Citation: R v Sandoval [2010] NSWDC 321
Court: District Court of New South Wales
Date: 19 November 2010
Judge(s): Berman SC DCJ
Background
The accused stood trial on an indictment alleging four counts of dangerous driving causing grievous bodily harm, arising from an incident on 29 May 2009. Two counts were the aggravated form of the offence (driving to escape police pursuit) and two were the un-aggravated alternatives. The incident caused grievous bodily harm to innocent road users.
At the time of the offending, the accused was being treated for schizophrenia with oral medication but was not fully compliant. His Honour acquitted him on the aggravated counts and returned a verdict of not guilty by reason of mental illness on the remaining counts.
Following the verdict, the court turned to consequential orders regarding the accused's detention or release. The hearing on those orders was adjourned briefly to allow evidence to be gathered. The accused was granted bail in the interim, and both parties subsequently collaborated to produce a draft set of proposed conditions.
Legal Issues
- What consequential orders should the court make following a finding of not guilty by reason of mental illness?
- Whether the court was satisfied, on the balance of probabilities, that the safety of the accused or any member of the public would not be seriously endangered by his release from custody.
- Whether release could be ordered conditionally under the amended provisions of the Mental Health Forensic Provisions Act.
Decision
The court heard oral evidence from the accused's treating psychiatrist, Dr Yenson, on the question of risk. Since the 2009 incident, the accused's treatment had changed materially: he now received a depot (injected) anti-psychotic medication every three weeks, which had also improved his compliance with daily oral medication. He had abstained from illicit drugs and alcohol and had developed greater insight into his condition, including notifying his treating team when experiencing auditory hallucinations.
Dr Yenson gave evidence that, provided the current treatment regime continued, the risk of conduct similar to that which occurred in 2009 would be low. The court accepted that evidence and was satisfied on the balance of probabilities that the safety of the accused and the public would not be seriously endangered by his release, provided appropriate conditions were imposed.
The court noted that the Mental Health Forensic Provisions Act had been amended to allow a court to release an accused either unconditionally or subject to conditions, replacing the previous position under which detention was mandatory. The statutory threshold for release remained a demanding one: the court must be positively satisfied on the balance of probabilities that serious endangerment of safety would not result.
Orders Made
The accused was released from custody subject to the following conditions:
- Comply with all directions from Dr Sean Yenson or any other treating psychiatrist, with supervision by Macarthur Mental Health Service to ensure compliance.
- Comply with all directions from any alcohol and drug counsellor, including submitting to testing.
- Not consume any alcohol or illicit drugs.
- Attend three-weekly depot injections of Zuclopenthixol Decanoate 50mg (or such other depot injection as prescribed).
- Take all prescribed medications daily as directed by his treating psychiatrist.
- Accept directions and counselling from his caseworker, manager, and psychiatrist.
- Be of good behaviour.
- Notify the registrars of the District Court and the Mental Health Review Tribunal of his current address and telephone number, and provide immediate written notification of any change.
- Attend the Mental Health Review Tribunal as required.
Key Takeaways
- Under the (then recently amended) Mental Health Forensic Provisions Act, a court retains the power to release an accused unconditionally or on conditions following a not guilty by reason of mental illness verdict, replacing the previous regime of mandatory detention.
- The statutory threshold for release is a high one: the court must be satisfied on the balance of probabilities that the safety of the accused or any member of the public will not be seriously endangered.
- Psychiatric evidence going to treatment compliance, abstinence from substances, and the accused's level of insight played a central role in satisfying that threshold in this case.
- Conditions imposed on release can be detailed and prescriptive, extending to medication regimes, drug and alcohol testing, and obligations to maintain contact with both the court and the Mental Health Review Tribunal.
- The District Court's approach illustrates that the seriousness of the underlying offending does not automatically preclude conditional release; rather, it is the current risk profile, assessed against the evidence, that governs the outcome.
Legislation and Cases Referenced
Legislation:
- Mental Health Forensic Provisions Act (NSW)
Cases cited: None cited in the judgment.