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ROBERTS v R [2005] NZCA 106 (19 May 2005)

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ROBERTS v R [2005] NZCA 106 (19 May 2005)

Last Updated: 1 June 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA45/05

THE QUEEN

v

KARL ROBERTS

Hearing: 17 May 2005

Court: Hammond, Potter and Doogue JJ

Appearances: A R Laurenson for Appellant
A Markham for Crown

Judgment: 19 May 2005

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

___________________________________________________________________

REASONS

(Given by Potter J)

Introduction

[1] The appellant Karl Roberts entered guilty pleas to one count of wounding with intent to cvause grievous bodily harm and one count of assault with a weapon, on arraignment on 20 April 2004. He was sentenced to two and a half years imprisonment and ordered to pay reparation in the sum of $1,000. He appeals the sentence imposed.

Background Facts

[2] At about 2.30 a.m. on 8 June 2003 the appellant went to a dairy in New Plymouth. He smashed a window and removed a large triangular shard of glass from it. He then walked down Carrington Street and waited, leaning against a fence.
[3] At about 3.10 a.m. two people walking home passed by him. As they came abreast with the appellant he lunged at the female and stabbed her in the upper chest with the shard of glass. When her male companion tried to intervene the appellant attempted to stab him in the upper chest. The male victim pushed the appellant over and he dropped the shard of glass, breaking it. He then ran from the scene.
[4] Neither of the victims were known to the appellant and he said nothing to them in the course of the incident. The female victim received a deep wound that required medical attention and stitching. The male victim received a very minor puncture wound to his upper chest.
[5] At 7 a.m. that morning the Police spoke to the appellant. He admitted breaking the window and taking the shard of glass to use as a weapon. He admitted attacking the victims and said that he had tried to stab the female in the throat. He initially thought that he had killed her. He denied stabbing the male. He could not explain why he had attacked the victims or why he had chosen these particular victims. He said he thought that his abuse of the hallucinogen "Magic Mushrooms" had caused him to act in the way he did.
[6] Sentencing was deferred to enable the appellant to attend a drug rehabilitation programme at Odyssey House. Although initially he appeared to be responding, he experienced a significant deterioration in his mental stability around 13 October 2004, at which point he was transferred to the Mental Health Unit at Taranaki Base Hospital.
[7] The appellant is a single youth aged 17 years. He has no previous convictions.

The sentencing decision

[8] Heath J recorded that this was a difficult sentencing because of the appellant’s age and mental health issues.
[9] He noted the sentencing purposes to be addressed, in particular the need for protection of the community.
[10] He referred to a report by Dr Peter Dean, Consultant Psychiatrist of the Regional Forensic Psychiatric Service of Health Waikato, dated 10 February 2005, and the opinion expressed in the report that, given the nature of the appellant’s offending, disposal as a patient subject to the Mental Health legislation did not provide sufficient protection for the safety of the public.
[11] The Judge also noted the appellant’s statement to Dr Dean that he did not want to return to Odyssey House as he felt that the programme was "too hard" for him to complete:

... particularly in terms of having to take responsibility.

[12] The Judge stated that even though almost a year had passed since the guilty pleas were entered, he still could not have confidence that if a sentence of imprisonment was not imposed, the community would be safe from the appellant.
[13] The Judge adopted a starting point of four years imprisonment and allowed a discount of one and a half years, noting that of the discount allowed, 25% i.e. one year, was for the early guilty pleas.
[14] He ordered reparation of $1,000, which had been offered by the appellant.

Submissions

[15] Mr Laurenson for the appellant submits that in sentencing the Judge placed too much weight on the comment by Dr Dean that the appellant had said the Odyssey House programme was "too hard", and insufficient weight on the mitigating factors. Counsel submits that while the Judge appears to have accepted that a fulltime custodial sentence was not necessarily required, he placed too much reliance on Dr Dean’s observations and too little weight on the mitigating factors, including:
• The clinical management plan provided by the Taranaki District Psychiatric Services.
• The appellant’s age and immaturity, his remorse, his previous good character and lack of any history of violence, his serious attempts at rehabilitation, the offer of $1,000 reparation, and the absence of premeditation in this offending.
• The appellant had been on bail while undertaking rehabilitation under very strict terms, for almost a year and had not offended.
[16] Alternatively, Mr Laurenson submits that, while there could be no exception taken to the starting point of four years adopted by the Judge for sentencing, the discount of 18 months was insufficient given that one year was allowed for the guilty plea and only a further six months for all the other mitigating factors combined. Those other mitigating factors should have attracted a further discount of at least a year, thus bringing the sentence to two years, which would have enabled home detention to be considered.
[17] For the Crown it is submitted that in a difficult sentencing exercise which required a balance to be struck between competing interests, the Judge applied no wrong principle. He took into account everything relevant that was placed before him, and imposed a sentence that was clearly within his discretion.
[18] Ms Markham submits that the discount of nearly 40% shows that substantial weight was given to the mitigating factors, as does the fact that the sentence imposed was below the orthodox range of three to five years on the basis of R v Hereora [1986] 2 NZLR 164, which it was agreed was the benchmark for sentencing for offences under s 188(1) Crimes Act.
[19] It is submitted that the effect of mental illness (falling short of insanity or legal disability) may have effect on the sentencing process in two ways. It may mitigate an offender’s moral culpability and/or increase the punitive effect of a sentence of imprisonment. On the other hand, it may exacerbate the risk of re-offending, requiring a sentence that protects the public. It is submitted that is the concern in this case.
[20] Counsel submits that the Judge was entitled in the circumstances of this case to place less weight on rehabilitative factors in view of the appellant’s failure to complete the Odyssey House programme and his refusal to return, and some evidence (though not conclusive) that the appellant did not abstain from drugs while on bail awaiting sentence. Further, the Judge was entitled to place weight on Dr Dean’s opinion that medical disposal would provide insufficient protection for the community.

Conclusions

[21] We do not accept the appellant’s contention that the Judge was wrong in the exercise of his discretion in what was undoubtedly a difficult sentencing exercise.
[22] The appellant reported to Dr Dean the use of solvents from the age of 15 and that he was a regular user of Magic Mushrooms. He also acknowledged cannabis use. He reported thoughts of killing others, although such thoughts were short lived and very occasional and said he had no intention to act on them. That self reporting had to be balanced against the circumstances of this offending, and in the context of Dr Dean’s current diagnosis of the appellant having substance induced psychosis.
[23] The Judge was required to balance the mitigating factors, responsibly emphasised before both the sentencing Judge and this Court by Mr Laurenson for the appellant, with the requirement to protect the community from the appellant. He was rightly concerned with the observations and opinion of Dr Peter Dean in his report of 10 February 2005, and with advice from the appellant’s clinician that the appellant might soon be discharged from the compulsory assessment treatment that was then in place, which as the Judge noted, would mean that the appellant was effectively released into the community and would be wholly dependent upon the ability of his family and others to supervise him, if a custodial sentence were not imposed. On the other hand, if a finite sentence of imprisonment were imposed, assistance would be available from Regional Forensic Services and the appellant could be transferred to a hospital if in-patient care was required.
[24] In all the circumstances the sentence imposed by the High Court Judge, which allowed a significant discount to take account of all the mitigating factors, represented an appropriate exercise of his sentencing discretion. There was no error in the principled approach he took to the difficult balancing required.

Result

[25] The appeal is dismissed.

Solicitors:
Govett Quilliam, New Plymouth for Appellant
Crown Law Office, Wellington

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[2]	At about 2.30 a.m. on 8 June 2003 the appellant went to a dairy in New Plymouth. He smashed a window and removed a large triangular shard of glass from it. He then walked down Carrington Street and waited, leaning against a fence.
[3]	At about 3.10 a.m. two people walking home passed by him. As they came abreast with the appellant he lunged at the female and stabbed her in the upper chest with the shard of glass. When her male companion tried to intervene the appellant attempted to stab him in the upper chest. The male victim pushed the appellant over and he dropped the shard of glass, breaking it. He then ran from the scene.
[4]	Neither of the victims were known to the appellant and he said nothing to them in the course of the incident. The female victim received a deep wound that required medical attention and stitching. The male victim received a very minor puncture wound to his upper chest.
[5]	At 7 a.m. that morning the Police spoke to the appellant. He admitted breaking the window and taking the shard of glass to use as a weapon. He admitted attacking the victims and said that he had tried to stab the female in the throat. He initially thought that he had killed her. He denied stabbing the male. He could not explain why he had attacked the victims or why he had chosen these particular victims. He said he thought that his abuse of the hallucinogen "Magic Mushrooms" had caused him to act in the way he did.
[6]	Sentencing was deferred to enable the appellant to attend a drug rehabilitation programme at Odyssey House. Although initially he appeared to be responding, he experienced a significant deterioration in his mental stability around 13 October 2004, at which point he was transferred to the Mental Health Unit at Taranaki Base Hospital.
[7]	The appellant is a single youth aged 17 years. He has no previous convictions.

[8]	Heath J recorded that this was a difficult sentencing because of the appellant’s age and mental health issues.
[9]	He noted the sentencing purposes to be addressed, in particular the need for protection of the community.
[10]	He referred to a report by Dr Peter Dean, Consultant Psychiatrist of the Regional Forensic Psychiatric Service of Health Waikato, dated 10 February 2005, and the opinion expressed in the report that, given the nature of the appellant’s offending, disposal as a patient subject to the Mental Health legislation did not provide sufficient protection for the safety of the public.
[11]	The Judge also noted the appellant’s statement to Dr Dean that he did not want to return to Odyssey House as he felt that the programme was "too hard" for him to complete:

[12]	The Judge stated that even though almost a year had passed since the guilty pleas were entered, he still could not have confidence that if a sentence of imprisonment was not imposed, the community would be safe from the appellant.
[13]	The Judge adopted a starting point of four years imprisonment and allowed a discount of one and a half years, noting that of the discount allowed, 25% i.e. one year, was for the early guilty pleas.
[14]	He ordered reparation of $1,000, which had been offered by the appellant.

[15]	Mr Laurenson for the appellant submits that in sentencing the Judge placed too much weight on the comment by Dr Dean that the appellant had said the Odyssey House programme was "too hard", and insufficient weight on the mitigating factors. Counsel submits that while the Judge appears to have accepted that a fulltime custodial sentence was not necessarily required, he placed too much reliance on Dr Dean’s observations and too little weight on the mitigating factors, including:
•	The clinical management plan provided by the Taranaki District Psychiatric Services.
•	The appellant’s age and immaturity, his remorse, his previous good character and lack of any history of violence, his serious attempts at rehabilitation, the offer of $1,000 reparation, and the absence of premeditation in this offending.
•	The appellant had been on bail while undertaking rehabilitation under very strict terms, for almost a year and had not offended.
[16]	Alternatively, Mr Laurenson submits that, while there could be no exception taken to the starting point of four years adopted by the Judge for sentencing, the discount of 18 months was insufficient given that one year was allowed for the guilty plea and only a further six months for all the other mitigating factors combined. Those other mitigating factors should have attracted a further discount of at least a year, thus bringing the sentence to two years, which would have enabled home detention to be considered.
[17]	For the Crown it is submitted that in a difficult sentencing exercise which required a balance to be struck between competing interests, the Judge applied no wrong principle. He took into account everything relevant that was placed before him, and imposed a sentence that was clearly within his discretion.
[18]	Ms Markham submits that the discount of nearly 40% shows that substantial weight was given to the mitigating factors, as does the fact that the sentence imposed was below the orthodox range of three to five years on the basis of R v Hereora [1986] 2 NZLR 164, which it was agreed was the benchmark for sentencing for offences under s 188(1) Crimes Act.
[19]	It is submitted that the effect of mental illness (falling short of insanity or legal disability) may have effect on the sentencing process in two ways. It may mitigate an offender’s moral culpability and/or increase the punitive effect of a sentence of imprisonment. On the other hand, it may exacerbate the risk of re-offending, requiring a sentence that protects the public. It is submitted that is the concern in this case.
[20]	Counsel submits that the Judge was entitled in the circumstances of this case to place less weight on rehabilitative factors in view of the appellant’s failure to complete the Odyssey House programme and his refusal to return, and some evidence (though not conclusive) that the appellant did not abstain from drugs while on bail awaiting sentence. Further, the Judge was entitled to place weight on Dr Dean’s opinion that medical disposal would provide insufficient protection for the community.

[21]	We do not accept the appellant’s contention that the Judge was wrong in the exercise of his discretion in what was undoubtedly a difficult sentencing exercise.
[22]	The appellant reported to Dr Dean the use of solvents from the age of 15 and that he was a regular user of Magic Mushrooms. He also acknowledged cannabis use. He reported thoughts of killing others, although such thoughts were short lived and very occasional and said he had no intention to act on them. That self reporting had to be balanced against the circumstances of this offending, and in the context of Dr Dean’s current diagnosis of the appellant having substance induced psychosis.
[23]	The Judge was required to balance the mitigating factors, responsibly emphasised before both the sentencing Judge and this Court by Mr Laurenson for the appellant, with the requirement to protect the community from the appellant. He was rightly concerned with the observations and opinion of Dr Peter Dean in his report of 10 February 2005, and with advice from the appellant’s clinician that the appellant might soon be discharged from the compulsory assessment treatment that was then in place, which as the Judge noted, would mean that the appellant was effectively released into the community and would be wholly dependent upon the ability of his family and others to supervise him, if a custodial sentence were not imposed. On the other hand, if a finite sentence of imprisonment were imposed, assistance would be available from Regional Forensic Services and the appellant could be transferred to a hospital if in-patient care was required.
[24]	In all the circumstances the sentence imposed by the High Court Judge, which allowed a significant discount to take account of all the mitigating factors, represented an appropriate exercise of his sentencing discretion. There was no error in the principled approach he took to the difficult balancing required.