The Queen v Andrea De La Hunt
[2002] NZCA 89
•8 May 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 416/01 |
THE QUEEN
V
ANDREA DE LA HUNT
| Hearing: | 24 April 2002 |
| Coram: | Anderson J Salmon J Paterson J |
| Appearances: | P J Kaye for Appellant A E Kiernan for Crown |
| Judgment: | 8 May 2002 |
| JUDGMENT OF THE COURT DELIVERED BY ANDERSON J |
Nature of the appeal
The appellant was convicted after pleading guilty to one count of theft as a servant, one count of forgery, one count of arson, and one count of attempted murder. She was sentenced to terms of imprisonment on each count, respectively, of two and-a-half years, 18 months, two and-a-half years and three and-a-half years. She now appeals against sentence.
Pervading and influencing the appellant’s conduct was the mental illness of bipolar affective disorder. The materials in the case disclose an extensive family history of mental illness. Her paternal great grandfather died in Sunnyside Hospital in 1895, having displayed symptoms consistent with the particular disorder. His nephew died in Seaview Hospital in 1917 at the age of 36 years and his son, the appellant’s grandfather, died of suicide in 1936. An uncle suffered from depression in 1967 but recovered without medical treatment. Another uncle is reputed to have had long bouts of depression, and a paternal aunt was described as having been hospitalised for severe bipolar disorder. A paternal cousin, aged 36 years, suffers from the disorder. The opinion of Dr Zelas, a consultant psychiatrist, is that the appellant is strongly genetically predisposed to the development of the disorder and in fact suffers from it.
Dr Zelas describes the illness as “an episodic disorder with both hypermanic and depressive episodes as well as mixed mood states”. Episodes of the illness in the appellant’s case show a pattern of disturbance in thinking, with delusions of a grandiose nature involving a sense of power, wealth, entitlement and invulnerability. At these times there is severe impairment of judgment leading to inappropriate, uncharacteristic and reckless behaviours. Acute episodes can be, and in the appellant’s case appear to have been, triggered by significant interpersonal stressors. We will advert to those later in the judgment.
Nature of the offending
The appellant is 29 years old. In November 2000 she began employment with the ASB Bank Ltd as a personal banker, in which capacity she dealt with account holders’ funds and gave advice to customers on financial matters. On 13 March 2001 she gained access to a term deposit account held by a cousin who was an overseas investor with the bank. By means of a deposit slip in her account and an electronic transfer from her cousin’s account, she transferred the whole of the deposit funds of $52,100 to herself. She withdrew large amounts from her account in order to pay off personal debts. Three weeks later, on 4 April 2001, she forged documents to facilitate the drawing against the account of other bank customers the sum of $165,000, but this attempted defalcation failed in consequence of bank inquiries stemming from the embezzlement of the cousin’s funds.
On Friday, 6 April a bank manager spoke to the appellant about the funds missing from the cousin’s account. She admitted she had taken the money and arrangements were made for her to meet for a discussion as to her future during the following week.
On the evening of Sunday, 8 April 2001, the appellant was at the residence she shared with her de facto partner. She ordered a take-away meal, and when her partner was temporarily away from the table answering a phone call, she cut open approximately 16 sleeping capsules and mixed the contents in her partner’s food. When he returned to the dining table he found the food unpalatable and did not eat it. Later that evening the appellant laced her partner’s pillow with lavender oil to induce sleep and then dispersed petrol from two 20 litre plastic containers throughout the lounge and up the inner stairwell of the property. She set the petrol on the stairwell alight, but fortunately it did not take hold strongly. It caused extensive scorching to the stairway and balustrade, but a potentially fierce and fatal conflagration was the intention of the appellant’s disordered mind.
Personal history
With reference to the appellant’s susceptibility to the triggering of manic episodes, it is pertinent to note a number of severe stressors in relatively recent years. The appellant reported that she was raped in 1994 by a friend of her then husband. A few years later she suffered a jet ski accident which caused head and facial injuries. In 1998 she and her husband separated. About this time her father died.
The attack on her in 1994 led to an episode of mania featuring in which were reckless driving and irrational purchases. She reported a highly changeable mood and began medication on Prozac which continued for between three and six months. A similar episode followed the separation from her husband but went untreated. Early in 1999 she began to act strangely, became depressed and began treatment on the anti-depressant Nortriptyline. Her doctor at the time noted her behaviour was unusual and out of character. Her anti-depressant dosage was eventually increased. She began individual counselling and Prozac was added to the Nortriptyline treatment to gain better control of her mood disorder.
In January 2000 the appellant found herself pregnant. She formed the view, apparently without any reference to her partner, that he would disapprove of her pregnancy and she decided to have an abortion. That was carried out only three days before the first offence with which the Court is now concerned. The particular stressor precipitated the manic episode which plainly subsisted throughout the three week period of offending.
Remedial conduct
By the time of sentencing the appellant had made reparation in respect of the cousin’s account, although not in respect of the loss of the insurer of the house in which she had started the fire.
Personal rehabilitation included psychiatric treatment for her disorder. She was reported as being highly compliant with that treatment and had developed significant insight into the nature of her condition. Doctor Zelas considered that the appellant was motivated to do all she could to reduce the risk of recurrence. On 3 December 2001, a few days before sentencing, Dr Zelas expressed the opinion that the appellant was showing no active symptoms of the condition which appeared to have been adequately controlled by the medication she was receiving.
A report prepared in August 2001 by a counsellor with the Department of Corrections reported excellent progress and outcomes with the counselling, awareness by the appellant of a need for ongoing further counselling and the establishment of close contact with her immediate family who were supportive of her.
The Judge’s reasons for sentence
After outlining the circumstances of the offences the Judge recognised the particular difficulty of sentencing in cases such as the present. He remarked that he had carefully read all the material before him, which included the pre-sentence and psychiatric reports as well as letters submitted in support of the appellant. He noted the Probation Service rating of the risk of re-offending as low to moderate and the psychiatric opinion that with current treatment the disease could be kept under control. But although that risk was low, provided she continued to be treated, and if he were able solely to consider the appellant in her position irrespective of anything else, then, in the Judge’s view, he might be able to contemplate a very lenient and very merciful sentence. But he could not overlook other considerations. He said:
I also need to take into account the fact that there were several quite different episodes over a period resulting in four distinct offences, some of the most serious offences that come before a Court, and in this case posing very considerable risks to people and damage to property and actual and potential damage to accounts.
The Judge regarded the dishonesty offences as showing a degree of expertise and cunning as well as involving a breach of trust, not only to the bank but to the cousin. He said he had considered whether the sentences imposed for the dishonesty should be cumulative on the other offences but, in fairness to the appellant and having regard to the fact that all four offences were committed during the period of untreated illness, he thought the sentences should be concurrent.
The Judge considered the appropriate sentence for theft as a servant should have a starting point of about three and-a-half to four years imprisonment. But having regard to the guilty plea and because of the illness and the fact that the offence occurred during an episode of bipolar disorder, he considered the appropriate sentence ought be fixed at two and-a-half years imprisonment. He considered the forgery offence to be lesser and to warrant an appropriate sentence of 18 months imprisonment.
The appropriate sentence to impose in respect of the arson was considered to be two and-a-half years imprisonment. The Judge then turned to consider the attempted murder sentence.
He observed that it involved serious danger to the appellant’s partner as well as the appellant herself; the fact no injury resulted was fortunate; the attack was unprovoked and planned and involved two separate attempts.
The Judge considered that having regard to the cases of R v Tuuta CA 296/00 21 September 2000, R v Cook CA 432/93 17 February 1994, R v Accused CA 390/92 16 February 1993, R v Unsworth CA 151/89 18 October 1989 and R v Sheward CA 369/00 15 February 2001, the starting point for an appropriate sentence in this case was in the region of five years imprisonment. He continued:
I am prepared to discount that because of the plea and because of your illness which was untreated then. But, at the end, in my view the appropriate term of imprisonment I am required to impose upon you is three and-a-half years imprisonment.
Counsel’s arguments
Understandably, counsel for the appellant relied on the mitigating quality of the mental disorder to support his general submission that the sentence was manifestly excessive. He stressed also that the appellant was a first offender, that her prognosis was favourable and that she had pleaded guilty. He urged this Court to reduce the sentence to two years imprisonment and to make an order suspending it.
Counsel for the Crown acknowledged the essential issue was the mitigating weight of the mental disorder but submitted that this had to be considered in the context of a low starting point of five years and the ameliorating decision that all the sentences should be served concurrently. That decision was in recognition of the mental condition. The arson and attempted murder were not spontaneous but pre-meditated, importing a continuing intention to kill.
The Crown acknowledged however that the abortion on 8 March probably triggered the episode of disorder in question, and that the offences were committed in a manic phase. The Crown accepted that if five years was an appropriate starting point then a deduction of one and-a-half years for the guilty pleas and mental disorder would not seem adequate. But there could be no justification in the circumstances for reducing the sentence to a level where it could be suspended.
Discussion
The extent to which mental illness may affect what would otherwise be an appropriate sentence has been discussed, as one would expect, in many cases. Recent examples dealt with by this Court are R v Tapueluelu CA 172/99, judgment 29 July 1999; R v Nilsson CA 552/99, judgment 27 July 2000; R v Wright CA 478/00, judgment 2 May 2001; R v D CA 177/01, judgment 24 July 2001. In each of the cases, involving very serious offending, mental disorder was recognised as a significant mitigating factor but as this Court recognised in R v Nilsson there are other factors to be brought into account. These may include the denunciation of violence and public safety.
In this case the violence including the arson was potentially grave but caused no injury. Financial loss was incurred, much of which has been made good. Aspects of public safety are concomitant with the present perception of limited risk. It was entirely appropriate that the sentences be served concurrently, being linked by the manic episode and directly caused by it.
In all the circumstances we think that the learned sentencing Judge made insufficient allowance for the mitigating factors of the guilty pleas and the episode of serious mental disorder. The reduction ought to have been two and-a-half years, not one and-a-half. Despite the very concerned submissions of counsel for the appellant, we do not consider that the sentence could properly be within the range where suspension would fall to be considered.
For these reasons we allow the appeal against the sentence of attempted murder. The sentence of three and-a-half years imprisonment is quashed and a sentence of two and-a-half years is substituted, to be served concurrently with all the other sentences which shall remain unaffected.
Solicitors
Crown Law Office, Wellington
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