R v Sands

1. [1]

   HIS HONOUR: The accused has been arraigned in this Court on an indictment. Without referring to alternative charges, the primary charges may be summarised as follows. Each offence is said to have occurred at Hillvue, a suburb of Tamworth, on 17 October 2019:

2. [2]

   The accused pleaded not guilty and a hearing pursuant to s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) was conducted on 15 October 2021.

3. [3]

   An election has been filed for a judge only trial, but this is not a trial. A date for trial had not even been fixed. Accordingly, there is no need to take any action in respect of that document.

Legal principles

1. [4]

   Because this is a hearing pursuant to s 31 and is not a trial, there is no requirement for me to comply with the requirements of s 133 of the Criminal Procedure Act 1986 (NSW). In short, that requires a judge hearing a matter by way of a trial in the absence of a jury to refer to all of the principles of law that were applied by the judge and the findings of fact upon which the judge relied and to take any warnings into account that would otherwise have been the subject of a warning given to a jury. That requirement does not apply but it remains the fact that these are judicial proceedings and in the performance of a judicial function it is necessary to provide reasons for the outcome, whatever that might be.

2. [5]

   The legislation in question is the Mental Health and Cognitive Impairment Forensic Provisions Act (the Act). It received assent in the New South Wales Parliament on 23 June 2020. It commenced operation on 27 March 2021. It applies to offences committed, or alleged to have been committed, before its commencement for the reasons provided by Wilson J in R v Tonga [2021] NSWSC 1064 at [6]-[10]. There has been a discussion of the provisions of the Act both by Wilson J in Tonga and recently by Johnson J in R v Siemek (No. 1) [2021] NSWSC 1292.

3. [6]

   I will confine myself to referring to what their Honours have said but without reciting it. I will just refer to the legislation in relation to the key provisions that apply to the hearing before me today. The concepts of mental health impairment and cognitive impairment are defined in the Act in ss 4 and 5 respectively. Part 3 of the Act provides for the defence of mental health impairment or cognitive impairment.

4. [7]

   Section 28 provides that a person is not criminally responsible for an offence if, at the time of carrying out the act constituting the offence, the person had a mental health impairment or a cognitive impairment, or both, that affected the person in one, or both, of two ways: (a) the person did not know the nature and quality of the act in question; (b) the person did not know the act was wrong. Section 31, which is the basis upon which the Court heard the matter, is important:

5. [8]

   I am satisfied that the necessary requirements in sub-sections (a) and (b), for there to be such a hearing, apply to this case. The following are my reasons for finding that sub-section (c) is also made out.

Relevant material

1. [9]

   The Court has before it a bundle of material in which the following are of particular importance:

2. [10]

   Both doctors are well known to the Courts for their eminence in the fields of mental health and cognitive impairments. I will be referring to what the doctors have said about this particular case and the assessments they have made later.

The facts

1. [11]

   The case is concerned with events on 17 October 2019. At that time the accused lived with his wife, Antoinette Sands, at 3-7 Bylong Road, Hillvue. They had been married for some 30 years and they had five children together, from eldest to youngest, Jodie, Larissa, Ricky, Nathan and Natalie Sands. I will be referring to people by way of first name because, as members of the same family, they largely share the same surname. I do not mean any disrespect to anyone for doing so.

2. [12]

   Bernadette and Neil Wood lived on the neighbouring property at Bylong Road, Hillvue. They had lived there for five years prior to 17 October 2019 and during that five year period they had heard the sounds of loud arguments, which often comprised a female voice screaming and yelling, coming from the house next door.

3. [13]

   About 3-4 weeks prior to 17 October 2019, following the breakdown of her relationship with Matthew Harper, Natalie Sands moved into the home of the accused and his wife, obviously her parents, with her two children. The deceased, Orlando Harper was aged 5 at the time, and the victim, the young boy, was aged 7. She only intended to stay with her parents temporarily until she made other arrangements for accommodation on the coast.

4. [14]

   While she and the children were living at the house, the accused and his wife slept in one bedroom and Natalie and her children slept in another bedroom together.

5. [15]

   The accused had worked as a mechanic but he retired in January 2019. Around that time and after the family noticed changes in his behaviour. They noticed that he would “ramble on about things” and was “scattered”. There were occasions when he would stare at the ground and not say anything. He had, on occasions in 2015 and 2017, attended hospital reporting neurological symptoms such as headaches, dizziness and tingling.

6. [16]

   On 11 August 2019 he attended Tamworth Hospital reporting dizziness, ringing ears, numbness in his jaw and gums, a dry tongue and having woken from sleep with a sense of impending doom. At this time he was diagnosed with low sodium levels.

7. [17]

   On 15 August 2019 Antoinette and Larissa called an ambulance for the accused, reporting that his condition had deteriorated since 11 August and that he was confused, fatigued and disoriented and that he appeared to be hallucinating, having placed a log on the fire in the fireplace and believing that the house was on fire.

8. [18]

   Antoinette would speak to her mother, Valerie Hearfield, daily at about 8.30am. She did so on 15 October 2019 and in the course of that conversation she said, “Mum, I can’t take anymore of being knocked around”. Her mother asked why she didn’t go to the police and she replied, “I can’t. I’m frightened of what he will do… He’s been worse since he retired… I told him I am leaving and he said, ‘if you try it, I’ll kill you first’.” Valerie thought that Antoinette sounded shaken up and frightened during this call.

9. [19]

   Antoinette did not make her usual call to Valerie on 16 October 2019. On the evening of that day the accused, as well as Antoinette, Natalie, the young boy and Orlando ate dinner together at around 8.30pm. Shortly after dinner Natalie put the young boy and Orlando to bed and the accused also went to his bedroom. For a while Natalie and Antoinette remained in the lounge room watching television. During this time the accused repeatedly walked in and out of the room. At some point Antoinette went to bed and the accused stopped coming in and out of the room. Natalie went to bed at around 10pm. She played with her phone for a while, took the young boy and Orlando’s phones from them and then they all went to sleep.

10. [20]

    In the early hours of the morning the accused opened the door of the bedroom where Natalie, the young boy and Orlando were sleeping. The sound of the door opening woke Natalie. The accused did not say anything to Natalie but started throwing accelerant from a red jerry can on her. Natalie recognised the red jerry can as one that was usually kept in the shed. She got up as quickly as she could and started pulling the accused out of the room and back down the hallway into the kitchen. At this point there was no fire.

11. [21]

    Natalie called out to Antoinette for help but she got no answer. She tried to push the accused into a cupboard in the kitchen. As Natalie was struggling with the accused, he continued to pour petrol from the jerry can. Once it was empty he dropped it on the floor of the kitchen. He had a cigarette lighter in his hand, which he kept lighting and which Natalie attempted to blow out.

12. [22]

    Despite Natalie’s attempts to blow the lighter out, the accelerant caught alight and Natalie started to burn. She ran back down the hallway to the bedroom, slamming the door and trying to stop the flames. She said to the young boy, “Get out, get out…run buddy” and she pushed the gauze screen from the window before pushing the young boy out and jumping out of the window herself. She rolled on the grass to try and stop the flames and then attempted to get back in through the window to get Orlando, however the window ledge was too high and she was unable to get back into the house. She told the young boy to roll around on the ground.

13. [23]

    Ricky Wales and his uncle Mark Evans were working for Country Capital Removals at 1 Bylong Road, Hillvue, and they were driving into the site when they saw flames at 3 Bylong Road between 5.20 and 5.25am. They immediately ran towards the fire, jumped the fence and approached the house. Natalie was screaming saying, “My baby is in the room”. Ricky Wales approached the window but he was unable to get into the house due to the heat and flames. Mark Evans called 000. Due to the intensity of the fire at this point Ricky Wales told Natalie to get away from the house.

14. [24]

    At about the same time Bernadette Wood woke up and went to the bathroom before returning to the bedroom. She heard a female voice from the neighbouring property screaming, “Somebody help me, help me”. Bernadette woke her husband Neil and went into the kitchen. From the kitchen window she saw that the house at 3 Bylong Road was on fire. Neil followed her into the kitchen and observed that the flames were at least 4 metres high. Neil called 000 and was advised that the fire had already been reported.

15. [25]

    At this time Mark Evans observed the accused walking up and down the driveway on the right-hand side of the house. Natalie saw him and said to Ricky words to the effect of, “Bash him, he started the fire”. Ricky indicated that he would not. Mr Evans walked back down the driveway to flag down the emergency services vehicles when they arrived.

16. [26]

    At about 5.30am Dhindsa Singh was returning to his home at 31 The Heights Road, which I take to be a nearby property, when he observed the fire. He stopped his car and spoke to Mr Evans, who told him that 000 had been contacted. Shortly after stopping his car Mr Singh saw a ute driven by the accused speeding away from the house, turning right towards Duri Road and almost hitting Mr Singh’s car. Natalie was screaming to stop him.

17. [27]

    Shortly afterwards the police, fire and ambulance attended. A number of police officers approached the house and attempted to gain entry through the front door of the house by smashing a window to the right of the door and by smashing a large window at the western end of the house. On each occasion the smoke and heat was such that they could not enter.

18. [28]

    Constable Chapman-Burgess also jumped a side fence and attempted to open the rear door. He was able to open the door but he was unable to proceed due to the immense heat. He saw that there was a bright red glow on the floor, walls and ceiling.

19. [29]

    Natalie was assisted by paramedics. While she was receiving treatment for her burns, Constable Chapman-Burgess held a torch to assist the paramedics and activated his body-worn video and recorded a conversation in which Natalie told the police officer and the ambulance officer what the accused had done. A short time later Natalie was taken to Tamworth Hospital.

20. [30]

    Fire fighters started to try and control the fire and entered the front door. They found Antoinette’s body and advised police that an adult had been found deceased. At that stage Orlando’s body had not been located and a number of police searched the property and surrounds for him, until they were advised that his remains had also been found in the house.

21. [31]

    After leaving the address in his white ute, the accused drove into the town centre of Tamworth. Ultimately, he parked on Fitzroy Street and approached a police officer in the vicinity of the police station and asked whether he was a police officer. Upon receiving an affirmative response he said, “I need to hand myself in. I have just set my house on fire, trying to kill my missus and kids.” The officer observed that the accused had burns on his body and smelled strongly of petrol. The officer escorted the accused into the police station, where he was cautioned and placed under arrest.

22. [32]

    Fire investigator Michael Forbes of Fire and Rescue New South Wales attended and examined the scene on 17 and 18 October 2019. He concluded there were various places around the house where a fire appeared to have commenced and they included the bedrooms where the deceased victims were found.

23. [33]

    A post-mortem examination was conducted upon the two deceased by Dr Hannah Elstub. The death of Antoinette Sands was as a result of blunt force head injuries. She was killed before the fire started. Dr Elstub found various lacerations and fractures to the skull and the jaw and there were haemorrhages within. She noted that the skull fractures were likely consistent with two areas of impact consistent with “impact from an object rather than a fall onto a broad surface” and that the “injury to the ear, left zygoma and mandible most likely represents a third impact”.

24. [34]

    It is the Crown case, and now an agreed fact, that the fatal injuries to Antoinette were the result of blows inflicted by the accused some time prior to him starting the fire.

25. [35]

    Dr Elstub concluded that the cause of death of Orlando Harper was “effects of fire”, specifically, “evidence of significant incineration (thermal injury) as well as smoke inhalation”.

26. [36]

    Natalie Sands suffered a combination of partial and full thickness burns to about 75-80% of her body, as well as superficial burns to her face and head. She was intubated and treated at Tamworth Hospital before being transferred to Royal North Shore Hospital. At Royal North Shore Hospital she suffered infections, including sepsis which resulted in intensive care admission, as well as ongoing issues involving wound breakdown, pain, infection, poor nutrition and severe deconditioning. Her injuries were assessed by doctors as severe, requiring ongoing hospitalisation and likely to result in severe permanent scarring.

27. [37]

    The young boy was also taken to Tamworth Hospital, where he was assessed. He suffered a burn to his right hip, which was dressed in Emergency and which resulted in some pain and nausea. He also suffered superficial burns to two toes and to an elbow but there was no blistering. He did not require formal admission to the hospital but remained at Tamworth Hospital until he could be released into the care of Matthew Harper, upon his arrival from Queensland the following day.

Medical evidence

1. [38]

   There are three reports from Dr Sharon Reutens. The main report is the first, dated 29 November 2020. She was able to speak with the accused by way of AVL from Long Bay Correctional Centre on 6 August 2020. The report includes that the accused told Dr Reutens that he denied having any ill will towards any of his family members and denied having any arguments or difficulties with his family in the weeks before the incident. He said to Dr Reutens, “me and my wife were best buddies”.

2. [39]

   He said the following to Dr Reutens about the day of the fire:

3. [40]

   When Dr Reutens asked the accused how the fire started, he said, “[i]t must have been a match or a lighter”. It appeared to Dr Reutens that he was guessing as to how the fire started. He said that he did not see Natalie. He said, “I heard she got burnt, probably running to get her kid”. He did not seem to recall pouring petrol over her, Dr Reutens wrote.

4. [41]

   The accused told Dr Reutens that he thought about the incident all the time. He said, “Now I feel I’ve destroyed my family. Now they all hate me. Now I’m on me own”.

5. [42]

   He told Dr Reutens that he went to sleep thinking about what he had done and woke up thinking about it. He dreamt about his family and said these were happy dreams and indicated this was the only respite he had from thinking about what he had done to his family.

6. [43]

   Dr Reutens had the benefit of a telephone conversation with Larissa Sands on 9 November 2020. Larissa Sands told Dr Reutens that she observed a gradual deterioration in the accused's mood over the course of the years, but that it was "really bad" a few weeks before he was admitted to Tamworth Hospital in August 2019, he was "paranoid and anxious".

7. [44]

   He had a belief at that time that he had set fire to the house and told Larissa that he could see flames coming out of the chimney even though there were no flames there. Larissa Sands told Dr Reutens about the admission to hospital in August 2019 and said there was a discussion about admitting the accused to a dementia ward for eight weeks for further observation. Ultimately, the family decided not to do that, because Larissa said her mother "couldn't do that to him". One doctor had apparently mentioned vascular dementia, so the family tolerated his "weird" behaviour when he returned home. However, his behaviour reverted to its pre-admission level of agitation and worrying.

8. [45]

   Larissa said her mother and sister had told her that her father was not eating or sleeping. Dr Reutens made a diagnosis of Major Depressive Disorder with mood-congruent psychotic features in partial remission. She had this to say about whether the defence of mental illness, as it was then called, could be made out:

9. [46]

   At the end of the interview, and specifically in relation to the potential availability of the old defence of mental illness, Dr Reutens wrote:

10. [47]

    Dr Reutens provided a further report of 8 August 2021 after having been invited to consider her opinion in the context of the new legislation that had taken effect earlier this year. She said this:

11. [48]

    Dr Pulman's first report is dated 1 June 2021. She had the benefit of interviewing and assessing the accused at the Long Bay Correctional Centre on 12 May and 21 May 2021. She, like Dr Reutens, had been briefed with a significant quantity of documentary material. As to what she referred to as the "index offence", meaning the charges that were then pending against the accused, Dr Pulman wrote this:

12. [49]

    Further in the report, Dr Pulman wrote this:

13. [50]

    She also said:

14. [51]

    Dr Pulman was asked whether at the time of the alleged offense the accused had a mental health impairment and/or cognitive impairment. She responded as follows:

15. [52]

    Dr Pulman said that it was her opinion that the accused did not understand the nature or quality of his act at the time of the offence, as he was “likely suffering a neurodegenerative disease involving a disorder of higher order visual processing resulting in psychotic symptoms”. She considered he may also have met the criteria for a “major depressive disorder” at the time.

16. [53]

    I note that in that respect, Dr Pulman's consideration is along the same lines as that of Dr Reutens.

17. [54]

    Crucially, Dr Pulman concluded:

Conclusion

1. [55]

   Having regard to all of the material that has been placed before the Court, only some of which I have made specific reference to, I am satisfied beyond reasonable doubt that the accused committed the physical acts the Crown is required to establish to prove the offences charged in counts 1, 2, 3 and 5 of the indictment.

2. [56]

   I am also satisfied on the balance of probabilities, based on the undisputed combined force of the opinions of Dr Reutens and Dr Pulman, that the accused did not know the nature and quality of his acts and did not know they were wrong because of both a mental health impairment and a cognitive impairment.

3. [57]

   I am satisfied that the defence of mental health impairment and of cognitive impairment are established. In respect of each of counts 1, 2, 3, and 5, I return the special verdict of act proven but not criminally responsible.