R v Garibovic [2014] NZHC 2199 (11 September 2014)

Last Updated: 6 October 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-004-3202 [2014] NZHC 2199

THE QUEEN

v

_{ZIJAD GARIBOVIC}

Hearing:	11 September 2014
Appearances:	W P Cathcart for Crown J D Anderson for Defendant
Judgment:	11 September 2014

(ORAL) JUDGMENT OF LANG J [on disposition of proceeding under the

_{Criminal Procedure (Mentally Impaired Persons) Act 2003]}

R v ZIJAD GARIBOVIC [2014] NZHC 2199 [11 September 2014]

[1] Mr Garibovic is charged with murdering Mr Roy Eric Lowe. At an early stage in the proceeding it became apparent that Mr Garibovic suffers from some form of mental illness. For that reason the Court embarked on the procedure prescribed by the Criminal Procedure (Mentally Impaired Persons) Act 2003 (“the Act”).

[2] On 15 May 2014, I determined that it was more likely than not that Mr Garibovic was responsible for the physical act that caused Mr Lowe’s death.¹ At a subsequent hearing on 6 August 2014, I determined that Mr Garibovic suffered from a mental impairment that was sufficient to render him unfit to instruct counsel and/or stand trial.² The remaining step in the process is for me to determine what final order the Court should make in relation to Mr Garibovic.

Background

[3] The offending with which Mr Garibovic is charged arises out of an incident that occurred at approximately 11.30 pm on 4 April 2014. At approximately 11.38 pm on that date, Mr Garibovic called the police. He provided the police with his address, and told them he had returned home to find a dead person in his house. He then asked the police to come to his address. When members of a police patrol attended a short time later, they found Mr Garibovic standing outside his unit in a distressed condition and spattered with blood. When they entered the address, they found Mr Lowe’s dead body also covered in blood. He had obviously been subjected to a significant attack involving multiple blows to the head. In addition, his face had been cut with a sharp object, and he bore signs of having been strangled. A subsequent post-mortem examination revealed that the cause of death was the blunt force trauma Mr Lowe had suffered to his head and neck.

[4] Mr Garibovic has always denied having anything to do with Mr Lowe’s death. He has always maintained that he arrived home to find Mr Lowe’s body in his

¹ _{R v Garibovic [2014] NZHC 1022.}

² R v Garibovic [2014] NZHC 1840.

unit. The extent, however, to which Mr Garibovic was covered in the blood of the deceased and the fact that his fingerprints were found on a blood stained whiskey bottle in the address mean it is patently obvious that he was responsible for causing Mr Lowe’s death. No reason has ever been put forward to explain why this tragic incident occurred.

[5] The material before the Court makes it clear that Mr Garibovic suffers from an advanced form of dementia. It is likely that he has been in that state for several years, but it has become progressively worse in recent times. It has recently deteriorated further, probably as a result of a heart attack that he suffered a short time ago. It is clear that Mr Garibovic’s mental state will deteriorate even further over time, and it is likely that he will require full-time care to meet all his needs within the very near future. It is against that background that the Court is required to determine what order it should now make.

Relevant principles

[6] The available alternatives are orders under s 24 or s 25 of the Act. Under s 24(2)(a), the Court may order Mr Garibovic to be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992. This means that he cannot be released until such time as the Minister of Health grants leave for his release on such conditions as the Minister thinks appropriate. By way of contrast, no corresponding framework exists for a defendant who is the subject of an in-patient order under s 25 of the Act. The clinician responsible for such a patient, acting alone, may release the patient from compulsory status if he or she considers the patient fit to be released. In that event any order made under s 25 is deemed to have been revoked.

[7] The approach the Court is required to take when making a decision under s 24 or s 25 was fully considered by the Court of Appeal in M v R.³ In that case the Court pointed out the essential distinctions between the orders that may be made between the two sections. The Court also held that, in determining whether it is

_{necessary to make an order under s 24(2)(a), the Court must undertake a judicial}

³ M v R [2012] NZCA 142.

assessment that may be wider in some respects than medical assessments made by health assessors. The Court must determine whether an order under s 24 is necessary in the interests of the public. In this context, the interests of the public are two-fold. First, there is a need for the general public to be protected from further offending by the offender. The longer-term public interest, and one that the offender may share, is to ensure that the offender is managed and treated in a manner best calculated to

achieve the ultimate goal of rehabilitation and reintegration into the community.⁴

[8] The Court also held that the word “necessary” sets a high threshold. An order does not need to be “essential” in the interests of the public. At the other end of the spectrum, however, the fact that an order might be thought to provide the optimum outcome in terms of the treatment and rehabilitation of the offender would not of itself be sufficient to meet the necessity test. The Court held that the word “necessary” in this context is “a fairly strong word falling between expedient or

desirable on the one hand and essential on the other”.⁵

Decision

[9] In the present case several factors mean that, as both counsel accept, the answer is obvious. First, Mr Garibovic was responsible for the brutal killing of a fellow human being for no apparent reason. Obviously, the Court cannot take the risk that a similar event may occur again in the future. Secondly, Mr Garibovic clearly remains at risk of committing acts of violence in the future. I draw this inference from the fact that he has assaulted a staff member whilst in custody awaiting trial on the present charge. In addition, he has no recollection of the physical events giving rise to the charge, and denies that he killed Mr Lowe. Thirdly, the evidence demonstrates that there is no prospect whatsoever that Mr Garibovic will recover with or without treatment. Rather, his condition will inevitably become more and more grave. In those circumstances, as both counsel agree, it would be manifestly inappropriate to make an order under s 25 of the Act.

[10] The only appropriate order is that Mr Garibovic be detained as a special patient in terms of s 24. I therefore make an order under s 24(2)(a) of the Act that

⁴ _{At [7].}

⁵ At [17].

Mr Garibovic is to be detained in a hospital as a special patient under the Mental

_{Health (Compulsory Assessment and Treatment) Act 1992.}

Lang J

Solicitors:

Crown Solicitor, Auckland

Counsel:

J R F Anderson, Auckland