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Hamilton man set free after jury returns mixed verdicts over ‘sexsomnia’ defence

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A jury has cleared a man of sexually assaulting his partner’s teenage daughter by reason of insanity because he was suffering from “sexsomnia”.

A judge has also ruled the Hamilton man can now walk free, deeming him to have enough “wherewithal” to monitor his triggers of the disorder, which include night shift sleep deprivation, depression and anxiety.

The man, aged in his 30s who was granted permanent name suppression, is the second case within a month in which sexsomnia, a sleep disorder in which a person engages in sexual activity during their sleep, has been used as a defence.

In the Hamilton case, jurors found the man not guilty by reason of insanity on charges of sexual conduct with a young person under 16, and sexual violation by unlawful sexual connection.

However, they were unable to reach a verdict on two charges of indecent assault. All the incidents occurred between January 2018 and 31 July 2020.

Judge Noel Cocurullo said the verdicts did not surprise him and that the accused had no convictions “for anything like this”.

“Your defence, which the jury accepted was a positive defence, that whilst you had done the acts constituting both of those charges, you were not aware that you had done the acts.

“They were involuntary actions by you because the jury, by their verdict, were satisfied to the requisite standard that you were asleep.

“As unusual as that sounds, the law provides for this situation.”

Judge Cocurullo said he knew his decision could cause some “angst”, but Parliament had the provision in its own legislation and intended it to be an option.

University of Auckland law professor Carrie Leonetti, who lectures forensic psychiatry, told NZME sexsomnia is quite a rare form of “automatism” – the legal term for unconscious actions – compared to other parasomnias such as sleepwalking, night terrors and restless leg syndrome.

Like insanity, automatism is what is known as an “excuse” defence – meaning that, when proven, a defendant is excused from what would otherwise be deemed criminal conduct, explained Leonetti.

There are two types of legal categorisations for automatism: sane and insane.

While the line between the two can at times be murky, cases involving claims of sexsomnia often fall under the category of insane automatism.

The man’s sentencing had been adjourned several times for the Crown to seek expert advice on how to deal with the matter.

Prosecutor Rebecca Guthrie said the Crown sought a second expert opinion after the first psychiatrist said there would not be any treatment available for the man’s condition.

The second expert said if there was to be any monitoring, it should be done by a sleep specialist in conjunction with a psychiatrist.

Judge Cocurullo said his options were to either order him a patient under mental health legislation or let him go.

Guthrie said it was a matter for the judge, while defence counsel Martin Dillon said it was more appropriate for his client to be freed.

Dillon said the second psychiatrist found the risk of reoccurrence was low so long as the accused’s triggers were managed.

“He does speak of treatment but he’s not speaking of treatment of the condition of sexsomnia … sexsomnia itself isn’t amenable to direct treatment but it can be managed by removing certain triggers from a patient’s environment.”

Judge Cocurullo ultimately found the accused was aware he had “this somewhat unusual diagnosis” and he had given “cogent and credible evidence” to the jury.

“I take the view that you are well aware that it is utterly a risk if you fall asleep with anyone other than your intimate partner and that is to be avoided at all costs, particularly with young people.

“I take it that you are aware of your general health, as opposed to the triggers for sexsomnia. I take it that you are aware of night shift sleep deprivation, depression, anxiety and things of that basis.”

The Crown decided not to pursue a new trial over the two unresolved charges and, at his sentencing last week, Judge Cocurullo ruled the man could be “immediately released” under section 25 of the Criminal Procedure (Mentally Impaired Persons) Act 2003.

The judge’s ruling means the man is now free.

The charges where the jury was hung related to the man regularly slapping the complainant on the bottom while walking around the house and poking and playing with her breasts.

The other more serious offending which he was cleared of due to sexsomnia involved allegations he got into the complainant’s bed after he finished work. He was allegedly talking inappropriately, cuddling, trying to kiss the girl and hold her breasts and sexually assaulting her.

In a separate case, Taine Wanoa recently pleaded guilty to rape and inappropriately touching four women over the course of two years. It was stated in an agreed summary of facts that he was suffering sexomnia during two of the incidents. The 25-year-old will be sentenced later this year.

The two cases are not the only ones where sexsomnia has been cited. In April, a married father convicted of indecently assaulting a woman at a party had his conviction overturned after successfully arguing the sexsomnia defence.

In May, Rotorua resident Tony Paraire Cameron had an appeal rejected after he was sentenced to seven years and eight months’ imprisonment for raping a 15-year-old girl at a party.

Cameron did not deny he had sex with the teen but claimed he was either too intoxicated to form the required intent or that he committed the offence while he was asleep because of sexsomnia.

What is sexomnia?

The term sexsomnia was coined in 2003 and has since been recognised in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5)10 and the International Classification of Sleep Disorders.

Although still quite rare, criminal cases in New Zealand involving claims of sexsomnia date back more than a decade. But until now, the defence strategy has been more of an all-or-nothing gambit – either the condition was accepted by the judge or jury, resulting in acquittal, or it was rejected and the defendant went on to be convicted.

Source: RNZ and NZ Herald

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Police say person who fired gun at officers still at large

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Police say a person who fired a gun at officers in Napier is still at large.

Eastern District Commander Superintendent Joel Lamb said Police tried to stop a vehicle in the Pirimai Area at about 10pm on Tuesday.

He said someone in the back seat pointed what was presumed to be a firearm at officers pursuing the vehicle.

“Staff have then heard two distinct gunshots as the firearm was discharged.

“Fortunately, neither of our officers were injured, and the patrol vehicle did not sustain any damage.”

He said hours later, the vehicle was seen travelling north on the Waikato Expressway towards Auckland.

Police seized the vehicle at an address in Manurewa, but they had not found the alleged offender.

Lamb said people who lived at the Manurewa address were engaging with Police.

He said Eastern District and Counties Manukau Police were making enquiries.

“Presenting a firearm at a Police officer is a serious escalation that puts our staff and the wider community at risk. This behaviour is entirely unacceptable.

“We are taking this incident extremely seriously and will be pursuing all lines of enquiry to locate the offender and hold them accountable.”

Police asked anyone who witnessed the incident to contact Police on 105 or online using the reference number 261111/3764.

Information could also be provided anonymously via Crime Stoppers on 0800 555 111.

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New Zealand sides named for RLWC finals

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The players tasked with ending Australia’s Rugby League World Cup dominance have been named.

The Kiwis and Kiwi Ferns have announced their squads for this Sunday’s World Cup finals in Brisbane.

Both sides are chasing their first titles since 2008, and both are looking to end their opponents run of three crowns in a row.

“Our Kiwi Ferns have been so dominant in years gone by, and we want to bring dominance back to this jersey, so I think it will be a case of who wants it more,” said co-captain Georgia Hale of the impending clash.

The Kiwis get a major boost for the final as they welcome back Ronaldo Mulitalo after he served a one-match ban for a high tackle against Fiji Bati.

Mulitalo replaces Charnze Nicoll-Klokstad, who moves to the six-man bench, which again includes utility Te Maire Martin, middle forwards Naufahu Whyte, Erin Clark and Xavier Willison plus fullback Keano Kini.

Loose forward Joseph Tapine will make his 30th Test appearance in a familiar pack again, including second-rowers Isaiah Papali’i and Briton Nikora, and props James Fisher-Harris and Moses Leota.

Winger Jamayne Isaako is on the cusp of claiming the New Zealand record for most Test points.

His five goals against Tonga lifted his career points tally to 225 – level with Shaun Johnson – while centre Casey McLean goes into the final with 16 tries in just eight Tests.

Fisher-Harris will again captain the team.

Fullback Ponga said the goal of the group was clear.

“We have high expectations around what we want to achieve, and obviously winning a world Cup is one of them.”

Meanwhile, Ricky Henry has selected a settled side to take on the Jillaroos, led by their lethal centre combination of Stacey Waaka and Mele Hufanga.

Veteran Apii Nicholls takes the number one jersey, Leianne Tufuga and Mackenzie Wiki on the wings.

Henry has stuck with his halves pairing of Chantay Kiria-Ratu and Raecene McGregor with Alexis Tauaneai, Georgia Hale and Otesa Pule up front.

Rounding out the starting pack is Shaniece Monschau, Kaiyah Atai, and Angelina Teakaraanga-Katoa.

“We have been building well throughout the tournament; we understand the Jillaroos side, and will give it our all to make New Zealand proud this weekend,” said Henry.

RLWC Finals:

Kiwi Ferns vs Jillaroos- 6.10pm

Kiwis vs Kangaroos – 9.35pm

Sunday November 15

Suncorp Stadium, Brisbane

Live blog updates on RNZ

Kiwi Ferns:

1. Apii Nicholls 2. Leianne Tufuga 3. Mele Hufanga 4. Stacey Waaka 5. Mackenzie Wiki 6. Chantay Kiria-Ratu 7. Raecene McGregor 8. Alexis Tauaneai 9. Georgia Hale 10. Otesa Pule 11. Shaniece Monschau 12. Kaiyah Atai 13. Angelina Teakaraanga-Katoa.

Interchange: 14. Ashleigh Quinlan 15. Annessa Biddle 16. Shannon Mato 17. Ivana Lauitiiti.

Reserves: 18. Brooke Anderson 19. Zahara Temara 20. Brianna Clark 21. Abigail Roache 22. Tenika Willison.

Kiwis:

1. Kalyn Ponga, 2. Jamayne Isaako, 3. Dane Gagai, 4. Casey McLean, 5. Ronaldo Mulitalo, 6. Kodi Nikorima, 7. Jahrome Hughes, 8. James Fisher-Harris (c), 9. Jeremy Marshall-King, 10. Moses Leota, 11. Isaiah Papali’i, 12. Briton Nikora, 13. Joseph Tapine (v/c).

Interchange: 14. Te Maire Martin, 15. Naufahu Whyte, 16. Erin Clark, 17. Xavier Willison.

Reserves: 18. Keano Kini, 19. Phoenix Crossland, 20. Charnze Nicoll-Klokstad, 21. Scott Sorensen, 22. Leo Thompson.

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Opportunities to mitigate multi-million-dollar RNZ budget blowout likely missed – experts

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Multiple opportunities to identify and mitigate a multi-million-dollar budget blowout at RNZ appear have been missed, according to the former executive director at Audit New Zealand.

The public broadcaster on Monday revealed a near $12 million shock financial loss after a litany of financial blunders, which will now lead to sweeping job cuts.

The $11.8m loss is more than 25 times the $470,000 RNZ had expected to lose over the year to June.

CEO Paul Thompson took responsibility for the result, and said internal reports gave an inaccurate picture of the finances, meaning the scale of the loss only became clear in October.

RNZ’s former chief financial officer Hilary Parker resigned unexpectedly in early October.

The board said it would commission an independent review into what went wrong.

Independent contractor Stephen Walker, who left the Audit Office earlier this year, said the size of the loss was surprising, as was the length of time it took to identify it – months after the financial year ended.

Stephen Walker.
Independent contractor Stephen Walker is a former executive director at Audit New Zealand.

Supplied / OAG

“Probably more of a concern is that they had seemingly been unaware that they were running up a significant deficit until they were in the preparation stage of their annual report in October.”

Walker said public entities typically produced monthly financial reports.

An interim audit also took place before the end of the financial year, he said, but if the organisation hadn’t identified significant losses at that stage, the auditor could also be in the dark.

“It seems that there’s a real weakness in forecasting and budgeting that’s occurred here and that the monthly accounts, when they’re produced, either haven’t identified these significant variances against budget or the magnitude of them really hasn’t come to light until right towards the end of the financial year,” Walker said.

“And really at that point, there’s no opportunity for the chief executive, the leadership team to take, and the board to take, any corrective action because the year has effectively been completed.”

Walker said the “significant miss” was difficult to account for given it was more than 10 percent of RNZ’s total funding.

He said based on RNZ’s annual report, financial complexity didn’t appear to be a factor.

“This $11.8m loss isn’t made up of one particular item … it seems to have been contributed to by a number of separate expense lines running over budget. So I don’t think it’s necessarily to do with complexity.”

Among the errors, RNZ wrongly counted $2m from land sales as income in its budget. Staff costs also came in $3.2m over budget, including $1.4m in redundancy payments.

Professor at Auckland University’s business school Norman Wong said based on media reports the issues identified were “significant and troubling”.

Norman Wong.
Norman Wong.

Supplied / University of Auckland

“But recognising the sale of land as income in their budget is a basic error that one would have expected to have been caught and corrected well before it got to this point.”

With funding reductions at RNZ over the past two years, Walker expected greater scrutiny of financial results.

“Virtually every public entity has had their annual budget reduced. And so you would expect … the leadership team on a monthly basis and board – I’m not sure how frequently the board will consider the information – but you would expect them to be interrogating the results on a regular basis throughout the year,” he said.

Walker said initiating an independent review was the correct course of action and that he’d want to understand what information the leadership team and the board were regularly receiving.

He said he’d “love to say” surprising financial results were rare, but conceded they occured on a semi-frequent basis during his time leading the Audit Office.

“The benefit of independent scrutiny by the Audit Office – and the auditors providing that support to the Auditor General – [is] that the reporting is fairly presented at the end of the year, whether it’s good, bad or ugly.”

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