R v Rusbatch CA568/95 [1996] NZCA 290; (1996) 13 CRNZ 476 (14 February 1996)

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This is an appeal against concurrent sentences of 12 months' imprisonment imposed on the appellant following his pleading guilty on arraignment to one charge of assualt on a female and being found guilty by a jury of two charges of assault with a weapon: all three offences were part of one sustained attack on a totally innocent woman.

The appellant was at the time working as a handyman at a tourist facility near Queenstown. By way of a treat he took the 7 year old son of the manageress of that facility water-skiing. Subsequently he told the boy's mother that the child had used foul language to him and spat at him. When the child denied having done such a thing, his mother took him to where the appellant was working and in the appellant's presence asked the boy again whether he had done the things of which he had been accused. When the child denied doing so, the appellant immediately, dramatically, and completely, lost his self-control. He struck the mother about the head, knocking her to the ground. When

she stood up he grasped her and threw her heavily to the ground where he continued to kick her and threatened her with a hammer and a screwdriver.

Finally, she managed to remove herself and her child to the lodge and summon assistance. She was taken to hospital and there she was found to have a broken wrist, a considerable number of bruises and lacerations to different parts of her body, and strain to her lower back which required physiotherapy. Victim impact statements completed eight months later advised that the complainant still had significant residual disabilities. The child was said to have been distressed by the attack on his mother and still to be concerned that the appellant would return and make another attack upon them. He was still experiencing nightmares.

The appellant in evidence gave a very different description of the encounter and denied any serious misdemeanour on his part.

The verdicts show that the jury rejected his account and accepted the mother's, and it was on the version of events just summarised that he was sentenced.

The Judge correctly classified the offending as constituting serious violence within s5 of the Criminal Justice Act. He then discussed a defence submission that there were special circumstances relating to the appellant. He noted that the appellant at the time of the offending had no prior convictions for violence but that "this is not the first time that you have lost your self control and been violent. The last time it occurred cost you your job." He next noted that the appellant suffered from a mental disorder classified as bipolar and had been subjected to a number of stresses arising from the loss of his job, the breakdown of his marriage, and the fact his son was standing trial on a criminal charge.

The Judge concluded, first, that those matters did not amount to special circumstances that would be sufficient to avoid imprisonment, and then said:

"The nature of the charges that you face, the harm done to the victims, the manifest need to denounce this conduct and to deter others, all lead me to the conclusion that a suspended sentence of imprisonment would be inappropriate."

The grounds of the present appeal are that the appellant's mental disorder could and should have been recognised as a special circumstance for the purposes of s5 which would permit the imposition of a suspended sentence, and secondly, that the circumstances of the case, including the information contained in an updated psychiatric

report obtained by the appellant's counsel for the purposes of this appeal, made the imposition of a suspended sentence more appropriate than the sentence which was imposed.

We believe there is some merit in Mr Phillips' argument that a mental disorder of the general significance of that suffered by the appellant could be seen as a special circumstance of the offender, in terms of s5. Certainly that view would accord with the decision of this Court in R v Shortland (CA.40/90, 30 April 1990), which also considered the significance in terms of s5 of a depressive condition which impaired the offender's ability to control his actions.

However, even if the first of Mr Phillips' submissions were accepted, we do not believe his second submission has been made out.

At sentencing the Judge had a psychiatric report which he had directed be obtained for that purpose. This advised that the appellant was a depressive and had been hospitalised for depression in 1990. At that time he was prescribed lithium, which had proved ineffective, and he had been unwilling to keep up a recommended course of counselling. The report concluded that the appellant appeared to be "a potential threat to his own safety as well as the safety of others".

That advice, in combination with the severity of the attack and its consequences, and the fact that the appellant was still in denial, in our view fully justified the Judge's final determination, namely that it was not a case for a suspended sentence.

It then remains to consider whether the additional information provided in the latest report by Dr du Fresne, Director of Otago Regional Forensic Services, should bring us to a different view than that reached on the material available at sentencing.

Dr du Fresne's report confirmed the earlier diagnosis of the appellant as a depressive who was subject while depressed to aggressive outbursts. Her summary and conclusions were:

"Mr Rusbatch presents with a typical history of relatively mild manic-depressive illness, characterised principally by bouts of depression, most of which have not required treatment. When depressed he has typical symptoms, including irritability and occasional aggression. He denies significant aggression at other times, and his offending history and medical records offer some support for this. As is common in manic-depressive illness there is a strong family history, and some of the depressive episodes are seasonal rather than being related to life events.

While Mr Rusbatch was clearly not technically insane as defined in S23 of the Crimes Act at the time of the assault, he was significantly depressed, and it is highly likely that depressive irritability contributed significantly to his aggressive behaviour.

What is most likely to mitigate against further offending of this kind by Mr Rusbatch is adequate treatment under specialist supervision of his manic- depressive illness. Given his failure to respond to lithium, he should take antidepressant drugs under the supervision of a specialist psychiatrist for at least the next two years, and quite possibly at the end of that time indefinite maintenance on such medication would be recommended. Mr Rusbatch acknowledges that when well in between episodes he is inclined to deny the problem of his mood disorder, and should the court consider altering the term of custodial sentencing, the court might wish to ensure that Mr Rusbatch was required to take treatment. Appropriate specialist supervision and oversight could be offered through the community forensic team in Queenstown."

It is to be observed the report confirms the earlier diagnosis of the appellant as a depressive, but is more informative and explicit in its assessment of three relevant matters:

1. It links the likelihood of future aggression more closely to the occurrence of further episodes of depression than did the earlier report:

2. While it restates the opinion that the most effective means of reducing the onset of depression is the use of appropriate antidepressants under special supervision, it makes clear that this is likely to be a continuing need, and expresses the view that such treatment should be continued for a minimum of two years: and

3. It gives support to the concern expressed by the Judge about the likelihood that the appellant would comply with any condition requiring him to accept treatment or medication in its advice that the appellant is "inclined to deny" the existence of his problems in the intervals between his episodes of depression.

Had this information been available to the sentencer at sentencing we do not consider it would or should have dissuaded him from imposing an initial term of imprisonment. It would not have provided him with a sufficiently firm assurance that short of the imposition of some custodial arrangement the appellant would keep up any programme of treatment or medication. At the same time the Judge would have been made aware of the plain desirability of taking such steps as can be taken to encourage the appellant to accept appropriate treatment and medication when he is released from prison.

We agree with Mr Pike that on the information presently available the question is one of balancing different relevant aspects of public policy. We note Mr Pike's responsible submission that, while the Crown would not accept that the sentence under appeal was inappropriate on the information available at sentencing, it would not wish to oppose any amendment of that sentence which would recognise the need for a longer term programme than was previously indicated.

There is no wholly satisfactory resolution of the problems raised by this case, the Court's position once again not being assisted by the Criminal Justice Act's limitation on the combination of different types of sentence. Taking those limitations into account, as we must, in our view the present situation can best now be met by allowing the appeal to the extent of reducing the term of imprisonment from 12 months to 9 months and by imposing the maximum term cumulative sentence of supervision, namely one for 12 months, with the special conditions:

1. That the appellant shall accept and carry out any treatment recommended by the Regional Forensic Service to its satisfaction and to the satisfaction of his supervising probation officer:

2. That during the same period he shall not associate or communicate directly or indirectly with the complainant or any member of her family: and

3. That unless he obtains the prior written consent of his supervising probation officer, he shall remain not less than 100 kilometres from any city or town specified by his supervising probation officer. The intention of that condition is to avoid accidental conflict between the appellant and either of the complainants.

We ask that a copy of this decision be made available to the manager of the prison presently accommodating the appellant, in order that he may communicate with Dr du Fresne and arrange a suitable regime of medication which should be commenced by the appellant prior to his release.

(7) C.A. No. 568/95		PARTIES R v Douglas Bryan RUSBATCH
(2) Hearing Date 14/02/96	(3) Delivery Date 14/02/96		(4) Delivered by Thorp J	(5) Coram Eichelbaum CJ McKay J Thorp J	(9) Lower Ct Judge Moran DCJ

Appellant sentenced to 12 months imprisonment for violent unprovoked attack on a woman. Psychiatric report obtained by sentencer said appellant was a depressive who was liable to violent outbursts during periods of depression, and appeared to be a potential threat to the safety of himself and others. A subsequent report, obtained for

the appeal, confirmed that diagnosis, and suggested long term medication, administered under specialist supervision, as the most effective means of avoiding further bouts of depression. The sentencer concluded that the mental disorder was not "a special circumstance" for the purposes of s5 and the case not one for a suspended sentence. Held: While the sentence imposed could not be criticised on the information then available, the need now shown for longer term controls justified reducing the term of imprisonment to 9 months and adding the maximum permitted term of supervision, with treatment and non-association provisions.

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Court of Appeal of New Zealand

R v Rusbatch CA568/95 [1996] NZCA 290; (1996) 13 CRNZ 476 (14 February 1996)