R v Sandoval

[2010] NSWDC 321

CITATION:	R v SANDOVAL [2010] NSWDC 321
HEARING DATE(S):	19 November 2010
EX TEMPORE JUDGMENT DATE:	19 November 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Released from custody subject to conditions - see paragraph [8]
CATCHWORDS:	CRIMINAL LAW - Consequential Orders after a finding of not guilty by reason of mental illness in judge alone trial
LEGISLATION CITED:	Mental Health Forensic Provisions Act
PARTIES:	The Crown Henri Giovanni Sandoval
FILE NUMBER(S):	DC 2009/00043039
COUNSEL:	Ms N Adams - Crown Ms P David - Offender
SOLICITORS:	Director of Public Prosecutions Legal Aid Commission

JUDGMENT

1 HIS HONOUR: Henry Sandoval stood trial before me charged on an indictment which alleged four offences; two in the alternative to the other two.

2 Counts 1 and 3 were dangerous driving causing grievous bodily harm, whilst at the time driving to escape pursuit by a police officer. Counts 2 and 4, in the alternative to counts 1 and 3, were the un-aggravated form of the offence, namely dangerous driving causing grievous bodily harm.

3 I acquitted Mr Sandoval of counts 1 and 3 for reasons I gave at the time and found him not guilty on the grounds of mental illness in relation to counts 2 and 4. Attention then turned to consequential orders because the parties were not in a position to produce evidence that day as to the form of any orders I should make. Despite some concern as to whether I had the power to do so, I granted Mr Sandoval bail until today.

4 This morning evidence was called from his treating psychiatrist, Dr Yenson, he also gave oral evidence, and, with his assistance, Ms Davis who appears for Mr Sandoval, and the Crown formulated a draft set of orders which they considered it appropriate to make. I have received those orders and, apart from a few minor changes, will be making those in a short time.

5 Ultimately, the decision I have to make at this stage is what to do with Mr Sandoval. Previously I had no alternative but to require that he be detained in custody. However, relatively recent amendments to the Mental Health Forensic Provisions Act now allow me to order Mr Sandoval’s release from custody, either unconditionally or subject to conditions. However, there is a very important restraint. I am not to make an order for his release unless I am satisfied on the balance of probabilities that the safety of Mr Sandoval or any other member of the public will not be seriously endangered by his release. That is not a matter which, of course, should be dealt with lightly. After all, Mr Sandoval’s conduct on 29 May 2009 led to grievous bodily harm to innocent road users and I have to be careful to ensure, as far as I can, that such or similar conduct will not be repeated. At the time Mr Sandoval was receiving oral medication for his schizophrenia, but was less than one hundred per cent compliant. There were other stressors in his life as well. Now it appears that there has been a change in the way he is treated, in particular he receives anti-psychotic medication injected every three weeks, and this has assisted in him complying with his oral medication which he takes daily.

6 He has also, since 29 May 2009, abstained from consumption of illicit drugs and alcohol and, possibly because of the two matters I have just mentioned, developed a higher level of insight. He now informs the Mental Health Service treating him when he is hearing voices, and now appreciates more than he did back in May 2009, the need for him to comply with his medication requirement. Dr Yenson said that if his treatment remains as it is at present, then the risk of offending of the type which occurred last year would be low.

7 I am satisfied, therefore, that as matters presently stand, and if his treatment continues the way it is, then on the balance of probabilities the safety of Mr Sandoval and the safety of any member of the public will not be seriously endangered by his release; subject to the conditions which I will now read out.

8 Mr Sandoval is to be released from custody subject to the following conditions. (1) He comply with any directions given to him by Dr Sean Yenson, or by any other psychiatrist, and he is to be supervised by Macarthur Mental Health Service to ensure his compliance. (2) He comply with all directions given by any alcohol and drug counsellor, including that he submit to testing to ensure compliance with condition 3. (3) He is not to consume any alcohol or illicit drugs at all. (4) He attend for his three weekly injections of the anti-psychotic medication Zucioponthixol Deconate 50 milligrams depot injection anti-psychotic medication or such other depot injection as may be prescribed. (5) He takes all medications, oral and otherwise, as prescribed by his treating psychiatrist, in particular where medication is prescribed to be taken daily he is to take that medication everyday. (6) He accept directions and counselling from his Caseworker, Manager and Psychiatrist. (7) He is to be of good behaviour. (8) He is to advise the registrars of this Court and of the Mental Health Review Tribunal of his current address and telephone number, and he is to notify them immediately in writing in the event of any plans to change address and/or telephone number, and any change of address and telephone numbers. (9) He attend the Mental Health Review Tribunal as required by the Tribunal.

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