sentencing 

[12]       Heath J viewed the attack on the complainant as an extreme response by Mr Rikihana to his legitimate anger over the prospects of losing his employment (because he was not able to get to work).[2]  He also considered that it was clear from Rikihana’s violent offending over recent years that he needed to control his anger and to complete programmes that he had failed to complete in the past.[3]   

[2]      At [23] of the Sentencing Notes.

[3] At [24].

[13]       Aggravating features taken into account by the Judge were:  extreme violence involving the use of weapons;  attacking the complainant’s head;  and the seriousness of the injuries inflicted.  He considered that these factors put Mr Rikihana’s conduct near the 14 year maximum and that although there was a degree of provocation it was so low as to be negligible in the circumstances of this “vicious and prolonged beating”.[4] 

[4] At [25].

[14]       Taking a starting point of 12 years imprisonment, Heath J added one year to reflect the prior offending and the fact that the appellant had been on parole when the offending occurred.  The sentence of 13 years was then reduced by six months to take into account Mr Rikihana’s subsequent actions which the Judge considered had “undoubtedly saved the victim’s life”.  Thus the end sentence was 12 and a half years imprisonment.[5] 

[5]      At [26]-[27].

[15]       Turning to the question of whether a minimum term of imprisonment was required, the Judge took into account Mr Rikihana’s failure to acknowledge responsibility for his acts and his inability to complete rehabilitation programmes.  The Judge considered that a minimum sentence of 40% was required to protect the public from Mr Rikihana’s violence and to adequately denounce his offending, and arrived at a minimum period of five years imprisonment accordingly.[6] 

This appeal

[6] At [28].

[16]       At the forefront of Mr Briscoe’s argument was the submission that Mr Rikihana’s extreme reaction to the complainant’s actions in taking his car and putting his employment in jeopardy might have been attributable to his mental condition at the time.  This submission was developed with reference to various medical reports and clinical notes that are before us.  In fairness, this issue and these reports and notes were not before the sentencing Judge. 

[17]       In June 2008 Mr Rikihana was diagnosed by his general practitioner with depression and anti-depressant medication was prescribed.  Within a short time this was changed because Mr Rikihana was experiencing side effects.  The new medication also had side effects.   

[18]       On 2 September 2008, 11 days before the current offending, Mr Rikihana saw a psychiatrist at Whakatane Hospital.  It was documented that Mr Rikihana appeared to be suffering from a major depressive episode which was described as “mild to moderate”.  Although a history of anti-social behaviour was noted, the psychiatrist did not find any evidence of an anti-social personality disorder.  Mr Rikihana’s medication was changed. 

[19]       A few days after the offending Mr Rikihana was seen by a forensic liaison nurse who reported that he had presented that morning with classic signs of depression in that his mood was “low and sullen” and he stated he was feeling “down”.  On 23 September 2008 a psychiatric report was provided to the District Court pursuant to s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003.  We will return to that report shortly. 

[20]       Soon after his trial had finished, and while Mr Rikihana was in Waikeria Prison awaiting sentencing, he was referred for psychiatric review because he had reported being depressed.  A psychiatric registrar reported that Mr Rikihana’s depression was currently “well controlled on current medication”.  Mr Rikihana was sentenced on 30 November 2009. 

[21]       On 15 December 2009 a further psychiatric review was undertaken by another psychiatric registrar, Dr Armstrong, who reported that Mr Rikihana was:

... exhibiting continuing mild depressive symptoms which are not out of the ordinary for somebody in his circumstances given his inability to control his anger and his difficulty in taking responsibility for the part that he has played in relationship difficulties with his partners in the past.  I would tentatively diagnose a Cluster B personality disorder, not otherwise specified. 

Dr Armstrong has explained in an affidavit before us that the Cluster B personality disorder is a diagnosis which describes “the clinical picture” and that it is not a predictor or a pre-determination of an individual’s conduct.  He has deposed that no individual could say “my anti-social behaviour occurs because I am Cluster B personality disordered”.   

[22]       Mr Briscoe cited numerous decisions of this Court in which a mental disorder has been taken into account for sentencing purposes.  He emphasised the proximity of the offending to Mr Rikihana’s visit to the psychiatrist; earlier injuries to the head and neck;  the escalation in his offending after the neck injury;  and the extreme reaction to the complainant’s “provocation”.  In all the circumstances, Mr Briscoe submitted, there is a very distinct possibility that there was something more serious than a personality disorder underlying the offending and that a further psychiatric assessment was justified and should be called for by this Court. 

[23]       As to the alternative ground of appeal (that the starting point was too high), Mr Briscoe submitted that although the appellant’s case was within band three of R v Taueki[7] it should have been closer to the lower end of that band.  His submission was that the starting point (before allowance for the prior offending and offending while on parole) should have been 10 years.  Thus, regardless of the underlying mental condition, the end sentence was at least two years too high and was accordingly manifestly excessive. 

Crown’s response

[7] R v Taueki [2005] 3 NZLR 372 (CA).

[24]       Having analysed the reports and clinical notes before the Court Ms Bicknell submitted that there was no formal or conclusive diagnosis of a personality disorder that could have a bearing on Mr Rikihana’s sentence.  She noted that in any event it was clear from Dr Armstrong’s affidavit that even if there was a personality disorder this would not have contributed to Mr Rikihana’s offending because there was no clear causal link. 

[25]       It was the Crown’s submission that there was no requirement for any further psychiatric assessment of the appellant.  Ms Bicknell submitted that the assessments already conducted had not disclosed the possible existence of a mental condition going to culpability in any relevant way. 

[26]       As to the starting point, Ms Bicknell submitted that the offending was clearly within band three of Taueki.  She argued that both the uplift for offending on parole, previous offending, and the discount for the subsequent life saving assistance, were appropriate.  Under those circumstances, Ms Bicknell submitted, the end sentence properly reflected the appellant’s culpability and was consistent with comparable cases. 

Psychiatric report of 23 September 2008 

[27]       Although this report was not included in the material either before us or the High Court Judge, we subsequently obtained a copy.  It was written ten days after the offending. 

[28]       The report records that it had been compiled at the request of a Judge to address various issues including whether the defendant was unfit to stand trial, “the type and length of sentence that might be imposed on the defendant”, and “the nature of a requirement that the Court may impose on the defendant as part of, or as a condition of, a sentence or order”.  Thus it was not confined to the issue of fitness to plead. 

[29]       Included in the report was Mr Rikihana’s background history;  his medical and psychiatric history;  his family history;  and his drug/alcohol history.  It is recorded that he reported having dislocated his neck in 2002, but without any loss of consciousness, and that he had been hospitalised for six weeks.  In broad terms the psychiatric history reflected the history described in the psychiatric reports already before us. 

[30]       With reference to Mr Rikihana’s mental state the psychiatric registrar said that Mr Rikihana described his mood at the time as “normal”.  The report also noted that his mood was “euthymic” (psychologically normal), his “affect was reactive and appropriate”, his thought process was “logical and coherent”, and that no “perceptual abnormalities were apparent or elicited during the interview”. 

[31]       Under the heading “Opinion and Recommendations” the psychiatric registrar stated:

Mr Rikihana did not display any signs or symptoms consistent with depression or any other mental illness at the interview.  He also did not report any history of persistent low mood, decreased energy levels, sleep disturbances and lack of interest in pleasurable activities.  He also did not report any symptoms or signs of depression around the time of index offence.  

It was the psychiatrist’s view that Mr Rikihana did not have a psychiatric disorder and that his problems seemed to be as a result of “personality dysfunction (antisocial personality traits)”.  

[32]       Finally, the psychiatric registrar reported that Mr Rikihana was not mentally impaired and that he was fit to enter a plea and able to instruct counsel.  He added “it is my clear impression that he is fully responsible for any actions he may have taken”.  In view of the lack of psychiatric symptoms, the psychiatric registrar said that he would not make any medical recommendations in the event that Mr Rikihana was convicted.   

Discussion

Failure to take into account mental health considerations

[33]       As we have already mentioned, the mental health issues were not raised with Heath J and they were not traversed during the course of his sentencing.  The issue is whether this has resulted in an unjust or manifestly excessive sentence. 

[34]       In Taueki this Court observed:[8]

While mental illness or disorder of an offender may be a mitigating factor, this will not always be so:  as this Court noted in R v Clarke (CA 225/98, 3 September 1998), it is proper to treat any suggestion of diminished responsibility by reason of psychiatric or behavioural disorder with caution.  

[8]      At [45]

Mr Briscoe cited a number of decisions of this Court in which the mental condition of the offender was taken into account as a mitigating factor because it affected the offender’s culpability.[9] 

[9]R v Tuia CA312/02, 27 November 2002;  R v Khan CA83/02, 4 December 2002;  R v Bridger [2003] 1 NZLR 636 (CA); R v Mohamed [2007] NZCA 170.

[35]       We note that in each of the cases relied on by Mr Briscoe the Court accepted that there was a medical diagnosis indicating that the offender’s mental condition had affected his or her culpability.  In other words, there was a causative link between the mental condition and the offending.  The particular illnesses diagnosed in those cases were bi-polar disorder, schizophrenia, and post traumatic stress disorder.  In some of those cases a further psychiatric assessment had been called for by this Court. 

[36]       In this case Mr Briscoe’s contention that a further psychiatric assessment would be justified is strongly opposed by Ms Bicknell on the basis that there is no plausible foundation for the belief that at the time of the offending Mr Rikihana was suffering from a mental disorder that might have affected his culpability.  We agree with Ms Bicknell.

[37]       Since his depression was originally diagnosed by his general practitioner in mid 2008 Mr Rikihana has been examined by a number of psychiatrists on or about the following dates: 

·    2 September 2008:  Dr Egyedi.

·    23 September 2008:  Dr Ravindranath.

·    13 October 2009:  Dr Luthuli.

·    15 December 2009:  Dr Armstrong.

In addition, Dr Reid, a locum consultant psychiatrist at the Whakatane Hospital, provided a report to Mr Briscoe on 15 April 2010 because Dr Egyedi was on extended annual leave. 

[38]       As we see it, the high point in the appellant’s argument is a note on Mr Rikihana’s file relating to his outpatient’s visit to Dr Egyedi on 2 September 2008 which states:

He seemed to be suffering from a Major Depressive Episode, mild to moderate. 

He has a history of antisocial behaviour but in my contact with him I have seen no evidence of an Antisocial Personality Disorder. 

Suggested that we trial Quetiapine for sleep, if this were not to help sufficiently, I would apply for SA for Venlafaxine. 

However, in his letter of 15 April 2010 Dr Reid said that it “was not clear that he [Mr Rikihana] was suffering from a depressive disorder”.  Dr Reid also explained that Quetiapine is a mild sedative and that it would not be expected to have any effect on a patient’s propensity for violence. 

[39]       Within three weeks of seeing Dr Egyedi Mr Rikihana underwent another psychiatric examination, this time by Dr Ravindranath.  In the interim the offending had occurred.  We have already discussed the report that followed at [27] – [32].  No signs or symptoms consistent with depression or any other mental illness were detected by Dr Ravindranath or reported to him by Mr Rikihana.   

[40]       Following conviction Mr Rikihana underwent two further psychiatric assessments, the first before sentencing and the second after sentencing.  The first assessment did not reveal any abnormalities.  While the second assessment indicated a tentative diagnosis of a Cluster B personality disorder, it is clear from Dr Armstrong’s affidavit that this disorder, if it exists, could not have influenced Mr Rikihana’s culpability for the offending. 

[41]       To the extent that Mr Briscoe argued that previous injuries, including the injury to his neck in 2002, might have had an influence on Mr Rikihana’s offending, we note that all the reports have made reference to Mr Rikihana’s earlier history and some of them have made specific reference to the neck injury.  If the psychiatrists had considered that this injury might have been relevant to the subsequent psychiatric assessments it might have been expected that they would have said so. 

[42]       We therefore conclude that there is no merit in this ground of appeal. 

Starting point too high

[43]       Heath J proceeded on the basis that the offending was within band three of Taueki which would indicate a starting point of between nine and 14 years.  That band encompasses serious offending which has three or more of the aggravating features referred to at [31] of the Taueki judgment.  The features mentioned by the Judge were extreme violence, use of weapons, attack to the head and seriousness of the injuries. 

[44]       Obviously this prolonged and vicious attack brought the complainant close to death.  We are satisfied that the starting point of 12 years adopted by the Judge was within the range available to him.  There has been no criticism of the uplift or discount and we have not been persuaded that the end sentence was manifestly excessive. 

Result

[45]       The appeal against sentence is dismissed.   

Solicitors:

Davys Burton, Rotorua for Appellant

Crown Law Office, Wellington for Respondent