The Queen v Wilson

[2008] NZCA 100

IN THE COURT OF APPEAL OF NEW ZEALAND

CA447/06
[2008] NZCA 100

THE QUEEN

v

JOSEPH JOHN WILSON

Hearing:24 May 2007 and 14 April 2008

Court:William Young P, Baragwanath and Heath JJ

Counsel:O S Winter for Appellant

C J Lane for Crown

Judgment:28 April 2008 at 11 am

JUDGMENT OF THE COURT

A        THE APPEAL AGAINST CONVICTION IS DISMISSED

BThe appeal against sentence is allowed.  The three year prison term is quashed and replaced by a term of two years and six months imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Baragwanath J)

Introduction

[1]       In October 2006 Mr Wilson was convicted following jury trial on counts of assaulting and of wilfully ill-treating each of his two sons.  The charges related to verbal and physical assault and neglect of the boys who were in his care during the period June 2002 to December 2003 when one was aged 10-12 years and the other nine years.  He was sentenced to three years imprisonment.  He appealed against each conviction and against sentence.

[2]       The appeal came before this Court on 24 May 2007.   The appellant was represented by Mr Winter who had appeared as amicus curiae at the trial, the appellant being self-represented.  We were shown a report dated August 2005 by a consultant forensic psychiatrist.  He had expressed the opinion that the limited information provided to him raised no issues of insanity or unfitness to stand trial but said that the quality of the information was insufficient to be categorical in that regard.  No report pursuant to s 38(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 was sought prior to sentence.  Crown counsel very properly suggested that there might be grounds for unease in disposing of the case without such report.  Mr Winter agreed, as did we.  We ordered that a health assessor provide an assessment report on  the appellant to determine:

(a)Whether he was unfit to stand trial; and

(b)The type and length of sentence that might be imposed on him.

[3]       On 3 September 2007 a second consultant forensic psychiatrist reported his opinion that the appellant was now unfit to stand trial. He considered that the appellant would not have a defence of insanity open to him given the time that had elapsed since the conduct giving rise to the charges and a suspicion that a psychotic illness akin to schizophrenia had developed, complicated by preoccupation with litigation concerning the uplifting of his sons by the Child, Youth and Family service.   He advised that it was possible that the appellant met the criteria for mental disorder defined by the Mental Health (Compulsory Assessment and Treatment) Act 1992 but that the appellant required further assessment to clarify the extent of, or exclude, any such disorder.

[4]       The Crown and defence agreed that further psychiatric advice was required under the 2003 Act.

[5]       On 9 December 2007 a third consultant forensic psychiatrist reported that the appellant displayed such thought disorder and possible hallucinations presenting a significant risk to the health and safety of others as to meet the criteria of the 1992 Act.  He considered that the appellant’s fitness to stand trial was a finely balanced question which might be further elucidated and clarified by specialist mental health follow-up.  He proposed that should this Court find the appellant unfit to stand trial further inquiries under s 23 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 might be considered.  Alternatively care might be provided for him in prison with transfer to hospital where required under ss 45 or 46 of the 1992 Act.

[6]       Mr Winter advised us of his firm instructions that the points taken on appeal were confined to:

(a)Two points taken in support of the appeal against conviction; and

(b)The submission that three years imprisonment is manifestly excessive.

[7]       While Mr Winter acknowledged that the evidence as to the appellant’s mental health was potentially relevant to the latter as going to a contention of diminished responsibility, he advised that the appellant did not wish his appeal to be advanced on the basis that he was suffering an impairment at the time of his trial. 

[8]       On the appeal against conviction two points were taken.  One, that the learned trial Judge, Judge Dawson, had erred in excluding as irrelevant evidence about the legality of the uplifting of his children by the Child and Youth and Family service; and two, that the trial was unfair because of the manner in which evidence was given at trial by a social worker.

The appeal against conviction

Background facts

[9]       In June 2002 the boys were placed by the Chief Executive of Child Youth and Family, with the appellant, following their mother’s inability to care for them and the failure of a placement with an aunt.

[10]     While the boys were with their father they were subjected to regular physical assaults which included punching and kicking to the head and body.  They were abused verbally as well as physically and were very fearful of their father.

[11]     The Crown case was that the boys were neglected in terms of clothing, food and medical care and that the boys’ basic needs were not met.  The primary evidence to the jury was by way of the boys’ video interviews.  Neglect was noted by the school and by other social agencies.  Both complainants were made on occasion to smoke marijuana with the appellant during the middle two school terms of 2003.  The younger boy was taken to a health camp because of significant deterioration in his behaviour and overall appearance.  On return from the health camp there was a significant improvement.  That did not last following his father’s resumption of care.  As a result the boys were uplifted from him on 17 December 2003, the younger boy under warrant and the elder as a result of a decision made by him that day that he would go with his brother.

(a)  The ruling that evidence as to uplifting the children was irrelevant

[12]     Mr Winter conveyed to us with care the appellant’s submission that evidence concerning the department’s seeking and executing the warrant and uplifting the children from him was relevant.  The submission was that a ruling of the Judge preventing the appellant from exploring the possibility that the department had overreacted deprived him of the opportunity to show that the allegations against him lacked foundation.  It was particularly emphasised that the department’s warrant was confined to the younger boy, and that the older boy was uplifted after being put to immediate election whether he wished to be taken with his brother.

[13]     While the ruling of the learned Judge recounted to us by Mr Winter was not recorded, we respectfully endorse its conclusion.  The uplifting of the children occurred at a stage when the conduct relied upon by the Crown in support of its charges had terminated; there was no suggestion that it occurred while the departmental officers were present, which would not have helped the appellant.  There was no logical basis on which it can be said that the circumstances of the uplifting cast light on what had or had not occurred previously.

[14]     We are sympathetic to the appellant who was plainly deeply distressed by the removal of the boys, a matter to which we return in the context of sentence.  But we are satisfied that the Judge’s ruling was correct in law.

(b)  The alleged unfairness

[15]     The second point was that the departmental social worker who gave evidence on behalf of the Crown was called without being given access to the departmental file, she having been on leave.  During her initial evidence in chief she made allegations:

(a)At the time of a critical family group conference, the department had not had a report from Iwi Social Services and organisations specifically contracted to work with the appellant on critical areas of his parenting;

(b)The psychologist’s recommendations with respect to child care had not been carried through by the appellant; and

(c)Generally he had failed to engage with the department’s suggestions to improve his parenting.

[16]     As a result of Mr Winter’s cross-examination the need to obtain the file was established and it was brought from Masterton to Palmerston North.  The witness was recalled after reviewing the file.  Under further questioning she acknowledged:

(a)The appellant had completed parenting courses while the children were in his care;

(b)The department had in fact received a report from Iwi Social Services indicating that fact and the appellant’s attendance at assessment and therapy at the Horowhenua Family Violence and Prevention Programme;

(c)The older boy was in fact well presented, and was a well-kept role model pupil at his school while in the care of his father, albeit the social worker had said she had seen no advance in the appellant’s parenting skills;

(d)His uplifting occurred almost by chance; and

(e)His school had no issues with his home.

[17]     It was submitted on behalf of the appellant that much positive evidence about him had not been placed before the jury during the social worker’s initial evidence and accordingly the trial was unfair.

[18]     We agree that the original evidence from the social worker was shown following production of the file to have been seriously inaccurate.  If left uncorrected it would have entailed a miscarriage of justice.  But thanks to Mr Winter’s diligence and perception the errors were pointed out by him very effectively in cross-examination.  There is in our view no basis to apprehend that the jury would not have accepted and acted upon the correct evidence.  It follows that the second ground challenged to the conviction also fails.

Sentence

[19]     Mr Winter did not appear at the sentencing hearing.

[20]     The sentencing Judge recorded that there was no pre-sentence report because the appellant had indicated that he did not wish to participate in having such a report prepared.  He recorded that the appellant had 12 previous convictions, one involving a small child.  He referred to other aggravating features.  The first was violence committed regularly on both boys, including punching their heads and kicking their bodies often for very minor misdemeanours and doing so over a period of 18 months.  He described the ill-treatment of the boys as cruel and an abuse of the appellant’s position of trust and authority as their father. 

[21]     The Judge recorded in mitigation that in the appellant’s mind, although he was badly mistaken, he believed some of what he did was for the good of the boys.  The Judge described the appellant’s apparent ideas as to the appropriate discipline of children as bizarre and overlooking the need for caring for them. 

[22]     The Judge cited R v Mead [2002] 1 NZLR 594 in which this Court discussed an appeal against sentence by appellants convicted by a jury on four charges of wilfully ill-treating children in a manner likely to cause unnecessary suffering, contrary to s 195 of the Crimes Act. Three young children were cruelly ill-treated by their mother’s partner for a period of up to five months and he had been sentenced to two and a half years imprisonment. The particulars of the charges alleged physical and mental abuse including excessive and menial domestic chores, deprivation of food, cold baths, verbal abuse, force-feeding of cold and rotten food and hitting. In giving the Court’s decision on the appeal against sentence Thomas J stated:

[100] Having regard to the cruelty shown towards the children, it is not possible to hold that the sentence of two and-a-half years imprisonment for Mr Mead was outside the sentencing range open to the Judge.  Behaviour of this kind to innocent and defenceless children is not to be tolerated.  A sentence is required which not only punishes Mr Mead for his cruel behaviour towards the three young children in his custody but also serves as a deterrent sentence and reflects the community’s abhorrence of the ill-treatment of children.

[23]     Judge Dawson cited that paragraph and imposed on each of the charges for wilfully ill-treating a child a sentence of three years imprisonment, the terms to be served concurrently.  On each of the charges of assault of a child the appellant was sentenced to 18 months imprisonment also to be served concurrently with each other and with the other sentences.

[24]     In support of the appeal against sentence Mr Winter contended:

(a)No professional had noted bruising or other signs of major abuse despite regular contact with the boys;

(b)The older boy seemed to be thriving in his father’s care in many respects;

(c)The younger boy possessed major personality difficulties which could have been misread as symptoms of neglect; and

(d)The Mead facts were more serious than those in the present case involving long and apparently systematic abuse of children including assaults together with a charge of assault with intent to injure with no element of belief, albeit misguided, the conduct was in material respects appropriate.

[25]     Sentencing for offending of the present type is always difficult and a matter of deep concern.  While the two and a half year term imposed in Mead was held not to be excessive, the Court in that case did not seek to state the permissible sentencing range.  Viewed without reference to the psychiatric evidence the present sentence, although stern, was within a legitimate range.

[26]     But we are satisfied that the three year term imposed in this case cannot stand.  That is because the sentencing Judge, lacking assistance of counsel’s submissions and the second and third psychiatric reports with which we were provided, made no allowance for the principle stated by the Full Court in R v Bridger [2003] 1 NZLR 636 (CA) at [42]:

This Court has recognised the need to make … a reduction in a number of cases which were recently reviewed in R v Tuia (Court of Appeal, CA 312/02, 27 November 2002). In R v Nilsson (Court of Appeal, CA 552/99, 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 acknowledgment; that the law must give full weight to the principle that criminal punishment has an essentially moral base and lesser moral fault requires recognition.

[27]     For the reasons recorded at paras [3] and [5] above we accept that the appellant’s moral responsibility is limited.  While objectively the uplifting of the boys was justifiable, it was a matter of great distress to the appellant and contributed to a deterioration of his mental health.  The appellant’s inadequacy in respect of the care, particularly of his younger son, and the consequences of his loss of the boys’ care are consequences of his mental condition which require a merciful response. 

[28]     For that reason the appeal against sentence is allowed.  The three year prison term is quashed and replaced by a term of two years six months.

Solicitors
Winter Woods Lawyers, Palmerston North for Appellant
Raymond Donnelly & Co, Christchurch for Crown