Solicitors:
Office of the Director of Public Prosecutions (Crown)
Duffy Law Group (Defendant)
File Number(s): 2019/372995
2019/269086
2019/256031
[2]
Judgment on the Special Hearing; see transcript p 334
On 20 October 2022, the defendant received verdicts of not guilty, and beyond reasonable doubt, on that limited evidence available, he committed the offence charged. There were, in total, 48 verdicts. It is not necessary now for me to mathematically recount more than that the not guilty verdicts were few, and the determinations of offence committed, in accordance with s 59 of the Mental Health and Cognitive Impairment Provisions Act (MHCIFP Act) were numerous.
The available penalties following findings of guilt in the qualified terms of available verdicts as dictated by s 59 are listed in the consequences under s 63. Section 63(2), provides that if the Court would have imposed a sentence of imprisonment for the offence if the special hearing had been an ordinary trial of criminal proceedings and the person had been fit to be tried for the offence, the Court must nominate a term, being a limiting term, that is the best estimate of the sentence that the Court would have imposed on the defendant in those circumstances. And s 63(3), provides, "If the Court determines that it would have not have imposed a sentence of imprisonment, the Court may impose any other penalty or make an order, it might have imposed or made if the defendant had been found guilty of the offence in an ordinary trial of criminal proceedings".
In a case such as the present, I have not had the opportunity of hearing the submissions, or receiving the evidence, in relation to the determination of appropriate penalty. At this point, there is no evidence upon which I can assess the appropriateness of any detention facility for him. I know nothing of the medical, including psychological and psychiatric or physical medical condition of the defendant. I was not the judge at the fitness hearing. There was no such evidence during the special hearing. If one were to start from what might be considered a neutral position being that of an ordinary offender, a person not unfit to be tried, who was found guilty of these numerous offences; there would be a very strong prospect of a sentence to full time imprisonment following conviction.
The court is presently in the position of consideration of what order to make during the time pending the determination of penalty under s 63. The defendant is on bail and there are very serious concerns for the safety of the community and for the security, safety and welfare of the offender himself. Because the offences involved long term domestic violence, concern for the safety and security of witnesses and of the defendant's family is to be specifically considered.
Nothing in s 63 speaks of a power to detain or where to detain on an interim basis a defendant in such circumstances.
Section 64 deals with the commencement of limiting terms and s 65 requires that the Court must refer the defendant to the Tribunal if it nominates a limiting term for the defendant and must notify the Tribunal of orders it makes under the section. The obligation within s 65(1) arises when the Court nominates a limiting term and only if it does. S 65(1) is not a provision empowering the Court to order interim detention of the defendant at this stage.
Section 65(2) provides the Court may order that the defendant be detained in a mental health facility, correctional centre, detention centre or other place pending the review of the defendant by the Tribunal. It is inviting to attempt to cure what appears to be a gap in this process between verdict and nomination of a limiting term, the invitation being to make an interim detention order into one or other of those nature of facilities in the event that there would exist a high likelihood of a limiting term being nominated. The terms of s 64 would preserve defendant rights in that regard because that section provides that the Court must ultimately when nominating a limiting term take into account periods of the defendant's custody or detention already incurred. However s 65(2) does not provide a power to order interim detention before nominating a limiting term.
Presently the defendant remains on bail.
The Court is unaware of the information upon which it would determine whether or not to nominate the limiting term and the legislation to which I have referred does not provide a power to detain pending the nomination of a limiting term if any.
It is in that realm that the Crown made a detention application, relying on s 22B of the Bail Act. I referred the parties to the recent Court of Criminal Appeal decision of DPP v Van Gestel [2022] NSWCCA 171 from August of this year. If s 22B were applicable a Court would be required to reach the high level of satisfaction that the defendant "will" be detained (for present purpose to use a neutral term) and the Court would consider any defence submission if there be special or exceptional circumstances; s 22B(2). Albeit as Van Gestel makes plain, a s 22B consideration is not a sentencing hearing of part or whole.
In the circumstances of a special hearing quite often the background medical information, which might fall into special or exceptional circumstances and were there to be an order to detain, the demands of s 65 as to where it would be appropriate to detain, would require perhaps a very complex consideration. Indeed, availability for housing in those facilities may itself be a real issue.
In any event, in my opinion, s 22B does not apply. My determination to that effect is based on the very language used by parliament in s 22B of the Bail Act and in particular s 62 of the MHCIFP Act.
Section 22B(1) refers to the period "following conviction and before sentencing". In the result of a special hearing, the verdicts under s 59, applying in the circumstances of where the Court finds beyond reasonable doubt, on the limited evidence, the offence proved, are not determinations of conviction.
The provisions to which I have referred, and in particular s 63 of the MHCIFP Act, are not for sentencing to imprisonment by fulltime detention or sentencing to which s 22B applies. The regime for limited term under MHCIFP Act simply does not fit into those terms used in s 22B. Consistent with this is the definition of "conviction" in s 4 subs (1) of the Bail Act; that "conviction" is to include a finding of guilt; whereas s 62(a) of the MHCIFP Act provides that a verdict consequent of the offence being determined to have been proved under s 59 constitutes a qualified finding of guilt and does not constitute a basis in law for a conviction for the offence to which the finding relates.
In that way, the definition s 4(1) of the Bail Act and s 62(a) of the MHCIFP Act plainly mean that there is no conviction within the terms of s 22B in the event of a verdict of finding the offence proved beyond reasonable doubt, on the limited evidence available, at a special hearing, under s 59 of the MHCIFP Act.
I add, for completeness, that s 62(c) is not to the contrary. It provides that a verdict at a special hearing is taken to be a "conviction" for the purposes of enabling a victim of the offence to make a claim for compensation. S 62(c) provides a specific expression of the preservation of civil rights of action. By so doing, it contains Parliament's expression of the differentiation between a verdict at a special hearing and a conviction consequent of an ordinary trial.
Accordingly, I agree with the submission of counsel for the defence, that none of the processes outlined in Div 3 of MHCIFP Act relate to a period following a conviction and before sentencing for an offence, in circumstances where the accused person will be sentenced to imprisonment to be served by fulltime detention in the terms of s 22B of the Bail Act. As defence counsel properly observes, in a special hearing, there is no accused. The special hearing proceeds on the limited evidence available, where a person cannot plead. In a special hearing there is a defendant.
Lastly, consistent with these reasons, I would add; hence, in s 22B(5), "conviction" as used in that section, and as defined in s 4(1) of the Bail Act, is said to also include a plea of guilty. Of course, those words cannot fit with the circumstances of this case or with the results following determination of any special hearing, because in a special hearing, the defendant has been found unfit and unable to plea guilty or not guilty.
I note that a bail decision is a decision under the Bail Act falling within s 8. Section 8 provides that the following decisions, each of which is a bail decision, can be made under the Bail Act in respect of a "person accused" of an offence. S 4 defines "accused person":
(a) a person who has been charged with or convicted of an offence,
(b) a person whose conviction for an offence is stayed,
(c) a person in respect of whom proceedings on an appeal against conviction or sentence for the offence are pending,
(d) a person in respect of whom a new trial has been ordered to be held for an offence.
Of these categories, only (a), a person who has been charged with or convicted of an offence, falls for consideration in the present circumstances.
I have dealt with "conviction" and most pointedly, s 62(a) MHCIFP Act, and I repeat for the purposes of this consideration of s 8 of the Bail Act; a verdict at a special hearing, that beyond reasonable doubt, on the limited evidence available the defendant committed the offence charged; constitutes a qualified finding of guilt, and does not constitute a basis in law for a "conviction" for the offence to which the finding relates. Section 4, of the Bail Act, defines conviction as a finding of guilt. I have dealt with the proposition that there is neither a finding of guilt; nor a conviction, in my determinations in relation to each count and charge at the conclusion of the special hearing. Accordingly, it seems that there is not a power to consider a fresh bail application.
Then, one moves to s 11 Bail Act . That section deals with a decision to refuse bail. The offender presently has the benefit of an order for bail. Section 11 provides:
"A decision to grant or refuse bail can be made only by a police officer, authorised justice or Court with power to make the bail decision under this Act."
Again the reference there is to "bail decision". Bail decision being as I have already dealt with under s 8.
Section 15 Bail Act at the commencement of Pt 3 applies to the making and varying of bail decisions. It provides that a bail decision is to be made in accordance with this Part. The Part sets out how bail decisions are to be made not the substantive basis for the initiation of the power to make the decision. Section 15(2) provides:
"This part applies to the making of a decision to affirm a bail decision, or to vary a bail decision, after hearing a bail application in the same way as it applies to the making of a bail decision."
Section 15(2) invites a broad reading of whether or not a decision to affirm bail or to vary it would create a power, that is a power at law, in relation to bail. It applies also to circumstances where a bail decision has earlier been made. There must be a power to vary a court order. Presently there is a court order for bail albeit s 15(2) applies to the making of a bail decision, it also applies to affirming a bail decision or to varying it. In my opinion, s 15(2) shows the legislature contemplated that the important provision of the power by statute to deprive, or permit on conditions, the restriction of the fundamental right of liberty of a person includes the Court's continuing power to vary its orders.
In my view therefore, whilst s 22B does not apply. The Court is presently empowered to vary the bail decision. Varying could mean any order revoking bail.
That is the end of the judgment on the law. Crown has informed the Court that following determination that s 22B Bail Act does not apply, the defendant's bail should continue for the present. We now move to the consideration of the evidence just now provided.
I skim read as I was invited to do a collection of medical reports concerning the defendant. The report of Associate Professor Prashanth Mayur, psychiatrist, 19 September 2020 diagnosed a psychotic delusional illness. The medical literature shows that the common observation of Professor Mayur, the treating forensic psychologist, Dr Woods, and forensic psychiatrist, Dr Samuels is that the defendant suffers delusional illness associated with a narcissistic disorder. The offender believes that his wife has always been and remains unfaithful to him. In Dr Woods report of 24 September 2020, his executive summary, also referred to somatic health conditions, spinal injury, thyroid, and cardiac conditions. He diagnosed adjustment disorder with mixed disturbance of emotions and conduct, major depressive disorder and somatic symptom disorder with predominant pain, persistent and severe. He commented that in September 2020, the defendant's current functioning intelligence was significantly impaired but that he was not then a mentally ill person within the definition of that term in the law.
In his report of Dr Woods of 22 October 2020, his executive summary of clinical review stated:
"It revealed a pervasive sense of being the victim of his wife's manipulation and a pervasive sense of hopelessness secondary to the delays in the prosecution of this matter, he viewing new charges or allegations being brought to his attention with the belief that he is the victim of persecution."
I should add that the focus of the persecution, as the defendant sees it, is the prosecution of the very charges and the allegations against him in the Special Hearing. To doctors, the defendant has said, to use the everyday term, the allegations were made up. The defendant told doctors, that his wife was unfaithful, to the extent that he reported his belief to Associate Professor Mayer that the officer‑in‑charge in the prosecutions was participating in his wife's unfaithfulness.
The report of Dr Woods of 19 May 2021, informed that the defendant's mental health was continuing to deteriorate, and that he was then a person of mental illness, as defined in s 4 of the New South Wales Mental Health Act, meaning a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person, and is characterised by the presence in the person of any one or more of the (listed) symptoms. Amongst them is delusions.
In his report of 29 June 2021 Dr Samuels included at para 64, an assessment of what, would appear to be grandiose if not extraordinary delusions of a person being a persecuted victim. At least, that's how it reads to me as a layperson. At para 65, he recorded that the defendant said to him, "that it is better to die with honour, and God forgive her"; which would be a reference to his wife. The defendant told Dr Samuels he said to his wife, "Leave it between you and me and God. I sit in the car and I pray for you." And that "She didn't need to go this far. Every Friday we say grace and prayers. My children will never eat without thanking the Lord. I came home and said to her, 'Don't leave the building. The kids don't need to know.' I kept it quiet, but I couldn't keep quiet. Got too much, slammed the table, couldn't stop."
Of course, in the proceedings, recorded evidence was of the offender abusing his wife as to infidelity, in which recordings, the voices of their children can be heard because of their presence. He was described by Dr Samuels in 29 June 2021 report as being highly anxious, having some abnormalities of thought form, that he was difficult to follow and almost impossible to interrupt. And worryingly, [my comment] that he would meet his children "at the heaven's gate".
At paragraph 79 Dr Samuels noted the defendant's continuing treatment under Dr Woods and diagnosis of Drs Woods and Dr Mayur, that "he has some form of delusional disorder, and that the acts of violence perpetrated against his wife and family relate to this. It seems clear from his wife's statement that there is quite a long history of family violence." Dr Samuels, at para 85, expressed some concerns about the risk of self‑harm.
Associate Professor Mayur, by report dated 18 August 2021, confirmed the diagnosis of delusional disorder for which the defendant was receiving treatment, and that he harbours unshakeable beliefs that his ex‑wife is unfaithful. It is in this report that one finds the defendant's expressed belief that the officer‑in‑charge of the case is spending time with his ex‑wife.
Professor Mayur commented on the level of fearfulness in the state of mind of the defendant, indicated by the defendant having said, "I see evil all around me," and that the defendant believes he is the victim of an elaborate setup. The defendant spoke explicitly of planning to commit suicide. Professor Mayur diagnosed persistent delusional disorder and major depressive disorder.
The Mental Health Plan managed by the general practitioner is in evidence.
On 20 September 2021, Dr Samuels concluded that there was chronic psychotic illness with delusional features, and for the purposes of the inquiries then made of him, "It seems unlikely to me that his mental state will significantly improve in the course of the next 12 months;" that being a component of the test of fitness then to be tried.
Most importantly for consideration today, is the report of Professor Woods, treating forensic psychologist, of 25 October 2022, in which he concluded:
1. "I am able to confirm that Mr Boujandy presented for consultation on 22 October 2022. And at which time, the following was determined;
1. He does not pose a risk to himself or any members of the public, including his family.
2. Recent medical investigations found his somatic health is continuing
That concludes my brief review of the literature provided to me in the defendant bundle, which will be marked MFI 22.
[3]
ORDERS
In the absence of an application for detention, I make the following orders:
1. I list this matter for a penalty hearing on Wednesday 30 November 2022 with an estimate of 2 days
2. I direct the parties to serve written submissions on or before 28 November 2022 at 5 pm
3. Bail to continue
[4]
Amendments
05 June 2023 - Amended to reflect correct numbering.
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: 05 June 2023
Parties
Applicant/Plaintiff:
R
Respondent/Defendant:
Boujandy
Legislation Cited (2)
Mental Health and Cognitive Impairment Provisions Act 2020(NSW)ss 59, 62, 63, 64, 65