R v Bechalany

Background

1. The offender was 35 years old at the time of the offence, and is now 38. Her unchallenged account of the course of her marriage to Mr Bechalany is to be found in her statement, and in the history she provided to Dr Richard Furst, psychiatrist and Mr Sam Borenstein, psychologist, who provided reports which are also to be found in the defence bundle.
2. She was 20 years old when she met Mr Bechalany, after he had migrated to this country from Lebanon. She found him kind, caring, motivated and ambitious. They began a relationship and were married 18 months later. She described the first 5 years of the marriage as "great". They enjoyed life, spending quality time with friends and family, and working in a cement rendering business which he had established and which proved successful.
3. There are 4 children of the marriage. In 2007, she suffered depression after the birth of their third child. Her condition had a negative impact on their relationship, and he began associating with new friends and spending less and less time with her and the children. Prior to this their friends had been mutual, but he began associating with others, including people involved in outlaw motor cycle gangs, of whose morals and values she did not approve. He began using drugs and, through these new associations, engaging in anti-social behaviour. He treated her with less and less respect, and became "very impatient, aggressive, unpredictable, paranoid and extremely controlling."
4. Rather than leaving him, she did her best to persevere through these bad times. She also believed that it was best for the children if they stayed together. She hoped that his behaviour was temporary and that he might change back to the man she had known earlier. However, over the years the relationship got worse. He became more and more controlling and, in the course of arguments, he was both physically and emotionally abusive. She was punched, kicked, spat on and had objects thrown at her. He had also threatened her with knives. He wrongfully accused her of infidelity.
5. On occasions she obtained apprehended domestic violence orders against him, which he breached. She made many unsuccessful attempts to part from him. Police had to be called on most of these occasions. Her attempts to leave him resulted in physical and verbal abuse, threats and her being hospitalised, until she changed her mind and helped him by having any charges against him dismissed.
6. This pattern of behaviour escalated from 2011. He came to have complete control over her. She felt worthless, and saw herself as "emotionally and somewhat physically trapped." She still felt that she needed him and could not survive without him. She came to suffer severe depression and anxiety, having regular suicidal thoughts and having made attempts at suicide by overdosing on her medication, Xanax.
7. Although this account of the relationship is unchallenged, it is corroborated by a body of other material in the defence bundle. This is to be found in testimonials by her parents, her brothers, her sister-in-law and a long standing friend, as well as clinical notes from three hospitals: Nepean, Mount Druitt and Blacktown, over a period from 2010 to 2014. There is also a report of her general practitioner, Dr Sayegh, who has been treating her for major depression since 2007.
8. It is unnecessary to recite this material. However, her counsel, Mr GR James QC appearing with Mr E James, made specific reference to the report of a doctor at the Forensic Medical Unit at Blacktown Hospital relating to her attendance on 22 October 2014. On that occasion she complained that Mr Bechalany had been using the drug Ice, that he accused her of having an affair and was going through her phone messages and emails, and that he assaulted her not just by punching her, kicking her and slapping her, but also by attempting to strangle her. The report records observations on physical examination consistent with her account, as well as a consistent history of the abusive relationship generally.
9. Confirmation of the abusive relationship is also to be found in events after the offence. For a time the offender maintained contact with Mr Bechalany while he was in custody following his arrest. In August 2015 her sister, to whom she had been very close, fell ill with a rare infection and died within weeks. Mr Bechalany offered her no emotional support whatsoever, continuing to be abusive to her and saying things to the effect that her sister had died because her family was evil. He did not like her family, in particular her brothers, as they did not approve of his associations, his behaviour and his treatment of her.
10. This development led her to begin to distance herself from him, to regain her self-confidence and to realise that she no longer had to be under his control. She considered them "officially separated" in 2016, and in December 2017 they were divorced. In June 2017 she started a new relationship with a man, whom she found respectful and supportive and who got on well with her family. Somehow Mr Bechalany found out about this relationship and had one of his associates threaten that man. This brought the relationship to an end.
11. In her statement the offender summed up the relationship in a manner which is relevant to an assessment of the behaviour for which she stands for sentence. She wrote of Mr Bechalany: He was controlling and manipulative in all manners and I felt he had complete authority over me. I learnt in the last 8 years of our marriage that it was better to listen to him, not to argue with him, or provoke him in any way and simply do as I was told because when I did otherwise I was going to be abused.
12. The effect of the offender's evidence was that she did the acts constituting the offence largely out of fear of Mr Bechalany, in the light of his behaviour on the occasion in question and against the background of his abusive and violent behaviour towards her. Nevertheless, she acknowledged that, despite everything, she still cared for him and was concerned for him. She had seen him inflict serious violence upon the deceased, but had also seen him subjected to significant violence by two unknown men. As Dr Furst assessed in his report, she "was scared of Robert and she was also scared for Robert at the time..."
13. Dr Furst diagnosed her as suffering from recurrent major depressive disorder. On the basis of her history of long standing domestic abuse, he concluded in his report: Apart from the physical injuries that she sustained, Ms Bechalany was also emotionally scarred, with constant put-downs that left her feeling that nobody apart from her husband Robert would want her and that she would not be able to look after the children without his help. It would appear that by April 2015, Ms Bechalany had little say in the marriage, Robert Bechalany not consulting her about anything, making decisions by himself, acting in an aggressive and paranoid manner, especially when abusing drugs. He essentially controlled her through the combination of physical and emotional abuse. ... Having regard to the long history of domestic violence Ms Bechalany had been exposed to over previous years, the control that Robert had been exercising over her over previous years and the ongoing effects of her major depressive disorder, it is likely that Ms Bechalany's judgement was impaired at the time in question when she was assisting Robert Bechalany, mitigating against the seriousness of her actions. It is also likely that her anxiety for her husband's welfare and fear of potential repercussions to herself (such as being seriously hurt by her husband) if she did not help him on 14/04/15 had a very large bearing on her thinking and decision-making at the time. People who suffer from depression and anxiety, as was the case for Ms Bechalany at the time of the offence in question, often overestimate the risk of such negative outcomes (serious harm to her husband or herself) taking place, further mitigating against the seriousness of her actions.
14. Mr Borenstein's psychological testing yielded results consistent with Dr Furst's diagnosis. In his report he concluded from the history that Mr Bechalany had control over every aspect of the offender's life, and she believed that she could not survive without him. He described this as consistent with "Battered Wife/Stockholm Syndromes." Like Dr Furst, he considered that her "decision making and judgment on the day of the offence" was "significantly impaired due to the nature of her relationship with her ex-husband..." He concluded: I believe there is a causal link between Ms Bechalany's compliance with her then-husband's demands, and her purchasing a ticket for him to leave Australia. Ms Bechalany was acutely traumatised having witnessed the offence, and her husband being subject to a "bashing", over and above the psychological impact (traumatic stress), being subjected to repeated acts of physical and psychological abuse by her husband dating back to 2010.
15. I accept the offender's evidence, as I do the opinions of Dr Furst and Mr Borenstein. True it is, as the Crown prosecutor pointed out, that she had on occasions been able to take action against Mr Bechalany by calling the police and taking out apprehended violence orders, but this does not diminish the debilitating effect upon her of his conduct. I accept that in the commission of this offence she was acting at his direction and in a state of conflicted emotion: partly concern for him but mainly fear of him because of the events of the morning in question and the long history of his domestic abuse. Clearly, the offences were attended by major extenuating circumstances.

Subjective case

1. Generally, the offender's subjective case is entirely creditable. She has no criminal history (apart from a minor traffic offence which did not result in a conviction).
2. She was born in this country, the daughter of Syrian parents. She describes herself as having been raised in a close, supportive and hard working family. Her parents and siblings remain supportive of her. Their testimonials, and those of her sister-in-law and her friend, speak highly of her character. She left school in year 10. She obtained an advanced certificate in office administration at a private college, but later became engaged in floristry, an industry in which her parents had been involved. She continued to work as a florist until she became pregnant with her first child.
3. In her statement, and to Dr Furst, she expressed remorse for her offence. That remorse is also attested to in the testimonials of her father and her younger brother. She prepared a letter of apology to the family of the deceased, which was read in court. I accept that she is genuinely remorseful. She had been charged as accessory after the fact to the murder of Mr Browning, but on several occasions between early 2016 and early this year, she offered to plead guilty to accessory after the fact to manslaughter in lieu of that charge. Those offers were not accepted until March of this year. The Crown prosecutor acknowledged that, in the event of a custodial sentence, she would be entitled to the full discount for the utilitarian value of her plea. I also accept her remorse and her plea as indicative of her acceptance of responsibility for her offence.
4. Upon her arrest, the offender spent one day in custody before being released on conditional bail. She suffered considerable hardship in the period thereafter. She had to care for her four children, who themselves had to cope with their father being charged with murder and the death of their aunt. One of her daughters, in particular, suffered significant psychological effects, including acts of self-harm, requiring treatment and counselling. The offender faced the continuing abusive attitude of Mr Bechalany, and had to deal with her own psychological issues.
5. Whilst she remains in fear of him, over time she has managed to regain independence and self-confidence and has achieved a satisfactory lifestyle. As she put it in her statement, since separating from him, she has been "working on my mental health and my self-esteem and focusing on raising my four children the best I can without their father to ensure I give them the best possible upbringing the way my parents did for me." Her progress is confirmed in the testimonials from her family members and her friend. Nevertheless, Mr Borenstein recommended that she maintain psychological treatment. Clearly, with the support available to her, she has very good prospects of rehabilitation.

Sentence

1. By s 350 of the Crimes Act 1900, the offence of accessory after the fact to manslaughter carries a maximum sentence of imprisonment for 5 years. As one would expect, the degree of gravity of offences of this kind varies widely. In written submissions the Crown prosecutor referred to a number of sentences passed in this court for the offence, while acknowledging that there is no factual parallel between any of them and the present case. I have attached a list of them to this judgment, but it is unnecessary to refer to them. It is sufficient to say that the majority of them resulted in relatively short terms of full time imprisonment, while one (Rodriguez) resulted in a suspended sentence for 2 years and another (Jones) a s 9 bond for 2 years.
2. This is not the occasion to examine whether there is any meaningful distinction between the objective gravity of an offence and moral culpability of the offender: Biddle v R [2017] NSWCCA 128, per Hoeben CJ at CL (with whom Rothman and Price JJ agreed) at [68]-[70]. If there be a distinction, it must be said that, viewed purely objectively, this offence is serious enough. The offender assisted a man who had committed a serious crime in his attempt, albeit unsuccessful, to evade justice by fleeing the jurisdiction. However, for the reasons set out in this judgment, her moral culpability is low. This is an offence committed in unusual circumstances by a woman of otherwise impeccable character, who is remorseful and is unlikely to re-offend in any way.
3. Mr James submitted not only that no custodial sentence was called for but also that no conviction should be recorded. He contended that the matter should be dealt with under s 10 of the Crimes (Sentencing Procedure) Act 1999. The offender has been on bail for almost 3 years, with conditions which initially required a curfew and daily reporting to police. About a year later the curfew condition was deleted and over a period the frequency of reporting to police diminished. Mr James argued that she had effectively been on a bond over that period, noting that she had not breached any of those conditions. He argued that no further sanction was required.
4. Accordingly, Mr James sought the dismissal of the charge, without further sanction, pursuant to s 10(1)(a) of the Act. He submitted that there was no cause to resort to subs 1(b), that is, an order discharging the offender on condition that she enter into a bond. Even if a bond were called for, he said, a bond under that provision, without recording a conviction, would be adequate to meet considerations of denunciation and general deterrence, citing the decision of Harrison J, (with whom Beazley JA and McCallum J agreed), in R v Mauger [2012] NSWCCA 51 at [37].
5. The Crown prosecutor's primary submission was that a sentence of full time custody, albeit a short one, is appropriate, although he acknowledged that the authorities to which he referred convey that a non-custodial sentence would be available. He submitted, however, that a disposition of the matter without recording a conviction would fail to reflect the seriousness of the offence. I agree.
6. Mauger was an unsuccessful Crown appeal against an order under s10(1)(b) for the imposition of a bond, without the recording of a conviction, for an offence of supplying ecstasy. Whether or not a conviction was recorded was of particular significance in that case because of evidence of its likely impact on the respondent's employment. It is in that context that Harrison J saw the order which had been made as adequate to meet the need for denunciation and general deterrence. No such issue arises in the present case.
7. I accept Mr James' submission that specific deterrence is not significant here. However, he also submitted that there is no place for denunciation or general deterrence in what he described as the unique circumstances of this case. Certainly, the need for denunciation is significantly diminished by the offender's low moral culpability, but the nature of her offence is such that general deterrence remains an issue. Having regard to all the circumstances, I am satisfied that further sanction is required and that this should be met by the recording of a conviction and the imposition of a bond.
8. Accordingly, the offender is convicted. Pursuant to s 9 of the Crimes (Sentencing Procedure) Act, I direct that she enter into a bond to be of good behaviour for 2 years, and to appear before the court if called upon to do so at any time during that term. I shall consult the parties about whether any further condition should be imposed.
9. (After discussion with the Crown prosecutor and the offender's solicitor, his Honour added a condition that she submit to the supervision and guidance of the Probation and Parole Service).

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Amendments 27 October 2020 - coversheet - removed publication restriction notation 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: 27 October 2020