IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2015-442-000007 [2015] NZHC 1061

BETWEEN	ARDEN RAPHAEL MARTINEZ
WARNER Appellant	

AND	
NEW ZEALAND POLICE Respondent	

Hearing:	19 May 2015	

Counsel:	
T C Lyall for Appellant
J M Webber for Respondent	

Judgment:	
19 May 2015	

JUDGMENT OF COLLINS J

Summary of judgment

[1]       I am granting Mr Warner’s application to appeal out of time and allowing his appeal against the sentence imposed on him after he pleaded guilty in the Nelson District Court on 23 June 2014 to two charges of speaking in a threatening manner.1

[2]       I am exercising my discretion to discharge Mr Warner without conviction on both charges pursuant to s 106 of the Sentencing Act 2002 (the Sentencing Act).

Background

[3]       On 18 May 2014, Mr Warner threatened two residents at Franklyn Village in Nelson.   The police were called and Mr Warner was charged with speaking in a threatening manner.

1	Summary Offences Act 1982, s 21(1)(a).  Maximum sentence three months’ imprisonment or a
fine of $2,000.

WARNER v NEW ZEALAND POLICE [2015] NZHC 1061 [19 May 2015]

[4]       There must have been some concerns about Mr Warner on 18 May 2014 because the police had him assessed by the Mental Health Community Team because he “seemed a wee bit unstable”.2   The Mental Health nurse who assessed Mr Warner thought he was “mildly elevated” but “not floridly unwell”.  Mr Warner was assessed as being able to go home on police bail.3

[5]       Mr Warner appeared in the Nelson District Court on 23 June 2014 and was represented by a duty solicitor.  He entered guilty pleas before Judge Zohrab.  The duty solicitor said:4

… Sir, he is known to the Mental Health Services, and that may have been a contributing factor but from his – talking with him he seems perfectly fit to plea and all that kind of thing.

[6]       The Forensic Liaison Nurse was in Court.  He told Judge Zohrab Mr Warner was known to the Mental Health Services and that he was under a compulsory treatment order.

[7]       Judge Zohrab convicted Mr Warner and ordered him to come up for sentence if called upon within the next 12 months pursuant to s 110 of the Sentencing Act.  No consideration appears to have been given to discharging Mr Warner without conviction pursuant to s 106 of the Sentencing Act.5

[8]       Mr Warner’s notice of appeal was filed on 3 March 2015.  The grounds of

appeal are that the convictions should not have been entered because:

(1)       Mr Warner may have had a defence of insanity available to him.

2	New Zealand Police, “Health and Safety Management Plan for Person in Custody”, 18 May
2014.
3	Nelson-Marlborough District Health Board, Assessment Form, 18 May 2014.
4	Police v Warner DC Nelson Notes of Hearing CRI-2014-042-1083, 23 June 2014 at 3.
5	11  Discharge or order to come up for sentence if called on
(1)   If a person who is charged with an offence is found guilty, or pleads guilty, before entering a conviction and imposing a sentence the court must consider whether the offender would be more appropriately dealt with by—
(a)	discharging the offender without conviction under section 106; or
(b)   convicting and discharging the offender under section 108; or
(c)	convicting the offender and ordering the offender, under section 110, to come up for sentence if called on.
…

(2)	There are issues about whether Mr Warner was fit to stand trial. (3)	Diversion should have been considered.
[9]       Mr Warner has asked for his conviction to be quashed and for his case to be remitted back to the District Court for re-determination.

Mr Warner’s psychological and psychiatric status

[10]     Mr Warner was 20 years old at the time of his offending.  He has a history of psychological and mental issues.  He was diagnosed with Asperger’s Syndrome at a young age and found to be suffering from bi-polar effective disorder when he was
16.   Mr Warner has had a number of admissions into Mental Health facilities in

Christchurch and Nelson, where he was treated for manic episodes.

[11]     Since he appeared in Court on 23 June 2014, further psychiatric reports were prepared for Mr Warner because of further charges that were brought against him.

[12]     On 6 November 2014, Mr Warner was assessed as being likely to be unfit to stand trial on those other matters.  He was found to be in a state consistent with a manic episode of bi-polar effective disorder.   The report writer said that with appropriate treatment Mr Warner would be able to become fit to stand trial.

[13]     On 10 December 2014, Mr Warner was assessed as meeting the criteria for a mental disorder, but likely to be fit to stand trial.

[14]     On 13 February 2015, reports prepared pursuant to s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 found Mr Warner met the test of insanity.

[15]     On 3 March 2015, Mr Warner was found to be exhibiting no signs of chronic mental disorder and that he was fit enough to be discharged into the community from a mental health admission unit.

Analysis

[16]     At this juncture it is extremely difficult to assess whether or not Mr Warner had a defence of insanity available to him at the time of his offending on 18 May
2014 or whether he was truly fit to enter a plea when he appeared in Court on

23 June 2014.

[17]     I am satisfied however, that through inadvertent oversight, the possibility of discharging Mr Warner without conviction was not considered by Judge Zohrab. That option was clearly available because Mr Warner had no previous convictions and the offending, while no doubt disturbing for those involved, was at the low end of the spectrum of criminal behaviour.

[18]     I am satisfied that the consequences of convicting Mr Warner were out of proportion to the gravity of his offending.  He was a young man without criminal convictions who was in need of assistance to manage his psychological and psychiatric conditions.

[19]     Rather than allow the appeal against conviction and remit the matter back to the District Court for re-determination, I am taking the course of action which I am sure Judge Zohrab would have taken had he been asked to do so on 23 June 2014.

Conclusion

[20]     Mr Warner’s appeal against sentence is allowed.   He is discharged without conviction pursuant to s 106 of the Sentencing Act.   The effect of this is that his
convictions are also quashed.

D B Collins J

Solicitors:
Bamford Law, Nelson for Appellant
Crown Solicitor, Nelson for Respondent