R v Scipio aka Whittaker

[2012] NZHC 1483

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2011-009-11359 [2012] NZHC 1483

REGINA

v

STEPHEN MARK SCIPIO AKA WHITTAKER

Hearing:         26 June 2012

Appearances: C Ruane for the Accused

R Bell for the Crown
J Oetgen - Psychiatric Nurse

Judgment:      26 June 2012

ORAL JUDGMENT OF HON JUSTICE FRENCH Final Disposition Under Criminal Procedure (Mentally Impaired Persons) Act 2003

[1]      Mr Whittaker has been charged with the murder of his former partner.   He has a long history of mental health issues and has been diagnosed as suffering from schizo-affective disorder.  As a result of that history, the procedures of the Criminal Procedure (Mentally Impaired Persons) Act 2003 were invoked.

[2]      In previous judgments[1], I have found that Mr Whittaker did kill his partner by stabbing her, but that he suffers from a mental impairment and was not fit to stand trial.  It appears from the medical evidence that it is likely that had he been fit to

stand trial, he would have had a defence of insanity.

R V SCIPIO AKA WHITTAKER HC CHCH CRI-2011-009-11359 [26 June 2012]

[1] R v W [2012] NZHC 436, 15 March 2012, and R v Whittaker [2012] NZHC 1158, 28 May 2012

[3]      The  issue  before  me  today  is  that  of  disposition.    Under  s 23  Criminal Procedure (Mentally Impaired Persons) Act 2003, once a person has been found unfit to stand trial, the Court must order that enquiries be made to determine the most suitable method of dealing with the person under s 24 or s 25.

[4]      Section 24 requires the Court to make an order that the person be detained in a hospital as a special patient, or in a secure facility as a special care recipient, if the Court is satisfied that the making of such an 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.

[5]      Section 25 provides for less restrictive outcomes in the event that the Court concludes that neither of those two types of order is necessary in the interests of the public.

[6]      I  have  been  provided  with  reports  from  two  health  assessors;  one  a psychiatrist, Dr Austin, the other a psychologist, Ms Kingi.  Both report writers are familiar with the facts of this case and the state of Mr Whittaker’s health.   Both express the view that detention as a special patient is the most appropriate outcome. This is so despite the fact that both have noticed an improvement in Mr Whittaker’s mental health in the last few weeks.  In particular, it appears that for the first time he is aware of the fact that his partner is dead and aware of the role that he played in that.

[7]      In his submissions, Mr Ruane has provided a very helpful summary of the two health reports.   As Mr Ruane says, Ms Kingi’s report can be summarised as follows:

(a)      Mr Whittaker has a chronic psychiatric illness characterised by mood disturbance, delusions and hallucinations.

(b)      He continues to experience some psychotic symptoms.

(c)      To date, his symptoms have only partially responded to treatment and his illness is unlikely to resolve completely on his current medication regime.

(d)It is likely he was psychotic when he killed his partner and may have had a defence of insanity available to him.

(e)       He remains a chronic risk of harm to others and indeed, I note, to himself

[8]      As for Dr Austin, she refers to fluctuations in Mr Whittaker’s presentation, and that on occasions he is still responding to unseen stimuli.   She confirms the diagnosis of schizo-affective disorder, an illness, as she explains, that presents with symptoms of mood disorder, concurrent with symptoms that meet the criteria for schizophrenia.   Since admission, symptoms have shown only partial response to medication and, while it is possible symptoms may show further improvement, it is important he remains on medication in the long term.

[9]      As  both  report  writers  note,  Mr  Whittaker  has  a  long  history  of  non- compliance with medication regimes and there have been multiple hospital admissions as a result.

[10]     Mr Whittaker meets the criteria for mental disorder as defined in the Mental Health Compulsory Assessment and Treatment Act 1992 and is currently the subject of an Inpatient Compulsory Treatment Order.  Dr Austin concludes with the opinion the accused, Mr Whittaker, requires ongoing placement in a secure hospital facility to enable further assessment, treatment and stabilisation of his mental illness.

[11]     The reports have been admitted into evidence by consent, and the report writers were not required to attend for cross-examination.  Mr Ruane advises that the contents of the report are accepted.   He also states that, in his submission, the making of an order detaining Mr Whittaker as a special patient would be both in the interests of the public and the interests of Mr Whittaker, himself.

[12]     Following  the  recent  Court  of Appeal  decision  of  M[2],  I agree  with  that assessment.  I do so having regard in particular to the following:

[2] M v R [2012] NZCA 142

(a)      The seriousness of the offending. As noted in the Crown submissions, the offending involved violence at an extreme level.   The victim suffered  26  stab  wounds;  these included  hacking to  the neck  and shoulder which created large open wounds, stab wounds to the torso and limbs and nine stab wounds to the left upper inner thigh and genital region.  Police describe the attack as a “frenzied” attack.

(b)The long significant history of previous psychiatric problems.  These involve a common theme of hallucinations, paranoia and delusional thoughts.

(c)      The long history of non-compliance with medication involving, as it has, multiple admissions.

(d)The continuing difficulties that have occurred since the arrest, even, as the Crown points out, in a controlled and medicated setting.

[13]     In light of all the circumstances of the case and the medical reports, I am satisfied that the appropriate order is one for detention as a special patient under s 24(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003.   I so order.

[14]     Finally, there is the issue of suppression.  Suppression orders have been made suppressing publication of my previous judgments and of Mr Whittaker’s name. Those suppression orders were to be reviewed today.

[15]     On behalf of Mr Whittaker, Mr Ruane has sought continued suppression of his name on the grounds that he is a person who is only here in Court because of his mental disorder.  There is, however, no medical evidence to support the application in terms of the effect that publication would have on Mr Whittaker’s health.   If I were to grant the application for suppression, it would mean that anybody who is subject to the Criminal Procedure (Mentally Impaired Persons) Act 2003 procedures and is required to be detained as a special patient would automatically have name suppression.  That, however, is not the law.  There needs to be something else.  In

particular, I would have required some supporting medical evidence. That is lacking, and as Mr Ruane responsibly acknowledged, it could not validly be argued that publication would have a significant effect.

[16]     Given those circumstances, I am satisfied that the suppression orders should not continue. They are therefore lifted.

Solicitors:

Crown Solicitor’s Office, Christchurch

C M Ruane, Christchurch