The Queen v Neil Wynne Going
[2000] NZCA 1
•1 February 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 358/99 |
THE QUEEN
V
NEIL WYNNE GOING
| Hearing: | 1 February 2000 |
| Coram: | Richardson P Henry J Blanchard J |
| Appearances: | K C Bailey for Appellant M T Davies for Crown |
| Judgment: | 1 February 2000 |
| JUDGMENT OF THE COURT DELIVERED BY RICHARDSON P |
This appeal is against sentences totalling 3½ years imprisonment imposed on the appellant, Neil Wynne Going, in the District Court on 13 August 1999 on charges of causing grievous bodily harm and attempting to pervert the course of justice, to which he pleaded guilty.
On 5 August 1998 Mr Going called in on and helped the first complainant, an old friend and farming neighbour, to repair a window. He returned to the living room where they had been having coffee and suddenly, without any prior indication, attacked the complainant with a bat, delivering a heavy blow to the complainant's knee, and then two other blows to the other knee and head, which the complainant managed to deflect before fleeing from the house. The evidence was that neither the complainant nor others who knew Mr Going and were spoken to considered him violent or aggressive and it was common ground that the attack on the complainant was out of character. But he had begun manifesting delusions and when questioned by the Police talked at length about what he believed were conspiracies against him involving surveillance by the Police, extensive drug activities and what he believed was gross sexual conduct by the first complainant and many other males towards and with the second complainant, with whom Mr Going had been in a relationship for many years. The attack was a response to that delusional belief.
A few days later Mr Going wrote to the second complainant from prison two long rambling and confused letters totalling some 20 pages traversing these matters as real to him. Part way through the first letter he asked her to telephone the first complainant and say she would press rape and sodomy charges if he did not "drop his little nark act" or, better still, get him to change his story and say he damaged his knee when escaping after a fight with Mr Going. She did not act as requested and at depositions, when asked whether the letter contained that request, she said she could not recall, and that "there's a lot of other stuff" in the letter.
The first complainant suffered a fractured kneecap which required surgery and extensive physiotherapy. The victim impact reports for him and for the second complainant reflect the understandable emotional and psychological trauma which they suffered in consequence of the offending. But there is nothing in her statement or evidence at depositions to suggest that the second complainant was influenced or affected by the request to persuade the first complainant to drop the charges.
In August 1998 Mr Going was referred by the District Court pursuant to s121 of the Criminal Justice Act 1985 to the Mason Clinic for psychiatric examination and he continued to reside there until sentencing a year later. Some 14 reports were prepared for the court over that period. At an early stage in the assessment process the psychiatrist reported on 25 September 1998 that the available information suggested Mr Going had a major psychiatric illness and because of that might pose a danger to others; and that his ability to instruct counsel might be interfered with by his apparent delusional beliefs. Following a depositions hearing on 15 March 1999 he was committed for trial but the Crown Solicitor's memorandum of 29 March 1999 under s168AA of the Summary Proceedings Act 1957, providing information relative to whether the trial should be in the District Court or the High Court, noted that "the Crown will probably not seek to challenge the insanity issue". However, Mr Going's condition improved and the projected insanity issue was not pursued. The final psychiatric report to the District Court of 10 August 1999 concluded that Mr Going was suffering from a psychiatric disorder, i.e. delusional disorder, but was not under disability as defined by s108 of the Criminal Justice Act; and that he had consistently not shown any aggressiveness and could be discharged to the community under the Mental Health Act provided he did not receive a jail sentence. While inpatient treatment was no longer required, Mr Going was seen as needing a high level of transitional support if released into the community. The concern was that if suddenly placed back into the community with minimal support there was a high risk of relapse and that the re-emergence of his paranoid delusional beliefs would again take over his life.
The pre‑sentence report noted that Mr Going, who was 39 years of age, expressed deep remorse for his offending and intended ceasing contact and removing himself from his previous acquaintances and drug abuse. His previous convictions were essentially drug and alcohol related except for a charge of common assault for which he had been fined. The Probation Officer recommended a suspended term of imprisonment, periodic detention and supervision with special conditions.
In relation to the first count, causing grievous bodily harm, and referring to sentencing appeals in this court, the Judge concluded that the offending fell within the category described in Hereora [1986] 2 NZLR 164 as an act of violence of an impulsive nature attracting a prima facie sentence of 3 to 5 years imprisonment and that it was of such a grave nature that a term of 2 years suspended could not be considered. The second count, he said, strikes at the administration of justice and had to be met with a stern response; he concluded by reference to judgments of this court which had been cited (Hillman (CA14/92, judgment 14 May 1992) and the cases cited there) that the offending fell within the range of at least 18 months to 3 years imprisonment. Taking into account the pleas of guilty, the remorse Mr Going had expressed and his psychiatric condition, the Judge concluded that looked at separately the offending merited 3 years on the first count and 18 months on the second, and that, applying the totality principle, the proper final sentence was 3½ years imprisonment, being cumulative sentences of 2½ years and one year respectively.
The Judge directed that all the relevant psychiatric reports presented to the court be sent to the Superintendent of the prison so that the Superintendent would be aware of Mr Going's condition, his predicament, and the need for oversight, supervision and treatment as necessary.
Mr Bailey's first submission in support of the appeal against sentence was that Mr Going should have been ordered detained in a hospital pursuant to s118 of the Criminal Justice Act 1985, and not sentenced to imprisonment. Section 118 empowers the court "on being satisfied by the production of a certificate by 2 medical practitioners that the person is mentally disordered, and that his or her mental condition requires that he or she should be detained in a hospital either in his or her own interest or for the safety of the public, may, instead of passing sentence, make an order that the person be detained in a hospital as a patient".
No request for such an order was made at that sentencing hearing. No certificate by two medical practitioners was tendered, and the most up-to-date report to the court did not conclude that Mr Going's mental condition required that he be detained in a hospital.
The second and primary submission for the appellant which proceeded on the acceptance of imprisonment as an appropriate sentence was that, giving due allowance to the appellant's mental state at the time, considered both in setting the term of the overall sentence and then as to suspension, a sentence of 2 years or less suspended and accompanied by a sentence of supervision on special conditions to reflect the need for transitional support back into the community, would be appropriate. In that regard, the period spent in custody since sentencing could sensibly be viewed as meeting the objective of the sentence of periodic detention which the Probation Officer considered might reasonably accompany a suspended sentence of imprisonment.
It is well settled that proof of the existence of a mental disorder falling short of legal insanity, which nevertheless reduces an offender's ability to appreciate the true seriousness and culpability of his actions or makes him less than a totally free agent, may in some cases be a significant mitigating factor. In other cases inability to appreciate the consequences of the offender's actions and to exercise independent self control may require the sentencer, in the interests of the public at large, to put aside thoughts of discounting the penalty which the offence would otherwise warrant (R v Abraham (1993) 10 CRNZ 336 and R v Clarke (CA 225/98, judgment 3 September 1998)).
Mr Davies for the Crown accepted that in the circumstances of this case it was appropriate to make a reduction from what would otherwise have been an appropriate sentence to recognise the mental element involved and its effect on Mr Going's behaviour. The sentencing Judge did so and we agree. The difficulty is to determine what weight to give that factor along with other features of the offending. This was a very serious and sudden attack on a totally unsuspecting victim who sustained significant physical and emotional injuries and understandably feared for his safety, and still has concerns for the future. We have considered everything that Mr Bailey has said but in the end are not persuaded that the 2½ year term fixed by the Judge at the final step was manifestly excessive.
However, we are satisfied that the additional sentence of one year's imprisonment on the second count was excessive. We emphasise that in all cases of wilfully attempting to pervert the course of justice a condign sentence acting as well as a deterrent to others is required because of the nature of the offending, striking as it does at the proper administration of justice. Here, too, the attempt came from the man who committed violence. But it was made in the context and course of a confused expression of his delusions, and the request made to the second complainant did not influence or, it seems, seriously affect her. In the circumstances we consider that the appropriate sentence as a cumulative sentence was one of six months imprisonment.
The appeal is allowed to that extent by quashing the sentence of one year's imprisonment and substituting a sentence of six months imprisonment cumulative on the 2½ years imposed on count one. The overall sentence is thus reduced to 3 years imprisonment (2½ years plus six months). In the result, because the sentence is over 2 years imprisonment, it is unnecessary to discuss the submissions made by Mr Bailey in support of his proposition that the sentence (2 years imprisonment) should be suspended, which would also allow for appropriate conditions to be imposed by way of an order for supervision. We simply record that to impose a suspended sentence where the person concerned has been in prison or detained in a hospital under s121 for so long that he or she is entitled to be released would be inconsistent with sentencing principles under the Criminal Justice Act.
We are advised by Mr Bailey that it seems Mr Going has not yet had any particular psychiatric treatment or support in prison. This court does not have jurisdiction to impose any conditions applying now or on his release from prison, but given the risk which the psychiatrists saw of relapse and potential danger to Mr Going and others if he is not provided treatment and support in the period up to and on his release we request the Superintendent and mental health advisers take whatever steps are appropriate, as indeed the sentencing Judge envisaged would be done. Crown counsel is asked to ensure that a copy of this judgment is sent to the Superintendent.
Solicitors
Crown Law Office, Wellington
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