Senior v The Queen

[2010] NZCA 82

IN THE COURT OF APPEAL OF NEW ZEALAND

CA757/2009
[2010] NZCA 82

BETWEENMARIA CATHERINE KEIG SENIOR

Appellant

ANDTHE QUEEN

Respondent

Hearing:16 March 2010

Court:O'Regan, Rodney Hansen and Simon France JJ

Counsel:R G Glover for Appellant

S B Edwards for Respondent

Judgment:22 March 2010 at 2.30 pm

JUDGMENT OF THE COURT

The application for special leave is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

Introduction

[1]        The background to this application for special leave to appeal is s 34 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 which allows a sentencing court to make mental health orders in lieu of a custodial sentence.

[2]        Ms Senior had pleaded guilty to aggravated robbery.  She has a history of mental illness, and at the time of the offending was resident in a care facility as an informal patient.  At the time of sentencing a psychiatrist had written reports supportive of a s 34 disposition other than imprisonment, on the basis that Ms Senior was suffering from a mental disorder as defined in the Mental Health (Compulsory Assessment and Rehabilitation) Act 2003.  Her counsel supported an order making Ms Senior a mental health patient, and the Crown did not oppose.  However, the sentencing Judge disagreed.

[3]        On appeal, for reasons that do not matter to the present application, the High Court decided it had to sentence Ms Senior afresh.  The Court thereupon heard oral evidence from the same psychiatrist.  On the basis of that fresh oral evidence the Court concluded that things had changed since the time of the original sentencing:

(a)Ms Senior was stable and doing well.  She did not currently meet the criteria for mental disorder, and was not in need of institutional care;

(b)Her mental health needs were able to be provided within the prison system.

[4]        The Judge concluded that she did not have any present jurisdiction to make orders under s 34 because of Ms Senior’s current mental health state.  Ms Senior’s counsel, Mr Glover, agreed with that and unsuccessfully instead sought a reduced sentence.[1]

[1]      HC Christchurch, CRI 2009‑409‑0125, 30 October 2009, per French J

[5]        Mr Glover now seeks special leave to further appeal.  He believes he and the Judge were wrong and that her Honour did have jurisdiction to make s 34 orders.  This is because s 121(3) of the Summary Proceedings Act 1957 says that on appeal the Court can:

deal with the offender in any way that the Court imposing sentence could have dealt with him on sentencing.

[6]        The argument that would be advanced if leave were given could not succeed.  At the time at which the High Court was sentencing Ms Senior, the criteria of s 34(2) could not be met.  The Court could not therefore make s 34(1) orders.  It cannot be that a Court could place someone within a compulsory care regime when, at the time of making the order, the Court was aware the person did not meet the eligibility criteria.  Nothing in s 121 of the Summary Proceedings Act 1957 affects the wording of s 34(3) of the Criminal Procedure (Mentally Impaired Persons) Act 2003:

(3)Before the court makes an order under subsection (1)(a)(i) or (b)(i), the court must be satisfied on the evidence of 1 or more health assessors (at least 1 of whom must be a psychiatrist) that the defendant is mentally disordered.

[7]        At the hearing Mr Glover advanced an alternative ground for appeal.  He submitted that the Judge had erred in concluding that the psychiatrist’s present testimony was that Ms Senior did not meet the test for disability.  In Mr Glover’s submission the evidence is more equivocal.  There are two difficulties with this submission.  First, it does not give rise to a question of law.  Second, we read the psychiatrist’s evidence in the same way as French J did, and as Mr Glover did at the time of the hearing.  In our view, both the express and implicit effect of the evidence was that Ms Senior was not suffering from a mental disorder at the time of the High Court sentencing.  Nor is it necessarily surprising that matters had changed since the District Court hearing.  The very nature of mental disorders is that they are often not static.  There is ample capacity in the legislation for Ms Senior to be transferred from prison should matters change, but at the time of the High Court sentencing the psychiatrist’s evidence did not provide a basis for the Court to find mental disorder.

[8]        For these reasons the application for special leave is declined.

Solicitors:

Crown Law, Wellington for Respondent