S v Police

[2013] NZHC 1026

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-0078 [2013] NZHC 1026

BETWEEN  S Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         29 April 2013

Appearances: G H Vear and T M P Muakitangata for Appellant

S G J Locke for Respondent

Judgment:      9 May 2013

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 9 May 2013 at 4 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:

Meredith Connell, Crown Solicitor, Auckland: [email protected]

Copy to:

Public Defence Service, Waitakere Office [email protected] / [email protected]

S V POLICE HC AK CRI-2013-404-0078 [9 May 2013]

[1]      The Appellant appeals against a sentence imposed by Judge Taumaunu in the

District Court at Waitakere on 11 March 2013.1

[2]      The Appellant was convicted on one charge of assault with intent to injure following a defended hearing before the Judge on 7 December 2012.   The Judge sentenced the Appellant to three years’ imprisonment, being the maximum sentence possible on the charge.

[3]      The Appellant contends that the end sentence was manifestly excessive.  In particular, the Appellant contends that the Judge erred in declining to make any reduction in sentence (whether to the starting point or in considering mitigating factors personal to the offender) because of the Appellant’s mental illness.  Counsel for the Appellant submits that a discount of 12 to 30 per cent should have been allowed, being the range of discounts given by way of example in E v R.2

[4]      The Crown opposes the appeal and, in summary, submits that the sentence that the Judge imposed was open to him in the circumstances.

Background

[5]      The charge arose from an assault by the Appellant on 8 May 2012.  There is no doubt that the assault was serious.  The victim was the Appellant’s wife and the assault took place at their address at approximately 11 pm.  The Appellant suspected that  the  victim  had  been  unfaithful  to  him,  accused  her  of  the  same  and  was otherwise  verbally  abusive.     The  Appellant  demanded  the  password  to  the victim’s Facebook page, she refused it and he then strangled the victim by putting his hands around her neck.   The victim lost consciousness.   The Appellant was still pinning her down when she did regain consciousness.  The Appellant told the victim that he would kill her and then kill himself.

[6]      The Judge fixed a starting point of three years’ imprisonment having regard

to:

(a)      the need to impose a sentence sufficient to denounce the offending and to act as a deterrent to the Appellant and to the community; and

(b)the fact that the offending took place “close on the heels” of two male assaults female offences against the same victim, and whilst the Appellant was bailed and awaiting sentence on those offences.  The Judge emphasised that he considered the two earlier offences aggravated the offending itself.

[7]      The Judge then turned to matters personal to the Appellant.   It is apparent from the Judge’s notes that the only matter advanced to mitigate the starting point was the Appellant’s schizophrenia, an illness which caused him to have delusional thoughts.  The Judge said that this illness, and the state of mind it induced in the Appellant, had been “a constant theme throughout the defended hearing”.3

[8]      The Judge referred to E v R.4    That judgment, from the Court of Appeal, discusses when an offender’s mental illness might be relevant to the sentencing process.   The circumstances of the individual case determine whether or not the illness is relevant and, if so, whether to ss 7, 8 or 9 of the Sentencing Act 2002.

[9]      Counsel for the Appellant submitted to the Judge that the Appellant’s illness reduced his moral culpability for the offending and that should be reflected by a reduction to the starting point.   That is so because there is less need to impose a sentence that will denounce or deter either the offender or others.

[10]   There was and is no dispute that the Appellant was suffering from schizophrenia.  Two reports from Dr Ian Goodwin of the Mason Clinic were before the Court, dated 17 December 2012 and 5 March 2013 respectively.  In those reports

Dr Goodwin said that the Appellant was first diagnosed as suffering from a psychotic illness in 2001.   Since then, the Appellant had been admitted to hospital on nine further occasions on relapse of his illness, the most recent being immediately following the offending for which he was before the Court.  The Appellant was also subject to a community based treatment order under the Mental Health (Compulsory Assessment and Treatment) Act 1992 and had been subject to that order at the time of the offending.  Dr Goodwin’s  reports said that the Appellant had been prescribed the anti-psychotic medication clozapine; that the Appellant had a “thought form” that was disordered; that the Appellant had a remarkable number of ongoing psychotic phenomena and heard various voices and sounds; that the Appellant displayed signs of delusional jealously and suffered from paranoid schizophrenia; that the Appellant “amply fulfils” the criteria for mental disorder under the relevant mental health legislation and that he, Dr Goodwin, believed that the Appellant would meet the test of mental impairment under the Criminal Procedure (Mentally Impaired Persons) Act 2003.  Dr Goodwin also said that the risk the Appellant posed to his wife could not be understated and that his animosity towards his wife was driven largely by his psychotic beliefs.

[11]     There was also a pre-sentence report dated 7 March 2013.  Amongst other things, the author of that report said he had no confidence that the Appellant could fully engage in the pre-sentence interview process, such was the state of his mental health.

[12]     The Judge said that “[a]lthough there may well be justification for some discount”,  that  was  balanced  by  “the  previous  offending  against   the  same complainant and the high risk of further offending” against her upon the Appellant’s release.5     The Judge considered  the  best  way to address  the risk  posed  by the Appellant   would   be   to   impose   the   maximum   sentence   possible.6       The

Judge’s approach is set out in the following passages:

[16]      ...   There is merit, in my view, in imposing as long a sentence as possible to delay his release and to increase the time that he is in fact able to be treated, if that is in fact the outcome, by mental health authorities while

subject  to  a  term of  imprisonment,  to  hopefully  decrease  his  risk  upon release of further offending of a serious nature against the victim.

[17]     ... In those circumstances a preventative-type sentence where very little by way of discount is accorded to [the Appellant] is appropriate.

[13]     In addition to sentencing the Appellant to three years’ imprisonment, the Judge made an order that the Appellant be detained in a hospital as a special patient under  the  Mental  Health  (Compulsory  Assessment  and  Treatment)  Act  1992 (“Act”).7  The Judge also made a final protection order in favour of the victim.

Discussion

[14]     I am grateful to counsel for their helpful submissions on this appeal.  Those submissions are reflected in what follows in this judgment.

[15]     First, leaving aside the Appellant’s schizophrenia, the starting point and end sentence of three years appears to be high.   This was a serious domestic assault which could have had a dire outcome, and it followed recent offending against the same victim.  Cases such as Paikea v Police8 and Luff-Pycroft v R9 would suggest a starting point of, say, two years’ imprisonment.

[16]   Secondly, in considering matters personal to the offender, the Judge acknowledged  that  there  could  well  be  justification  for  reducing  the  length  of sentence on account of the Appellant’s mental illness.10   That illness had caused, in whole or in part, the Appellant’s offending.

[17]     In my view, it was not open to the Judge to withhold the discount otherwise due on the basis that the Appellant posed a future risk to the victim on account of his mental illness.  If the Appellant poses a risk to the victim on his release, it is a risk that must be addressed under the relevant mental health legislation.  In R v Tuia the

Court of Appeal said:11

7 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 34(1)(a)(i).

8 Paikea v Police HC Whangarei CRI-2010-488-53, 29 October 2010 at [16].

9 Luff-Pycroft v R [2010] NZCA 107 at [8].

[12]      ...  It  would  in  our  view  be  unprincipled  to  lengthen  a  sentence because of the appellant’s mental condition; need for detention for such reasons is a matter for the mental health legislation, not for criminal sentencing.

[18]     In  her  (excellent)  submissions,  counsel  for  the Appellant  referred  me  to s 48(3)(ba) of the Act.   The effect of that provision is that the Appellant will be deemed to be subject to a compulsory treatment order under the Act if at the end of his sentence he remains subject to the order referred to in [13] above.

[19]     As to the level of the discount to be given, Crown counsel and counsel for the Appellant made available several relevant authorities.  E v R itself summarises the percentage reductions applied in other cases, ranging from 12 to 30 per cent.  The Crown referred me to Uncles v R,12 a case in which there was clear expert evidence of a causal link between the appellant’s mental illness (bipolar disorder) and the offending for which she was sentenced.   On appeal the Court of Appeal gave a discount of 20 per cent for the appellant’s mental illness and remorse.

[20]     As I have said, I have reservations regarding the starting point the Judge adopted.  I am also satisfied that a discount was warranted given the link between the Appellant’s illness and his offending.  I consider a discount of 25 per cent warranted. That is somewhat generous to the Appellant but reflects my reservations as to the starting point the Judge adopted.  For these reasons I consider the sentence imposed to have been manifestly excessive.

Result

[21]     This appeal is allowed.  I make an order quashing the sentence of three years’ imprisonment that the Judge imposed.  In its place I impose a sentence of two years, three months’ imprisonment.  There is no challenge to the other orders that the Judge made and they remain in place.

..................................................................

M Peters J

12 Uncles v R [2012] NZCA 144.