Kaio v R [2012] NZCA 168 (3 May 2012)

Last Updated: 9 May 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA367/2011 [2012] NZCA 168

BETWEEN JAMES ABRAHAM KAIO Appellant

AND THE QUEEN Respondent

Hearing: 28 February 2012

Court: Hammond, Priestley and Allan JJ

Counsel: R Vigor-Brown for Appellant D J Boldt for Respondent

Judgment: 3 May 2012 at 11 am

JUDGMENT OF THE COURT

A The appeal against sentence is allowed.

2. The sentence of seven years imprisonment is quashed and a sentence of six years imprisonment substituted.
   

REASONS OF THE COURT

(Given by Priestley J)

[1] On 28 February 2012 this Court gave a result judgment which allowed the appeal against sentence, quashed the seven year term of imprisonment imposed on the appellant, and substituted a sentence of six years imprisonment.[1] Our reasons for that result follow.

The offending

[2] The appellant faced a charge, laid indictably, under s 188(1) of the Crimes Act 1961 of causing grievous bodily harm with intent. The offending took place in Putaruru in February 2011. The victim was the appellant’s estranged partner.
[3] The couple had separated the previous month. The victim returned to the couple’s former home in Putaruru to collect some of her personal items and give the two children (one was living with her and one with the appellant), an opportunity to see each other and their father. For various reasons she decided to stay the night. The appellant found a text message on the victim’s cellphone which angered him. He damaged the cellphone and confronted the victim. The situation rapidly deteriorated. The appellant was enraged and dragged the victim back into the house by her hair. He punched her several times on the side of her head and around her body. She lost consciousness.
[4] After the victim had regained consciousness, the appellant dragged her into the lounge, wrapped a phone charger cord around her neck and pulled it tight. The victim was able to prevent herself from choking. The assaults then ceased. The appellant took the victim into the shower.
[5] As a result of the assault the victim was in hospital for three weeks. Her injuries included a potentially fatal subdural haematoma, two black eyes, a broken nose, facial bleeding, and grazing. The victim impact statement records that the victim feared for her life and had recurrent nightmares. She suffers from lack of concentration, on medical advice was unable to drive, and needed six months of home care.
[6] The assault inflicted by the appellant on his former partner was prolonged, vicious, and resulted in serious injuries.

Relevant sentencing background

[7] The appellant, to his credit, pleaded guilty at an early opportunity. He was duly sentenced by Judge Ingram in the Rotorua District Court in May 2011.[2]
[8] The Judge noted that the appellant’s only previous convictions, entered in 2009 and 2010, were for common assault and male assaults female. These convictions involved the same victim.
[9] The appellant was deeply remorseful. He wrote to the Judge and exhibited genuine distress over the injuries he had inflicted. He also stated he was in desperate need of help.
[10] The pre-sentence report recommended imprisonment. Given his record the probation officer assessed the appellant as a medium to high risk of re-offending in the context of domestic relationships. He had admitted to difficulties in controlling his anger. No harmful pattern of alcohol or drug use was detected. On this aspect the appellant may have been less than frank with the probation officer. Subsequent information suggests he was a regular user of marijuana and had been consuming approximately three tinnies per day until two days before the offending. He has also admitted to occasional use of methamphetamine and ecstasy.

The sentence

[11] Judge Ingram, when assessing culpability, was particularly concerned by the victim’s vulnerability (she was 21 as opposed to the appellant’s age of 35), the prolonged nature of the violence, and the type of injuries inflicted. He saw the offending as sitting inside Band 2 of R v Taueki.[3] He fixed on a start point of nine years imprisonment and allowed a two year discount for the mitigating features of co-operation, remorse, and an early guilty plea. This appeal does not challenge the start point.
[12] By the time the appellant was sentenced it was apparent to counsel, and through submissions to the Judge, that there may have been added complexities relating to the appellant’s health. Counsel submitted to the Judge that the appellant had been on the verge of depression and mental illness for some time and needed assistance. There was no medical evidence, at that stage, to support this submission, but the Judge properly accepted it, coming as it did from experienced counsel who would not so submit lightly. The Judge concluded his sentencing remarks by stating he did not regard the appellant as being a long term danger to the community provided he took steps to get assistance. He described the appellant as a person “who needs rehabilitation desperately”. He specifically directed his sentencing remarks be drawn to the attention of the prison authorities so that rehabilitation was made available.

Psychiatric report

[13] Mr Vigor-Brown commissioned a detailed psychiatric report from Dr Grant Galpin, a consultant psychiatrist with Toka Tu Mataara Forensic Services in Hamilton. The conclusions of that report are central to this appeal.
[14] It is unnecessary for us to repeat much of the detail of the report. It is the product of investigations into the background of the offending, a telephone interview with the appellant’s mother, and importantly, a two and a half hour interview with the appellant in Waikeria prison in August 2011. Clearly the appellant spoke frankly to Dr Galpin. He described in detail what led to the attack on his partner. He admitted to irritability as a result of running out of marijuana a few days before the offending.
[15] Unsurprisingly Dr Galpin concluded that there was no basis on which the appellant could be classified as insane for the purposes of s 23 of the Crimes Act. But he relevantly concluded:

... I believe that it is more likely than not that Mr Kaio was suffering from a major depressive episode (of major depressive disorder) at the material time of the index offence. In conjunction with his maladaptive personality traits, his withdrawal symptoms of cannabis dependence, and the stress of the breakdown of the relationship; Mr Kaio’s adverse developmental experiences came to the fore, heightening his sense of worthlessness and his panic at the imminent loss of the relationship. Moreover, the notion of his estranged partner, the victim of the alleged offending, having formed an intimate relationship with another party would have exacerbated the distortions in his thinking that the aforementioned set of circumstances engendered. Thus Mr Kaio acted out of intense anger and the emotional responses that arose out of his depressive disorder, withdrawal from cannabis, maladaptive personality traits, his adverse developmental experiences and the context of his conflicted relationship with the victim. It is likely that Mr Kaio, in the heat of the moment, was driven by a motive of inflicting pain on the source of his emotional distress at that time. Accordingly, the set of events relating to the index offending occurred.

[16] Dr Galpin properly indicated it was not possible to state categorically that “in the absence of his depressive syndrome the offending would not have occurred, or that some form of lower magnitude of violent offending would not have occurred”. Dr Galpin’s opinion was that clearly the appellant needed drug and alcohol rehabilitation. He remained vulnerable to deterioration and would benefit from psychological therapy. He needed a degree of monitoring or alternatively antidepressant therapy. Psychiatric and psychological advice were a necessary requirement to effect any meaningful change.

Discussion

[17] By different routes both counsel were of the view that Dr Galpin’s diagnosis would justify a reduction of the end sentence from seven years to six years imprisonment. Mr Boldt acknowledged, on the authority of this Court’s judgment in R v Rikihana,[4] and the cases discussed therein, that a mental condition can be regarded as a mitigating factor which affects an offender’s culpability. A causative link is critical. Without attempting to assign a precise discount to the appellant’s psychological condition, Mr Boldt accepted that a combination of the early guilty plea, the appellant’s remorse, and his psychological condition would have justified a total discount of one third.
[18] Mr Vigor-Brown’s calculations were slightly different. He contended for a further reduction of nine months to reflect both the appellant’s remorse and depressive syndrome and the maximum Hessell v R[5] discount of 25 per cent.
[19] We do not consider it would be helpful for us, in the context of this appeal, to apportion percentages to various mitigating components. The Judge rightly sensed that the appellant was in need of rehabilitative treatment. The two year discount from his nine year start point for all mitigating factors amounts to just over 22 per cent. We consider that, had the Judge been able to consider the matters canvassed in Dr Galpin’s report, he would undoubtedly have adjusted either his start point, or his mitigating discount, or both, to reach a lower sentence of the order of six years imprisonment.
[20] It was for these reasons we allowed the appeal against sentence, quashed the seven year sentence and substituted a term of six years imprisonment.

Additional comment

[21] We stress that the approach taken in this judgment reflects the particular circumstances of this appeal. This judgment is not to be taken as an authority for the proposition that this Court will routinely review sentences in the light of mental health assessments obtained after a sentence of imprisonment has been imposed. Ideally, if there is some likelihood of a causal connection between a mental illness and the offending, that aspect should be explored before sentencing. (There is no criticism of either counsel or the Judge that this, for various reasons, did not occur in the appellant’s case.) It is trite to observe that many prisoners become depressed as a result of being imprisoned. The incidence of depressive and other disorders, as Mr Boldt observed in his submissions, is higher in the prison population than in the population at large. It is common knowledge that mental disorders are invariably exacerbated by drug use. Thus the causal connections between mental illnesses, drug use, and violent offending are highly problematic.
[22] These comments merely serve to reinforce that the result of this sentence appeal is limited to its facts. There should be no expectation this Court will routinely consider psychiatric assessments on appeal which were not available to the sentencing Court.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] Kaio v R [2012] NZCA 50.
[2] R v Kaio DC Rotorua CRI-2011-077-194, 27 May 2011.
[3] R v Taueki [2005] 3 NZLR 372 (CA).
[4] R v Rikihana [2010] NZCA 405.
[5] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.