Willis v Police
[2015] NZHC 2818
•12 November 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-319 [2015] NZHC 2818
BETWEEN ADRIAN MICHAEL WILLIS
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 9 November 2015 Appearances:
T J Beach for Appellant
R Thompson for RespondentJudgment:
12 November 2015
JUDGMENT OF WHATA J
This judgment was delivered by Justice Whata on
12 November 2015 at a.m./p.m., pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors:
Presland & Co., Auckland
Meredith Connell, Crown Solicitors, Auckland
Copy to:T J Beach, Auckland
WILLIS v NEW ZEALAND POLICE [2015] NZHC 2818 [12 November 2015]
[1] Mr Willis “viciously beat his victim about her face and head with his fists”.1
He was subject to a protection order at the time. He was also suffering from “a major depressive disorder requiring continuing assistance”.2 He was charged with injuring with intent to cause grievous bodily harm, common assault and two charges of breaching a protection order. Judge G A Fraser indicated that:3
In the event that I have a favourable probation report in relation to home detention, recognising the circumstances, recognising the fact that you have had a significant period in custody, I would be prepared to deal with it by way of a home detention outcome.
[2] In sentencing Mr Willis to two years’ imprisonment the Judge explained that all of the available information “adds up to a picture of continuing risk which in terms of the public interest and the victim’s interests, is not one which makes a sentence of home detention a suitable sentence for the Court to follow”.4
[3] With the benefit of argument, the key issues on appeal are:
(a) Did the Judge err in the assessment of the risk posed by Mr Willis?
(b)Did the Judge err in deciding to sentence Mr Willis to imprisonment having regard to his rehabilitative needs?
[4] I have resolved that, with the benefit of information not available to the Judge at sentencing, the resolution of the two key issues supports a sentence of home detention. Mr Willis’ treatment is crucial to the long term management of the risk factors underlying his offending. Home detention will best achieve this.
Background
The offending
[5] The facts of Mr Willis’ offending are not in dispute. On 7 May 2015, he was outside an address in Mt Albert, Auckland. At the time the first victim, who was his
1 Notes of Judge G A Fraser on sentence indication, 15 September 2015 at [4].
2 At [14].
3 At [20].
4 NZ Police v Willis [2015] NZDC 20340 at [11].
former partner, was driving her motor vehicle away from the address. The first victim had a protection order against Mr Willis. He approached the vehicle and hopped into the front passenger’s seat. An argument then occurred and escalated. Mr Willis had become enraged as a result of the victim telling him that she was going to report his texting to her as a breach of a protection order.
[6] A struggle ensued, the victim lost control of her vehicle and the vehicle collided with a nearby tree as a result. Mr Willis then exited the motor vehicle, rushed to the driver’s door and began “savagely punching the victim about the face with closed fists. The force of the blows caused the victim’s head to rock backwards. She received major swelling to her head and mouth which required medical attention. During the savage beating the victim was screaming out for
help.”5
[7] A second victim ran to assist the first victim and Mr Willis threw a punch towards him then turned back to the first victim and “continued to viciously beat her again about the face and head with fists”.6 A struggle then ensued with the second victim who received injuries requiring medical attention.
[8] The first victim suffered two major contusions to her head, major swelling to her mouth, a cut lip, bruises and grazes to her arms, as well as a suspected broken right hand, scratches and bruising to her left wrist.7
Judge Fraser’s sentencing indication
[9] Mr Willis appeared for a sentencing indication on 15 September 2015. The Judge recorded the abovementioned facts and noted that Mr Willis had two previous convictions for male assaults female in 2009 and also two breaches of a protection order that same year. There is also a reference to a conviction for threatening to kill in 2006.
[10] The Judge describes the aggravating features and contributing factors in this way:
[12] The aggravating features of the offending are the extreme violence, it was a prolonged, unprovoked attack but in saying that I must recognise what is set out in the forensic report which I have. There can be no doubt, based on the conclusions from the clinical neuropsychologist in a report dated 21 August, that you have suffered what is described as four traumatic brain injuries with the most significant in terms of severity being the index injury in 1997.
[13] The neuropsychologist says that you sustained a severe brain injury at that time following which you presented with limited insight, cognitive impairment, behavioural difficulties and a developing of post traumatic epilepsy. The report indicates that your epilepsy has not been well controlled at various levels post and injury and goes on to make reference to “history of frustration and anger in relationships and that stressful environments in the context of low medical levels poses a high risk of seizure and activity”.
[14] At the time that Mr Cunningham saw you he indicated that you were presenting with a major depressive disorder requiring continuing assistance and he set out various recommendations for continuing treatment. He concluded that your current difficulties, that is the offending that sees you before the Court, are substantially related to the history of the traumatic brain injury and says that cumulative brain injury and post traumatic epilepsy for frontal brain damage contributed to personality change which along with limited insight and residual cognitive impairment has further complicated your presentation and rehabilitation to date.
[11] As to a potential term of imprisonment, the sentencing indication arrived at a two year sentence based on:
(a) a start point of three years for the base offending, that is injuring the first victim with intent to cause grievous bodily harm;
(b) uplifts of:
(i) three months for the second assault;
(ii) one month for one of the breaches of a protection order;
(iii)one month concurrent sentence for the other charge of breaching a protection order;
(iv) three months for the previous convictions
(c) resulting in a total sentence of 43 months; and
(d) a 25 per cent discount was given for “E v R”8 factors. [12] The Judge then observes:9
That is a short sentence and potentially converts to home detention. In the event that I have a favourable probation report in relation to home detention, recognising the circumstances, recognising the fact that you have had a significant period in custody, I would be prepared to deal with it by way of home detention outcome. I say that because my view is that presently you are not getting the care that you need in prison and obviously the appropriate care is required if there is likely to be any rehabilitation of you at all.
Judge Fraser’s notes of sentence
[13] Judge Fraser’s notes of sentencing re-evaluate the sentence in the light of, among other things, a report from Dr Karayiannis, dated 23 September. The notes refer to various observations of the Karayiannis report, including:
(a) A list of factors which tend to increase the risks with regards to Mr Willis’ health, the health and safety of others and his risk of re- offending.10
(b)Mr Willis’ history of poor impulse control, likely due to traumatic brain injury and may be a risk factor.
(c) At [7]-[8]:
Mr Willis has a number of modifiable risk factors in regard to recidivism and these would basically fall into treatment for depression and work to modify criminogenic factors, including assisting you and understanding and dealing with challenging and personal issues.
….
In the absence of risk modification, Mr Willis is a moderate risk of similar re-offending. His risks of violence are moderate, his risk of self-harm is low. Mr Willis remains low risk for non-adherence to treatment.
[14] The Judge then concludes:
[9] So what has been said is that in the absence of risk modification, there is a moderate risk of similar re-offending. What moderate risk means is there is an average risk of re-offending. And clearly, in the event that risk modification takes place, then the moderate risk reduces, but to what level is not defined. That is the issue I have discussed at length with your counsel and still causes me serious concern today.
[10] If I add to that what is set out in the neuropsychologist’s report, and
that is:
That the frontal brain damage has contributed to personality change, which along with limited insight and residual cognitive impairment has further complicated your presentation and rehabilitation to date.
[11] Then that all adds up to a picture of continuing risk, which in terms of the public interest and the victim’s interest, is not one which makes a sentence of home detention suitable sentence for the Court to follow.
[15] The Judge imposed a sentence of two years’ imprisonment together with special release conditions for six months, including to continue to attend appropriate, treatment, counselling, to the satisfaction of the programme provider and a probation officer.
Frame for appeal
[16] Section 250 of the Criminal Procedure Act 2011 provides that this Court must allow an appeal if satisfied that for any reason there has been an error in the sentence imposed on conviction; and a different sentence should be imposed. As Ms Thompson submitted, there must be an error “whether intrinsically, or as a result of additional material submitted” on an appeal.11 If there is a material error, then I am able to form my own view as to the appropriate sentence.
The grounds of appeal
[17] Mr Beach submits that the Judge’s reasoning was wrong, in short, because:12
11 Referring to R v Shipton [2007] 2 NZLR 218 (CA) at [139].
(a) The Judge relies on the reference to “a moderate risk of similar re-
offending” in declining to sentence Mr Willis to home detention;
(b)But that risk only arises “in the absence of risk modification”;13 for example treatment;
(c) Mr Willis “remains low risk for non-adherence to treatment”;14
(d)It follows that to sentence Mr Willis to home detention would allow him to receive treatment (which he is highly likely to adhere to) and therefore reduce the risk of similar re-offending;15
(e) Instead, the Judge sentenced Mr Willis to imprisonment.
[18] Ms Thompson responds that to what level of risk of re-offending would be reduced if the appellant receives treatment is unknown and that this was something that gave Judge Fraser legitimate cause for concern.
Assessment
[19] The Judge had a substantial amount of material before him relating to Mr Willis’ mental health and the risk that he presents in terms of the victim and to the public generally. Two reports, one by Dr Cunningham and one by Dr Karayiannis were in focus.
[20] The Cunningham Report of August 2015 provides a detailed narrative of
Mr Willis’ background and his mental health issues. Relevantly it records:16
Mr Willis has a history of four traumatic brain injuries/concussions; with the most significant in terms of severity being the index injury event in 1997, in which he was a 15 year old involved in a motor vehicle accident, as an unrestrained back seat passenger. Both neuro imaging and an initial psychological assessment by Peter Leven, indicate that Mr Willis sustained a
argument.
13 Report of Dr Karayiannis dated 23 September 2015 at [56].
14 At [56].
15 At [25], referring to the probation report of 15 September which recommended home detention with special conditions in order to support Mr Willis in receiving ongoing treatment (at 2).
16 At 13–14.
severe brain injury at this time, following which he presented with limited insight, cognitive impairment, behavioural difficulties, and went on to develop post traumatic epilepsy.
The post traumatic epilepsy has not been well controlled at various intervals post injury. This appears to be related to high levels of stress, sleep dysfunction and/or behavioural difficulties associated with his environments and/or circumstances at those times. In between times, however, Mr Willis has been seizure free for several years at a time. At various stages he has been able to work, and in fact completed his apprenticeship as a mechanical maintenance fitter, and was able to drive. Unfortunately, he lost his position following a seizure in 2013 and has been unable to drive subsequently due to uncontrolled seizures.
Mr Willis has a history of frustration and anger in relationships, and is currently before the Courts in relation to an alleged assault of a partner. He describes a recent seizure while in prison and stated that his medication had been withheld from him for several days during a lock-down and/or at difficult time in the Mt Eden Serco facility. Stressful environments in the context of low medication levels, pose a higher risk of seizure activity.
[21] The report goes on to record:17
Mr Willis currently presents with a major depressive disorder with ambivalence about life. In the context of high risk of seizures he is at risk of self-harm. He requires routine pharmacological treatment for both depression and seizures, and I recommend the medical unit in Mt Eden Prison be informed of his needs in this regard. In addition I would recommend the addition of melatonin for sleep disturbance.
[22] The report notes that:18
Risk management in terms of both suicide and/or harm to others needs to be addressed pharmacologically and psychologically.
[23] In terms of psychological treatment the report notes that Mr Willis would benefit from the establishment of rapport with a clinical psychologist with experience in traumatic brain injury and post traumatic epilepsy.
[24] The report goes on to note:19
Mr Willis has suffered significant loss in multiple domains of his life including vocational, recreational and relationships. His current level of depression in life circumstances places him at a heightened risk of self-harm.
17 At 14.
18 Above.
[25] The report concludes:20
Finally I consider Mr Willis current difficulties are substantially related to the history to TBI and in particular the assault in 1996 and the car accident in
1997. Cumulative brain injury and post traumatic epilepsy, with frontal
brain damage have contributed to personality change, which along with limited insight and residual cognitive impairment has further complicated his presentation and rehabilitation to date.
[26] The Karayiannis report of September 2015 was sought pursuant to s 38(2)(b) of the Criminal Procedure (Mentally Impaired Persons) Act 2007. The report observes:
(a) Mr Willis does not currently meet the criteria for mental disorder as defined by the Mental Health Act.
(b)Mr Willis has a major depressive disorder which is recurrent and that he was in partial remission.
(c) The traumatic brain injury suffered at 16 years of age would have resulted in a degree of impulsivity and impaired frustration tolerance.
[27] In terms of risk assessment, the report states:
47. Non-adherence to treatment/supervision:- Mr Willis had demonstrated good engagement with primary medical and rehabilitation services. He did not have convictions for breaches of Court-imposed conditions.
Present
48. …
49. Mr Willis displays a number of personal factors which tend to increase his risk in regards to himself, the health and safety of others and his risk of re-offending.
50. Some of these factors are historical and hence are unmodifiable. These include:
a. A history of violence and other anti-social behaviour, b. A history suggesting violent attitudes,
c. A history of a previous forensic history.
51. Historical risk issues which were protective of further violence where:
a. A good employment record,
b. A history of good adherence to treatment and supervision, c. The absence of a significant drug abuse history,
d.The absence of adverse childhood experiences, i.e. parental separation and the experience of abuse,
e.No evidence of early maladjustment and a history of good early attachment experiences,
f. First violent incident at age 25.
52. Clinical issues that are pertinent [and] are potentially important include fair insight and acceptance of responsibility for offending. A possible history of poor impulse control, likely due to traumatic brain injury, may be a risk factor.
53. Rehabilitation issues are important when planning clinical interventions. Risk issues exhibited by Mr Willis include:
a. Problematic intimate relationships,
b. Inadequate community support networks, c. Social dislocation,
d. Marginalisation and alienation from significant others e. Unstable employment and
f. Poverty.
54. Protective Rehabilitation issues include:
a. Good engagement with services, unrealistic plans, b. Absence of pro-criminal attitudes,
c. Positive attitudes to make changes.
55. It follows that Mr Willis has a number of modifiable risk factors in regard to recidivism and these would basically fall into treatment for depression and work to modify criminogenic factors including assisting Mr Willis in understanding and dealing with challenging interpersonal issues.
56. In the absence of risk modification, Mr Willis is a moderate risk of similar re-offending. His risks of violence are moderate. His risk of self- harm is low. Mr Willis remains low risk for non-adherence to treatment.
[28] The report writer concludes that:
57. Irrespective of the Court outcome, Mr Willis continues to require comprehensive treatment for depression, physical issues and consequent disabilities.
58. In the community, Mr Willis is engaged with his GP and a psychologist for treatment of depression and disability. He has access to specialist medical services if he or his carers deem that to be necessary at some future time. He is engaged with ACC rehabilitation services and a plan has been constructed for him. I believe this is adequate to meet his current needs.
59. Mr Willis is able to access similar services in custody.
[29] On my examination of the foregoing reports the Judge was not wrong in his assessment of short term risk to the community. The reports confirm that Mr Willis presents as a moderate risk in the absence of treatment and they leave unquantified the level of risk presented by Mr Willis even after treatment. I was troubled by this apparent equivocality and I sought clarification from Dr Karayiannis as to his
assessment of risk if Mr Willis adhered to treatment.21 He replied (through Mr
Beach) that he was unable to say conclusively whether or not treatment would be effective because it depended on Mr Willis’ response to the treatment – though he did expect that it would be beneficial. He also emphasised that his report was not designed for the purposes of sentencing. In any event, I am satisfied the Judge’s finding about the risk presented by Mr Willis was available to him.
[30] One further comment by Dr Karayiannis, however, has caused me to re- evaluate the appropriateness of the sentence of imprisonment. He did not think Mr Willis would receive the type of treatment he needs to address his personal risk factors while in prison. This is it appears an important departure from the observation made in his report – see [28]. This coincides with the affidavit evidence filed by Mr Willis as to the treatment, or lack thereof, he has received while in
prison.22 It appears that there has been no consistent regime of medication, let alone
the type of intensive counselling that he needs to rehabilitate.
21 Ms Thompson agreed that it was appropriate to seek clarification.
22 Ms Thompson, quite properly in my view, did not object to the production of this evidence. His experience of his medical treatment in prison was fresh evidence and is relevant to the assessment of sentence as I explain at [34].
[31] The significance of this is that Mr Willis’s medium to long-term risk (post incarceration) and rehabilitation are critical factors in the assessment of the appropriateness of sentence. 23 And the two are palpably linked in this case. It is now clear that Mr Willis is not receiving treatment in prison with the ongoing prospect that he will present the same, if not higher, risk to the public on his release. Conversely, it is reasonably clear that he can much more readily receive the treatment he needs if on home detention.
[32] The importance of rehabilitation was emphasised by the Court of Appeal in R v D.24 In that case, D was found guilty of wounding his former wife with intent to injure. He punched her to the face. Photographic evidence showed that the complainant received injuries to her head and face, including a gash to her left cheek area which required six stitches. Her face was bruised and swollen.25
[33] D also had prior convictions for violence against the victim and a psychiatrist had expressed concerns about D’s mood and his propensity for violence. Recommendations were made that D be treated by a psychologist or psychiatrist to assist in resolving his mental health and personality problems. Against this backdrop the Court observed:
[68] In our view, there are good reasons why home detention would have been an appropriate sentencing option. While the assault was serious, there was information before the Judge identifying a personality disorder and other personal circumstances which meant that a sentence of home detention, with appropriate special conditions to meet D’s particular circumstances, was likely to meet relevant sentencing goals. We refer to the standard conditions of home detention set out in s 80C of the Act and to the special conditions that may be imposed to reduce the risk of re-offending, set out in S 80D. We refer also to the ability to impose post detention conditions to the same effect: ss 80N and 80P. The special conditions available can be tailored to meet the particular needs of the offender.
[69] As this Court indicated in Hill, there are “acknowledged advantages” of home detention which might have made that sentence more appropriate, both from the perspective of D and the community. Had we been sentencing at first instance, we would have imposed a sentence of 12 months home detention (the maximum period available: S 80A(3) of the Act) with appropriate special conditions to respond to D’s particular rehabilitative needs.
23 Sentencing Act 2002, s 7(g)–(h).
24 R v D (CA253/2008) [2008] NZCA 254.
25 At [11].
[34] I am conscious that in the same case the Court of Appeal emphasised that the view of a sentencing Judge from the jurisdiction in which crimes of the type in issue are frequently tried assumes greater weight. As the Court notes he or she will be in a much better position than the Appellate Court to determine which type of offending falls on one side of the line or another.26 But in this case, I have the benefit of further information which signals to me that, if anything, imprisonment may result in a greater long term risk to the public and to the victim than a sentence of home detention with special conditions requiring treatment. I also note that a sentence of
home detention accords with the Judge’s initial view as expressed in the sentencing
indication and the recommendation of the pre-sentence report.
[35] Accordingly, I am satisfied, therefore, that while the Judge did not err in his assessment of risk based on the information available to him, the proper and appropriate balance lies with a sentence of home detention together with special conditions that will better provide for management of Mr Willis’ medium to long term risk to the public. This also best serves his rehabilitative needs. As noted, I have reached this conclusion with the benefit of information not available to the
sentencing Judge.27
Result
[36] The appeal is allowed and a sentence of home detention will be substituted for a sentence of imprisonment once an appropriate residence for home detention has been confirmed. The sentence of home detention will be subject to the special conditions specified in the pre-sentence report of 15 September 2015.
[37] Unless counsel request otherwise, it is unnecessary for the parties to seek the court’s approval of the address. The sentence will be deemed to be commuted to a sentence of home detention for a period of ten months (to account for the time spent already in prison) to commence at 5.00 pm the working day following notification to
this Court by counsel that an appropriate address has been located.
26 At [66].
27 I note in this regard that the Court of Appeal in Kincaid v R [2010] NZCA 384 and in Zheng v R [2015] NZCA 451 adopted a similar approach with the benefit of additional information for the purpose of the evaluative exercise.
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