In the Court Of Appeal of New Zealand
CA136/2010
[2010] NZCA 290

BETWEEN	ALFRED HARRY DANNY DALLEY 
Appellant

AND	THE QUEEN
Respondent

Hearing:	15 June 2010

Court:	Chambers, Winkelmann and Fogarty JJ

Counsel:	B L Sellars for Appellant
M D Downs for Respondent

Judgment:	7 July 2010 at 11 am

JUDGMENT OF THE COURT 	
A	The appeal against sentence is allowed. 
B	The sentence of five years, nine months’ imprisonment is quashed.  In substitution therefor:
(a)	a sentence of four years, four months’ imprisonment is imposed on the wounding with intent charge; and
(b)	a sentence of eighteen months’ imprisonment is imposed on the aggravated burglary charge 
- both sentences to be served concurrently.  
____________________________________________________________________
REASONS OF THE COURT 
(Given by Fogarty J) 
Introduction 
[1]	This is an appeal against a sentence of five years nine months’ imprisonment on each of one count of aggravated burglary and one count of wounding with intent to cause grievous bodily harm.    
[2]	Mr Dalley now appeals against the sentence as being manifestly excessive.  Ms Sellars, for Mr Dalley, submits Judge Field’s starting point was too high, and his discount of only three months for Mr Dalley’s mental health problems too miserly.  
The offending 
[3]	At approximately 2 am on 5 October 2008 the appellant was in the vicinity of the victim’s home address in Kaikohe.   He located a wooden chair which he placed underneath a toilet window outside the victim’s house, removed the glass louvres from that window and placed them on the ground some distance away, and concealed them with vegetation.  He then climbed through the window into the house and went into the kitchen at which point he rushed at the victim who was sleeping in an armchair.  He threatened to kill him saying:  
I’m going to kill you, you put me away for three years and I should gouge your eyes out before I kill you. 
The victim described him as “yelling like a crazy man”.  Mr Dalley was throwing items around the lounge area and attempted to pull the telephone off the wall.  
[4]	The victim, who was 70 years old but fit and quite strong, attempted to grab him and remove him from the house.  A struggle ensued during which time the appellant picked up a torch from among the victim’s belongings and struck him on the head with sufficient force to smash the torch and leave the victim with a 7.5 cm laceration on his scalp.  The appellant then fled the scene.  The victim was kept in hospital overnight. 
[5]	The victim was known to the appellant.  In 2004 the appellant had been charged with assaulting him.  He was acquitted on that charge but convicted of common assault of a neighbour who tried to intervene.  
Judge Duncan Harvey’s original sentencing decision 
[6]	Mr Dalley, having entered guilty pleas to the two charges, was originally sentenced by Judge Duncan Harvey.  Judge Harvey sentenced Mr Dalley to a total period of imprisonment of five years nine months.  Mr Dalley appealed.  On appeal, this Court was concerned that the procedure set out in the Criminal Procedure (Mentally Impaired Persons) Act 2003 had not been complied with.  As a consequence, this Court allowed the appeal, quashed the convictions, and remitted the matter to the District Court for it to assess whether the appellant was fit to stand trial (including to plead) in accordance with Subpart 1 of Part 2 of the 2003 Act.  Following the remission, the District Court determined Mr Dalley was fit to stand trial.  He accordingly re-entered pleas of guilty.  He then came up for sentence again.  This time Judge Field sentenced him.  Judge Field considered he should simply adopt what Judge Harvey had done.  So, in these circumstances, we really need to address Judge Harvey’s reasoning.
[7]	Judge Harvey took a starting point of nine years, allowed a one-third discount for the pleas of guilty and a further three months for a mitigating feature of mental disability, leaving an end sentence of five years and nine months.  
[8]	Judge Harvey’s starting point of nine years reflected his judgment that the offending fell within the top of band 2 and the beginning of band 3 in R v Taueki.  He considered the offending involved extreme violence, premeditation, serious injury, use of a weapon, attack to the head, home invasion at 2 am, and vigilante as in “deliberate revenge” action.
[9]	When dealing with the issue of mental health Judge Harvey was of the view he would allow “a minimal discount” to recognise the appellant’s mental disabilities.  In that respect his relevant reasoning was: 
[16]	Your counsel has in my view very responsibly not attempted to mitigate what you did.  What he does is he points me to the materials that I have which clearly demonstrate that you are suffering from a bipolar disorder and that at the time of this offending that disorder was not properly controlled.  I acknowledge that, but of course part of the responsibility for that was yours because you know that you need medication and you had decided not to take it.  This was the result. 
…
[18]	Mr James’ submissions to me this afternoon were primarily that I should give considerable discount to any sentence imposed, recognising your mental disabilities.  Whilst I can understand that submission, I feel that he is perhaps asking me to go further than I really can.  When I give careful thought to the report that has been prepared it establishes that there is no established link between this offending and the mental illness, other than the fact of course that you were not taking medication you should have been taking.  A custodial sentence will not cause any undue suffering to you.  You are put at high risk of re-offending and you are a risk to the public if you do not comply with a medication regime.  For those reasons I am prepared to give a minimal discount for the mental illness but I am not prepared to go as far as Mr James has urged me to do. 
The appellant’s mental health 
[10]	There is no doubt that the appellant does suffer from a mental disorder.  He has had two admissions to hospital over the course of his life due to psychiatric illness.  He was admitted to Middlemore Hospital in June of 1999 for seven days and for six weeks in 2007.  Before, afterwards and since he has had significant contact with mental health clinicians.  He has been frequently diagnosed with a bipolar affective disorder.  When an inpatient in the Mason Clinic in December 2008/January 2009 he was also diagnosed with polysubstance abuse and an antisocial personality disorder.   The latter is not described by some psychiatrists as a mental disorder but rather a description of a person’s way of functioning.  In that regard we set out the discharge summary from the Mason Clinic dated 22 January 2009: 
Although there is little doubt about Mr Dalley’s diagnosis of bipolar affective disorder, it seems as though in addition to this, his sudden explosive outbursts of anger and violent auscultative behaviour are also trait phenomena rather than being exclusively related to his mood disorder.  Supporting this formulation, it has been noted that treatment with mood stabilisers and antipsychotics appear to improve these symptoms. …
Mr Dalley’s risk to others appears to be enhanced by his underlying temperamental outbursts of anger, particularly if this should happen in the context of substance intoxication or during period where he is deemed to be elevated in mood, as judged by the presence of early warning signs such as sleep deprivation.  His risk to others – and also himself in this context – consist of his involvement in physical violence with others.  
[11]	In a recent psychiatric report of 18 October 2009 Dr Staffan Heed considered whether or not he was fit to be tried.  In the course of that report he agreed with the discharge summary from the Mason Clinic quoted above saying: 
I agree with the statement [quoted above], thus Mr Dalley in my opinion apart from a bipolar affective disorder, history of poly-substance abuse and antisocial personality disorder also has a tendency to easily become aggressive and that this is a personality trait independent of his bipolar affective disorder but that this can manifest itself more easily when he is mentally unwell in the psychiatric sense.  
[12]	In a report by Dr Seth on 3 November 2009, also to examine his fitness for trial, Dr Seth said: 
I am of the opinion that Mr Dalley has a well documented illness of Bipolar Affective Disorder and currently is relatively euthymic but in the past he has had episodes of mania and depression.  His illness is relatively well controlled with lithium and quetiapine although he complained that he does not have energy when he is being treated with certain medications and this has been a problem as he feels is (sic) unable to defend himself and thus he is keen to discontinue certain medications if given the choice.  
[13]	He also said: 
At present Mr Dalley is not under the Mental Health Act but should he require treatment out of the prison setting it may be beneficial for him to be treated under the Mental Health Act given his poor compliance with medication in the past as he suffers from an intermittent disorder of mood and volition and a continuous disorder of cognition such that at times of unwellness can be a serious danger to others as well as himself. 
[14]	There is little doubt in our minds that the offending on 5 October 2008 occurred during one of his episodes of disorder.  In his last medical review before then (25 August 2008) he complained to his doctor of sleeplessness and difficulties with controlling his anger.  He was seen by his key worker the next day in his supported accommodation and was noted to be irritable and dysphoric.  On 7 September the police contacted the Mental Health Crisis team with a request to assess his mental state because a further altercation had occurred at his supported accommodation. 
[15]	On 22 September he was assaulted by an acquaintance and later informed mental health staff that he was assaulted by “three Samoans”.   Two days prior to his offending on 5 October he telephoned one of his key workers from Northland.  This mental health worker noted that his speech was of an increased rate, that he sounded aggressive, and was talking about fights in a disinhibited and grandiose manner.    She also noted he was swearing frequently which was out of character for him.  He told her that he had no medication and did not think he needed to get a prescription as he was not sure that he needed them.  From the time of his arrest for a period of approximately five to six weeks he remained in a manic state.  
[16]	The earliest psychiatric report after the assault was on 9 October 2008 by a Court liaison forensic officer, Mr Firth.  This was at the instigation of the health unit staff at Ngawha Prison who held concerns for his mental health.  Mr Firth reported his impression being: 
Alfred Dalley presents with an acute relapse of a Bi polar illness and is currently manic.  Medication has been recommenced.  He impresses as a high risk of harm to others as evidenced by the alleged offending and his current elevated, irritable and aggressive mental health status.  In my opinion he fulfils the criteria for committal under the Mental Health Act. 
[17]	The next report was by a senior registrar of Psychiatric Services, Dr Gardiner on 23 October 2008 examining whether or not he was fit to be tried.  He was of the opinion that Mr Dalley was currently unfit to stand trial.  He said: 
… It is my opinion that this is because he suffers from a Bipolar Disorder, and is currently in the midst of a hypermanic episode.  
[18]	Dr Heed saw him on 12 November 2008 again assessing his fitness to plead.  He concluded he was fit to plead but he also said: 
I am of the opinion that Mr Dalley presently is suffering from a (hypo)manic episode as a part of a bipolar affective disorder. 
[19]	We are in no doubt that these diagnoses applied and that they explain the attack on the victim.  This manic period is likely to be due to lack of medication.  Given his mental disorder it is not possible to find he is responsible for his manic state because his psychiatric history establishes that he cannot be relied upon to take his medication.
Circumstances of the offending 
[20]	In Taueki this Court identified features that, if present, would generally increase the seriousness of offending in this context and would guide a sentencing court when placing offending within the bands described in the judgment. Judge Harvey rightly referred himself to this decision and listed those features he considered were present here (see at [8] above).  His Honour went on to say that, “given the number of aggravating features” in this case, he could not accept the appellant’s submission at sentencing that this offending was properly placed in the middle of band 2.  
[21]	It will always be important, when identifying aggravating features for the purposes of sentencing, also to closely evaluate the degree to which those features apply in the particular case.  As we said in Taueki:
[30] We do, however, emphasise that a sentencing Judge needs not only to identify such factors, but also to evaluate the seriousness of a particular factor. For example premeditation is identified as a factor, but it may vary in particular cases from full-scale planning and orchestration of a concerted vicious attack to a period of a few minutes or so after a perceived slight during which the offender decides to take revenge. The evaluative task is an important aspect of sentencing: without it, there would be a danger of a formulaic or mathematical approach to the assessment of sentencing starting points.
[22]	We respectfully disagree with Judge Harvey’s assessment, both as to the presence of certain Taueki aggravating features and the degree to which those features were present here.   
[23]	We question whether this offending was “pre-meditated” in the sense described in Taueki; to the extent it was, the weight given to this factor must be heavily discounted in light of the evidence as to Mr Dalley’s mental state during and leading up to the offending.  The same point applies to the Judge’s description of the offending as “vigilante action”. Further, this was not, in our view, a case of “extreme violence”: it was of relatively short duration and Mr Dalley immediately fled the scene on disabling the victim.  The injuries suffered by the victim, while significant, were not of the most serious kind, requiring as they did hospitalisation only for the balance of the night.  The “weapon” used was here not a knife or a gun brought to the scene by Mr Dalley, but rather the victim’s torch that the appellant picked up during the struggle. In assessing the gravity of the offending we do of course acknowledge that this was a home invasion, of a vulnerable elderly victim at night.  But this was not the type of offending which could justify a starting point of nine years. We see the conduct as properly placed in the middle of band 2, suggesting a starting point of seven and a half years.  
Circumstances of the offender 
[24]	The Judge was right to reduce the appellant’s end sentence in order to take account of his mental illness.  Both s 8(a) of the Sentencing Act 2002, which requires courts to take account of “the degree of culpability of the offender”, and s 9(2)(e), which expressly requires courts to take into account, as a mitigating factor, the fact an “offender has, or had at the time the offence was committed, diminished intellectual capacity or understanding”, required this.  We think, however, that the Judge’s 3-month discount was insufficient in the circumstances of this case to properly reflect these principles.  We have already explained above the degree to which Mr Dalley suffers from mental illness and the role that his mental illness likely played in this offending. We think, given the scheme and provisions of the Sentencing Act, as just averted to, that a one year reduction is required. 
Result 
[25]	Accordingly, we take a starting point of seven and a half years, reduce that to six and a half years, to allow for his mental state at the time of offending, and then allow a discount of one-third for the very early guilty pleas, arriving at an end sentence of four years four months.  
[26]	The appeal is allowed and an overall sentence of four years four months’ imprisonment is substituted.  In reaching that figure, we have not overlooked the aggravated burglary charge.  We have already taken that into account as a culpability factor (home invasion) in fixing the Taueki starting point.  Obviously, the wounding with intent charge was the more serious offence.  Accordingly, in terms of s 85(4) of the Sentencing Act, that offence receives the penalty appropriate for the totality of the offending.  On the aggravated burglary charge, we substitute a sentence of 18 months’ imprisonment.  We order the sentences to be served concurrently.

Solicitors: 
Crown Law Office, Wellington, for Respondent