Patterson v R HC Whangarei CRI 2009-027-2500 [2011] NZHC 1947 (1 December 2011)

Last Updated: 5 February 2012

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

_{CRI 2009-027-2500}

BETWEEN ROHAN GIMLI NAGLE PATTERSON Applicant

AND THE QUEEN Respondent

Hearing: 1 December 2011

Counsel: N Leader and E Harrison for Applicant

M B Smith and D B Stevens for Respondent

Judgment: 1 December 2011

_{(ORAL) JUDGMENT (NO. 2) OF HEATH J}

Solicitors:

Crown Solicitor, Whangarei

Counsel:

R Mansfield, Auckland

_{N Leader, Whangarei}

PATTERSON V R HC WHA CRI 2009-027-2500 1 December 2011

The application

[1] Mr Patterson has applied to set aside guilty pleas entered to a number of cannabis related charges, in the District Court at Kaikohe. The pleas were entered on

18 September 2009. The charges include cultivating the Class C controlled drug cannabis, offering to sell that drug and possessing it for the purpose of sale.

[2] Following the entry of the guilty pleas, Mr Patterson was remanded by the presiding Justices of the Peace for sentence. When he came before Judge Duncan Harvey, for that purpose, on 12 November 2009, the Judge declined jurisdiction on the grounds that the sentencing powers of the District Court might be inadequate to respond to the offending.

[3] When sentencing came before this Court it became clear that there might be an issue over whether Mr Patterson had been fit to plead. A report dated 3 March

2010 had been received from Ms Visser, a registered clinical psychologist.[1]

Analysis

[4] Ms Visser’s report indicates symptoms of a major mental illness. She expressed concerns about Mr Patterson’s “scores on the subscales of Schizoid, Schizotypal, Paranoia and Delusional”, all of which were high and indicative of disorder. Ms Visser also referred to substance abuse issues which might require treatment in an in-patient programme. She expressed the view that Mr Patterson was “currently” unfit to stand trial.

[5] A number of other psychiatric and psychological reports were sought after that date. For the purposes of determining the applications to set aside the guilty pleas, it is the report of 3 March 2010, that assumes significance. It is the report that

_{is closest in time to the date on which the pleas were entered, 18 September 2009.}

[6] Counsel who acted for Mr Patterson in the District Court on the entry of pleas was Mr Anson. Mr Anson has provided affidavit evidence explaining what he understood Mr Patterson’s instructions to be at the relevant time. He accepts that Mr Patterson was agitated and upset. He attributed that agitation to stresses inherent in having to make the decision to enter the pleas and to anger which Mr Patterson harboured against “the system”.

[7] Part of the reason for pleas being entered was the withdrawal of some charges by the Police. Mr Anson says he advised Mr Patterson on that issue. Mr Anson agrees that Mr Patterson had asserted his innocence previously.

[8] As I am deciding the issue solely on the basis of mental health concerns, I wish to state unequivocally that no criticism is intended of Mr Anson. It seems clear to me that had he had the benefit of receipt of Ms Visser’s report at the time Mr Patterson was asked to enter the pleas, they would not have been offered. Nor would the Justices have accepted them.

[9] It is clear from Ms Visser’s report that there were considerable concerns about fitness to plead that would have had to be explored under the provisions of ss 9 and 14 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the Act). In those circumstances, it will be necessary to set aside the guilty pleas.

Consequential issues

[10] The next issue is one of consequences. There are still concerns about Mr Patterson’s mental health. However, there are no up-to-date reports available to assist in determining whether he is unfit to plead at this stage. The most recent report was received from Dr Goodwin, a psychiatrist, on 27 September 2010. It suggested that Mr Patterson was fit to plead. That, however, needs to be contrasted with a contrary opinion expressed by Dr Duff, on 28 August 2010.

[11] It is inappropriate for me today to embark upon consideration of that issue. It is preferable that that be dealt with in the District Court, if necessary, when the informations are remitted to that Court for reconsideration.

[12] Mr Patterson will be remanded to appear before a District Court Judge later today for the purpose of counsel seeking the obtaining of various reports under s 38 of the Act. That will enable the issues to be resolved under the Act to be determined at the earliest possible time next year.

[13] I record that the two charges that were withdrawn by the Police at the time that the guilty pleas were entered may be re-laid given that all charges are now disputed.

[14] It will be for the District Court Judge to fix a date in Kaikohe when issues of fitness to plead can be addressed. That may or may not be synthesised with the time at which standard committal proceedings are progressed.

Result

[15] For the reasons I have given, I set aside the guilty pleas entered to all charges by Mr Patterson on 18 September 2009. Mr Patterson is remanded to appear at

4.15pm today before a District Court Judge. It will be for that Judge to determine what further orders should be made and the time at which the proceedings ought to

_{be progressed in the District Court at Kaikohe.}

P R Heath J

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[1] For a more detailed discussion of the background, see Patterson v R HC Whangarei CRI 2009-027-

2500, 4 October 2011, at paras [5]–[13].