R v Sazdanovski

BACKGROUND TO THE CURRENT CHARGES

1. Prior to the current imprisonment term Mr Sazdanovski was imprisoned from the 4th February 2018 for a protracted attack on his partner. He was convicted of stalk and intimidate; reckless wounding; assault occasioning actual bodily harm and breach of a AVO. The offences occurred in his parent's home and were directed against his partner at the time. The total imprisonment term of 18 months with the non parole period due to expire on the 3rd December 2018 was imposed. He was briefly released in December 2018, but parole was revoked immediately due to the unavailability of suitable accommodation in the community. An AVO was still in force for the protection of the victims, one of whom included his mother, and prohibited him returning to the family home .I am told that order has now expired, probably in February 2020.
2. He was again released to parole on 15 April 2019, after his father arranged a home unit close to his parent's residence. As a condition of parole he was required to wear an ankle bracelet, presumably to ensure compliance with the AVO, which forbade his return to his parent's home. On the 18 April 2019 police made a "routine check", apparently to assess his compliance with the AVO. It was reported he presented as being substance affected (see Breach of parole report). There is no information as to how and by whom this assessment was made. It was also alleged that on the same day he was creating a disturbance in the unit block as reported by the real estate agent. Mr Sazdanovski failed to attend a mental health appointment that was scheduled for the 26th April, and did not answer his telephone.
3. On the 26th April 2019 Probation and Parole reported: "during the home visit …, Mr Sazdanovski's obligation to engage with community mental health was discussed with him however he indicated that he had sufficient medication and did not need to engage with them"..…… and in summary "Mr Sazdanovski has only been on parole for 2 weeks . During this time he has shown an unwillingness to comply with his mental health medication and police advised that they have concerns about ongoing drug abuse".
4. I have had made available to me the breach report, which includes the conditions of his parole. The conditions of parole include a condition of ceasing drug use and being subject to testing for drug and alcohol use. There is no specific provision that he comply with the directions to comply with mental health directions and take medication, but a general condition exists to require him to participate with programs or treatment and to "adapt to normal lawful community life".
5. The information from Mr Sazdanovski as to what occurred in between his release from custody on the 15th April and the 28th April 2019 comes from his self-report to psychiatrists many months later. He has both admitted to and denied using illicit substances but on balance Dr Nielsen concludes there is a strong suspicion that there was some drug use. Mr Sazdanovski admits over medicating himself with his prescribed medication, by taking it all over several days, rather than weeks.
6. My observation is that perhaps it is unsurprising that this man being released from custody in the circumstances that he was, found it difficult to manage the psychiatric medication by himself and quickly relapsed into a state of mental decline. It not unusual for mentally ill people in these circumstances to seek relief from other substances, and find it difficult to adapt to normal lawful community life. How he was supposed to adapt to "normal community life" after a year in custody, and without support is unexplained.

EVENTS OF THE 28TH APRIL 2019

1. By the 28th April, this man was of great concern to his family. His father contacted St George Community Mental Health unit, reporting his son was threatening suicide and that he (the father) was afraid to go there alone. The St George Mental health team arranged with police to attend the unit and make an assessment. Inexplicably they did not arrange for a mental health worker to attend with police. When police attended the applicant was reported (see Crown case statement) to be initially compliant and remained calm for some time, laying on his stomach on the bed. He asked police to leave. However after a short time when it became clear that the police would not leave he got up from the bed and approached senior Constable Prichard in a manner that caused that Constable to fear violence. The Constable moved away and placed his hand on his taser. Mr Sazdanovski then turned towards Constable Egbers, grabbed her head and violently assaulted her using his hands to scratch her face and his teeth to attempt to rip her hair out. He was eventually overpowered by two other police officers and his father
2. As a result of the assault Constable Egbers suffered injuries which amount to actual bodily harm. This is apparently not in dispute.
3. The applicant was taken by police to St George hospital for his mental health to be assessed. He was assessed as not mentally ill, by Dr Montfort, psychiatric registrar at the St George Hospital. He was charged by Court attendance notice with assaulting a police officer, assaulting a police officer occasioning actual bodily harm; and resisting police. He was directed by the magistrate to be assessed at hospital again, pursuant to s 33 (1) of the Mental Health (forensic provisions) Act, (the Act) but was again assessed as being not mentally ill, and returned to court. That assessment was completed by Dr Roesch, psychiatric trainee.
4. He was refused bail. His parole was again revoked and that sentence expired on 3 August 2019. Since that date he has been in custody solely with respect to the present charges. In total he has been in custody 15 months.

PROCEEDINGS IN THE LOCAL COURT

1. The circumstances in which the ex officio indictment was filed require the course of the Local Court proceedings to be understood . In May 2019, notice was given by the solicitors for the applicant that they were considering seeking that s 32 of the Mental Health (Forensic Provisions) Act be considered. At some stage after the charges were filed an election was made by the DPP to have the matters committed to the District Court for hearing. I do not know when that election was made, but it was withdrawn in September 2019. Solicitors for the applicant were concerned as to the fitness or otherwise of the applicant to plead to the charges, and advice was sought.
2. By the 29th October 2019, a report had been prepared by Dr Dayalan indicating that the applicant was fit to plead, and that he probably had a defence of mental illness available to him. Section 32 was not raised directly in that report, but the history of mental illness was referred to. At that time, considering the election to proceed in indictment had been withdrawn, an application under s.32 of the Mental Health (Forensic Provisions) Act was again a viable option. A further report canvassing an opinion on s 32 and a treatment plan was obtained from Dr Dayalan on the 18 February 2020. Both reports were served on the Crown on the 5th March 2020.
3. The Local Court hearing was set for the 26th and 27th of March 2020. As is the practice of the Local Court the section 32 application was set for hearing with the substantive hearing to proceed immediately thereafter, if the s 32 application was unsuccessful. As I understand it there was not a great deal of dispute as to the factual basis for the charges. Solicitors sought attendance of police officers to question them as to their observations of the applicant's mental state on the 28th April 2019, which may have been relevant if the s 32 was unsuccessful. The defence notified the Crown that that they proposed initially to seek that matter be disposed of pursuant to s 32, and if unsuccessful to rely on a defence of not guilty due to mental illness. The potential defence of mental illness would have been obvious to the magistrate as she had Dr Dayalan's report in evidence. The potential consequences of dealing with the matter according to law was one of the matters she was required to consider as part of the s 32 consideration.
4. On 20 March 2020 the Crown made an application to vacate the hearing date to obtain their own expert report. That application was refused by the court. The applicant agreed to be so assessed. It seems that the hearing commenced with an anticipation that it could be part heard by the magistrate, to reconvene at a time the Crown expert became available. Bail was sought and refused.
5. The matter was originally due to return to the Local Court in May 2020, but due to the magistrate's unavailability and other delays, possibly due to the difficulties being experienced by the Local Court during the Covid response, it was adjourned until the 1st June 2020.
6. On the 18th May 2020 the applicant sought bail in the Supreme Court. That application was refused by his Honour Justice Fagan on the 18th May 2020. His Honour noted among other things "the conditions … that might be imposed, if the magistrate is to implement that section (s.32) need to be undertaken carefully on a full examination of what the mental health professionals propose, including with such input as maybe forthcoming from Justice health and from the St George hospital".
7. The report from Dr Nielssen was obtained by the Crown on 16 April 2020. He was also of the opinion that the applicant had a defence available to him of not guilty due to mental illness and was also of the opinion that the matter could be dealt with by way of section 32. He suggested a detailed treatment plan, which included a suggestion of a change in medication, which Mr Sazdanovski agreed.
8. The reports of Dr Nielssen and Dr Dayalan both proposed treatment to be supervised by a community mental health team. The Local Court requested a report from the Statewide Community and Court Liaison Service. This service comes under the supervision of Justice Health and is embedded the Central Local Court, (and some other metropolitan courts). The SCCLS were requested to conduct a further assessment as to the suitability of Mr Sazdanovski for diversion under section 32 of the Mental Health (Forensic Provisions) Act. That report, dated 1 June 2020 by Dr Jackson noted the opinion that the applicant "did not formally meet the section 32 criteria because he does not have a viable treatment plan at the current time. However she also observed that the "proposed treatment provider St George Community Mental Health team had agreed to explore the feasibility of a section 32 treatment plan but it would require him to be assessed out of custody at their facility." …. She made certain recommendations.
9. The solicitor with conduct of the matter at the DPP had previously given notice that the Director's office was considering filing an ex officio indictment. The applicant's solicitor's responded with notice that an application in the current form would follow (that is for a Stay), if such action was taken.
10. On the 10th June, the matter was again adjourned in the Local Court, while the Director's chambers considered its position. On about 19 June 2020 it was further adjourned by the court to recommence on about 24 June 2020. On 18 June 2020 the Crown indicated to the defence by email that it was unsatisfied with the section 32 application and advised that it was going to bring in ex officio indictment (email P. Madden to Daniel Pace 18 June 2020 at page 101 of the defense bundle). This email was sent in apparent response to an indication by Dr Neilssen that Mr Sazdanovski "has a condition that has to be cared for by the public system The relevant public care provider is the St George Community Mental health service" (email Olav Neilssen to D Pace 12 June 2020, forwarded to P.Madden 18 June 2020, p 101 of the defence tender bundle).
11. On 19 June 2020 that ex officio indictment was filed. The charges on the indictment are identical to those on the court attendance notices served on the 28th April 2019. On the 23 June 2020 solicitors on behalf of Mr Sazdanovski filed a notice of motion seeking a permanent stay on the indictment claiming it to be an abuse of process. On the 22nd June the local Court proceedings were withdrawn removing the ability of the magistrate to complete consideration of the section 32 application.
12. The Crown appears to have been overwhelmed by the two reports from psychiatrists indicating a likelihood that at the time the offences were committed Mr. Sazdanovski may well have had a defence of mental illness. This may well be the case but his solicitors were vigorously pursuing disposal of the matter by section 32 of the Mental Health (Forensic Provisions) Act. This would have resulted in an enforceable treatment plan being imposed as a condition of diversion.
13. I also note that the Crown had available to them to other expert reports by psychiatric registrar Montfort and psychiatric trainee Dr Roesch both of whom examined Mr Sazdanovski shortly after the offences occurred. Dr Roesch examined him at approximately 7 PM on 29 April 2019 and found that there was no evidence of an acute mood or psychotic disturbance and that he was not mentally ill or disordered as defined by the Mental Health Act. Dr Montfort had also conducted a physical examination on 28 April 2019 and formed the same conclusion. Dr Dayalan's and Dr Nielsen's reports were prepared after a series of document reviews and after speaking to Mr Sazdanovski personally months later. It may be the case that the defence of mental illness exists, but this has not been fully ventilated.
14. The magistrate had (or should have had) all of these reports available to her, and was required to consider whether it was more appropriate to deal with the charges under S.32 or according to law.

CONCLUSION OF LOCAL COURT PROCEEDINGS

1. The Crown say that they took the action of filing the indictment, and withdrawing from the Local court proceedings, due to their concern that the applicant may be found not guilty do to mental illness, and released without a requirement for treatment. They submit that the failure of the s 32 application was inevitable. I have no cogent submission why they maintain this view.
2. At this stage I can only speculate at the potential conclusion in the Local Court, but I do so with significant experience in this and that jurisdiction. Had the magistrate been permitted to complete the section 32 application it might well be that she would have requested Court liaison nurse at Central Local Court (who prepared the report of the 1st June) to bring about a properly completed treatment plan, supervised by the body required to do so. The Magistrate at Central Local Court would have been very well aware that the purpose of the mental health liaison nurse is to act not only as a liaison between the court and Justice Health but also as a liaison between Justice Health in its corrective services capacity and community mental health treatment teams. It is not unusual for Court liaison nurses to contact Community mental health teams direct to seek information and assistance. Again, speculation, but it is not beyond the bounds of good sense, that if necessary, a limited and conditional bail may have been considered to allow the applicant to be assessed at St George CMHS. It is not beyond the bounds of good sense that St George MHT may have considered interviewing Mr Sadzanovski in custody. They knew him well. The Crown seem not to have properly considered this, but say that he is unreliable due to this failure on the past to obey court orders, such as an AVO. I find this submission unconvincing, especially if bail were to be granted for a limited time, and with a limited purpose.
3. If there was concern, about noncompliance with the treatment plan, s 32A of the Mental Health (Forensic Procedure) Act is available as a method of enforcement. This has been available since 2005. A treatment plan with direct supervision from a mental health team, with enforcement requirements, and options available under the mental health Act, or s 32A of the Mental Health (Forensic Procedure) Act is a different proposition to a parole order with general conditions as referred to above.
4. All other sentencing options imposed over a 20 year period since his mental health diagnosis have failed to curtail the applicants mental health related criminal activities. The applicant's criminal record shows that he has never had the benefit of a s 32 order, and it may well be that it would have been an attractive proposition to the court, considering his state of mental health at the time of the offending. We will never know.
5. If Mr Sazdanovski had been able to be dealt with pursuant to section 32 he could have been released conditionally by now and he would have been able to be supervised within the community by a properly accredited mental health team. If he had not complied with the supervision, enforcement procedures would have been bought into place.

CONSIDERATION

1. When searching for evidence of the reasons the Crown acted as it did a letter from the solicitor with conduct of this matter, P Madden dated 18 June 2020 (p 101 of the defence bundle) seems to provide an answer: …."They (Dayalan and Nielssen) advised that the accused should be treated by a community mental health team …. In light of the clear uncertainty that exists regarding the appropriate treatment plan being available for the accused, The Director has directed an exoffio indictment in relation to the three existing charges".
2. This reasoning seems, at best, based on wrong information. There is simply no information to suggest that no treatment plan could be put in place. The information from Dr Neilssen is the opposite, indicating that it is the duty of the community care teams to provide the required care. Both Drs Dayalan and Nielssen had proposed detailed treatment plans. The Justice Health report dated 1 June 2020 nominates a proposed treatment provider, and as speculated above, a practical solution existed to complete the treatment plan, including a change in medication.
3. In effect the Crown has usurped the role of the magistrate in determining the section 32 application by filing its ex officio indictment. This is Justice Fagan's critical observation of the applicant when refusing his bail application on the 18th May 2020. Just as it was inappropriate for the applicant to seek bail in those circumstances, so it is inappropriate for the Crown to behave in the way it has done now.
4. The Crown further argue that the practical consequence of the filing of the indictment is a likely finding of the applicant being not guilty due to his mental illness. They submit that s 39 would then be appropriate course of action. This would require the Mental Health Review Tribunal (MHRT)to consider his position and propose a treatment plan for his treatment in custody and for his later release in the community, on a timetable to be determined by the MHRT. This submission gives no consideration as to whether the applicant will wish to avail himself of the potential defence of not guilty due to mental illness. He may well receive advice that for the offences charged and considering the time he has spent in custody he has more attractive options. My observation is that this is not an unusual decision for offenders charged with table 2 offences in the District Court. One might speculate that it is for this reason that s 32 exists.
5. The Crown assume the applicant must utilize the reports obtained by him and the Crown, and seek to avail himself of a mental illness defense in this court. It is far from mandatory. One wonders that if he did not that defence, would the crown raise it. That would be an extraordinary position.
6. The Crown argue that the consideration driving the filing of the indictment was to avoid a finding of the Local Court that the applicant be found not guilty due to his mental illness. They argue that as part 4 of the Mental Health (Forensic Procedure) Act does not apply to the Local Court proceedings, the applicant would have been discharged without treatment being imposed. That may have been a possibility if the magistrate had refused to entertain a s 32 application, and then proceeded to find the applicant Not Guilty due to mental illness. However the other option was to find an appropriate s 32 order, knowing that s 32A existed as enforcement, if that was a concern.
7. The possibility of the accused being released without a treatment plan still exists, in the event he does not avail himself of the mental illness defence in the District Court. The result of his release from custody on the 15 April 2019, with medication to last 14 days was far from satisfactory. It would be outrageous if the actions of the crown resulted in exactly the same outcome again.

DELAY

1. Even if the Crown's decision to reconsider an election to the district court is an appropriate one, there is no satisfactory explanation for why they waited until the 19th June to do so, in circumstances where the Local Court was at worst only days away from finalizing the matter. At all times the Crown were aware of the applicant's psychiatric condition. There is reference to it in the Crown case statement and both police and the Court were so concerned they asked for a mental health assessment. Dr Dayalan's report of the 18 February 2020 was served with the earlier enquiry as to fitness, and a mental illness defence on the 5th March 2020. There is no satisfactory explanation for the delay thereafter. The Crown submitted that they were busy fending off a bail application in the Supreme Court, and the director's chambers was considering whether to file the indictment. There was clearly no urgency in that consideration. By that time the applicant was coming up to being in custody for 1 year since the event. While an extra 3 ½ month delay may not seem to be long from the position of the Director, it is a great deal of time for a man in custody, who had reasonable expectations of release into the community. In addition, there will be significant further delay in this court, while a hearing date is arranged either for a sentence or a special hearing and perhaps a report from the MHRT. That delay in this jurisdiction can easily add a further year of waiting for the applicant.

CONSEQUENCES

1. Mr Sazdanovski has been custody since the 28th April 2019, and solely on this matter since 3 August 2019.
2. If the Indictment remains, he will be advised as to his options for the District Court proceedings. If he decides to avail himself of the defence of mental illness it is likely to take at least a further 6 months to be resolved in this court, longer perhaps while the Mental health review tribunal start again on the proposals on how he ought be treated. That delay is routinely a further 6 months.
3. There has been no information from the Crown as to why they seek that the matter be managed by the MHRT rather than the supervising community mental health team.
4. If he does not plead Not Guilty due to mental illness at the time of the offending and takes a course of action that results in him being sentenced, the delay will be much less, but the result may well be his release from custody sooner or later on parole, with a pocket full of medication, as occurred on the 15th April 2019.
5. The result of the conduct the prosecution is that Mr Sazdanovski has been before the Local Court for a year and was at the point in the proceedings where they were days away from being resolved . The filing of the indictment means the proceedings will have to start again. It cannot be said that the action was taken because the Crown obtained new information about the applicant. Their own Crown statement make it clear that they were always aware of his mental health and propensity to violence when poorly medicated.
6. A permanent stay of a criminal prosecution is an extraordinary step which will very rarely be justified. There is a powerful social imperative for those who are charged with criminal offences to be brought to trial and, for that reason, it has been said that a permanent stay of prosecution should only ever be granted where there is such a fundamental defect in the process leading to trial that nothing can sufficiently relieve against the consequences of the defect. There is, too, a fundamental social concern to ensure that the end of a criminal prosecution does not justify the adoption of any and every means for securing an outcome that the prosecution are happy with .A recognition exists that in rare and exceptional cases where a defect in process is so profound as to offend the integrity and functions of the court, it is necessary that proceedings be stayed in order to prevent the administration of justice falling into disrepute.
7. This is an extreme case. The Crowns conduct is unfair. It is oppressive and unjust. The decision to file the indictment in order to avoid a conclusion they disapproved of in the Local Court, and to do so in the circumstances of this case must erode public confidence in the administration of justice. I find that is an abuse and process, and unfortunately the only remedy is as permanent stay of the proceedings.
8. Unfortunately the result of their action is that Mr Sadzanovski is likely to be released. Bail was refused pending this application 2 weeks ago as his mother was ill in hospital, and I could not be satisfied that he had a home to go to. I understand there is no longer a restriction on his going to his parent's home, and his father seeks it. I will request that copies of the psychiatric reports be forwarded by his solicitors to the St George Mental Health Team as a matter of urgency, so they can take whatever steps they consider appropriate for his future care.

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