The Queen v Michael Bridger

IN THE COURT OF APPEAL OF NEW ZEALAND

CA126/02

THE QUEEN

MICHAEL BRIDGER

Hearing:	11 November 2002
Coram:	Keith J Blanchard J Tipping J McGrath J Anderson J
Appearances:	R E Harrison QC for Appellant S P France for Crown
Judgment:	12 December 2002

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

Mr Bridger appeals against his conviction and sentence of four years imprisonment on a charge of causing grievous bodily harm with intent (s188(1) Crimes Act 1961).
The incident which gave rise to the charge and also to charges relating to another complainant, Mrs Ridler, in respect of which Mr Bridger was acquitted, followed a lengthy family dispute. Mr Bridger’s son is married to the daughter of a complainant, Mrs Lake. There has been bad blood between the complainants and Mr Bridger for many years.
Mrs Lake and Mrs Ridler are sisters aged 52 and 58 respectively. Mr Bridger was at the time 51 years of age. He is of average height and is slightly built. Mrs Lake is the same height but of larger build. Mrs Ridler is smaller than Mr Bridger.
On the afternoon of Saturday 3 March 2001 the two complainants and another female relative were at a family farm in the Kapiti district. They observed Mr Bridger arrive and go to a house truck occupied by the complainants’ brother. When he left the house truck they thought they saw him put something into the back of his car. He drove away. They decided to follow him to a residential address in Paraparaumu where they thought he might have gone. They wanted to confront him about taking something from the house truck.
They located Mr Bridger at the Paraparaumu property. He was inside the gates of the property. Mrs Lake called out to him twice angrily and loudly from the car, asking him what he had been doing in her brother’s house truck. He swore at them – indeed there seems to have been an exchange of oaths – and, having picked up a metal rake with quite sharp tines, he came from the property and fairly rapidly approached the car. It was Mrs Lake’s evidence that she thought that he was going to put the rake through the window so she “hopped out of the car”, as did her sister who ran around the car towards the appellant. The third woman remained in the car.
Mr Bridger then retreated onto the property followed by the two women both of whom were obviously very angry with him. He was swinging the rake and swearing at them. According to Mrs Lake, he hit her with it in the side and then hit her again in the face. It is clear from her injuries that the blow to her face was with the tines of the rake. She fell to the ground and lost consciousness for a time which she put at four or five minutes, although on the evidence as a whole it was probably not as long as that.
The account given by Mrs Ridler was somewhat different. She said it was the first blow which hit Mrs Lake in the face – “a full swing with the prongs”; that Mrs Lake then fell and the appellant hit her a second time, with full force, from above his head. This was a blow in the ribs, said to have been delivered while she was lying on the ground.
Mrs Ridler then grabbed the rake and pulled it from the appellant’s grasp. He ran around the back of the house chased by her. Mrs Ridler admitted that she was intent on hitting him with the rake. The appellant picked up a shovel and swung it at her. As she was moving backwards he hit her with the shovel on the side of the face and ear and then again on her shoulder. She was injured but was able to walk back to the front of the house where the third woman was by that time helping Mrs Lake to the car.
Mrs Lake was the only one of them who knew how to drive. She managed to drive them away. She sought medical attention.
Her injuries required 25 stitches in her face to repair several gashes. She also suffered bruising and a swollen eye. She had to have a tooth removed as a result of the blow. Her jaw was cracked. At the time of the trial in November 2001 she was still receiving treatment for loss of feeling in one side of her face. Mrs Ridler was also seriously injured, suffering a broken collarbone.
The appellant was interviewed by a police officer at the property on the afternoon of the incident. He was described by that officer as calm and rational and speaking normally. Mr Bridger began by saying that the affair related to a “ten year domestic dispute” and was “all to do with family honour and protocol”. He said that he had asked the complainant several times to leave the Paraparaumu address and when he went to shut the gate Mrs Lake had pushed it open and entered the property. He said he feared for his personal safety “and that they were going to deal to him”, so he had picked up the rake that was nearby and had managed to fend them off by swinging the rake back and forth. At some stage Mrs Lake had come towards him. He had taken a swing to the left and the right and on the third swing had managed to hit her on the side of her face which dropped her to the ground. The police officer’s evidence was that Mr Bridger had said that he “didn’t give a fuck if she was hurt or not, he just wanted to drop her”. The appellant had said that he was aware he was using the tine end of the rake to fend them off. The appellant had also given an account of being chased around the back of the house by Mrs Ridler with the rake and of the events which occurred there.
Another police officer testified that the same afternoon he had transported Mr Bridger from the Paraparaumu address to the Otaki Police Station after the foregoing interview. During that journey Mr Bridger had said
…that he had given a couple of ladies a raking, that after he had done it he felt the release of 10 years of built up stresses lift from his shoulders. He went on to say that after he had done what he had done the woman had ruined ten years of his life and that when he had given her a raking he felt his life return to normal.
At the close of the Crown case, and having been informed that Mr Bridger would not be giving evidence, the Judge ruled that on the evidence available self-defence was not available in relation to the striking of Mrs Lake. He allowed it to go to the jury on the charge of causing grievous bodily harm to Mrs Ridler and, no doubt on that basis, the appellant was acquitted on that charge.

Conviction appeal

(a) Removal of self-defence from jury

The first ground for the appeal against conviction was that the Judge was wrong both as a matter of law and also on the facts of the case to withdraw self-defence from the jury. Section 48 provides:
48 Self-defence and defence of another
Every one is justified in using, in the defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use.
It was the submission of Mr Harrison QC, for the appellant, that (a) self-defence must go to the jury if there is evidence which might lead it to entertain the reasonable possibility that the accused (subjectively) believed that circumstances requiring the use of force in defence of himself (or another) had arisen; and that (b) where (as was said to be the case here) that view might be accepted by the jury, the remaining question of the reasonableness of the force used in the perceived circumstances should always be left as a matter for the jury. Mr Harrison accepted that part (b) of this submission was contrary to the decision of this Court in R v Wang [1990] 2 NZLR 529. However, Mr Harrison submitted that Wang had in this respect gone further than earlier New Zealand authorities and was not consistent with the approach which had been taken by the English Court of Criminal Appeal in R v Cousins [1982] QB 526 or with that of the Privy Council in Director of Public Prosecutions (Jamaica) v Bailey [1995] 1 Cr App R 257, 261 and Shaw v R [2002] 1 Cr App R 77, 89. Counsel pointed out that Wang ante-dates the Bill of Rights’ guarantee of trial by jury (s24(e)) which ought to be afforded proper weight in determining the extent to which a Judge can remove a defence from consideration by the jury. Mr Harrison said that a question of reasonableness is quintessentially a jury matter.
It was submitted that the Judge appeared – from what he said in his summing up - to have excluded the defence because the use of the rake was disproportionate to any threat to Mr Bridger, i.e under the second limb. The Judge was also criticised for referring to a “disproportion” between any threat and the response; that the true test is not the reasonableness or proportionality of the response but the reasonableness of the force used in the circumstances as perceived by the accused.
It was further submitted that in this case, on the view of the facts most favourable to the appellant, namely the account given by Mrs Lake in which she said that it was the second blow to the face which felled her, there was a reasonable possibility that the jury might have given Mr Bridger the benefit of the doubt both as to acting in self-defence in the belief that he was under physical threat from the two women and as to using force that was reasonable in those circumstances as he believed them to be. Therefore, even if Wang did represent the law in New Zealand, the Judge should not have taken away the defence. It was submitted that the approach evidently taken by the Judge did not allow room for the appellant’s subjective assessment of danger. By the time the blows to Mrs Lake were struck the appellant had ceased to be the aggressor and was retreating in the face of what counsel called a concerted advance by two angry women with a third woman possibly “in reserve”. Mr Bridger was swinging the rake only defensively to keep them at a distance. It was by no means impossible for the jury to consider that on the basis of the whole of the evidence the defence had not been negatived by the Crown.
As this Court recently noted in R v Hackell (CA131/02, judgment 10 October 2002), three questions are raised when an accused justifies his or her use of force against the person of another:
[a]What were the circumstances as the accused honestly believed them to be?
[b]In those circumstances, was the accused acting in the defence of himself or another?
[c]Was the force used reasonable against the circumstances as the accused believed them to be?
The argument for the appellant would allow the trial Judge to make an assessment of the circumstances and to come to a conclusion as to whether it was reasonably possible that in those circumstances the accused was acting in defence of himself or another. But, if the Judge concluded that this was a reasonable possibility, the Judge would then be required to leave the third question to the jury. In other words, it would be permissible for a Judge to rule upon whether the accused might possibly have been acting defensively but not upon whether it was possible that in so acting the accused used no more than reasonable force.
Such a distinction seems to us to be more than a little artificial since the question of whether the accused acted purely defensively in the perceived circumstances is surely to be assessed in part by reference to what the accused did in response to those circumstances. Take the present case. On the appellant’s argument, the Judge was entitled to consider whether in swinging the rake and striking Mrs Lake in the face Mr Bridger could possibly have been acting in his own defence. That must have involved the Judge asking himself not only about what the accused may have perceived, but also whether such an action with the rake was something that a man like Mr Bridger might possibly do to defend himself against, or prevent, whatever attack on him two unarmed women above 50 years of age might be intending to make. Although the reasonableness of the response is a separate question, it is so closely connected with whether the response was defensively motivated that we can see no sensible reason for allowing the Judge to make an assessment of the first two matters but not the third in deciding whether self-defence should be left to the jury.
This Court in Wang rejected an argument that what amount of force is reasonable in the circumstances in the defence of oneself or another is always a question for the jury in a jury trial and never a point of law for the Judge. It accepted that in some cases it would be open to the trial Judge to conclude that the facts were not capable in law of giving rise to a possible defence (justification may be a better word) of self-defence. In our view the consideration of those facts may be directed to both the nature and the extent of the force used by the accused. If the Judge concludes that a properly directed jury could not possibly think that an accused was responding reasonably to the circumstances which he or she perceived, the Judge may withdraw consideration of self-defence from the jury. That does not involve denying the accused a trial by jury. Rather, the jury is simply not asked to make a ruling on a particularly meritless resort to s48. The guarantee of a jury trial in the New Zealand Bill of Rights Act 1990 does not require that a jury must consider a defence which cannot possibly succeed.
We have examined the decisions of the Privy Council to which Mr Harrison drew our attention but do not find in them any support for his criticism of the approach taken in Wang. Indeed in Bailey (at p261) their Lordships remarked that it was clear that perfectly hopeless defences which have no factual basis of support do not have to be left to the jury. And in Shaw it was said (at p89) that if there is no evidence which, even if believed, discloses any reasonably possible justification of self-defence, the trial Judge is under no duty to direct the jury on it. Notably, no distinction of the kind drawn by counsel for the appellant in this case appears to have been drawn by the Judicial Committee.
The criticism of the Judge’s reference to disproportion is, we think, somewhat over-refined. The Judge in fact said to the jury:
If somebody has no weapon and the response to whatever’s happening is to hit her with something dangerous then there is a disproportion which would mean self-defence is just not sensibly an issue because it’s not reasonable, it’s not a reasonable response to what’s going on.
In that passage, as we understand it, he was saying that a disproportion of the kind he mentions between the threat and the response means that the force used in the response is not reasonable. The Judge had, a few sentences earlier, told the jury in relation to the charge concerning Mrs Ridler that it was for them to decide “whether the force he used was reasonable in the circumstances as he believed them to be.” To the extent that this passage casts light on why the Judge had excluded self-defence in relation to Mrs Lake, it is unexceptionable. We note that in R v Clegg [1995] 1 AC 482, 498 in speaking of a statutory provision authorising the use of “such force as is reasonable in the circumstances”, the House of Lords approved the conclusion of the Court of Appeal of Northern Ireland that the use of force had been “so grossly disproportionate” to the mischief to be averted (prevention of crime or effecting arrest of offenders) as to deprive the appellant of a defence under that provision. We would add that the general approach taken in Clegg appears to support the correctness of Wang.
We consider that the Judge cannot be criticised, on the basis of the evidence before him at the close of the prosecution case and on being made aware that Mr Bridger did not intend to give evidence, for withdrawing self-defence from the jury. The evidence, including the appellant’s statements to police officers, simply did not reveal a foundation for it. The accused was confronted by two women who were far from youthful and indeed were older than he was. They were angry with him, as they were obviously making clear in no uncertain terms. But they were not carrying any weapon. There was no evidence of any prior history of violence on their part. He himself did have a weapon in his hands. Instead of using it in a truly defensive fashion, he swung a heavy blow to Mrs Lake’s face using the tines of the rake. Even if the other blow, to her side, is completely disregarded and even if Mr Bridger did have concerns that the women might try to set upon him, to strike Mrs Lake in the face in that fashion cannot conceivably be regarded as the use of reasonable force in self-defence, if indeed it was self-defence at all. The situation changed of course when Mrs Ridler, obviously provoked by the blows to her sister, seized the rake and pursued Mr Bridger. But this is no indication that the women were intending anything more than a verbal assault before the injury to Mrs Lake occurred.

(b) Evidence of psychiatric disorder

The second ground of appeal is that psychiatric evidence, which was not available to defence counsel or the trial Judge until the sentencing hearing, reveals the possibility that at the time of the incident Mr Bridger was suffering from a mental disorder which may have heightened his subjective perception of danger from the two women. It is said that if this expert evidence had been called at the trial and the Judge had then allowed the issue of self-defence to go to the jury, it may have caused the jury to conclude that the Crown had not negatived self-defence. The evidence is also said to be relevant to the defence of lack of intent to cause grievous bodily harm, but that argument was not developed by counsel.
The trial concluded on 21 November 2001. On 12 December Dr Skipworth, a consultant forensic psychiatrist with Capital & Coast District Health Board wrote a brief report to the Judge who was then due to sentence Mr Bridger on 14 December. He advised:
I am currently one of the forensic psychiatrists visiting Rimutaka Prison, and in this capacity I first assessed Mr Bridger on 15 November 2001. He had been referred because of concerns from prison staff that he was acting in a bizarre and strange manner. At that time, I felt that Mr Bridger was suffering from a mental illness, with features of mania and psychosis. In particular, he was disorganised in his thinking, he was not sleeping very well, he was experiencing an increase in the quantity and rate of his thoughts, he was writing down observations continuously throughout the day and at times had three separate recording sheets going where he made these observations. In attempting to discuss with him his alleged offending, I was not able to gain a coherent account from him at that time.
After my initial assessment, one of my concerns was that he may not be fit to stand trial, and I attempted to have these concerns relayed to the court. I assessed Mr Bridger again the following week (23 November 2001) at which time I learned that he had been through the trial process and had been found guilty of one of his charges. At that time he remained unwell with disorganised thought processes, bizarre behaviour, insomnia, and he continued to write copious quantities of notes.
The sentencing was adjourned and further psychiatric reports were prepared on 6 and 31 January 2002 by Dr Crawshaw, also a consultant forensic psychiatrist with the District Health Board. In the first of those reports Dr Crawshaw recounted being told by Mr Bridger that he had been pursued to the Paraparaumu address and that the woman victim (clearly a reference to Mrs Lake) had been crying out at him “like a banshee” and that the women had forced their way onto the property and he had attempted to defend himself with the rake. The report then traversed Mr Bridger’s alcohol and drug history, medical history, family history, forensic history and personal history, commenting under the heading Mental State Examination that the author had discussed with Mr Bridger on a number of occasions his understanding of court process and that Mr Bridger appeared to have a reasonable grasp of what happens within the court process and had spoken with him about how his lawyer had conducted his case. “He has also seemed to have an appreciation of what the charges were and an appreciation of why the jury reached the decision it did”. The opinion expressed was that Mr Bridger was currently suffering from at least a hypo-manic, if not manic, episode and that Mr Bridger most likely had a bipolar affective disorder. Under the heading of Recommendations With Respect to Sentencing, Dr Crawshaw said that there was strong evidence that Mr Bridger had a mental disorder as well as having a substance abuse problem and that the combination might well have contributed to his offending behaviour.

In the report on 31 January Dr Crawshaw said that, since Mr Bridger had last appeared in Court, those caring for him had become increasingly concerned about his mental state. He reported being told by Mr Bridger that when the victims approached him on his son’s property, he became quite stressed and agitated and had feelings of pressure resulting from that. “It is clear that he then became irritable and aggressive in response to the behaviour of the victims”. It had also been made very clear to the doctor by Mr Bridger that he was only attempting to defend himself against his perception of a threat from the two women. He recorded an observation that when Mr Bridger misunderstood circumstances or felt pressured into complying with certain instructions in the hospital, he quickly became irritable and agitated and aggressive. Dr Crawshaw confirmed his diagnosis of a bipolar affective disorder and had no doubt that Mr Bridger had been suffering from it for a number of years. The report contains the following passage:
I am therefore very clearly of the view that his mental state contributed significantly to the alleged offence and meant that he perceived a serious threat such that he had to take steps to protect himself when perhaps that was not the case. I am mindful however, that there is a longstanding grievance between him and the victims, and that this may well have aggravated the situation. I am also mindful that he has told me that he believes that the victims may have had something to do with the probable assault on him. [This is a reference to something which occurred at a later date than the incident at the Paraparaumu address, and which does not appear to have involved the two women.] It is therefore likely that at the time of the alleged offence he felt under threat and that his mental disorder meant that he overreacted to the situation and felt very clearly that he needed to protect himself. He is clear that the steps that he took with respect to the alleged assault on his victim were in response to this agitated, irritable and aggressive state.
Sentencing occurred on 1 February 2002. We will refer to the Judge’s sentencing notes later in this judgment. There has since been a report from Dr Judson, a consultant psychiatrist, to a barrister then acting for Mr Bridger on 3 June 2002. Dr Judson opined that Mr Bridger’s history strongly suggested a picture of longstanding fluctuations in mood that “at times” would reach the severity of a bipolar affective disorder. Heavy drug and alcohol use throughout most of his adult life may have been a contributing factor in his mood changes or may have represented attempts to “self-medicate”. Concerning the incident itself, Dr Judson reported:
Mr Bridger acknowledges in retrospect he may have been a little “racey”. He recalls being angry that he had been pursued by the women with whom he had had the altercation. He describes a feeling of fear, that he was physically threatened by them, and that in using the rake as a weapon he feels he was acting in self defence. He insists he did not intend to cause serious injury and says he did not really have any clear intent – he was acting in a state of some panic, hitting out without really thinking about what he was doing, to try and stop them attacking him, as he recalls.
Dr Judson expressed the view that it seemed likely, though by no means certain, that Mr Bridger was suffering from a hypo-manic mood state and that the effect of such a state is that the sufferer typically has heightened and exaggerated perceptions, for example, an exaggerated sense of the threat, together with a more reckless and impulsive mood, in which an act of sudden and ill-considered violence is more likely. “It is conceivable that Mr Bridger may have falsely perceived a threat where none existed, and therefore acted on an entirely irrational basis, in which case insanity becomes a possibility”. But Dr Judson thought it was more probable that his response to the confrontation was exaggerated by his mood state, his actions were reckless and ill considered, and his judgement impaired, but not to the level of incapacity where insanity would apply. We should say at once that Mr Harrison did not rely on insanity for the purpose of the appeal and specifically disclaimed any suggestion of shortcomings in the conduct of counsel who defended Mr Bridger at the trial and who had not suspected any mental disorder.
The argument put for the appellant on this second ground of appeal against conviction is that the medical evidence now available is fresh and cogent and, if heard by the jury, may well have led to a different result. Mr Harrison submitted that it was admissible because it was directly relevant to the subjective element of s48, namely the circumstances as Mr Bridger believed them to be at the time of the incident. Whether he was acting in self-defence and the reasonableness of his actions depended upon his perception of the threat posed by the two women. Counsel argued that a misperception because of a mental disorder is nevertheless a perception for the purposes of s48. In support of the view that such evidence is admissible, Mr Harrison referred, inter alia, to R v Oakes [1995] 2 NZLR 673, where this Court accepted that battered woman’s syndrome had relevance to self-defence as a woman affected by this syndrome might genuinely perceive danger earlier than others would, and a threat of more serious harm than others might see. This Court had said that the reasonableness of her response was accordingly to be judged in light of her perception. It might justify a “pre-emptive strike” or the use of more drastic means than might otherwise be thought appropriate (p676). Mr Harrison acknowledged, however, that the evidence would not be admissible in relation to the jury’s consideration of whether Mr Bridger’s response to the threat as he perceived it was a reasonable use of force, as the jury would not require expert assistance on that issue.
Mr France’s submission for the Crown was that as a matter of policy psychiatric evidence to explain an irrational belief on the part of an accused resulting from a disease of the mind like bipolar affective disorder is admissible only in support of an insanity defence. In support of the Crown’s position, Mr France referred the Court to Bratty v Attorney-General for Northern Ireland [1963] AC 386, R v Burr [1969] NZLR 736, R v Roulston [1976] 2 NZLR 644 and R v Green [1993] 2 NZLR 513. It was submitted that s48 must be read alongside s23(1), with the outcome being that “the circumstances as [an accused] believes them to be” applies to sane beliefs only.
We find it unnecessary, and therefore inadvisable, to try to decide this very difficult question because there is no evidence that Mr Bridger’s mental disorder affected his subjective perception of danger. The foundation for the calling of expert psychiatric evidence was not laid at the trial and does not appear even in the subsequent psychiatric reports to which we have referred. Nowhere in any of the material is there any indication from the appellant that the disorder from which he was suffering led him to perceive the situation in an abnormal way. The particular nature of the threat said to have been posed by the two women, going beyond what a person of normal mind would have experienced, is not stated. Nor is there any indication that during the trial or indeed subsequently the appellant was simply incapable of recounting what he perceived at the time. To the contrary, the psychiatric reports demonstrate that he was well able to give an account to the medical practitioners but did not tell them anything about the particular danger which he perceived which might have justified his action with the rake. As Mr France said in his submissions, there is no evidence that Mr Bridger believed anything out of the ordinary or anything that needs explanation from an expert witness. All he said is that he thought the women were going to “deal” to him. He did not explain what he thought that would involve. Moreover, he also said shortly after the event that he had “given a couple of ladies a raking” which had released years of stress. That is hardly consistent with acting because of a strong feeling of fear.
The appeal against conviction therefore fails.

Sentence appeal

The Judge said that he regarded the case as falling at the top end of the first class in R v Hereora [1986] 2 NZLR 164 which has a range of three to five years. He referred to the aggravating features mentioned by prosecuting counsel: an assault using a weapon on an unarmed woman; two blows; the gratuitous nature of the assault; the lack of remorse; and the impact on the victim being serious. On that basis the Judge said he would assess the proper sentence at four years imprisonment. But he now had before him the psychiatric reports. The Judge referred to the conclusion which could be drawn from "your self-reports to the doctors” that the disorder had a significant affect on Mr Bridger’s response to the two women coming onto the property to confront him. But the Judge said that it gave cause for serious concern that when Mr Bridger saw what he perceived (accepting the experts’ view) as a serious threat from a woman “who did not go beyond words”, he had responded by using a rake as a weapon using serious violence and inflicting serious injury.
The Judge said that the whole factual picture indicated to him that the most important question was how the appellant’s future behaviour was going to be controlled because, if he got involved in another similar incident, “on the basis of what you did this time I would have to accept that there is a fair chance that you could do somebody very serious injury even to the extent of killing them”. He did, however, note that there had been no further assaults on the complainants while the appellant was on bail. He took the view that the protection of the public was the prime consideration and confirmed the sentence of four years.
Mr Harrison submitted that the Judge did not explicitly take into account that the appellant was under aggressive and abusive threat from two hostile women who were continuing to advance on him on the private property to which he had retreated. The appellant’s then undiagnosed psychiatric condition had not been taken into account to mitigate the sentence. In fact it had been used to invoke the need to protect the public and to exclude any possible discounting of what would otherwise be a proper sentence. But the pre-sentence report was that the appellant was not considered to be at a high risk of re-offending and the psychiatric reports did not predict it, whether against the complainants or others. The Judge also seemed to have been influenced, inappropriately, by the appellant’s actions in relation to Mrs Ridler despite his acquittal on those charges.
Mr France submitted that the sentence of four years was merited for a serious assault on an unarmed woman who received a fractured jaw, lacerations requiring 25 stitches and other facial injuries. The Judge, he said, had been correct to balance any credit for the psychiatric disorder against the need to protect the public. Any reduction “would be at the lower end of the scale”. There was little to show that it was relevant to what had occurred, as witness the appellant’s comment about “a good raking” delivered to someone with whom he had bad blood for years. It was accepted, however, that the medical evidence would support some reduction in the starting point whilst falling short of any major adjustment to the culpability assessment. But, based on the medical reports, the Judge had been right to have safety concerns.
In our view, the Judge did not appropriately factor the effect of the undiagnosed bipolar affective disorder into his assessment of culpability. Mr Bridger was not acting in self-defence in hitting Mrs Lake but his inability to control his behaviour – his tendency to anger and aggressiveness, demonstrated by the way in which he approached the car with the rake when the three women arrived – was, on the medical evidence, substantially contributed to by his psychiatric illness from which he seems to have been suffering for several years and for which, unfortunately, he was not receiving treatment. Indeed he himself would not have been aware that he was in need of treatment. The reports before the Court, including that of Dr Judson which was not of course available to the sentencing Judge, suggest that he has responded well to treatment. Dr Judson says that in Porirua Hospital, to which he was transferred from prison, he has “settled quickly, presenting as mildly elevated, but cooperative and quite reasonable in manner, and is accepting of appropriate medication”. It does not appear from this report or the other material before the Court that there is a significant ongoing risk of re-offending, though very close psychiatric monitoring will be required.
In this connection we note that, although the appellant has a number of criminal convictions, there has been only one involving violence (apparently not of great seriousness) and that was more than 15 years ago.
This Court has recognised the need to make such a reduction in a number of cases which were recently reviewed in R v Tuia (CA312/02, judgment 27 November 2002). In R v Nilsson (CA552/99, judgment 27 July 2000), which involved an appellant with a bipolar affective disorder, it was noted that a just balance has to be struck between denunciation of violence, acknowledgement of the grievous effects on the victim, recognition of reduced culpability of the appellant and the public interest, in terms of safety, of the appellant’s being helped, by supervision and deterrence, to keep on medication. In Tuia (at para [22]) the Court observed that reduced culpability is a factor which ought to receive specific acknowledgement; that the law must give full weight to the principle that criminal punishment has an essentially moral base and lesser moral fault requires to be recognised.
Whilst we consider that the Judge’s starting point of four years, which in the end he did not adjust, was an entirely proper one for what was a dangerous attack with a weapon on the face of a 52 year old woman causing serious injuries, a reduction should have been made to recognise the appellant’s diminished responsibility, and hence lesser culpability, as a result of his illness. Taking particular account of this principle and balancing the other factors and the matters referred to in paras [40] and [41] above, we have reached the view that the appropriate sentence would have been one of three years imprisonment.

Result

The appeal against conviction is dismissed. The appeal against sentence is allowed, the sentence is quashed and in its place there will be a sentence of imprisonment for three years.

Solicitors:

Crown Law Office, Wellington

[2002] NZCA 298

12 December 2002