Medium Neutral Citation: R v Sands [2021] NSWSC 1325
Hearing dates: 15 October 2021
Decision date: 15 October 2021
Jurisdiction: Common Law - Criminal
Before: R A Hulme J
Decision:
In respect of each of counts 1, 2, 3, and 5 I return the special verdict of act proven but not criminally responsible.

Catchwords:
CRIME – murder – defence of mental health impairment and cognitive impairment – special verdict where defendant and prosecutor agree on impairment – Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 28, 31 – Major Depressive Disorder – psychotic symptoms – neurodegenerative disease – Posterior Cortical Atrophy – Lewy Body Dementia – unanimous medical opinion that defence applies – accused did not know the nature and quality of the act – accused did not know that the act was wrong – judge alone special verdict of act proven but not criminally responsible

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Criminal Procedure Act 1986 (NSW), s 133
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 5, 28, 31, pt 3

Cases Cited:
R v Siemek(No. 1) [2021] NSWSC 1292
R v Tonga [2021] NSWSC 1064

Category: Principal judgment
Parties: Regina
Richard George Sands
Representation:
Counsel:
Mr G Tabuteau
Mr S Bouveng
Solicitors:
Solicitor for Public Prosecutions
Legal Aid NSW

File Number(s): 2019/325678

Judgment

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:

1.   The murder of Antoinette Sands.
2.   The murder of Orlando Harper.
3.   An offence of setting fire to a dwelling with the intent to murder Antoinette Sands.
4.   A charge of setting fire to the same dwelling with intent to murder a young boy.^[1]
1. Section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) operates to prohibit identification of the child where no consent has been given to allow same. Consent was provided by the mother of Orlando Harper to allow him to be identified.

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.
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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Sands

Details

AGLC: R v Sands [2021] NSWSC 1325
Case: [2021] NSWSC 1325
Decision Date: 15 October 2021

CaseChat Overview and Summary

In the matter of R v Sands, the accused faced a charge of murder. The case involved a complex interplay of mental health and cognitive impairments, leading to a special verdict under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). The defendant, who suffered from Major Depressive Disorder with psychotic symptoms and was also afflicted with Posterior Cortical Atrophy and Lewy Body Dementia, was assessed by medical experts. These experts unanimously agreed that the defendant's conditions met the criteria for both mental health and cognitive impairments as defined by the Act. The primary issue before the court was whether the defendant could be found not criminally responsible due to these impairments, despite the prosecution accepting that the impairments existed.

The court had to determine whether the defendant's mental health and cognitive impairments were such that they negated her criminal responsibility for the act. The legal issue revolved around the interpretation and application of sections 28 and 31 of the Act, which pertain to the conditions for a special verdict of act proven but not criminally responsible. The prosecution and the defence agreed that the defendant suffered from significant impairments, but the defence argued that these impairments rendered her incapable of understanding the nature and quality of her act or knowing that it was wrong. The court had to assess the evidence and the expert opinions to ascertain whether these impairments indeed absolved the defendant of criminal responsibility.

The court, after carefully considering the evidence and expert opinions, found that the defendant's impairments were severe and had a profound impact on her mental faculties. The unanimous medical opinion confirmed that the defendant did not know the nature and quality of her act nor did she know that it was wrong due to her conditions. Therefore, the court concluded that the defendant was not criminally responsible for the act. The judge, acting alone, entered a special verdict of act proven but not criminally responsible. This verdict acknowledges the defendant's involvement in the act but exempts her from criminal liability due to her mental and cognitive impairments.

Orders