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District Court 6 July 2022

R v Younan-Sedrak

[2022] NSWDC 247

Assault & violenceDomestic & family violencePublic order & justice offences
CRIME JUDGE ALONE TRIAL FEDERAL AND STATE OFFENCES DIAGNOSIS OF DELUSIONAL DISORDER PARTIES AGREE DEFENCE AVAILABLE CONSIDERATION OF CONSEQUENTIAL ORDERS

Citation: R v Younan-Sedrak [2022] NSWDC 247
Court: District Court of New South Wales
Date: 6 July 2022
Judge(s): Abadee DCJ

Background

The accused faced multiple charges on indictment, predominantly violence-related domestic violence offences, arising from conduct against his wife over a period spanning June 2017 to January 2019. The offences included threats to kill, assault with a weapon, stalking, and unlawful surveillance. The accused and his wife had been in a deteriorating marriage since 2002, during which the accused developed a pathological and ultimately delusional belief that his wife was having an affair.

The accused elected to be tried by judge alone, and the Crown consented. Both parties agreed that the accused had committed all physical acts constituting the offences charged. The live issue at trial was whether the mental elements of the offences were established and, separately, whether the defence of mental health impairment under New South Wales and Commonwealth legislation was made out.

The trial followed an earlier finding that the accused was unfit to be tried in December 2020. He was subsequently found fit to stand trial by the Mental Health Review Tribunal in July 2021 and had since been subject to a community treatment order.

Legal Issues

  • Whether the accused had a "mental health impairment" within the meaning of section 28 of the Mental Health Cognitive Impairment (Forensic Provisions) Act 2020 (NSW) at the time of the state offences.
  • Whether the accused had a "mental impairment" within the meaning of section 7.3 of the Criminal Code Act 1995 (Cth) at the time of the federal offences.
  • What consequential orders should be made following the return of special verdicts, including whether the accused should be released conditionally or detained.
  • Whether the court had power to order the destruction or deletion of unlawful material on the accused's seized mobile phone.

Decision

Issue 1: Mental health impairment defence (state offences)

Both forensic psychiatrists, Dr Allnutt and Dr Martin, agreed that the accused suffered from a delusional disorder characterised by persistent, false beliefs about his wife's infidelity. The court accepted that diagnosis (at [11]-[15]). The delusional disorder, together with a depressive condition, caused disturbance of thought, mood, and perception that impaired the accused's emotional wellbeing and judgment (at [12]). Both experts agreed that the accused could not reason, with a moderate degree of sense and composure, about whether his acts were wrong as perceived by reasonable people (at [69]). The court was satisfied on the balance of probabilities that all elements of the section 28 defence were established for the state offences, including that the impairment was not caused solely by substance use (at [66]-[68]).

Issue 2: Mental impairment defence (federal offences)

For the three Commonwealth charges under the Criminal Code, the court applied the corresponding test in section 7.3(1)(b). On the same medical evidence, the court was satisfied that the accused did not know his conduct was wrong at the time of those offences (at [70]-[72]). The defence of mental impairment was established for counts 3, 4, and 11.

Issue 3: Consequential orders following the special verdicts

The court was satisfied, applying section 33(3) of the MHCIFP Act, that the safety of the accused and the public would not be seriously endangered by releasing him conditionally (at [93]). Dr Martin's evidence, accepted by the court, was that the accused's risk of violence could be reasonably mitigated by mandated, ongoing psychiatric treatment (at [83]). The court ordered conditional release on the terms of the existing community treatment order and referred the accused to the Mental Health Review Tribunal under section 34 of the MHCIFP Act (at [87], [95]).

Issue 4: Disposal of the seized mobile phone

The Crown sought either destruction of the accused's mobile phone (which contained unlawful surveillance material) or deletion of the unlawful content. The court declined both alternatives (at [89]-[91]). Under section 219(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), seized property must be returned to its owner where the owner is ascertained. The power in section 219(2) to make orders for disposal is only enlivened where the owner cannot be found. Because the owner was known, the court held that neither destruction nor deletion could be ordered under that provision. No application had been made under the Proceeds of Crime Act 1987 (Cth) either (at [92]).

Orders Made

  • Special verdicts of "act proven but not criminally responsible" entered for counts 1-2, 5-10 (inclusive), and 12-16 (inclusive) on the indictment.
  • Special verdicts of "not guilty because of mental impairment" entered for counts 3, 4, and 11 (the federal offences).
  • The accused referred to the Mental Health Review Tribunal pursuant to section 34 of the MHCIFP Act.
  • The accused released from custody on condition that he comply with the conditions attached to the community treatment order made by the Mental Health Review Tribunal on 14 June 2022.
  • For the federal offences, the accused released from custody for a period of two years and 364 days, on condition that he remain under the care of his treating psychiatrist and care co-ordinator at the St George Community Mental Health facility.
  • The interim Apprehended Violence Order made final for a period of two years from the date of orders.
  • The swords and knife seized from the accused forfeited to the Crown pursuant to section 212 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
  • The Judicial Registrar directed to notify the Minister for Health, the Mental Health Review Tribunal, and Justice Health of the verdict and orders, and to provide copies of the court's reasons and the psychiatric reports.
  • No order made for destruction or deletion of the accused's mobile phone.

Key Takeaways

  • The District Court confirmed that the Mental Health Cognitive Impairment (Forensic Provisions) Act 2020 (NSW) applies to trials conducted after its commencement on 27 March 2021, even where the underlying conduct predates the legislation, following the approach taken in R v Tonga [2021] NSWSC 1064 (at [21]).

  • Where both parties agree that the physical acts are proven and that a mental impairment defence is established by unanimous medical evidence, a judge alone trial may return a special verdict without the need to address each element of the offences as a jury would, though reasons remain required (at [19]).

  • A delusional disorder characterised by morbid jealousy (described clinically as "Othello syndrome") can constitute a "mental health impairment" for the purposes of section 28 of the MHCIFP Act and a "mental impairment" under section 7.3 of the Criminal Code, provided it causes the defendant to be unable to reason, with a moderate degree of sense and composure, about whether their acts are wrong as perceived by reasonable people (at [64]-[70]).

  • Under section 219 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), the court's power to order forfeiture or other disposal of seized property is contingent on the owner being unascertained. Where the owner is identified, the general obligation is to return the property, and orders for destruction or deletion of material on the seized item are not available under that provision (at [89]-[91]).

  • In returning a special verdict, the court's function under section 33 of the MHCIFP Act is not punitive. Its focus is the protection of the community and the welfare of the person who committed the acts, and conditional release is available where the court is satisfied, on the balance of probabilities, that public safety will not be seriously endangered (at [77], [93]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 ( Cth) s 20BJ
- Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 13(1), 59, 93, 114
- Criminal Code Act 1995 ( Cth) ss 7.3, 474.17
- Criminal Procedure Act 1986 (NSW) ss 132, 133
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 219
- Mental Health Cognitive Impairment (Forensic Provisions) Act 2020 (NSW) ss 4, 6, 28, 31, 33, 34
- Proceeds of Crime Act 1987 (Cth)
- Surveillance Devices Act 2007 (NSW) ss 7, 8, 9, 11, 12

Cases
- Attorney General of NSW v X (2013) 235 A Crim R 17
- R v Siemek (No.1) [2021] NSWSC 1292
- R v Siemek (No.2) [2021] NSWSC 1293
- R v Tonga [2021] NSWSC 1064