R v Sands

Supreme Court of NSW|2021-10-15|Before: Hulme J, Wilson J, Johnson J

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]
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.

Relevant material

The Court has before it a bundle of material in which the following are of particular importance: ● a Crown Case Statement (to be regarded as a statement of agreed facts); ● reports by Dr Sharon Reutens, a consultant psychiatrist, on behalf of the defence; reports by Dr Susan Pulman, a forensic psychologist, on behalf of the Crown
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

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.

Family relationships prior to the fire

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.
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.
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.

The accused's symptoms leading up to the fire

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.
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.
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.
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.

The night of the fire

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.
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.
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.
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.
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.
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.
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.
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.

Emergency services arrive

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.
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.
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.
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.

Accused's arrest

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.

Investigation

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.
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".
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.
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".

Injuries to Natalie and the young boy

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.
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.

Dr Reutens

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".
He said the following to Dr Reutens about the day of the fire: ● he had supper and tea and went to bed; ● he woke early; ● he could not recall what he was thinking; ● he had never planned to kill anyone; ● he was not sure why he had lit the fire; ● "I don't know why I started it, I've got a lot of stuff in that house, we got on terrific"; ● he kept petrol in the shed but could not specifically recall having gone to the shed to get it; ● he could not recall starting the fire or putting petrol anywhere in the house but mused, "I must have put the petrol in the bedrooms"; ● after lighting the fire, he went and entered the car and went to give himself up to the police.
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.
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".
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.
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".
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.
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: "There is good evidence that he was psychotic at around the time of the incident. Mr Sands described delusional beliefs that the police were watching him and he would be sent to prison. He had other mood-congruent depressive delusions that were nihilistic in nature - he believed he would be kicked out of his home and made homeless, and that people would want to kill him if he sold a motorcycle that needed repairs. These beliefs persisted despite his daughter's attempts at reassurance and explanation. Mr Sands' reasoning and judgment were impaired because of the depression and the associated psychotic features... The history provided by Larissa Sands indicates he had a cognitive impairment at the time of the incident as evidenced by his inability to undertake the simple procedural task of making a cup of tea or fill out a Centrelink form... I am not certain if Mr Sands has a significant underlying degenerative cognitive impairment or if his cognitive impairment can be solely ascribed to the severe depression. His condition is still resolving and a more definitive assessment will need to be deferred until after the condition has plateaued. He will require ongoing observation and further testing for dementia after the depressive illness has resolved."
At the end of the interview, and specifically in relation to the potential availability of the old defence of mental illness, Dr Reutens wrote: "In my opinion Mr Sands has a defence of mental illness open to him for these offences. At the time of the incident Mr Sands had a Major Depressive Disorder with Psychotic Features which is a disease of the brain that gives rise to a disease of the mind. At the time of the offences he had a defect in reasoning in the form of delusional beliefs that he would be made homeless or sent to jail... According to the Facts Sheet, he told the police that he had set his house on fire trying to kill his wife and children. Therefore, I believe that he was aware of the nature and quality of his actions. I am of the opinion that because of the disordered state of mind rendered by his severely depressed state and psychotic beliefs Mr Sands would not have t[he] ability to recognise that his actions were morally wrong. His agitated depression prevented him from being able to reason about the matter with a moderate degree of sense and composure about the influence of his delusional thinking on his perception of events."
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: "In my opinion Mr Sands had a mental health impairment at the time of the commission of the offences according to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. At the time of the commission of the offences he suffered from a Major Depressive Disorder with psychotic features. And consequently had a disturbance of thought, mood and volition... [It] affected Mr Sands' emotional wellbeing, judgment and behaviour. His mood was depressed and consequently his judgment was negatively skewed. The psychosis affected his cognitive processes, further impacting on his judgment and his behaviour. As a result of the mental health impairment Mr Sands was unable to reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong. His agitated depression prevented him from being able to reason about the matter with a moderate degree of sense and composure about the influence of his delusional thinking on his perception of events."

Dr Pulman

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: "Mr Sands reported that he did not know why or how the index offence occurred. He recalled having put wood in the fire some weeks prior to the index offence and having thought the house had caught on fire. This incident has been described elsewhere in witness statements. He said he had no recall of pouring gasoline or anything in the house or on his daughter. He shook his head and repeated, 'I don't know how it happened. I should go to hell for what I have done'. He said his head was confused and he didn't know how to describe what he was experiencing. He repeated that he had not been right for some time and he couldn't see things properly, 'things would get close and then disappear or seem far way' and he didn't know why."
Further in the report, Dr Pulman wrote this: "Mr Sands medical records from 2015 to 2019 indicate symptoms consistent with posterior cerebral atrophy ("PCA") (a neurodegenerative disease, often referred to as a visual form of Alzheimer's disease). Mr Sands presented at hospital on numerous occasions with visual disturbances, dizziness, confusion, disorientation, occipital headache, gait disturbances, visual hallucinations and paranoia, depression (feelings of impending doom) and increasing anxiety, consistent with PCA. PCA is associated atrophy of the occipital lobe and parieto-occipital lobes. It typically affects the function in the occipital, occipitoparietal and occipitotemporal regions of the brain. Age of onset is as early as 50 years. Mr Sands' MRI reveals multiple white matter ischaemic changes of indeterminate age in both occipital lobes and right anterior parietal lobe. He was noted to have considerable general cerebral involution (atrophy) for his age. PCA can be difficult to diagnose as it does not present with symptoms typical of a dementing illness such as impaired memory, which occurs later in the disease. The progression of the disease can be slow and is often missed during initial presentations… After the symptoms begin, the condition progresses slowly. Visual changes are the most prominent features of posterior cortical atrophy. The illness involves a progressive decline in visual processing skills, which leads to confusion and increasing anxiety."
She also said: "Symptoms include impaired recognition of objects or people, trouble with perception of distances, inability to identify moving objects or discern objects that are moving, visual hallucinations, trouble remembering words, difficulty reading, confusion looking at multiple objects, difficulty using tools, confusion interpreting the environment, difficulty with driving. Vision can be perfectly normal in PCA but the ability to know what is seen is impaired. Memory loss does not normally develop until years after the disease begins. For those caring for a patient with PCA, carers may describe behavioural changes and confusion, with anxiety presenting early in the disease. PCA is often considered a visual variant of Alzheimer's disease however it is accompanied by more severe depression earlier and greater insights into their difficulties than occurs in Alzheimer's disease. Patients with PCA can have preserved memory and language in the early stages of the disease. PCA can be present together with other neurological conditions such as stroke. The diagnostic delay is thus often measured in years."
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: "It is my professional opinion that Mr Sands was likely to be suffering from a form of dementia, namely, Posterior Cortical Atrophy or Lewy Body Dementia, based on the results of MRI scan and his reported instances of visual disturbances over a period of years. Visual problems (based on atrophy in the occipital lobe rather than the eyes) is one of the first signs or symptoms of PCA. It is accompanied by confusion, visual hallucination, anxiety, depression, dizziness consistent with the symptoms reported by Mr Sands. Further neurological consultation is required…"
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.
I note that in that respect, Dr Pulman's consideration is along the same lines as that of Dr Reutens.
Crucially, Dr Pulman concluded: "Given it is likely that Mr Sands was suffering a neurodegenerative disease Posterior Cortical Atrophy or Lewy Body Dementia, he would not have had the capacity or awareness that his actions were wrong and would not have been able to reason to any degree of sense and composure about whether the act, as perceived by reasonable people was wrong. Mr Sands had experienced extensive episodes of confusion, paranoia, visual hallucinations, and depression consistent with a neurodegenerative process involving loss of brain volume and the ability to reason prior to the index offense."

Conclusion

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.
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.
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.

Endnote

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.

Amendments 01 November 2023 - Child victim's name corrected where needed DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 November 2023

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