HER HONOUR: Richard Hotoran was arraigned before this Court on 7 July 2023 on an indictment which contained six offences charged against him. Those offences are that on 15 March 2022 at Newtown in the State of New South Wales he murdered Pankaj Kumar. Further, that on the same date and the same place he murdered Alric Vokal. Count 3 charges that on the same date and place the accused murdered Peter John Greenwood. Again, at Newtown on 15 March 2022, count 4 charges that the accused intentionally damaged property by means of fire, that property being the premises at 23 Albermarle Street Newtown, which belonged to Albert Wong. Count 5 charges that the accused, on 15 March 2022 at Newtown, caused grievous bodily harm to Ronald Serich with intent to cause Mr Serich grievous bodily harm. The final count, count 6, is that on the same day and place the accused assaulted Laurince Everson causing Mr Everson actual bodily harm. The accused entered pleas of not guilty to each of those charges.
No trial date has yet been fixed as both the Crown and the accused agree that the evidence supports a conclusion that the accused was suffering from a mental health impairment on 15 March 2022, one that had existed long before that date and which persists. That being the joint position of the parties, the Court was invited to proceed pursuant to s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). I will return to the legislative scheme that governs acts - the commission of which by the mentally ill would ordinarily be criminal acts - shortly.
I turn firstly to consider what took place on 15 March 2022, that being established by Ex A, a statement of facts which the parties have agreed between themselves to be accurate, as provided for by s 191 of the Evidence Act 1995 (NSW).
In December 2021, the accused moved to temporary accommodation at an address at Albermarle Street in Newtown. The two-storey premises offered room and board to its guests in fourteen individual rooms. Although the accused may not have appeared as being floridly mentally unwell at that time to those around him, he was probably psychotic when he moved to Albermarle Street.
In March 2022, the accused, as he later told psychiatrists, was hearing aggressive inner voices inside his head, and emanating from the television, instructing him to burn down the house at Albermarle Street. Giving in to those voices, he went on three occasions to a nearby petrol station in Erskineville and bought about 10 litres of petrol on each occasion, stockpiling some 30 litres or so of petrol stored in six containers.
A little before 1 o'clock in the morning on 15 March 2022 the accused took some of the stored petrol and poured it in a trail from outside the house on Albermarle Street, going inside the residence and along the hallway to the bedroom that he had occupied, and where the balance of the stockpiled petrol was stored. The accused ignited the petrol, which led to an explosion of the stockpile in his ground floor bedroom.
The consequences of the fire and the explosion were catastrophic. Part of the roof at the front of the building collapsed, and the fire quickly took hold and rapidly spread. Thick, and what must have been suffocating, smoke billowed throughout the building. Other than the accused, there were eleven guests at the Albermarle Street premises that night, all asleep in their respective bedrooms as the fire ignited and took hold. Three of the residents tragically died in the fire.
Mr Pankaj Kumar was 58 years of age. He was unable to escape the smoke and the flames that were engulfing his room and he died there. Peter Greenwood was 72 years of age. He occupied a room above that of the accused and he also died in the fire. Alric Vokal was only 40 years of age. He was able to make his way out of his room, but he could not escape the building and he died just inside the entrance door of the Albermarle Street residence.
Ron Serich, aged 79, very bravely leapt from the window of his first floor bedroom as the only means available to him to escape the fire. He suffered from a number of injuries, and they were indeed grievous. Mr Serich sustained deep to full thickness burns to his right lower leg, both his hands, and his face. He suffered spinal fractures, complex fractures to the pelvis, and he had fractured ribs and a fracture to his right lower leg. He suffered two episodes of what is referred to as pulseless electrical activity, that is, he went into some form of cardiac arrest in the hospital Emergency Department to which he had been taken, and cardio-pulmonary resuscitation had to be administered to him. Necessarily, he was admitted to the Intensive Care Unit in the hospital, and he spent four days in intensive care and then some five weeks overall in the hospital receiving treatment for his terrible injuries. Laurince Everson, who was 72 years of age, was in a ground floor bedroom at the time of the fire. He was blown out of the building by the force of the explosion as the petrol stockpile ignited and came to rest on the roadway on Albermarle Street. He suffered a fractured right rib which constitutes actual bodily harm. He required hospital treatment. Other residents, fortunately, were able to escape the flames and smoke without significant injuries.
After igniting the fire with the terrible consequences that I have described the accused walked towards Sydney city. He spoke to a woman on the street at about 2:20am that morning and, when she would not give him the cigarette which he asked of her, he became aggressive and abusive. Patrolling police intervened and they spoke with the accused. Neither of the officers thought the accused seemed to be floridly mentally ill but as other evidence from forensic psychiatric experts establishes, the accused's presentation was not an accurate reflection of his state of mind, which is highly likely to have been psychotic.
Later on 15 March, after speaking to a volunteer who was handing out food to those in need about the fire in Albermarle Street, the accused attended Sydney Police Centre and told police officers that he wished to report a crime. He told the constable that he spoke to there that he had started the fire on Albermarle Street.
There is no issue between the Crown and the accused, and the evidence supports, that the accused suffered from a mental health impairment at the time he started this terrible and destructive fire and he did not at that time have the capacity to understand that his actions were wrong. Our criminal law has always recognised that even the most terrible acts that would ordinarily be treated as very serious crimes will not be criminal conduct if the acts have been committed by an individual with a mental illness or, as the legislation describes it, a mental health impairment.
The relevant legislation, to which I have already referred, is the Mental Health and Cognitive Impairment Forensic Provisions Act. The concept of a mental health impairment is defined in s 4 of that Act. Part 3 of the Act provides for the defence of mental health impairment; s 28 is the relevant provision. 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 that affected the person in one or both of two ways; that is, that the person did not know the nature and quality of the act in question and that the person did not know the act was wrong. It is (relevantly) in these terms:
"28 Defence of mental health impairment or cognitive impairment
(1) 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 […] that had the effect that the person -
(a) did not know the nature and quality of the act, or
(b) did not know that the act was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong).
(2) The question of whether a defendant had a mental health impairment […] that had that effect is a question of fact and is to be determined by the jury on the balance of probabilities.
(3) Until the contrary is proved, it is presumed that a defendant did not have a mental health impairment […] that had that effect.
(4) In this Part, act includes -
(a) an omission, and
(b) a series of acts or omissions."
Where there is no issue that the evidence establishes one or both of s 28(1)(a) or s 28(1)(b), s 31 of the Act, which is the basis of the proceedings before the Court today, provides as follows:
"31 Special verdict where defendant and prosecutor agree on impairment
The court may enter a special verdict of act proven but not criminally responsible at any time in the proceedings (including before the jury is empanelled) if -
(a) the defendant and the prosecutor agree that the proposed evidence in the proceedings establishes a defence of mental health impairment or cognitive impairment, and
(b) the defendant is represented by an Australian legal practitioner, and
(c) the court, after considering that evidence, is satisfied that the defence is so established."
Having considered the evidence placed before the Court, I am satisfied that the necessary requirements in s 31(a) and (b) have been satisfied and apply in this case. I now turn to the final part of s 31 which is that the Court, after considering the evidence placed before it, is satisfied that the defence of mental health impairment is established.
The evidence tendered by the Crown in this matter, Exhibits A, B and C before the Court, set out the evidence to which the Court has had regard. I have referred already to the facts of the events of 15 March 2022 as established by Ex A. Exhibits B and C are directed to the question of whether the accused has available to him a mental health impairment defence and, therefore, the special verdict pursuant to s 28 of the Act.
The evidence tendered in this matter establishes that, with respect to counts 1, 2 and 3 of the indictment presented in July 2023, the act of the accused in lighting the fire at Albermarle Street with the stockpile of petrol that he had amassed, caused the deaths of Pankaj Kumar, charged in count 1, Alric Vokal, charged in count 2, and Peter Greenwood, charged in count 3, each of whom, as I have already said, tragically perished in the fire.
In relation to count 4, the charge of damage to the property at Albermarle Street, the evidence establishes that it was the act of the accused in lighting the fire, initially outside the premises and then flowing along a trail of petrol to his room, which caused the destruction of the property by that fire. Count 5 refers to the terrible injuries amounting to grievous bodily harm sustained by Ron Serich in the fire and as he threw himself from his bedroom window to escape the fire. His injuries are as I have already detailed and there is no doubt at all that they are most grievous injuries, and that they were caused by the act of the accused. With respect to count 6, a charge of assault occasioning actual bodily harm, the evidence in Ex A establishes clearly that Mr Everson, who was blown from the premises by the force of the explosion, sustained a fractured rib as a consequence of the act of the accused, and a fracture of that nature is actual bodily harm.
The Court is satisfied beyond reasonable doubt that the accused committed the acts that I have referred to with the consequences that I have described. The Court must now turn to consider the question of mental health impairment on the basis of the evidence placed before me, particularly in Exhibits B and C.
The Court has had the benefit of the reports and opinions of Dr Adam Martin and Dr Richard Furst, each of whom is a forensic psychiatrist, and each of whom regularly reports to the higher courts with respect to questions of mental health impairment. Both Dr Martin and Dr Furst were very thoroughly briefed with the evidence which was gathered by investigating police concerning the commencement of the fire, the acts of the accused in the days leading up to the fire, and his conduct following the fire. The doctors also had access to an extensive quantity of documentary evidence relating to the accused's mental state, both historically, at the time the doctors saw the accused and, critically, at the time of the fire on 15 March 2022.
Dr Martin saw the accused at the request of the Crown on 4 May 2023. He concluded that the accused was suffering from chronic schizophrenia or, alternatively, a schizoaffective disorder, disorders which the doctor said are both chronic psychotic illnesses and both of which satisfy the definition of a mental health impairment contained in the legislation. Dr Martin also referred to a diagnosis of alcohol and substance abuse. It seems on the evidence that the accused had abused substances over many years.
In his report, and with respect to the mental health impairment defence pursuant to s 28, Dr Martin concluded that the accused's "... mental state at the time of the alleged offending could reasonably be described as a mental health impairment." The doctor said that in his view it is highly likely that the accused, was experiencing auditory hallucinations and serious mood disturbance consistent with a conclusion that he had a temporary or ongoing disturbance of thought and mood arising from a psychotic disorder. Further, the doctor opined that the accused's impairment was not caused solely by the temporary effect of ingesting a substance or a substance use disorder as referred to and defined in s 4 of the Act.
Dr Martin was of the view that the defence of mental health impairment was made out, although, of course, the doctor acknowledged that was a conclusion for the Court to reach. The doctor considered that the accused did not know the nature and quality of the acts with which he stands charged, and he was of the opinion that it was reasonable for the Court to find that the accused did not know that his act was wrong, that is, that he could not reason with a moderate degree of sense and composure as to whether the act as perceived by reasonable people was wrong. Dr Martin believed that Mr Hotoran can avail himself of the defence.
As I have already said, Dr Martin was thoroughly briefed with all relevant material. In forming his opinions, he had regard to the apparently longstanding history of the accused's mental illness, the fact that at the time of the fire at Albermarle Street the accused's condition was entirely untreated, and that there appeared to be no motive and no reason for the acts he carried out. Dr Martin concluded that it was likely that the accused was suffering from auditory hallucinations and was probably overwhelmed by those hallucinations and by the consequences of hearing those auditory hallucinations in his head and emanating from televisions. The doctor was of the opinion that the accused had no capacity, or his capacity was limited, to modulate his emotional response to what he experienced.
Dr Martin acknowledged the fact that there is evidence of significant planning, plainly so, given the accused's acts of amassing a quantity of petrol over a number of days. The doctor took into account the opinions of the police officers who spoke with the accused that night and did not observe symptoms of florid illness, but the doctor was nevertheless firmly of the view that the weight of evidence established that the accused had an underlying chronic mental illness which seriously affected his capacity to reason with a moderate sense of composure as to whether his acts were wrong.
Dr Richard Furst saw the accused at the request of his legal representatives on the 14 February 2023. Dr Furst, like Dr Martin, was extensively briefed with all relevant documentary and digital evidence, including the footage that had been captured by police officers who had spoken to the accused on 15 March 2022. Dr Furst formed an opinion which for all relevant purposes is the same as that of Dr Martin, that is, Dr Furst concluded that the accused suffered from a schizoaffective disorder on 15 March and, further, an alcohol or a substance abuse disorder.
Dr Furst was of the opinion that the accused has available to him the mental health impairment defence because at the time of the fire he was suffering from a mental health impairment, being a psychotic disorder, satisfying the definition at s 4(2)(c) of the Act. Dr Furst is of the view that the accused did not know that what he did was wrong, that is, he was not able to reason with a moderate degree of sense and composure as to whether his acts in setting fire to the boarding house, as perceived by reasonable people (necessarily people without a mental illness) was wrong, because of the effect of his psychotic symptoms on his perceptions of reality and his capacity to think clearly. Dr Furst reached the same conclusion as did Dr Martin, that being that the accused has available to him the defence of mental health impairment pursuant to s 28.
The evidence before the Court establishes that, in March 2022, the accused had a mental health impairment of long standing. It is likely that he had been chronically and seriously ill for around two decades. When affected by that serious mental health impairment he committed an act as senseless as it was dangerous. There was no motive for what the accused did on 15 March 2022, there was no reason in what he did, other than that which he gave to the doctors, being that he surrendered to the persistent voices which he was not able to ignore, and which assailed him inside his own head and from electronic equipment, voices which told him to burn down the Albermarle Street premises.
On all the evidence, the Court is satisfied on the balance of probabilities that, when the accused committed the acts that are the basis of counts 1 to 6 on the indictment of 13 June 2023, he did not know the nature and quality of his acts, and he did not know that they were wrong because of the serious mental health impairment from which he suffered. The Court is satisfied that the defence of mental health impairment is made out and the special verdicts pursuant to s 28 must be returned.
In relation to the indictment of 13 June 2023, presented against the accused on 7 July 2023, the special verdict is made out and those verdicts are returned against counts 1, 2, 3, 4, 5 and 6 on the indictment. That is, in relation to each of the charges before the Court, the acts have been proven, but the accused is not criminally responsible for them.
HER HONOUR HEARD VICTIM IMPACT STATEMENTS, AND RECEIVED WRITTEN SUBMISSIONS AS TO THE CONSEQUENTIAL ORDERS TO BE MADE FOLLOWING VERDICT
The Court proposes to make the following orders:
(2) Pursuant to s 33(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Richard Hotoran is to be detained in a correctional facility or at such other place as determined by the Mental Health Review Tribunal until released by due process of law.
(3) I direct the Registrar to notify the Minister for Health of the orders that the Court has today made, within seven days.
(4) I direct the Registrar to notify the Mental Health Review Tribunal of the verdicts that the Court has returned today and of these orders, within seven days.
(5) I direct the Registrar to provide to the Mental Health Review Tribunal a copy of the judgment of the Court of today, a copy of the orders made today, and a copy of Exhibits A, B and C, within seven days from today.
(6) I direct the Registrar to notify Justice Health of the verdict and orders of the Court and to provide a copy of the judgment of the Court, the orders of the Court and Exhibits A, B, and C to Justice Health within seven days.
(7) Pursuant to s 30N of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Registrar is directed to provide a copy of the family victim impact statements of Anuj Garg (next of kin of Pankaj Kumar), Michelle Vokal (next of kin of Alric Vokal) and Georgina Chapman (next of kin of Peter Greenwood) to the Mental Health Review Tribunal within seven days of this order.
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Decision last updated: 24 October 2023