An order is made that a psychiatrist and a psychologist prepare assessment reports on the appellant for the purpose of assisting this court to determine:
- (a) The type and length of sentence that might be imposed on the appellant; and
- (b) The nature of any requirement that this court might impose on the appellant as part of, or as a condition of, a sentence.
The appeal against sentence is adjourned.

REASONS OF THE COURT

(Given by Chambers J)

[1] Moncello Shirley, the appellant, appeals against a total effective sentence of six years’ imprisonment in respect of charges of wounding with intent to do grievous bodily harm, aggravated burglary, and possession of a knife.
[2] Mr Shirley’s background and circumstances give rise to some disquieting features. Mr Glover, for Mr Shirley, asked us, before consideration of the appeal against sentence took place, to obtain assessment reports under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 for the purpose of assisting this court to determine on appeal whether the sentence that has been imposed on Mr Shirley is the most appropriate sentence in the circumstances. Even if imprisonment is appropriate, there are questions as to whether the length of sentence imposed is appropriate and whether special psychiatric or psychological assistance should be provided to Mr Shirley in prison.
[3] Ms Jelas, for the Crown, did not oppose the application. She considered that s 38 reports might provide guidance as to Mr Shirley’s true culpability and might also provide guidance as to what mental or psychological disorders, if any, Mr Shirley suffered from. The reports might also shed light on whether a prison environment might impose additional hardship on Mr Shirley such that it should be reflected in a reduction in what would otherwise be the appropriate length of sentence.
[4] We are satisfied we have jurisdiction to require assessment reports to be prepared under s 38. We agree with counsel that assessment reports might assist this court in determining whether the sentence imposed on Mr Shirley was appropriate.
[5] We asked Mr Glover whether he thought the health assessor or assessors should be psychiatrists or psychologists. He frankly was not sure. In the end, we have decided that the question is sufficiently important that an assessment report should be obtained both from a psychiatrist and a psychologist.
[6] The appeal itself is adjourned. As we did not start to consider the appeal, it may be heard by any panel once the assessment reports are to hand. Because we suspect these reports will be available relatively soon, we request the case officer to allocate a further fixture for this appeal, on the first available date after 24 August 2009. Counsel’s existing submissions may be used on the appeal. Counsel will also be free to file additional submissions based on the assessment reports when they are to hand.

Solicitors:
Crown Law Office, Wellington

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