HABIB v NEW ZEALAND POLICE [2017] NZHC 1750

HABIB v NEW ZEALAND POLICE [2017] NZHC 1750 [26 July 2017]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCRI 2017-485-027[2017] NZHC 1750BETWEEN VINCENT PAUL HABIBAppellantAND NEW ZEALAND POLICERespondentHearing: 11 July 2017Appearances: C Thorburn and J Griffiths for AppellantA Richards for the RespondentJudgment: 26 July 2017JUDGMENT OF DOBSON J[1] Mr Habib had a traumatic childhood and as a result has a number of long- term mental health issues. He has spent most of his adult life in prison and struggles to cope when back in the community. He appeals against the sentence imposed for five burglaries on the basis that there should have been a discount for his mental health, either because his culpability was reduced or because his mental health means that the sentence is more subjectively punitive.The offending[2] Having stopped taking medication that had been adequately moderating his mental health condition (because he thought it was making him feel worse), Mr Habib consumed self-prescribed doses of valium in the lead up to the offending. On 12 April 2016 he committed five burglaries at residential properties in the Lower Hutt area. In three cases he forced entry, at one he entered on to the property but was unable to gain access to the house and in the last he walked through an open door. The circumstances of the burglaries sound amateurish in the retelling. The itemstaken from one address were left on the porch of another. He gained access to one of the properties by smashing a window and then cut himself gaining entry, using and leaving behind gloves with his blood on them.1 In the last burglary he was confronted by the occupant, and retreated to the roadside lawn outside the property, apparently waiting for the Police to arrive. They found him there, eating a piece of fruit.[3] Notwithstanding that characterisation of the offending, all such burglaries constitute serious offending. They engender justifiable feelings of violation for the victims, they are destructive of property and they put offenders like Mr Habib in a position where even more serious offending can occur if they panic when confronted by occupants.[4] Those considerations were reflected in the starting point proposed by JudgeTuohy, as was the length of Mr Habib's list of 62 previous convictions for burglary,in adopting a starting point of five years' imprisonment. That was conveyed in asentence indication provided on 19 December 2016. It was subject to a 25 per cent reduction in recognition of early guilty pleas. The Judge then sentenced Mr Habib on 10 April 2017.2[5] On sentencing, the Judge accepted that there had been an arithmetic error inproviding a 25 per cent discount from five years' imprisonment. The correct end sentence was not four years as indicated, but three years and nine months. Consistently with the sentencing indication, the Judge also imposed a minimum period of imprisonment of two years and four months. The Judge rejected Ms Thorburn's submissions that Mr Habib's mental health predicament justified areduction in the sentence.[6] No challenge to those components of the sentence has been pursued on appeal. Nor was the imposition of a minimum period of imprisonment appealed, although I return to this point below. The only point taken is that a discount should have been allowed for Mr Habib's mental health condition. Ms Thorburn proposed,1 Mr Habib told the pre-sentence report writer that cutting his arm was a deliberate attempt to hurt himself.2 R v Habib [2017] NZDC 7612.on the basis of cases she invited as analogies, that a discount of 15 per cent amounting to some seven months ought to have been allowed.The offender[7] Mr Habib had a ghastly upbringing. His mother was subjected to extreme domestic violence which Mr Habib thinks contributed to her having a number of strokes and eventually to her dying when he was still a child. He and his siblings were also subjected to extreme physical abuse and the adults in the house in which he lived were also emotionally abusive. He was sexually abused by his brothers, cousins and friends of the family. Others of his brothers suffered similarly and one brother and a nephew have committed suicide.[8] Mr Habib was placed in a boys' home, went from there to borstal and then to prison where he has spent most of his adult life. He has had a long term relationship with a partner of some 10 years who has stuck by him during his periods in prison. He describes her as very understanding and supportive. He has two adult daughters from previous relationships.[9] Because of potential issues as to his fitness to stand trial the Court directed a psychiatric report to be prepared under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003. That report, by Dr Heads, was dated 4 July 2016. The conclusion in Dr Heads' report was that Mr Habib was fit to stand trial and that he would not meet the criteria for a defence of insanity.[10] In reviewing Mr Habib's mental health condition Dr Heads reported that he had incurred significant problems with his mental health throughout his adult life including long term problems with anxiety, stress, low mood, emotional instability, symptoms of traumatic stress, low self esteem and lack of self confidence. Mr Habib has harmed himself on a number of occasions and in the past made serious attempts at suicide. Mr Habib had been out of prison since his last sentence for over a year at the time of the offending but Dr Heads recognised he had always struggled to cope with living in the community and was also better in himself when in a custodial setting.[11] Accordingly, Mr Habib's mental health condition makes it difficult for him tocope in the community and he is, at the age of 56, thoroughly institutionalised.The relevance of a mental health condition[12] The Court of Appeal has considered the relevance of a mental health condition in the case of a mother convicted of manslaughter for allowing an infant to drown in the bath, where the mother was at the time suffering from a major depressive disorder of either mild (on the Crown version) or moderate (on the defence version) severity.3 As a matter of general principle, the Court observed:[68] A mental disorder falling short of exculpating insanity may be capable of mitigating a sentence either because: if causative of the offending, it moderates the culpability; it renders less appropriate or more subjectively punitive a sentence of imprisonment; or because of a combination of those reasons. The moderation of culpability follows from the principle that any general criminal liability is founded on conduct performed rationally by one who exercises a willed choice to offend.(footnotes omitted)[13] The Court went on to acknowledge that impaired mental functioning is relevant to sentencing in at least six ways which were expressed as follows:4(a) The condition may reduce the moral culpability of the offendingconduct, as distinct from the offender's legal responsibility. Wherethat is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.(b) The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.(c) Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.(d) Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.3 E (CA689/10) v R [2010] NZCA 13, (2011) 25 CRNZ 411.4 At [70].(e) The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.(f) Where there is a serious risk of imprisonment having a significantadverse effect on the offender's mental health, this will be a factortending to mitigate punishment.[14] The Court acknowledged that the existence of some mental illness or mental impairment may be relevant not only in assessing the prospects of a discount from what would otherwise be the appropriate sentence, but also in assessing the risk of a repetition of offending and issues such as personal deterrence or public protection.5The Court also acknowledged that in previous appeals, when mental illness had contributed to the offending, discounts of between 12 per cent and 30 per cent had been approved.6[15] In opposing the appeal, the Crown cited the more recent observation of the Court of Appeal in Nixon v R:7[43] A person with a mental disorder may warrant no discount at allwhere it is not causatively related to the offending and cannot be seen as reducing the moral wrong, or where any compassionate discount is cancelled by an increased risk to the community posed by the offender on release. To accurately evaluate any discount that may be warranted it may be necessary to consider the issue in conjunction with other recognised mitigating factors such as remorse, rehabilitation, and the likelihood of reoffending.[16] Mr Habib's mental health condition did reduce the level of culpabilityappropriately attributed to him for the offending, in a somewhat unusual way. For the period in which he was supervised subsequent to his release from his previous prison sentence, he was doing well: he complied with his release conditions and did not reoffend – on his own account, for the first time in over 40 years. Mr Habib stated both to Dr Heads and to the PAC report writer that the support from hisprobation officer played an important role in his positive response. Mr Habib'srelease conditions expired in January. After that, he kept taking his quetiapine (an anti-psychotic) and methadone (to treat his opiate addiction) but was not engaged in counselling or therapy.5 At [69].6 At [71].7 Nixon v R [2016] NZCA 589, at [43].[17] In the days and weeks before the alleged offending, Mr Habib started to feel very stressed and anxious and his self-care deteriorated. He had thoughts of self- harm and heard voices of his deceased brother and nephew telling him to kill himself. He stopped taking his quetiapine, mistakenly thinking it was making his problems worse. A few days before the alleged offending he started buying valium, which he took on the morning of the offending. He reported to Dr Heads that he did not need money and had no reason to commit the burglaries. He reported that he thought, in retrospect, that he was aware that he was not coping and wanted to get away from the stressors of living in the community. He reported to the PAC writer that at the time he felt his options were to either return to prison or commit suicide.[18] Mr Habib's actions were driven by his desperation and hopelessness in thecontext of worsening mental health. The fact that he did not ask his partner for help, even though he knew she would help him, suggests that he was not thinking rationally. Also, it does not follow from the finding in Dr Heads' report that the offending was not related to psychotic symptoms, that the offending was not causedby Mr Habib's mental health more broadly. Dr Heads said the following:Mr Habib's various mental health problems have had a negative impact onhis overall functioning and on his coping abilities. He has always struggled to cope with living in the community. [H]e started to deteriorate in his mental health in the weeks and months prior to the alleged offences. He became increasingly anxious and stressed and started to have to have thoughts of self-harm. Mr Habib's mental state was disturbed at the time in question[.][19] Mr Habib's mental health was such that he saw offending or suicide as theonly available options, and this was a consequence of his health spiralling downwards over several months once his post-release conditions expired. This was the longest he had spent out of prison in many years, and his combination of mental health issues meant he was unable to cope without the structured support that his release conditions provided him. In this respect there is a causal nexus between those mental health issues and his offending. It reduced his culpability, and if standing on its own might justify a discount of up to 10 per cent.[20] There is also a difficulty in recognising that Mr Habib's mental healthcondition renders a prison sentence more difficult for him to serve than for others.In the most direct sense, prison is where he wants to be so being there is not unduly crushing for him when he is, if anything, too well adjusted to being in prison. Again, however, there is a somewhat unusual indirect sense in which prison has harsher consequences than is the norm. This arises because each prison sentence will reinforce the extent to which Mr Habib is institutionalised. Arguably (although there is no evidence on the point) the longer a sentence he serves, the greater the extent to which there is reinforcement of his institutionalised status. That also deserves recognition in assessing the appropriate sentence. Again, standing on its own, this form of severity of consequences would warrant a reduction, possibly in a range between five and 10 per cent.[21] There can be no absolute entitlement to a defined percentage of discount on account of mental health considerations. The ability to apply them depends on the strength of other relevant considerations on sentencing. Here, the relative seriousness of a spree of burglaries by a recidivist, and the need to protect the community from him, are present more strongly as considerations against allowing discounts than is likely to be the case in the circumstances of other offending and offenders. The importance of those considerations, as recognised by the sentencing Judge, imposes a limit on the extent to which discounts for mental health considerations, that appear to have been urged more strenuously on appeal, canapply. I treat that balancing exercise as limiting the Court's ability to lessen the length of Mr Habib's prison sentence by any more than three months. That wouldinvolve an adjustment from three years nine months to three years six months and on its own, might be seen as too modest a reduction to justify intervening.[22] It is apparent that the priority for Mr Habib's rehabilitation ought to be a strong extent of support for him in the community for a longer period after his release than has previously been available to him. The recognition of these respectsin which Mr Habib's mental health condition impacts on him in serving the sentenceleads me to the view that the sentencing analysis understated the importance of concerns for his rehabilitation.[23] One option in reflecting on his management is to revisit the extent of the MPI. A week after the hearing of the appeal I issued a minute inviting counsel toconsider whether the extent and existence of the MPI might be challenged if the appeal was otherwise unsuccessful. In her response on behalf of the appellant, Ms Thorburn rejected that as a valid option on appeal. She maintained the stance that the error in sentencing was not making an allowance in the length of the sentence for Mr Habib's mental health difficulties. She submitted that the Courtcould not have regard to personal circumstances that mitigate the culpability of an offender or render an otherwise appropriate sentence subjectively more punitive, in evaluating the appropriateness or length of an MPI.8[24] For the Crown, Ms Richards agreed that if the appeal might be granted on the ground that imprisonment is disproportionately severe for Mr Habib, then the appropriate course would be to reduce the end sentence but not to independently alter the outcome by reduction in the MPI. If there was a reduction in the end sentence then there would be a proportionate reduction in the MPI.[25] Alternatively, if the Court's concern was that there had been inadequateconsideration of Mr Habib's rehabilitation, then the Crown accepted that the Courtshould adjust the extent of the MPI. Ms Richards suggested that a reduction in the end sentence would reduce the period for which special conditions can be imposed on Mr Habib by the Parole Board.9 On the other hand, a reduction in the MPI would accelerate the time at which Mr Habib may be considered for release on parole, and therefore the time at which assistance may be provided in managing his transition to lessen his dependence on the institutionalised conditions in prison.[26] The purposes in s 86(2) of the Sentencing Act 2002 which govern the Court'sconsideration of whether to impose a minimum period of imprisonment do not include rehabilitative concerns. They raise considerations as to whether an entitlement to be considered for parole after serving one third of a sentence of more than two years10 will be insufficient for what are effectively punitive considerations and for the protection of the community.8 Section 86 Sentencing Act 2002.9 Citing s 18(2)(b) of the Parole Act 2002.10 Section 84(1) of the Parole Act 2002.[27] In these unusual circumstances I consider that the rehabilitative interests of Mr Habib are a legitimate consideration in reflecting on the length of the MPI.[28] Doing as best I can with the 18 pages of Mr Habib's criminal and traffichistory, and allowing for sentencings on separate dates where prison terms were intended to run concurrently with sentences already being served, my analysis is that he was sentenced to 13 terms of imprisonment between 1979 and 1989 with the longest of those being a two year sentence imposed in 1980. Between 1990 and 2014, sentences imposed on Mr Habib that appear not to have been ordered to be served concurrently with others were two years, three years, six months, 18 months, three months, three years, four years, four years, 14 days, one year, three years and one year. Clearly, prison does not deter Mr Habib from reoffending. The Crown'spost-hearing submission on revisiting the MPI advised that Mr Habib was not paroled on the last occasion he served a long prison sentence, because the Parole Board was not satisfied he would not pose an undue risk to the safety of the community prior to the finite release date.[29] In Mr Habib's case, a balance has to be struck: first, the sentence should be the minimum period required to mark the seriousness of this offending when assessed in light of his previous offending; secondly, account should be taken of the period in which he might most positively be prepared for life in the community. Those considerations are to be balanced against the justifiable concern for the protection of the community when reoffending looks to be highly likely. Unsurprisingly, that is the opinion of the pre-sentence report writer. However, long-term protection of the community would ultimately be far better achieved by successful rehabilitation than by successive cycles of offending and imprisonment.[30] There is scope for concern that rehabilitative services may not have been adequate on previous occasions to help Mr Habib in adjusting to life in the community. Alternatively, his longstanding mental health conditions may have rendered him vulnerable to being institutionalised to an extent that additional or different resources would not have made a difference. Certainly, I urge the Parole Board and those involved in his pre-release management to assess his needs as thoroughly as possible and do the most they can to provide for them.[31] In addition to a modest reduction in the length of his sentence, I consider that the unusual nature of his rehabilitative needs justify an additional reduction in the MPI. I accept it may not see him released any earlier, but where he has reoffended so as to be returned to prison, and then reflected that the offending imprisons him for too long, he should be incentivised to confront the prospects of living in the community somewhat sooner than the MPI as imposed. An earlier release would result in him being subject to release conditions for a longer period, giving him a better chance of developing the structure and support he requires.[32] I accordingly allow the appeal to the extent of quashing the sentence of three years and nine months, and replacing it with a sentence of three years and six months. I also quash the MPI of two years and four months, and replace it with an MPI of one year and 10 months, amounting to an MPI of some 52 per cent.Dobson JSolicitors:Public Defence Service, WellingtonCrown Law Office, Wellington