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District Court 16 August 2023

R v Boujandy (No. 5)

[2023] NSWDC 316

Assault & violenceFirearms & weaponsDomestic & family violence
CRIME SENTENCE LIMITING TERM PENALTY HEARING DOMESTIC VIOLENCE FIREARM OFFENCES

Citation: R v Boujandy (No. 5) [2023] NSWDC 316
Court: District Court of New South Wales
Date: 16 August 2023
Judge: Montgomery DCJ

Background

Following a Special Hearing conducted in 2022, the defendant was found to have committed 27 offences proved beyond reasonable doubt on the limited evidence available. A Special Hearing is a modified trial process that applies where a defendant is found unfit to be tried: the court assesses the evidence but cannot record a conviction in the ordinary sense, and sentencing takes a different form.

The offences spanned more than a decade, from 2008 to 2019, and were committed predominantly against family members at residential addresses in Merrylands and Greystanes. They included multiple counts of assault, intimidation under domestic violence legislation, use of offensive weapons or instruments with intent to intimidate, assault occasioning actual bodily harm, and two counts relating to possession of an unregistered prohibited firearm (a Ruger M-14 semi-automatic rifle).

The penalty hearing required the court to determine appropriate Limiting Terms for each offence. A Limiting Term is the equivalent of a sentence imposed on an unfit defendant: it sets a notional maximum period of detention, after which the Mental Health Review Tribunal oversees the defendant's ongoing management, including whether treatment in the community is appropriate.

  • What Limiting Terms should be nominated for each of the 27 proved offences?
  • To what extent did the defendant's mental health condition reduce the objective seriousness of the offending or his subjective moral culpability?
  • What weight should be given to the defendant's history of childhood deprivation in assessing moral culpability, consistent with the principles in Bugmy v The Queen?
  • Which charges should be dismissed pursuant to the forensic mental health provisions?
  • What conditions and recommendations should apply to the defendant's placement and treatment pending review by the Mental Health Review Tribunal?

Decision

Montgomery DCJ imposed individual Limiting Terms for each of the 27 counts, structured as a cascade of consecutive and concurrent periods running from July 2023 through to May 2030. The most serious offence, possession of a prohibited firearm (Count 27), attracted a Limiting Term of approximately two and a half years, commencing November 2027. The overall structure reflected the totality principle, which requires that the combined effect of multiple sentences not be disproportionate to the overall criminality.

The court addressed the relationship between the defendant's mental health and his offending. Under the sentencing framework applicable to unfit defendants, the nature and extent of any mental health condition is relevant both to the objective seriousness of individual offences and to the defendant's subjective moral culpability. The judgment considered multiple psychiatric and psychological reports, prepared over several years, in reaching its conclusions on these matters.

The court also applied the principle from Bugmy v The Queen (2013) 249 CLR 571, which recognises that the effects of profound childhood deprivation do not diminish over time and remain relevant at sentencing regardless of the number of prior offences. This principle informed the court's assessment of the defendant's moral culpability across the extended period of offending.

A number of charges across three separate court sequences were dismissed pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW), reflecting the forensic mental health context of the proceedings.

Orders Made

  • Multiple charges across sequences H72032147, H74249358, and H72451736 dismissed pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW).
  • Limiting Terms nominated for all 27 proved counts, running as a cascading series of consecutive and concurrent periods from 19 July 2023 to 6 May 2030, with the final terms for Counts 27 and 28 (firearm offences) terminating on 6 May 2030.
  • The Mental Health Review Tribunal to be notified of all Limiting Terms.
  • A comprehensive set of medical reports and prior judgments to be delivered to the Mental Health Review Tribunal.
  • Defendant to be placed in a Correctional Centre unless otherwise directed by the Mental Health Review Tribunal or Justice Health.
  • Recommendation that the defendant be housed in an acute mental health facility within the Correctional Centre, not in the general prison population, pending Tribunal review.
  • Recommendation that the defendant's existing medical treatment plan (covering physical diagnoses including thyrotoxicosis, atrial fibrillation, and spinal conditions, as well as psychiatric medications including risperidone and olanzapine) be continued during placement.
  • Recommendation that the Mental Health Review Tribunal consider community-based treatment and management under supervision by a Mental Health Forensic Team.

Key Takeaways

  • Where a defendant is found unfit to be tried, a Special Hearing determines whether offences are proved on the limited evidence available, and the court nominates Limiting Terms rather than imposing conventional sentences, with ongoing management overseen by the Mental Health Review Tribunal.
  • The District Court applied Bugmy v The Queen to find that the defendant's history of childhood deprivation remained a relevant mitigating consideration across an extended period of offending, consistent with the High Court's recognition that such deprivation retains its moral significance regardless of the passage of time or prior criminal history.
  • A defendant's mental illness may reduce both the objective seriousness of individual offences and the defendant's subjective moral culpability, though the precise weight given depends on the evidence about the connection between the illness and the conduct in question.
  • Limiting Terms for multiple offences must be structured in a way that reflects the totality principle, preventing the cumulative effect from being disproportionate to the defendant's overall criminality across all proved offending.
  • Dismissal of certain charges under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) is available in forensic proceedings, and the court may make detailed placement and treatment recommendations to guide the Correctional Centre and the Mental Health Review Tribunal in managing the defendant after the penalty hearing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33B(1)(a), 59(1), 61
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 54D(1)(b)
- Criminal Procedure Act 1986 (NSW), s 166
- Firearms Act 1996 (NSW), ss 7(1), 36(1)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 59, 63, 64, 65
- Mental Health (Criminal Procedure) Act 1990 (NSW), s 28
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 32

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Director of Public Prosecutions v Khoury (2014) 238 A Crim R 251; [2014] NSWCA 15
- DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- DS v R; DM v R [2022] NSWCCA 156
- Muldrock v The Queen (2010) 244 CLR 120
- Peiris v R [2014] NSWCCA 58
- R v Boujandy [2022] NSWDC 496
- R v Boujandy (No. 4) [2023] NSWDC 124
- R v Eaton [2023] NSWCCA 125
- R v Mailes [2003] NSWSC 707; (2004) 62 NSWLR 181; [2004] NSWCCA 394
- R v MAK [2006] NSWCCA 381
- R v Mitchell [1999] NSWCCA 120
- R v Pearce (1998) 194 CLR 610
- Stratford v R [2007] NSWCCA 279
- Veen v The Queen (No 2) (1988) 164 CLR 465