MARSH v POLICE [2020] NZHC [2368]

MARSH v POLICE [2020] NZHC [2368] [11 September 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-173[2020] NZHC 2368BETWEEN SANTANA MISTA JAMIE POTO MARSHAppellantAND NEW ZEALAND POLICERespondentHearing: 7 September 2020Appearances: A G V Rogers & F B E Dash for AppellantR M Gibbs for RespondentJudgment: 11 September 2020JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 11 September 2020 at 12:00 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Kayes Fletcher Walker, AucklandIntroduction[1] Mr Santana Marsh (the appellant) is 24 years old. He applies for leave toappeal against a sentence of three years' imprisonment imposed by Judge J C Moseson 11 December 2018 in the District Court at Manukau.1 The principal ground of theappeal is that information showing that the appellant was suffering from intellectualdisability at the time of his offending was not placed before Judge Moses. Theappellant says that because the information regarding his mild or borderlineintellectual disability at the time of his offending was not placed before the Court whenhe was sentenced in December 2018, there was an error in the sentence imposed, anda sentence other than imprisonment ought to have been imposed.[2] The charges for which he was sentenced in December 2018 included burglary,using a document, assaulting and resisting a police constable, theft and breach ofrelease conditions.2[3] As the appeal is out of time, an extension of time to appeal is sought, and isnot opposed by the respondent.Procedural History[4] On 22 June 2019, while serving the prison sentence imposed in December2018, the appellant offended again by attacking and wounding another prisoner in theprison exercise yard. The victim of the attack is said to be a friend of the appellant,and the appellant says that the victim had asked him to attack him when he came outof prison segregation, in order to reduce the likelihood of the victim receiving a moresevere assault from another prisoner. On 2 October 2019, the appellant pleaded guiltyto a charge of wounding with reckless disregard for the safety of others (the woundingcharge), and his sentencing was adjourned to 24 September 2020 to await the outcomeof this appeal, for reasons I shall now outline.31 Police v Marsh [2018] NZDC 25925.2 Burglary (2); theft (2); assault; assault of a police constable in the execution of his duty; resistinga police constable in the execution of his duty; unlawful taking a motor vehicle; possession of aknife in a public place; using a document to obtain pecuniary advantage (4); breach of releaseconditions.3 Crimes Act 1961, s 188(2).[5] For the purpose of the appellant's sentencing for the wounding charge, hiscounsel arranged for two reports to be prepared – one by a clinical psychologist, MsIngalise Jensen,4 and the other by a consultant psychiatrist, Dr Mhairi Duff.5 Bothspecialists concluded that the appellant has an intellectual disability. In Ms Jensen'sopinion, the appellant meets the criteria for a diagnosis of a mild intellectual disability.In Dr Duff's opinion, the appellant has a borderline intellectual impairment rather thana full intellectual disability. Both specialists recommended that consideration be givenby the Court to ordering a formal assessment of the appellant's eligibility andsuitability for potential disposition under Part 3 of the Intellectual Disability(Compulsory Care and Rehabilitation) Act 2003 (IDCCR).6[6] An assessment under Part 3 of the IDCCR would determine whether theappellant should be deemed a special care recipient, and therefore someone liable tobe detained in a secure facility under the Criminal Procedure (Mentally ImpairedPersons) Act 2003 (CPMIP).[7] However, notwithstanding these expert recommendations, s 34(5) of theCPMIP creates a legislative obstacle that precludes the court from making an order foran offender's detention in a secure facility for assessment under s 34(1)(a)(ii) inrespect of an offender who is subject to a sentence of imprisonment at the time of theirconviction. In an attempt to overcome the obstacle of s 34(5), the appellant has appliedfor leave to appeal against the sentence of imprisonment imposed on him in December2018. Should he succeed in his appeal and a sentence other than imprisonment isimposed, the District Court would not be prevented by s 34(5) from ordering reportsunder ss 34 and 35 of the CPMIP to consider whether instead of passing sentence, theappellant should be cared for as a care recipient under the IDCCR.7[8] Accordingly, as the appellant has appealed against the sentence ofimprisonment imposed on 11 December 2018, the District Court sentencing for thewounding charge has been adjourned to await the outcome of his appeal.4 Report of Ingalise Jensen, 25 April 2020.5 Report of Dr Mhairi Duff, 25 April 2020.6 Dr Duff at [50] – [51], Ms Jensen at [108].7 Criminal Procedure (Mentally Impaired Persons Act) 2003, s 34(1)(a)(ii).[9] This appeal was first called in the High Court at Auckland on 12 June 2020.Justice Whata noted that, while the reports of Ms Jensen and Dr Duff provided a soundbasis for the Court to request a s 34 report which would be of assistance to the Courtin determining whether a miscarriage of justice has occurred, s 34(5) prevented theCourt from making an order directing the preparation of a report. In his Minute of 15June 2020, Justice Whata said:8As to cogency, the observations made by Ms I Jensen, a forensic psychologist;and Dr M Duff, a forensic psychiatrist, provide a sound basis for requesting areport. Mr Radich [counsel for the Police] did not argue otherwise. I am alsosatisfied that the Judge hearing the appeal would be assisted by the report interms of assessing whether a miscarriage has occurred.However, an issue not discussed with me at the conference was the ability toundertake an assessment of this kind while Mr Marsh remains in prison. Ipropose to reconvene the conference by telephone for that discussion to occur.I otherwise remain content, for the reasons just expressed, to make an orderfor the assessment to be undertaken.[10] This issue was addressed with counsel at a further telephone conference on 10July 2020, and the appeal was adjourned to enable counsel to make enquiries of theChief Executive of the Department of Corrections as to whether the Chief Executivewould take steps pursuant to s 46 of the Mental Health (Compulsory Assessment andTreatment) Act 1992 to make arrangements for the appellant to receive psychiatriccare. However, the Chief Executive considered that the appellant was not afflictedwith a psychiatric illness for which care and treatment at the Mason Clinic would fulfilthe criteria prescribed in s 46, and notified the parties on 11 August 2020 that hedeclined to take any steps under that provision.[11] On 14 August 2020 and against that background, the appeal was set down forhearing.The offending for which the appellant was sentenced on 11 December 2018[12] At approximately 10.50 pm on 18 April 2018, the appellant entered Victim A'sproperty, and took Victim A's Nissan motor vehicle without permission. At around12.30 am on 19 April 2018, the appellant, accompanied by an associate, drove VictimA's motor vehicle to the Parakai Four Square supermarket. The appellant and his8 At [10] – [11].associate then smashed the glass front door of the supermarket with a brick in order togain entry. Once inside, they took a number of items including cigarettes, alcohol andlighters valued at $2,500, before driving away in the stolen car. At about 3 am, thestolen car was involved in a Police pursuit in Manurewa, however due to the dangerousmanner in which the car was being driven, the pursuit was abandoned.[13] At approximately 5 pm on 19 April 2018, the appellant entered Stirling Sportsin Pukekohe, where he took a hoodie and a pair of pants valued at $220, and leftwithout paying for them. Victim B, who worked at the store, followed the appellantout of the shop in an attempt to retrieve the items. The appellant swore at her andpushed her shoulder.[14] On 5 June 2018, at approximately 7 am, Victim C arrived at his workplace inWattledowns. He left his Commonwealth Mastercard bank card in his backpack in awork vehicle close to where he was working. The vehicle remained unlocked for mostof the day. The appellant obtained Victim C's bank card by an unknown means. Bythe end of the day, 12 unauthorised transactions had been made with the bank card.The appellant made four of these himself (spending between $28.90 – $78.90 atdifferent fuel stations) and was present during some of the transactions made with thestolen bank card.[15] On 8 June 2018, between 7.15 pm – 8.30 pm, the two cars belonging to VictimsD and E were broken into. The windows of each car were smashed, the ignitioncowlings were damaged, and items were taken. Victim D's pushbike, which had beenleft leaning against the carport beside his car, was also taken. A blood sample takenfrom blood on an arm rest in one of the cars was found to match that of the appellant.[16] Shortly after 5.00 pm on 10 June 2018, Victim F's wallet was taken from thecompartment under the driver's seat of his car, which was parked outside his home.An ANZ bank card, which had been in his wallet, was then used for three unauthorisedtransactions totalling approximately $135.00 at three service stations between 5.36 pm– 5.43 pm. A DNA sample obtained from a beanie hat found inside Victim F's car wasidentified as belonging to the appellant.[17] On 13 June 2018, Police officers making inquiries at a Manurewa address sawa vehicle leaving. The vehicle was subsequently stopped by Police, and the appellantwas observed seated in the passenger seat. When the appellant was told by Police thathe was under arrest and asked to exit the vehicle, he opened his car door, pushed oneof the Police officers, and attempted to flee by jumping over the bonnet. A Policeofficer attempting to restrain the appellant was punched in the stomach before theappellant was eventually taken to the ground and placed in restraints with theassistance of another Constable.District Court decision[18] On 11 December 2018, Judge Moses sentenced the appellant to three years'imprisonment.9[19] After canvassing the facts of the offending, the Judge acknowledged theappellant's background:10From what I understand from what your lawyer has told me, your use or abuseof drugs is something which has led to this and perhaps a good deal of yourprevious offending. I have heard a bit about some of your background. Yourbackground does not have to define how you behave in the future. As I say,you are a young man and you will have the opportunity, if you wish to, tomake some changes while you are in prison so that you can be the sort offather that I am sure you want to be for your children.[20] The Judge assessed the burglary charges in totality, adopting a starting point ofthree years' imprisonment for that offending.11 He uplifted the starting point by:(a) six months, for the other dishonesty offences and the breaches ofrelease conditions;(b) six months, for the assault and resisting of police officers;(c) six months, to reflect that some of the offending took place while onbail, and to reflect the appellant's criminal history (some 25dishonesty offences committed in the three years prior).[21] These uplifts brought the adjusted starting point to 54 months. The Judge thenreduced this by:9 Police v Marsh [2018] NZDC 25925.10 At [8].11 At [9].(a) six months, on account of the appellant's age and the steps he hadtaken to try and address his problems; and(b) one year, to reflect the appellant's guilty plea and expression ofremorse.[22] After these discounts, the final sentence came to three years' imprisonment forthe burglary charges. The Judge imposed concurrent sentences of six months for thecharges of obtaining documents dishonestly and assaulting a police constable, and onemonth per each of the remaining charges.[23] Significantly, no information or reports regarding the appellant's intellectualdisability were before Judge Moses when he sentenced the appellant on 11 December2018.The mental health reports[24] As I earlier noted, Ms Jensen and Dr Duff are both of the opinion that theappellant suffers mild intellectual disability or a borderline intellectual impairmentrather than a full intellectual disability. Both health professionals recommend that theappellant's mental health be assessed.[25] In her first report, dated 25 April 2020, Ms Jensen considered whether theappellant has foetal alcohol spectrum disorder (FASD), and other neurodevelopmentaldisorders. Ms Jensen observed:12The neuropsychological assessment completed with Mr Marsh indicates thathe has significant deficits in a number of areas. These include low cognitivefunctioning, impaired expressive and receptive language, low academicability, and poor visual memory. His adaptive functioning also appears to below although some caution as noted above is suggested with regards to thisdomain Overall, his functioning is low in many areas as would be expectedgiven his borderline cognitive ability.In my opinion, Mr Marsh likely meets criteria for the diagnosis of mildintellectual disability and is eligible for disability support services andconsideration under the [IDCCR].12 Report of Ingalise Jensen, 25 April 2020, at [81] and [85].[26] As regards sentencing and rehabilitation considerations, Ms Jensen says:13In my opinion, Mr Marsh has a brain-based disability and has considerablerehabilitation and support needs. These needs are likely to be long term giventhe permanent nature of his impairments and the need to be taken into accountif his risk of reoffending is to be reduced. He appears vulnerable tomanipulation and pressure from others and to making poor decisions[27] Ms Jensen also prepared a second report, dated 17 August 2020, in which sheaddressed the question of whether there would have been a causative link between theappellant's intellectual disability and his prior offending for which he was sentencedby Judge Moses on 11 December 2018. In this second report Ms Jensen says:14[17] In conclusion, it is my opinion that Mr Marsh likely meets criteria forthe diagnosis of mild intellectual disability.[18] Intellectual disability is a permanent brain-based impairment and soin my opinion, Mr Marsh would also have been affected by this constellationof difficulties when he was younger and certainly in 2018.[20] Although I cannot comment specifically on the offending which ledto Mr Marsh being imprisoned in December 2018, I note that some of hisoffences occurred with others and that the offending was similar to previousoffending. Mr Marsh had been released from prison earlier in 2018 and oneof his convictions related to him breaching his release conditions. Again, thisis part of a pattern of behaviour that Mr Marsh has demonstrated previouslyand suggests that he struggles to learn from previous experiences andconsequences and likely does not consider "in the moment" the potentialimplications of his choices and behaviour.[21] I consider that Mr Marsh has considerable rehabilitation and supportneeds. These needs are likely to be long term, given the permanent nature ofhis impairments and need to be taken into account if his risk of reoffending isto be reduced. Ideally, Mr Marsh would be provided with an intervention thatis more at his level of cognitive ability or alternatively he could be transferredto another facility that can provide more rehabilitative options such as thePouhutukawa Unit at the Mason Clinic. This unit provides hospital level carefor people with intellectual abilities who have come to the attention of thecriminal justice system. I consider that this unit could provide Mr Marsh withappropriate rehabilitation and care from suitably trained staff all within astructured and secure environment.[22] I have previously recommended that as Mr Marsh likely meets criteriafor the diagnosis of a mild intellectual disability, an assessment under Part 3of the [IDCCR], could be considered. Based on my assessment of Mr Marsh,I am of the opinion that an assessment under s 35 of the [CPMIP] could havebeen considered in 2018 if the current information had been available.13 At [105].14 Report of Ingalese Jensen, 17 August 2020 at [20] – [22].[28] Dr Duff prepared her report, dated 25 April 2020, to supplement the primaryreport prepared by Ms Jensen, and to focus upon the medical assessments relevant toa potential diagnosis of FASD, additional diagnostic and mental state assessments, andthe competencies of the appellant relevant to criminal responsibility.[29] In relation to the possibility that the appellant suffers from FASD, Dr Duffsaid:15A formal diagnosis of FASD cannot be made at this point but there areindications of a probable pre-natal cause for his borderline intellectualimpairment.Although Mr Marsh does not have a confirmed diagnosis of FASD he doeshave clear impairments in his intellectual skills placing him right on theborderline for a diagnosis of an intellectual disability. Mr Marsh has relativelybetter impulsive control and executive function on formal testing. He showshowever poor learning in practice from his mistakes, repeating dysfunctionalpatterns of behaviour. Whilst these issues may impair his capacity to makegood or safe decisions they also impact on the effectiveness of conventionaldeterrents and punishment. Mr Marsh shows relatively strong knowledge ofthe rules and his rights within the prison system and yet has been unable toapply this information to smooth his passage through [C]orrections.[30] Dr Duff is of the opinion that the appellant "has a borderline intellectualimpairment rather than a full intellectual disability", and says:16Whilst I am of the opinion Mr Marsh has a borderline cognitive impairment,only a full assessment by a specialist assessor alongside a needs assessmentand development of a care and rehabilitation plan as defined under Part 2 ofthe [IDCCR] would determine for the Court if his borderline function isconsidered within or marginally above the required cut-off for eligibility forconsidering potential disposition under this Act.[31] Dr Duff's recommendation is as follows:Given the marginal call around potential disposition, a further assessmentordered under s 35 of the [CPMIP] could explore a number of factors,including eligibility. These issues would need to be considered to assist theCourt in determining if a disposition under s 34(1)(a)(ii) of the [CPMIP] mightbe considered by the Court. Such an assessment, if this is the will of the Court,is coordinated through the Forensic Coordination Services-IntellectualDisability (formerly known as NIDCA).15 Report of Dr Mhairi Duff, 25 April 2020, at [44] and [47].16 At [43].Cultural Report by Associate Professor Khylee Quince[32] The appellant has also obtained a cultural report from Ms Khylee Quince, whois an Associate Professor and Director of Maori and Pasifika Advancement atAuckland University of Technology. At the request of the appellant's counsel,Associate Professor Quince (Ms Quince) met with Mr Marsh at Auckland Prison on11 March 2020 and subsequently prepared her written report dated 30 April 2020.[33] In her report Ms Quince notes that the appellant was whangaied (raised) by hismaternal grandparents from one week old. Ms Quince records that the appellantreports that his grandparents provided a safe and loving home for him, moving awayfrom Pukekohe when he was born to put distance between him and his extendedwhanau's strong affiliations with Black Power, Pukekohe. He reports physical abuseand neglect during periods when he was in the care of his mother and his stepfather,who is a patched member of Black Power.[34] The appellant never enjoyed school, self-describing as a "slow learner". Hewas stood down for fighting, cannabis use, assault and conduct issues in Year 10, anddropped out of school altogether at age 16, without formal qualifications.[35] The appellant has a long history of poly substance abuse. He recalls first tryingmethamphetamine in primary school and beginning to smoke and drink alcoholregularly at age 15. He has also used synthetics since his late teens. He has completedsix months in the Drug Treatment Unit at Rimutaka Prison.[36] The appellant has a long history of engagement with welfare and justiceagencies. He has spent time in the Hillsborough Lighthouse home, operated by YouthHorizons Trust for short term crisis care, and in the secure Youth Justice residenceKorowai Manaaki. His first involvement in the Youth Justice system was in 2012,when Family Group Conferences were convened to address his offending behaviours.[37] The appellant became a father of twins at age 18.[38] In relation to how the appellant's background may be relevant in respect ofpossible sentences, Ms Quince writes:17The information outlined in this report identifies a number of matters relevantto [the appellant's] offending, that could be addressed in his disposition. It isdifficult to consider [the appellant's] limited remorse or insight without takingaccount of his probable intellectual and cognitive difficulties. Thisbackground is directly relevant to considering matters of mitigation insentencing, such as the expression of remorse, and he should not be prejudicedbecause of it. At a more fundamental level, these difficulties may in fact affecthis culpability, and appreciation of long term consequences.[39] Ms Quince concludes:18Santana Marsh is a young Maori male with a significant offending history. Hehas had some positive influences in his life, particularly the home andrelationship provided by his grandparents. However, it must be borne in mindthat Santana's wider whanau and community experience reflects someentrenched positions, attitudes and behaviours that are the result ofintergenerational disadvantage. Those phenomena, including his wider familyaffiliations with gangs and substance abuse, can overwhelm the efforts of goodpeople in their midst, such as [his maternal grandparents]. Whilst that does notdeny Santana's individual agency, when viewed through a Maori lens of theinter-dependent relationship between individual and collective health andwellbeing, it goes some way to explaining how he comes to be before the courttoday.Approach on appeal against sentence[40] An appeal against sentence is governed by the Criminal Procedure Act 2011.Section 250(2) provides that the Court must allow an appeal against sentence ifsatisfied that for any reason, there is an error in the sentence imposed on conviction,and a different sentence should be imposed. In any other case, the Court must dismissthe appeal.19[41] The Court of Appeal in Tutakangahau v R confirmed that s 250(2) was notintended to change the previous approach taken by the courts under the SummaryProceedings Act 1957.20 As such, the measure of error that must be shown, is that thesentence is "manifestly excessive".21 The High Court will not intervene where the17 From 12.18 At 14.19 Criminal Procedure Act 2011, s 250(3).20 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [26] – [27].21 At [26] – [27].sentence is within the range that can properly be justified by accepted sentencingprinciples. Whether a sentence is manifestly excessive is to be examined in terms ofthe sentence given, rather than the process by which the sentence was reached.SubmissionsFor the appellant[42] Mr Rogers, for the appellant, submits that the contents of Ms Jensen's andDr Duff's reports convincingly show that the appellant suffers from a mild orborderline level of brain-based intellectual disability which would have affected hiscognitive functioning and behaviour during the offending for which he was sentencedon 11 December 2018. He submits that the contents of the Jensen and Duff reportsregarding the appellant's intellectual disability are directly relevant to the purposesand principles of sentencing in s 7 of the Sentencing Act 2002, particularly theobjectives set out in s 7(1)(g) and (h). He further submits that the contents of thereports are also relevant to the s 8 sentencing principles, as the effects of theintellectual disability inform an assessment of the gravity of the offending, and arecircumstances particular to the appellant that would mean that a sentence ofimprisonment would be disproportionately severe for him. Mr Rogers notes thatFASD is recognised as being a factor that may reduce culpability by reason of its effectof reducing an offender's capacity to judge situations, respond appropriately, and resistacting on impulse.[43] Mr Rogers submits that an offender's diminished mental state is relevant tosentencing both as regards the court's assessment of the gravity of the offending anddetermining the appropriate sentencing starting point, and may also be taken intoaccount when considering factors personal to the offender.22[44] Furthermore says Mr Rogers, had the appellant's diminished intellectualdisability been known when Judge Moses sentenced him in December 2018, the Judgewould have to take it into account as a mitigating factor under s 9(2)(e) of theSentencing Act. Counsel submits that a discount of between 20 - 30 per cent for22 R v Johnson [2020] NZHC 169.personal mitigating factors including the appellant's mental condition would beappropriate to recognise the appellant's youth, rehabilitation efforts and the mattersdescribed in the reports of Ms Jensen and Dr Duff. Mr Rogers also submits that thesix month uplift for offending while on bail and for previous offending would not havebeen warranted had the effects of the intellectual disability on the appellant beenknown when he was sentenced in December 2018.[45] Mr Rogers says that if the Court is satisfied that information regarding theappellant's intellectual disability is relevant to the appeal and the issue of whetherthere has been an error in the sentence imposed, the appropriate course is for the Courtto allow the appeal and remit the matter back to the District Court at Manukau forsentencing with a direction that the District Court order an assessment of the appellantpursuant to ss 34 and 35 of the CPMIP. In making this submission, Mr Rogers agreeswith Ms Gibbs, for the respondent, that a resentencing or disposition of the matter bythe District Court, with it having the advantage of reports by health assessors, wouldalso maintain a right of appeal from the sentence imposed.For the respondent[46] Ms Gibbs, for the respondent, accepts that information regarding theappellant's intellectual disabilities and low cognitive functioning was not before theDistrict Court when the appellant was sentenced on 11 December 2018. FurthermoreMs Gibbs accepts that, although information regarding the appellant's personalbackground was put before the District Court, it cannot be determined to what extentthe information provided to the Court was substantially the same as that contained inthe cultural report prepared by Ms Quince. Ms Gibbs says that, although the appellanthas not provided any reason as to why the information contained in the reports wasnot obtained at the time of his December 2018 sentencing, the respondent nonethelessaccepts that it may ultimately be in the interests of justice that this material is beforethe Court for the purposes of the appeal. Counsel submits that nevertheless, there isconsiderable difficulty in applying reports prepared some 16 months after thesentencing in issue, where the reports are not directed at the offending which is thesubject of the appeal.[47] Counsel notes however that the pre-sentence report prepared for the December2018 sentencing did contain information regarding the appellant's personalbackground which referred to his daily methamphetamine abuse, not having a stablehome base, and his membership of the "Killer Beez" gang. The pre-sentence reportalso noted that upon his release from prison earlier in 2018, the appellant had appearedto be keen to educate himself as regards his whakapapa, iwi and hapu, and tried tokeep away from Killer Beez associates but had succumbed to peer pressure.[48] Ms Gibbs submits that, in the appellant's case, the linkages between his abuseof alcohol and drugs, his family affiliation with the Black Power gang and hisoffending are comparatively limited. Counsel notes that the appellant was 22 years oldat the time of his offending which she submits is at the upper end of the age range forallowing youth discounts in sentencing. She submits that the six month or 11 per centdiscount given to the appellant was generous in the circumstances.[49] The respondent notes that the appellant's diminished intellectual capacity maybe a relevant mitigating consideration but submits that, as Ms Jensen and Dr Duff havenot spoken to the appellant about his offending for which he was sentenced inDecember 2018, the Court is placed in a difficult position as regards being able todraw any conclusions as to the possible causative or moral impact of the appellant'sintellectual and cognitive difficulties and the impact that they may have had on thesentence under appeal. Ms Gibbs submits that there are aspects of the appellant'soffending which demonstrate that his actions were deliberate and sustained and which,on the basis of the evidence presently before the Court, indicate an insufficient causalconnection with his intellectual disabilities to ameliorate his culpability or the gravityof his offending.[50] Counsel also notes that the appellant is assessed as being a high risk of futureviolent reoffending, and that as protection of the community remains a relevantpurpose of sentencing, it must be factored into the overall assessment of any discount.[51] The respondent submits that the information contained in the additional reportsbefore the Court, should they be admitted for the appeal, would not warrant any furthersentencing discounts being given to the appellant such as would reduce his sentenceto within range for consideration of home detention or a community-based sentence.Moreover, having regard to the appellant's intellectual difficulties, rehabilitative needsand history of failing to comply with his release conditions, a sentence short ofimprisonment would not adequately meet the purposes and principles of sentencing.[52] The respondent submits that, if the Court considers that further informationand investigation of the appellant's likely intellectual disability is required, theappropriate course would be to remit the matter back to the Manukau District Courtfor those enquiries to be undertaken and an appropriate disposition under the CPMIP.AnalysisIs the time to appeal to be extended and the expert reports admitted for the appeal?[53] The application for an extension of the time to bring the appeal is based on therecent discovery that the appellant suffers from a mild intellectual disability orborderline intellectual impairment which was not known at the time of his sentencingin December 2018, and which would have been a materially relevant factor in theDistrict Court's determination of the sentence imposed.[54] The existence and contents of the reports prepared by Ms Jensen and Dr Duffwarrant the Court extending the time for bringing the appeal. It is in the interests ofjustice that the appeal be heard and the opportunity afforded to the appellant to raisethe issues arising from, and related to, the reports by way of an appeal against thesentence imposed on him in December 2018. Accordingly, pursuant to s 248(4) of theCriminal Procedure Act 2011, I extend the time for filing the application for leave toappeal to the date on which it was filed, namely 22 May 2020.[55] The information in the reports and the opinions expressed by Ms Jensen andDr Duff is credible and was not available at the time the appellant was sentenced inDecember 2018. The reports describe a brain-based intellectual disability that waspresent at the time of the appellant's offending in 2018 that is said to have affected hisbehaviour and cognitive abilities. I consider, having regard to the nature and relevanceof the information and expert opinions in the two reports prepared by Ms Jensen andthe report prepared by Dr Duff, that it is in the interests of justice that the reports beadmitted as fresh evidence for the purposes of the appeal.[56] Ms Quince's cultural report is based on information that was available to theappellant at the time of his sentencing in December 2018, however it also contains theexpert opinions expressed by the author regarding the appellant and the factorscontributing to his offending and drug abuse. This information is considerably moredetailed and in depth than was before the District Court in the pre-sentence report inDecember 2018. It is information that is relevant to the Court's assessment of theappellant's personal factors and background, which mitigate his offending, and isrelevant to the Court's consideration of the issues addressed in the reports prepared byMs Jensen and Dr Duff.[57] Accordingly, I consider that it is in the interests of justice for the four reportsto be admitted for the purposes of the appeal.23The expert opinions and recommendations[58] In her report, Dr Duff said that the appellant gave no indication of suffering aspecific mental illness at the time she conducted her assessment of him for the purposeof preparing her report, but there is evidence that he has suffered from a lifelongborderline cognitive impairment. Dr Duff says that, while it is not possible to make aconfirmed diagnosis of FASD, there are a number of indications that the appellant isnot as able as his peers. There are also indications that he lies on the margins of theintellectual disability spectrum, with deficits likely to impact on his judgement andplanning such that make him more naïve than his peers and vulnerable to negativeinfluences to a greater degree than average.24[59] Dr Duff's recommendation is that given what she terms "the marginal callaround potential disposition", the Court could consider ordering a formal assessmentof the appellant's eligibility and suitability for disposition pursuant to Part 3 ofIDCCR. Dr Duff further recommends that, were the Court to make an order under23 Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37 at [23].24 Report of Dr Mhairi Duff, 25 April 2020, at [37].s 35 of the CPMIP, the assessment undertaken pursuant to s 34 of the CPMIP couldexplore the appellant's eligibility for an order pursuant to s 34(1)(a)(ii) by sentencinghim to a term of imprisonment and also ordering that he be detained in a secure facilityas a special patient under the IDCCR.[60] In her first report, Ms Jensen recommends, in relation to the appellant'ssentencing on the wounding charge that as the appellant meets the criteria for thediagnosis of a mild intellectual disability, the Court may consider ordering anassessment under Part 3 of the IDCCR, with the report to be released for the purposesof his treatment and rehabilitation. Addressing sentencing issues and the appellant'srehabilitation needs, Ms Jensen said:25In my opinion, Mr Marsh has a brain-based disability and has considerablerehabilitation and support needs. These needs are likely to be long term, giventhe permanent nature of his impairments and need to be taken into account ifhis risk of offending is to be reduced. He appears vulnerable to manipulationand pressure from others and to making poor decisions. This is not to say thatMr Marsh did not know that the assault was wrong or illegal. However, dueto his poor cognitive functioning, Mr Marsh appears to have significantdifficulty in learning from consequences in a way that means he struggles tomake positive choices and in essence tends to repeat the same mistakes. Thisis made more difficult when he is surrounded by pressure to conform andcomply with both the prison culture and the demands of more sophisticatedantisocial peers within his unit. With regard to the index offence, Mr Marshappears to have agreed to assault the victim at his own request[61] As regards the time period during which the offending which is the subject ofthis appeal took place, Ms Jensen, in her second report, said that the appellant'sintellectual disability is a permanent brain-based impairment and that the"constellation of difficulties" affecting him was certainly present during 2018.The relevance of the appellant's intellectual disability as mitigation of his 2018offending[62] If the appellant's disposition to act on impulse and susceptibility to influenceand manipulation had been known in December 2018 at the time of sentence, it wouldhave been relevant information to be taken into account by the District Court. As theCourt of Appeal explained in Zhang v R:2625 Report of Ingalese Jensen, 25 April 2020, at [105].26 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [151] – [153].[151] Mental impairment, even beyond the limited provision for diminishedintellectual capacity or understanding under s 9(2)(e) of the Sentencing Act,is a mitigating consideration. Mental impairment short of insanity affects thesentencing level in the three respects identified at [138].[152] The evidence before us suggested that methamphetamine is bothattractive to users with mental health issues and can itself be causative ofmental health issues. Accordingly where there is an evidential basis to suggestthat mental health issues have contributed to the offending, or otherwiseshould alter the assessment of the appropriate sentence, a discount is available.We need note only the reality that mental health issues and addiction mayoperate in combination, and the need to ensure that there is no improperdoubling-up of discounts for personal circumstances.[153] The degree of discount is said to depend on the severity of the mentalhealth condition issue and the strength of the causal link between thatcondition and the offending.27 In E (CA689/10) v R, this Court reviewed arange of discounts treated as appropriate when a mental health condition hadcontributed to the offending.28 The range discerned was from 12 to 30 percent. The decision also noted R v Gordon where combined discounts takinginto account mental illness and other factors reached 50 per cent of the startingpoint.29 This is not the case in which to review discount levels for contributingmental health conditions. That is a question for another day. It will suffice forpresent purposes to record their potential availability in cases involvingmethamphetamine offending.[63] In E v R the Court of Appeal observed:30A mental disorder falling short of exculpating insanity may be capable ofmitigating a sentence either because: if causative of the offending, itmoderates the culpability; it renders less appropriate or more subjectivelypunitive a sentence of imprisonment; or because of a combination of thosereasons. The moderation of culpability follows from the principle that anygeneral criminal liability is founded on conduct performed rationally by onewho exercises a willed choice to offend.[64] And as noted by Fitzgerald J in R v Johnson,31 a diminished mental state canbe relevant to the first stage of sentencing and the choice of a starting point based onan assessment of the gravity of the offending which is informed by the degree of theoffender's culpability, and also in relation to the second stage of sentencing where thepersonal factors relevant to the offender are taken into account.27 Edri v R [2013] NZCA 264 at [17].28 E (CA689/10) v R [2011] NZCA 13, (2011) 25 CRNZ 411 at [71] – [83].29 At [79], citing R v Gordon CA276/04, 16 December 2004.30 E (CA689/10) v R [2011] NZCA 13, (2011) 25 CRNZ 411 at [68] (citations omitted).31 R v Johnson [2020] NZHC 169 at [25] – [26].[65] While Judge Moses took the appellant's personal circumstances into accountand gave a six month discount for youth, obviously, in the absence of any evidencebefore Judge Moses that the appellant suffered from an intellectual disability, noallowance for that factor was made in the Judge's assessment of the gravity of theoffending and choice of a sentencing starting point, and no allowance was made forthe appellant's mental state when considering personal mitigating factors relating tothe appellant.[66] As the appellant's mental state has not been shown to have caused orcontributed to the offending, I do not consider it to be a material consideration inrelation to the assessment of the gravity of the offending. However, I do consider theappellant's intellectual disability and poor level of cognitive functioning to be arelevant personal factor that mitigates his offending. I also find that the appellant'ssusceptibility to being manipulated and influenced by others, which is a manifestationof his mental disability, will have the effect of making a sentence of imprisonmentmore onerous and punitive for him than would otherwise be the case because he isvulnerable to being manipulated by other inmates while in prison. Indeed, there aresome indications of that having occurred in relation to his offending in prison forwhich he is awaiting sentence.[67] I therefore find that there was an error in the sentence imposed on the appellant,and that a different sentence should be imposed. However, before the appellant is re-sentenced for the 2018 offending, I am satisfied by the opinions and recommendationsmade by Ms Jensen and Dr Duff that it is appropriate for an assessment of the appellantto be made by pursuant to s 34(2) of the CPMIP as to whether the appellant's mentalimpairment requires that he be detained in a secure facility as a special care recipientunder the IDCCR.Result[68] Accordingly, I make an order quashing the sentence of three years'imprisonment imposed on the appellant by Judge Moses on 11 December 2018, and,pursuant to s 251(2)(c) of the Criminal Procedure Act 2011, I remit the sentencing ofthe appellant back to the Manukau District Court, with a direction that prior toimposing sentence, the District Court exercise the power in ss 34 and 35 of the CPMIPto order an assessment of the appellant to be undertaken in accordance with Part 3 ofthe IDCCR to determine whether, in addition to a sentence of imprisonment, he oughtto be detained in a secure facility as a special care recipient under the IDCCR pursuantto s 34(1)(a)(ii) of the CPMIP.[69] Having quashed the sentence of imprisonment imposed by the ManukauDistrict Court on 11 December 2018, I make an order that the appellant is remandedin custody pending being re-sentenced. I also direct that he is to appear before theManukau District Court, on a date to be advised by the Registrar, for a new sentencingdate to be set, and orders made for his assessment under ss 34 and 35 of the CPMIP.[70] I further order that the appellant's sentencing on the wounding charge betransferred from the North Shore District Court to the Manukau District Court and thatthe sentencing on the wounding charge be undertaken together with the re-sentencingof the appellant on the 2018 charges. Combining the sentencing of the appellant on thetwo matters will enable the sentencing Court to take into account the report(s) obtainedfollowing the appellant's assessment under ss 34 and 35 of the CPMIP._____________Paul Davison J