THE QUEEN v LARS BENGT ESKIL NILSSON [2000] NZCA 144 (27 July 2000)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca552/99

THE QUEEN

V

LARS BENGT ESKIL NILSSON

Hearing:	25 May and 20 July 2000
Coram:	Thomas J Anderson J Panckhurst J
Appearances:	C R Carruthers QC for Appellant S P France for Crown
Judgment:	27 July 2000

judgment of the court DELIVERED BY ANDERSON J

[1] Mr Nilsson appeals against a sentence of four years imprisonment imposed on 10 December 1999 following his conviction after trial before a Judge and jury for violent behaviour.On 8 December 1998 he had got into an argument with Mr Ian Bevan in a billiard parlour and struck him.For that he was convicted of assault pursuant to s 196 of the Crimes Act 1961.That altercation led to the ejection of both of them from the billiard parlour, upon which Mr Bevan, fearing more violence, ran away.He was pursued by the appellant who brought him to the ground and, whilst wearing heavy boots, kicked Mr Bevan in the face.That blow caused serious and permanent eye damage. For that violence Mr Nilsson was convicted of causing grievous bodily harm with intent to cause such, pursuant to s 188(1) of the Crimes Act 1961.

[2] Mr Nilsson suffers from a psychiatric condition known as bipolar affective disorder.This is sometimes referred to as a manic depressive condition because the sufferer alternates between an irrationally elevated mood, continued for a period, and a state of depression, which is also enduring.

[3] The relevance of Mr Nilsson's disorder was raised at sentencing. Mr Nilsson had received treatment at Masterton hospital in 1995 and had been re-admitted to Porirua hospital on 26 December 1996.Shortly after he was discharged he was admitted to Wellington hospital in February 1997 and discharged on 20 March of that year.His diagnosis at the time was bipolar affective disorder, manic phase.A consultant psychiatrist with Capital Coast Health informed Mr Nilsson's counsel about that history for the purposes of sentencing.He had taken over as Mr Nilsson's psychiatrist in March 1998 and was then of the opinion that his patient's condition was stable and that his bipolar affective disorder was in full remission.The psychiatrist saw Mr Nilsson on subsequent occasions but some appointments were missed, including one on 23 November 1998, which was a fortnight before the violence in issue.The psychiatrist saw Mr Nilsson again on 4 February 1999 and was of the opinion that his patient's mood was normal and that it was evident that the bipolar affective disorder was in full remission.He informed Mr Nilsson's counsel in November 1999 that he was reluctant to speculate about whether Mr Nilsson's condition played a part in the incident for which sentencing was due, because he did not have contact with Mr Nilsson at the time of the incident.

[4] When sentencing, the Judge discussed this information as follows:-

Insofar as the medical issues are concerned, my view is this.The medical report that I have is very plain to the effect that at the time this event occurred, your medical condition was entirely under control.The doctor shies away from expressing any opinion that it might have played any part.Against that, I accept that there was some lay evidence that you were certainly in such a state that you were behaving irrationally.The evidence of the manager ... indicates that ... I think from a layman's point of view, I have to make some allowance for the fact that it may have been some contributing factor to the way that you behaved.

[5] In his sentencing notes the Judge referred to the jury's rejection of the defence of self defence raised at trial, and said that he would have to deal with the matter on the basis that it was deliberate, callous brutality.He referred to R v Karaitiana (CA 247/93, 5 November 1993), R v Hereroa [1986] 2 NZLR 164, and R v Williams (CA 177/96, 20 August 1996) as indicating an appropriate sentencing range of 3-5 years.He accepted that the event was out of character and that Mr Nilsson was genuinely remorseful. That conclusion is amply supported by numerous testimonials.The Judge considered he had no alternative but to impose a substantial term of imprisonment and he sentenced the appellant to four years on the charge of causing grievous bodily harm with intent and one month for the assault, both concurrent.

[6] The primary ground of appeal is that the learned sentencing Judge failed to attach sufficient mitigating weight to Mr Nilsson's mental illness as a factor in the offending.The sentencing Judge recognised the relevance of the mental condition and brought it into account as far as the information before him might allow.However, information supplied to this Court by counsel for the appellant indicates that the psychiatric information given to Mr Nilsson's then counsel for the purposes of sentencing was inadequate and failed to convey cogent and relevant information about Mr Nilsson's mental disorder at the time of the violence.

[7] In the days leading up to the incident Mr Nilsson's behaviour had begun to cause his family much concern.Counsel for the appellant placed before us a copy of an application made by Mr Nilsson's grandfather on 3 December 1998 for an assessment of the appellant pursuant to s 8 of the Mental Health (Compulsory Assessment and Treatment) Act 1992.That section authorises a person who believes another to be mentally disordered to apply to the Director of Area Mental Health Services for assessment of that other person, capable of leading to a treatment process, including treatment as a compulsory patient.Mr Nilsson's grandfather stated in his application that he based his belief that Mr Nilsson was mentally disordered on the grounds of "Aggressiveness.Erratic behaviour.Unreliable.Threatening behaviour.Extreme spending.Exotic clothing."

[8] Also on 3 December 1998 Mr Nilsson's mother contacted the Mental Health Services at Capital Coast Health to advise that Mr Nilsson had been very intrusive, manic and disorganised.She advised that her son was driving round Wellington in a hired BMW and was spending money recklessly.The hospital notes for 3 December 1998 show that she contacted the hospital again on the 6^th of December and on the 8^th in order to express concern.It is now known that Mr Nilsson, no doubt because he felt well, had ceased to take the prescribed medication which was required to keep his condition under control.Again on 18 December 1998 Mrs Nilsson informed the Mental Health Services that she was very concerned about Mr Nilsson's mental state and that with non existent finances he had just bought a Porsche motor car.He had left a message on his answerphone which raised concerns about suicide.

[9] This information was before us when the appeal was called on 25 May, but the case was adjourned to allow counsel to research the question whether this Court had power to remit the sentencing to the District Court to be disposed of in the light of the new information.In the result it became clear that no such power is available on an appeal against sentence, the terms of s 385(3) of the Crimes Act 1961 being exhaustive on that issue.However counsel for the appellant was, in the meantime, able to obtain a full psychiatric assessment of and report on Mr Nilsson by Dr A B Marks.We have considered that comprehensive report.

[10] The Crown accepts, and the information now provided to this Court satisfies us, that at the time of the criminal incident Mr Nilsson's behaviour was significantly affected by his recurrent bipolar manic disorder and that he was then in a manic state.The information indicates no real ground for an insanity defence, nor was any suggested, but it is most germane to sentencing.A mental disorder falling short of exculpating insanity may nevertheless be capable of mitigating a sentence either because it moderates the culpability or because it renders less appropriate or more subjectively punitive a sentence of imprisonment, or for a combination of those reasons.

[11] In the present case counsel for the appellant originally submitted that the recommendation in the pre sentence report that Mr Nilsson receive a suspended sentence of imprisonment together with supervision on special conditions relating to treatment and counselling should be adopted by this Court.By the time the hearing resumed the appellant had served nearly eight months imprisonment, almost sufficient time to render a person serving a two year sentence eligible for parole.In Mr Carruthers' submission, the psychiatric disorder suffered by the appellant was such as to render manifestly excessive a sentence exceeding two years imprisonment.If the Court were to accept that, then the time already served and the consequential imminent eligibility for parole would render inappropriate a suspension of imprisonment. The pre sentence report also recommended periodic detention but counsel submits that such punitive aspects of sentencing have also been overtaken by the period of imprisonment which has already been served.

[12] On behalf of the Crown Mr France submits that if the new evidence were put to one side the sentence of four years was well within the Court's discretion.It is consistent with the relevant authorities and the incident was serious, involving significant violence which had resulted in the permanent loss of use of one eye by the victim.On the basis of the information before the sentencing Judge we would agree with counsel's submission.The appellant pursued Mr Bevan in order to attack him.He struck one blow but with such force that the injury was said to be consistent with that caused by motor accidents.Mr Bevan has long-term nerve damage in the face and permanent serious impairment of vision.His life has been seriously affected by these events and by his permanent injury.Violence of the type inflicted on him warrants firm denunciation.The Judge applied no wrong principle on the basis of the information before him, took into account everything relevant placed before him including an abundance of personal references, and imposed a sentence within an accepted range.

[13] We also agree with Mr France's next principal submission that the matters raised in respect of the psychiatric condition of the appellant present very difficult disposition issues on the appeal.That submission has regard to elements of public safety and personal medical rehabilitation.Mr France identified the tension between the rehabilitative needs of an offender, the interests of public protection, and due recognition of the harm caused.He submitted that there are real public policy concerns in a case such as the present where a serious offence has been committed and a victim has suffered permanent injuries as the result of violence by someone with a mental disorder. There is, of course, a need to balance just recognition of the reduced responsibility of the offender, and the seriousness of the violence with its consequences for the victim.

[14] When the appeal was called on 25 May it was the Crown's view that an appropriate balance between the care and rehabilitation of the appellant, on the one hand, and the public interest in a deterrent, denunciatory and punitive sentence, on the other, could not be fairly achieved without a contemporary psychiatric assessment of the condition, needs, and prognosis of the appellant. During the period of adjournment such a report was able to be obtained.

[15] Mr France submitted that although Mr Nilsson's culpability must be considered reduced, it is also the case that the appellant was suffering from a known disorder which was capable of being and had been kept under control.The awareness and control of a known disorder justified imprisonment. He further submitted that the public interest made it appropriate to visit significant responsibility on the appellant.In his view, even if the sentence were reduced to two years, neither an order granting leave to apply for home detention nor for suspending the sentence was justified in the circumstances, particularly in the light of time served and parole eligibility.

[16] In our view the appellant's psychiatric condition significantly reduces but certainly does not extinguish his culpability for the violence and injury to Mr Bevan.Presented with important new information which requires us to re-sentence Mr Nilsson, we must strike a just balance between several factors which are difficult to synthesise:-

* Denunciation of violence.

* Acknowledgement of the grievous effects on the victim, Mr Bevan.

* Recognition of the reduced culpability of Mr Nilsson.

* The public interest, in terms of safety, of Mr Nilsson's being helped, by supervision and deterrence, to keep on his medication.

[17] We considered the possibility of quashing the sentence of imprisonment and substituting a sentence of two years supervision, whereby the maintenance by Mr Nilsson of his medication could be monitored for a longer period than could be assured by parole with conditions.But such a response would not sufficiently recognise the seriousness of the crime and its consequences.We think that the most appropriate sentence in this case is two years imprisonment.For the reasons advanced by counsel and previously referred to herein, we decline to make orders in respect of home detention or suspension of imprisonment.It is open to the District Prisons Board, by virtue of s 107A of the Criminal Justice Act 1985, to impose a term and conditions of parole until the sentence expiry date.If parole were granted the indications for such a term and appropriate conditions may be obvious.Parole after the expiration of eight months imprisonment could therefore result in a supervisory regime for up to a further 16 months.The District Prisons Board would no doubt have regard to the suggestion in Mr Nilsson's pre sentence report that he be required to attend appointments with the Community Assessment and Treatment Team, to attend a Bipolar Disorder Education Group, and to attend other counselling and treatment as directed.

[18] For these reasons we allow the appeal against the sentence of four years imprisonment and it is quashed.In substitution the appellant is sentence to two years imprisonment.

Solicitors:

Stapleton Stevens, Wellington, for Appellant

Crown Law Office, Wellington