H v R

• Jurisdiction: New Zealand
• Judge: Heath J
• Judgment Date: 10 December 2013
• Neutral Citation: [2013] NZCA 628
• Docket Number: CA841/2012
• Court: Court of Appeal
• Date: 10 December 2013

BETWEEN

H (CA841/2012)

Appellant

and

The Queen

Respondent

[2013] NZCA 628

Court:

Wild, Heath and Keane JJ

CA841/2012

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against special care order made following High Court's finding on a balance of probabilities that appellant had committed the offences with which he had been charged and was unfit to stand trial on grounds of intellectual disability-appellant was charged with a number of sexual offences-disagreement between psychiatrists as to likelihood of reoffending-Judge considered a special care order was required because of: (i) the seriousness of the offending; (ii) the continued denial of the offending; (iii) the history of drug and alcohol abuse; and (iv) the difficulty in assessing the risks of reoffending-whether appellant should instead have been detained as a “care recipient” (“care order”) pursuant to s25(1)(b) Criminal Procedure (Mentally Impaired Persons) Act 2003 (“CPMIPA”) (alternative decisions in respect of defendant unfit to stand trial or insane) rather than the more the more restrictive “special care recipient” under s24(2)(b) CPMIPA (detention of defendant found unfit to stand trial or insane as special patient or special care recipient).

Counsel:

C Cull for Appellant

S B Edwards for Respondent

• A The appeal is allowed.

• B The order that the appellant be detained as a special care recipient is set aside.

• C In substitution, an order is made that the appellant be detained as a care recipient in a secure facility for a period of three years.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Heath J)

Contents

	Para No
The appeal	[1]
The legislative scheme	[5]
The nature and purposes of special care and care orders
(a) Definitional issues	[8]
(b) The purposes of a disposition order	[12]
(c) That status of a “special care recipient”	[14]
(d) The status of a “care recipient”	[19]
Evidence at the disposition hearing	[27]
The Judge's reason for making a special care order	[32]
Did the Judge err in making a special care order	35]
Result	[53]

The appeal

1 The appellant (we will call him H) was charged with three counts of indecency with a girl under the age of 12 years, three of sexual conduct with a child under 12, two of sexual violation by unlawful sexual connection, one of sexual violation by rape, one of assault with intent to commit sexual violation and two of assault on a child. After his committal for trial in the District Court at Kaikohe, questions arose about his fitness to stand trial. 1

2 There are (potentially) three distinct stages of an inquiry into fitness to stand trial. The first involves a hearing at which a Judge must determine whether the Crown has proved, on the balance of probabilities, that the offences were committed. 2 At the second, the Judge decides whether the defendant is unfit to stand trial. 3 The third is disposition. 4 Having found, on a balance of probabilities, that H had committed the offences with which he had been charged and was unfit to stand

trial on grounds of intellectual disability, Judge de Ridder held a disposition hearing to determine whether H should be detained as a “special care recipient” (special care order) or as a “care recipient” (care order). 5 In a judgment given on 20 November 2012, the Judge found that detention as a special care recipient was necessary, to meet public interest concerns. 6

3 H's appeal challenges the special care order. 7 Ms Cull, on his behalf, contends that the Judge ought to have made a care order. She submits that detention as a “special care recipient” was unnecessary. That being so, the less restrictive form of disposition (care order) ought to have been chosen. Ms Edwards, for the Crown, submits that the Judge chose the most appropriate outcome, for the reasons that he gave.

4 To determine that question, we adopt the following framework for our analysis:

• (a) First, we set out those legislative provisions that are relevant to determining whether a care order or a special care order should be made. 8

• (b) Second, we compare the public protections and rehabilitative procedures available for both special care and care orders. 9

• (c) Third, we review the evidence available to Judge de Ridder, on which he based his decision. 10

• (d) Fourth, we identify the Judge's reasons for making a special care order. 11

• (e) Fifth, we consider whether the Judge erred in making that decision. 12

The legislative scheme

5 In his helpful text, Professor Brookbanks highlights the nature of the two distinct statutory tracks governing the disposal of criminal proceedings against persons who have been found unfit to stand trial. He wrote: 13

… These represent binary options, the choice of which is determined by the assessed risk of the unfit defendant, in particular the extent to which secure detention is necessary for the protection of the public. However, this binary structure produces an unacceptable paradox arising from the designation given to a defendant at the point that the disposal decision is made. If the defendant is assessed as a risk to public safety and ordered to be detained as a … special care recipient, he or she is effectively punished by being detained indefinitely pursuant to statutory “capping” provisions. These match the periods of incarceration that would have applied had the defendant been convicted of the offence(s) charged. If, on the other hand, the defendant's secure detention is determined not to be necessary, he or she may [be made a] care recipient or simply discharged into the community without any official oversight. This differentiation of disposal is not based on any formal evaluation of the severity of the offence with which the defendant is charged or the measure of culpability the defendant might attract if tried, but simply on whether he or she meets some undefined standard of dangerousness ….

(Emphasis added.)

6 When a defendant is found unfit to stand trial on grounds of intellectual disability, s 23 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the Mentally Impaired Persons Act) requires the Court to consider “the most suitable method of dealing with” him or her, in accordance with ss 24 or 25 of that Act. 14 To achieve that end, a defendant must be assessed under pt 3 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (the Intellectual Disability Act). 15

7 Sections 24, 25 and 26 of the Mentally Impaired Persons Act relevantly provide: 16

24 Detention of defendant found unfit to stand trial or insane as special patient or special care recipient

• (1) When the court has sufficient information on the condition of a defendant found unfit to stand trial …, the court must-

  • (a) consider all the circumstances of the case; and

  • (b) consider the evidence of 1 or more health assessors as to whether the detention of the defendant in accordance with one of the orders specified in subsection (2) is necessary; and

  • (c) make one of the orders referred to in paragraph (b) if it is satisfied that the making of the order is necessary in the interests of the public or any person or class of person who may be affected by the court's decision.

• (2) The orders referred to in subsection (1) are that the defendant be detained-

  • …

  • (b) in a secure facility as a special care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.

  • ….

25 Alternative decisions in respect of defendant unfit to stand trial or insane

• (1) If, after considering the matters specified in section 24(1)(a) and (b) concerning a defendant found unfit to stand trial …. the court is not satisfied that an order under section 24(2) is necessary, the court must deal with the defendant-

  • …

  • (b) by ordering that the defendant be cared for as a care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003; or

  • (c) if the person is liable to be detained under a sentence of imprisonment, by deciding not to make an order; or

  • (d) by ordering the immediate release of the defendant.

  • …

• (3) Before the court makes an order under subsection (1)(b), the court must be satisfied on the evidence of 1 or more health assessors that the defendant-

  • (a) has an intellectual disability; and

  • (b) has been assessed under Part 3 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003; and

  • (c) is to receive care under a care programme completed under section 26 of that Act.

• (4) In the exercise of its powers under subsection (1), the court may take into account any undertaking given by, or on behalf of, the defendant that the defendant will undergo or continue to undergo a particular programme or course of treatment.

Effect of alternative orders

• …

• (2) An order made under section 25(l)(b) is to be regarded as a compulsory care order for the purposes of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, and, in making the order, the court must-

  • (a) direct whether the defendant is to be detained in a secure facility; and

  • (b) specify the term of the order in accordance with section 46 of that Act.

The nature and purposes of special care and care orders

(a) Definitional issues

8 Both the Mentally Impaired Persons Act and the Intellectual Disability Act adopt the same definition of “special care recipient”. 1...