R v Ilie Istudor [2016] NSWDC 1

District Court New South Wales

Medium Neutral Citation: R v Ilie Istudor [2016] NSWDC 1 Hearing dates: 18 January 2016 – 28 January 2016 Date of orders: 28 January 2016 Decision date: 28 January 2016 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Not guilty by reason of mental illness Catchwords: attempt murder; shooting; special hearing; mental illness; intent absent mental illness; judge alone Legislation Cited: Firearms Act 1996 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Cases Cited: R v Abdallah [2005] NSWCCA365 R v Gourlay [2015] NSWSC 67 Hawkins v The Queen (1994) 179 CLR 500 R v Issa, NSWSC, unreported, 25 October 1995 Knight v The Queen (1992) 195 CLR 475 R v Lucas (1970) 120 CLR 171 R v Minani [2005] NSWCCA 226; (2005) 62 NSWLR 490 R v Newbury [2012] NSWSC 1361 The King v Porter [1933] HCA 1; (1933) 55 CLR 182 Stapleton v The Queen (1952) 86 CLR 358 Category: Principal judgment Parties: Director of Public Prosecutions v Ilie Istudor Representation: Counsel: Mr B Hughes SC (DPP) Ms P David (accused)

Solicitors: Mr S Flint (DPP) Mr A Brookman (accused) Ms J Pollock (accused) File Number(s): 2014/124498

Judgment Introduction 1. Ilie Istudor, now 87, came to Australia as a refugee from Romania in 1951. He worked hard. He made a contribution. On retirement he maintained an active interest in the management of his unit block in Quigg St, Lakemba. He undertook a real estate course. That interest however came to obsess him. One focus of that obsession was Stephen Smith the strata manager. Another was a neighbour Ms Bush, who Mr Istudor believed, and still believes, was trying to poison him. He came to believe, wrongly, that both were conspiring against him. Despite Mr Istudor's attempt to have Mr Smith removed, the Consumer, Trading and Tenancy Tribunal (now NCAT) confirmed his appointment as strata manager on a number of occasions. 2. Mr Istudor is a short and wiry man, fit for his age. Mr Smith, now 67, is a respected and experienced professional strata manager. Mr Smith is a tall man about 180 cm of moderate to heavy build. On 24 September 2014 Mr Istudor fired a shot from a sawn off rifle at Mr Smith. The bullet went through Mr Smith's neck luckily missing vital structures. Mr Istudor was arrested and charged with attempting to murder Mr Smith and Firearms Act 1996 offences. 3. On 20 January 2016 I determined that Mr Istudor did not have the mental capacity to meet all of the basic requirements of a fair and just trial so far as the attempt murder charge, and its alternative, was concerned. He was however fit to be tried or plead to the firearms offences. He said he was guilty of them and will be sentenced shortly 4. Accordingly, he must be tried for the attempt murder charge, and its alternate, under a special procedure laid down by Parliament in the Mental Health (Forensic Provisions) Act 1990 (NSW). That special hearing commenced on Thursday 21 January 2016, before me; it concluded this morning. This judgment is delivered without benefit of transcript other than that of the two psychiatrists called. 5. Mr Istudor suffers from a serious mental Illness. I must decide whether that illness means Mr Istudor is not to be responsible, according to law, for his action at the time of the shooting. The practical consequences of such a finding is that while at law Mr Istudor is found not guilty on the limited evidence available, the offence will be proved. He will be then detained until reviewed by the Mental Health Review Tribunal. He cannot be released until the Tribunal is satisfied: 1. his safety or any member of the public will not be seriously endangered by his release, and; 2. other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to him or that he does not require care: s 43, Mental Health (Forensic Provisions) Act. 1. The Tribunal is required to review the cases of all persons found not guilty by reason of mental illness as soon as practicable after the finding is made and must make orders as to the person's care, detention, treatment or release: s 44 Mental Health (Forensic Provisions) Act 1990. Thereafter the Tribunal conducts regular six monthly reviews: s 44 Mental Health (Forensic Provisions) Act 1990. When the Tribunal conducts further reviews of persons found unfit to be tried, it must consider the fitness issue at each review. The Tribunal may make orders to permit leave and release for forensic patients from mental health facilities, correctional centres or other places and may make orders which would have the effect of terminating the status of a person as a forensic patient: s 44 Mental Health (Forensic Provisions) Act 1990 (NSW).