The Queen v Reaz Mahub Khan

IN THE COURT OF APPEAL OF NEW ZEALAND

CA83/02

THE QUEEN

REAZ MAHUB KHAN

Hearing:	29 November 2002
Coram:	Blanchard J Baragwanath J Chambers J
Appearances:	L O Smith for Appellant J C Pike for Crown
Judgment:	4 December 2002

JUDGMENT (NO 2) OF THE COURT DELIVERED BY BLANCHARD J

Mr Khan was convicted after trial in the High Court at Auckland on a charge of attempted murder of his wife and sentenced to eight years imprisonment. His appeal against conviction was dismissed (judgement 1 October 2002) but the sentence appeal was adjourned and a further psychiatric report sought.
On the morning of 17 April 2001 the victim was vacuuming in the lounge of the family home when Mr Khan approached her from behind and pulled her by the hair into the kitchen. He stabbed her repeatedly in the upper chest and back area with a kitchen knife which had a blade approximately 20cm long. The victim managed to pull the knife away from the appellant at one stage but he retrieved it and continued with his attack. She was able to escape along with the couple’s two young children, in front of whom the attack had occurred. They went to a neighbouring property. The appellant pursued his wife there but desisted from further attacking her when confronted by a neighbour.
The victim received nine wounds, some of which, around the hands and the ear, were superficial. But two blows penetrated deep into her back. One deflected from her rib into her lung. The medical evidence was that that blow was potentially life threatening. Considerable force must have been used in the stabbings.
The victim underwent surgery but has made a full recovery.
Family members reported that for about three months prior to the incident Mr Khan had been acting abnormally. After he was arrested and charged he was remanded to the Mason Clinic and a series of psychiatric reports was made on him. The consensus was that Mr Khan was suffering from an acute psychotic condition. He was however fit to stand trial. Insanity was not raised as a defence.
In his sentencing notes the Judge recorded that Mr Khan had given evidence in his own defence denying any involvement in the attack and raising a defence of mistaken identity; and that he continued to deny that it was he who had stabbed his wife.
The Judge said that the appellant was fortunate not to be facing a charge of murder. He saw as a particularly serious or aggravating feature of the crime that it was a ferocious and brutal attack carried out with a lethal weapon over what must have been a reasonably long period of time. Mr Khan was a man of considerable strength. His wife was by comparison a small woman. The Judge was satisfied that the appellant would have killed her if she had not escaped. He had followed his wife onto the next door property for the purpose of finishing her off and, if it had not been for the presence of mind of the neighbour, the intention to kill the wife would have been completed. The appellant showed absolutely no remorse even at the time of sentencing. His conduct had been “cruel and callous” and he had made a crude attempt to dispose of evidence. Although the victim had made a reasonably quick recovery from physical injuries, the attack had left her permanently scarred in an emotional sense. Mr Khan’s children, the Judge said, must have suffered permanently from observing the father they love attack and try to kill the mother they love.
The Judge noted that out of what he described as misguided loyalty the complainant had refused to cooperate in giving a victim impact report. But he did have a statement from the appellant’s sister-in-law concerning the effects of the events on her, the complainant and the family.
The Judge took as a starting point a term of imprisonment of ten years before considering the appellant’s personal circumstances. He was 38 years old. He had been born and raised in Fiji and had moved to New Zealand. He had been married to his wife for eight years and there were two children of that relationship. The Judge accepted that the attack was out of character. The appellant had no previous criminal convictions. Evidence had been given at trial that before the crime Mr Khan had been well regarded in the Auckland Muslim community as a humble and gentle man. The Judge referred to evidence from family members that the appellant’s behaviour had changed quite dramatically in the two months before the stabbing. He had been behaving irrationally and suffering from delusions. In particular, “you believed, or you said you believed, that your wife was attempting to poison you, that she was having an affair with another man, and that she had reported you to ACC for misconduct”.
The Judge had before him a report from a forensic psychiatrist made since the trial that the appellant was developing psychotic symptoms for at least two months before the attack and was psychotic at the time of the attack. However, another psychiatrist had advised the Court that in his opinion the appellant was currently showing no signs or evidence of either thought disorder or psychotic symptoms. But the Judge accepted that advice might be influenced by the fact that the appellant was at the time of observation under clinical care and receiving medication.
The Judge expressed himself as satisfied that Mr Khan was behaving abnormally at the time of the attack but, whilst the psychiatric advice might explain his conduct, it did not excuse or condone it. Nevertheless, the Judge accepted that to some extent Mr Khan’s delusional state of mind may have reduced his ability to understand the true seriousness of what he was doing. He said he would take it into account by way of mitigation. He also took account of the fact that the children would be deprived of a father, whom they probably still loved despite what he had done to their mother, for as long as he was in prison.
But the Judge was concerned, on the basis of the psychiatric reports and a report from the Community Probation Service, that the appellant presented a substantial risk of reoffending. In particular there was a real risk to his wife. The Judge referred again to the lack of any remorse and said that he was uneasy about the prospect that Mr Khan would reoffend against his wife. He treated that factor as something that neutralised or cancelled out, to a limited extent, the otherwise favourable personal circumstances. As a result, he considered that the maximum he could allow by way of discount from the starting point of ten years was two years, and the appellant was accordingly sentenced to eight years imprisonment.
This Court has now had the benefit of a further report dated 28 October 2002 from Dr McCormick, a consultant psychiatrist. He advises that prior to 2001 Mr Khan did not have a past history of psychiatric disorder but from the beginning of that year he began to develop psychotic symptoms, eventually holding the delusional belief that he was subject to an Indian curse, “Jadoo”, and that his life was at risk. He developed auditory hallucinations and believed others were trying to kill him. He had come to believe that his wife was involved in this conspiracy.
Since being taken into custody and transferred to the Mason Clinic the appellant had been treated with medication which he is continuing to take. At the time when he was seen again by Dr McCormick he was apparently free from ideas that others were trying to harm him and was able to recount his previous paranoid symptoms as something he saw clearly as a circumscribed part of his past. Mr Khan said he was no longer suffering from auditory hallucinations. He continued to say that he could not remember attacking his wife but accepted her statement that he had been the attacker and said that he felt guilty about that. He appeared to Dr McCormick to express genuine remorse for his actions. He denied any intention to hurt any person now or in the future and expressed love for his wife and children.
Dr McCormick also refers in his report to a physical problem suffered by Mr Khan, namely osteomyelitis in his lower spine which has required recent hospitalisation and is sufficiently serious that there is concern about whether he will be able to walk again. At the time of the report he was to be transferred to a spinal unit for further rehabilitation. He had not presented any behavioural or management problems while in hospital.
Dr McCormick reported that Mr Khan continued to take the prescribed medications.
In answer to questions posed by the Court, Dr McCormick reported as follows:
(a)        Mr Khan currently presents a settled mental state. On a regime of risperidone he currently exhibits no signs of a psychotic disorder or a major mood disorder. He does not require, currently additional psychiatric treatment.
(b)        It is likely that the administration of risperidone has been causal in resolving Mr Khan’s previous psychotic symptoms. His probable psychiatric diagnosis is one of a Schizophreniform Disorder, in remission. Because of the previously extreme consequences of Mr Khan being unwell, the administration of his risperidone, in order to maintain his remission, should continue. He requires continuing psychiatric oversight.
(c)        As above Mr Khan now accepts responsibility for the attack on his wife although he continues to maintain that he cannot remember attacking her. He appears to express genuine feelings of guilt and remorse in this regard.
(d)        Mr Khan’s “risk” to his wife and/or other persons is as has been previously formulated. Given his history, his risk appears to relate solely to the presence or not of psychotic symptoms. I suggest that Mr Khan poses minimal risk to other persons unless he becomes acutely psychiatrically unwell. It may be that, eventually, Mr Khan may be able to reduce his risperidone but it would be prudent to only attempt this once Mr Khan had been released into the community and he had demonstrated that he is stable in the community. Again, when Mr Khan is released from custody mandatory psychiatric follow-up should be imposed upon him.
The Court also has before it an affidavit from the complainant in which she describes her husband’s abnormal behaviour in the three months prior to the attack and says that because of his mental unbalance she does not hold him fully responsible for his actions. She had not wished the prosecution to proceed. Her husband had been released on bail before the trial. She did not regard him at that time as a threat nor did he give any concern as to the safety of a family. She expresses her continuing support for her husband and asks the Court to grant clemency to him. We should say at this point that the members of the Court are satisfied that the complainant’s affidavit is entirely voluntary and that she has not been subjected to any pressure in respect of it. It was in fact submitted through a solicitor whom she herself instructed.
The sentencing of someone who has committed a crime while under the influence of a mental disorder falling short of insanity always presents great difficulty, the Court having to take great care to achieve a sentence which will denounce and punish the offending, also with deterrent purpose, but will also reflect the diminished responsibility and consequent diminished culpability of a disordered person. The proper approach has been summarised in the very recent decision of this Court in R v Tuia (CA312/02, 27 November 2002). We do not repeat what was said in that judgment, delivered by Baragwanath J, but approach the present case on the same basis.
For the appellant, Mrs Smith realistically recognised that the offending in this case was very serious and that the Court could not appropriately deal with the matter by way of an order under s118 of the Criminal Justice Act 1985 that Mr Khan be detained as a committed patient. A substantial term of imprisonment is required to mark the seriousness of the offending. As pointed out in argument, it is unfortunate that the law presently does not contemplate any combination of an order of that kind with a prison sentence. That lack of fit between sentencing principles and the need for psychiatric rehabilitation may be deserving of legislative attention.
Mrs Smith’s principal submission was that insufficient weight had been given to the extent to which the appellant’s offending was a product of his mental disorder, it being totally out of character and apparently unpremeditated. She said that the Judge had been overly concerned about the possibility of reoffending. Counsel said that it was clear from the most recent psychiatric report that, as a result of successful treatment, Mr Khan has now accepted responsibility, is remorseful and poses little ongoing risk.
For the Crown, Mr Pike submitted that, although the appellant’s condition appeared to have stabilised, it had to be remembered that he had almost killed his wife and that he must present some continuing danger. The Court should, counsel submitted, err on the side of public safety. Counsel also pointed out that the sentencing Judge had the opportunity of observing Mr Khan in coming to his assessment on this question. Mr Pike also said that, although the appellant had some delusional beliefs, he had known what he was doing and had acted with conscious awareness when he stabbed his wife.
No criticism is made of the Judge’s starting point of ten years for a serious and prolonged attack on a defenceless woman who was fortunate to escape with her life when the intervention of the neighbour deterred Mr Khan from continuing to stab her. The attack also took place in the presence of the children of the family. On the other hand, a significant reduction in the sentence was called for because of the malign influence upon the offender of a mental disorder which had not at that time been diagnosed. Because of it, his culpability for his actions was considerably reduced. The Judge obviously recognised the need to temper the sentence on this account but, understandably at the time of sentencing, held grave fears for the safety of the complainant and indeed of the public. This Court, however, has the benefit of a psychiatric report prepared some seven months after the sentencing which expresses an opinion that as a result of treatment the appellant is currently not exhibiting signs of a psychotic disorder or a major mood disorder and has developed an insight into his behaviour which has led him, in the expert’s view, to an acceptance of responsibility and genuine feelings of guilt and remorse. It appears that, provided medication is continued, so that the disorder does not again manifest itself in an extreme form, the risk presented by the appellant is “minimal.”
Nevertheless, the inherent uncertainties of the situation are such that the Court must, as Mr Pike urged, adopt a cautious approach notwithstanding that the mental condition of the appellant can and should be carefully monitored while in prison and appropriate provisions of the Parole Act 2002 or the mental health legislation invoked, if that becomes necessary.
Balancing these matters, we have reached the conclusion that an insufficient reduction was made to allow for the appellant’s diminished responsibility as a result of his disordered mental condition at the time of the attack and that the purposes of denunciation, punishment, deterrence and protection of the community can be adequately met by a sentence of six years imprisonment.
Accordingly we allow the appeal against sentence, quash the sentence of eight years imprisonment and substitute a sentence of six years imprisonment. We draw the attention of the authorities to Dr McCormick’s report and to the obvious need for ongoing psychiatric treatment and supervision of the appellant whilst he serves that term.

Solicitors:

Lorraine Smith, Auckland for Appellant
Crown Law Office, Wellington

[2002] NZCA 308

4 December 2002