R v Boujandy

District Court of NSW|2022-09-05

Solicitors: Office of the Director of Public Prosecutions (Crown) Odtojan & Associates (Defendant) File Number(s): 2019/372995 2019/269086 2019/256031

The Offences

Following my principal judgment 20 October 2022, after a Special Hearing, the defendant, Mr Charles Boujandy, is to be sentenced for the following offences which I found proved beyond reasonable doubt on the limited evidence available:

Count 1: The defendant, between 30 September 2008 and 1 November 2008, at Merrylands in the State of New South Wales, did assault Sally Boujandy; s 61 Crimes Act 1900 (NSW); maximum penalty - 2 years imprisonment and/or fine of $110,000.

H72451736 - Sequence 21

When Sally was in year 8 at school and the family were attending a view of the Three Sisters at the Blue Mountains in 2006, the defendant punched Sally on both sides of her face with a closed fist, more than twice whilst she was in the car. At the time he was yelling at her the accusation that she wanted to sleep with an adult man he had observed her to speak to. The conversation had only been about her camera. On the family's return to the Pitt Street Home, the defendant struck Sally whilst she was near the front door either with an open handed slap or a closed fist. The assaults in combination with the defendant shouting and rage caused Sally as a young female person terror. Sally feared that the defendant may inflict upon her a more severe physical assault such as by slamming her head into the wall, something she had seen him do on prior occasions.

Count 1/Count 2

Counts 1 and 2 occurred on the same occasion. Between 30 September 2008 and 1 November 2008 at the Pitt Street Home, Sally attended her friend Laura's house to practice drama for school. The defendant became enraged, emanating from his displeasure that Sally had asked for permission to go to Laura's house whilst in the presence of Laura and not "to the side". He did agree in Laura's presence that Sally go and also required Pauline to go to Laura's home. Laura's brother who was ten years older than her also resided at her home.
After returning home and some discussion in the lounge room, the defendant smashed down the bathroom door and set upon his naked 16 year old daughter Sally who was in the shower. The shower curtain was ripped down and Sally wrapped it around herself for modesty. In those circumstances Sally was not able to attempt to block the defendant's actions because her hands were securing the shower curtain. The defendant punched Sally on the face with a closed fist multiple times and slammed her head into the tiled shower wall whilst shouting threats to kill her (Count 1). The defendant shouted at Pauline that if she did not leave the bathroom he would cut Sally up, which threat Sally rightfully understood to be a threat to kill her (Count 2). These events occurred despite Pauline and the children begging the defendant to stop.

Count 3/Count 4

It is convenient to deal with the evidence of Counts 3 and 4 simultaneously because the Counts arise from events occurring together. Between 31 August 2010 and 1 October 2010, shortly following Sally's trial Higher School Certificate exams, Sally skipped school to attend a McDonald's store with two friends. She was retrieved from there by the defendant and Pauline who then drove to the school, which Mary also attended, to pick up Mary before intending to travel home.
Whilst Pauline was absent from the vehicle, retrieving Mary from the school, the defendant left the driver's seat and opened the side sliding door to where Sally was sitting behind. Whilst shouting at her "slut" and threats to kill her, the defendant struck her on the face multiple times by hand slap and on both sides of the face multiple times by closed fist punches. The assault wasn't short, it lasted the time of Pauline being absent from the vehicle and returning to the vehicle where the striking continued for an undefined period. An outstanding feature of the savagery of the attack was that the defendant threatened that if she did not lean forward in her seat in the car so that he could hit her about the face, he would kill her. He demanded that she not look at him. These facts struck me not just for the cowardness of the defendant but also for the terror inflicted by him upon Sally such that she had to fight the urge to move back or flinch or look at him in order to protect herself from punches.
In relation to Count 3, by his threats the defendant intimidated Sally with the intention of causing Sally to fear physical or mental harm and indeed so much so that she succumbed to his threats out of fear by sitting forward so that the assault upon her face by the defendant would continue.
As to Count 4, the defendant deliberately slapped and punched Sally about the face multiple times over an extended time.

Count 5/Count 6

It is convenient to discuss the evidence of these two Counts simultaneously because they arise out of the same occasion. Following return to the Pitt Street home and in continuation of his aggression toward her the subject of Counts 3 and 4, the defendant told Sally to sit on the couch and that he was going to deal with her. He told Pauline and her siblings to get out of the house. At this point Sally was scared that the defendant was going to kill her. The defendant moved away and returned to Sally who was then alone on the couch. He waved an electric razor in front of her face and yelled at her "slut" for having entered the car with boys outside the McDonald's store. He held the razor close to her eye and between her eye and her hair line and threatened to shave her hair off so that no boys would look at her. He punched Sally with closed fists in the face.
In consequence of the slapping and punching to her face in Counts 4 and 6, Sally was unable to attend school for one week because of the visible bruising and swelling to her face.
In relation to Count 5, the defendant used the electric shaver as an offensive instrument or weapon, intentionally with his threat to shave off her hair. The defendant caused Sally to fear physical or mental harm. The offending occurred when Sally was a school pupil of the tender age of 18 years whilst in her home with the defendant, her father. Her sense of insecurity and the seriousness of the offending was exacerbated by those circumstances.
In relation to Count 6, the threat to kill her, was intimidation by the defendant upon Sally committed with the intention of causing Sally to fear physical or mental harm. Sally did actually fear physical or mental harm in consequence of the threat to kill her in addition to the threat to shave her head.

Count 7/Count 8/Count 9

It is convenient to consider simultaneously the evidence of the single occasion out of which these three Counts arise. On the occasion of the defendant's birthday on 22 November 2010, the family had baked him a birthday cake and sung him Happy Birthday. The defendant became enraged because the family had not purchased a cake for his birthday. He caused Pauline to follow him to the room of the house known as the office.
Sally and Mary ran into the office. The defendant was holding Pauline by the shoulders (Count 9) when he told Sally and Mary to leave the office or he would shoot them: (Count 7 - Sally; Count 8 - Mary). Sally and Mary did actually in fact suffer fear of physical or mental harm.

Sequence 45

In about November 2011 when Sara rebuked her younger siblings Ann and Peter, the defendant slammed Sara's head into a window with sufficient force for the glass to crack.

Count 10

Between 31 December 2013 and 1 January 2015, when the victim Sara was between 13 and 15 years of age, the defendant and Pauline had returned to the Pitt Street home with underwear which they had purchased for Peter. The defendant became enraged at Pauline because he was accusing her of having looked at the pictures of male models on the packets of underwear which they had purchased for Peter. The defendant threatened Sara that if she did not stay out of the argument he was having with Pauline by shutting up that he would cut her up and feed her to the pigs. Sara did actually fear physical or mental harm as a result of that threat.

Sequence 1/Sequence 2/Sequence 3

It is convenient to deal with the evidence simultaneously in relation to Sequences 1, 2 and 3 which occurred on a single occasion in January 2013. On a hot day in the school holidays, after the defendant, Pauline, Sara and Ann had returned to the Pitt Street home from the family's outing to public swimming pools, the defendant repeatedly slapped Pauline. The slaps were hard and loud.
The defendant stormed into the kitchen and said to Sara that if she called the police, he would kill her (Sequence 3). Sara did actually fear physical or mental harm as a result of that Sequence 3 threat. The defendant then pushed Sara onto a couch and started punching her with his fist closed. When Pauline tried to stop the defendant, the defendant "was laying into both of them": i.e., punching them with a closed fist (Sequence 1 - punch Pauline; Sequence 2 - push and punch Sara). Peter who was then 11 years of age jumped on the defendant's back and pulled him off his sister Sara and mother Pauline.

Count 11/Count 12/Count 13

It is convenient to deal simultaneously with the evidence of Counts 11, 12 and 13, because they arise out of a single occasion on 27 July 2014. The Boujandy family had taken a cake to lunch at Michael's parents' home. The defendant became enraged because he sensed that he had been disrespected, when Michael's sister delivered the first piece of cake to her father, rather than to the defendant. The defendant caused the Boujandy family to leave immediately afterward, all witnesses describing his visible rage at his sense of having been disrespected. Whilst in the car travelling home, the defendant said that he was going to kill Pauline, and he was "hitting" her.
On return to the Pitt Street home the defendant took Pauline into the garage. Others could hear the defendant arguing with Pauline in the garage. Whilst in the garage the defendant threatened to kill Pauline. He said "I should kill you" and held a screwdriver to her neck: Count 11. Michael, Mary and Sara all gave credible evidence of a red mark on Pauline's neck seen by them when Pauline left the garage. The defendant used the screwdriver as an offensive instrument or weapon with the intention of committing the indictable offence of intimidating Pauline and with the intention of causing Pauline fear and/or mental harm. Pauline did actually in fact fear physical or mental harm.
In relation to Count 12, the defendant deliberately applied physical force to the body of Pauline by hitting her when in the car, holding her against the wall in the garage and pushing a screwdriver against her neck such as to leave a red mark.
In relation to Count 13, the defendant intimidated Pauline by threats to kill her in the surrounding circumstances of Counts 11 and 12, with the intention of causing Pauline to fear physical or mental harm.

Count 15/Count 17

I deal with the evidence of Counts 15 and 17 simultaneously, because they arise out of a single occasion. On 16 August 2016, on return from Merrylands shops, whilst the defendant was driving the car, he punched Pauline in the face both by a left backhand slap and by a closed left hand fist. On arrival at the Pitt Street driveway, Pauline got out of the car and ran to escape the defendant but at a distance of about four properties he reached her and dragged her back to the home, by applying a brace type hold around her neck. Having dragged her into the kitchen (Count 17), the defendant took a butchers knife and held it to Pauline's neck (Count 15). Mary heard the noise, ran to the kitchen and saw the defendant do that. He dropped the knife when Mary screamed. Mary recalled that Pauline was gasping and Pauline said she fell to the ground. Mary saw a mark on Pauline's neck and recalled Pauline saying to her that the defendant had forgotten Mary was home, otherwise he would have killed her.
Pauline did actually fear physical or mental harm.

Sequence 10/Sequence 11

It is convenient to consider the evidence of these two charges simultaneously because they arise out of the same occasion. On an occasion between April and May 2017 when Michael and Sally were soon to be married, the defendant and Michael were at the driveway of the Pitt Street home. The defendant strongly disapproved of the forthcoming marriage. The defendant spoke words to the effect of threats to kill Michael (Sequence 10). The evidence was that whilst Sally and Michael were attempting to appease the defendant and Michael invited him to enter the house to talk, the defendant grabbed Sally with both of his hands to her bicep region of each of her arms, quite hard and Sally protested that he was hurting her (Sequence 11).

Count 18

In relation to the injuries suffered in this offence, Pauline attended Dr Bui, dentist. His Report made 27 October 2017, recorded that Pauline suffered an injury to her lip and to her front teeth on that day. During an argument in the car and whilst the defendant was driving, Pauline turned to look at him and he punched her straight in the face causing what she thought was broken front teeth. Her mouth was bleeding. Her lips swelled. Dr Bui's note is consistent, not with a finding of broken teeth but with a force applied to her front teeth. Pauline lied to Dr Bui, telling him that she had fallen over. Sally recalled that she saw Pauline's face was puffy and she was speaking as if there was something wrong with her mouth. Pauline showed Sally the little cut on her top lip. Michael mentioned also a bruise on Pauline's chin.
As a consequence of the punch, Pauline suffered a cut lip and soreness to her two upper incisors (central) teeth, without looseness being a hurt and injury that interfered with her health and comfort within the meaning of "actual bodily harm" under s 59 Crimes Act 1900.

Count 19

While the family was watching New Year's Eve fireworks on television between 31 December 2017 and 1 January 2019, the defendant had turned on the lights in the house. He did so thinking it would bring good luck. Unaware that the defendant had done so, Peter turned off the lights in the television room so that the family could better view the fireworks on the television. Peter's action triggered the defendant to start shouting that the family had ruined the year, that the lights should not have been turned off and he threatened to shoot them all. They were aware that the defendant kept a rifle in a cupboard of the home. The offence relates to intimidation of Pauline only.
Pauline did in fact experience fear caused by the defendant's threat combined with her knowledge that he kept a rifle in the cupboard.

Count 20

During the school and university holidays in January 2019, when the defendant told Peter to stop playing the PlayStation, Peter agreed but when doing so asked the defendant why he was "getting mad" meaning angry. The defendant took Peter's statement as an insult of the affect that he was mentally affected. The defendant positioned himself over Peter and in front of Peter who reacted by "got up in his face" and saying to the defendant "then do something". When storming off the defendant stated words to the effect "I'll just shoot you".

Sequence 17/Sequence 18

It is convenient to consider the evidence of Sequence 17 and Sequence 18 simultaneously given the offences arise out of the same event. The defendant's threat, the subject of Sequence 17, was recorded by Peter's friend Mr Khoudair on the PlayStation which they were playing at the time: Exhibit H. The time of the recording was 7:24 pm on 27 March 2019.
The defendant grabbed Sara's arms and slammed her head into a wall and shook it (Sequence 18). Peter, on becoming aware of what was going on around him whilst playing the PlayStation game, having a earmuff over only one ear, tried to intervene to protect his sister Sara. Peter pushed the defendant onto the couch.
In the Exhibit H recording, the defendant is heard threatening Sara that he would "send" her head into the wall and that if she called the police he would "send" her head into the wall (Sequence 17). In his rage he called Peter a "sick dog". Sara is heard asking the defendant to stop touching her.
Sara did in fact fear physical or mental harm. Indeed, Sara told police that she believed the defendant would harm her such as by cutting her up and feeding her to the pigs.

Count 22/Count 23/Count 24

On the morning of 29 July 2019, the defendant made threats to Pauline including that if she did not leave he was going to hurt her and that it was better that she leave instead of him hurting her in front of the children. Around 9:30am, the defendant trapped Pauline in the bedroom by his standing in the open doorway, not letting her leave whilst he was hitting her as she stood up against the wall. The defendant was bridged up against Pauline making threats to kill her and that if she did not kill herself he should kill her. The defendant placed his open palms on either side of Pauline's head, squeezed it and pushed it into the wall. It hurt but it did not leave a mark or cause swelling.
On Mary's attempt to intervene, by telling the defendant to calm down and let Pauline leave the bedroom to go to the bathroom, the defendant told Mary to be quiet and that he was going to kill her. At about that point, when Pauline tried to exit the bedroom, the defendant grabbed Pauline's arms and pushed her back against the wall, speaking that she should not kill herself in the house because he could get into trouble and that if she was going to kill herself, she should do it somewhere else. On Pauline's third attempt to escape the bedroom, she went to the bathroom and was vomiting. She and Mary were scared.
Sara returned from university at around 9:00pm. In order to attempt to protect Pauline from the defendant, she had asked Pauline to help her reading over a university assignment at the dining room table. The defendant then argued again with Pauline when there was a sewing kit including scissors on the table. The defendant threatened Pauline that he would grab the scissors and put them in her neck. Exhibit J is a recording of passages of the argument, the defendant is heard to scream at Pauline that he would put the scissors in her throat. He is also heard to say that he should have killed Pauline in the morning instead of telling her to go to sleep.
A third incident in time occurred on 29 July 2019. It was when Ann was sleeping with Pauline because she was experiencing her first menstrual cycle. Pauline was woken by the defendant shaking her on the shoulder. Ann was woken by Pauline's scream and her tapping Ann on her hand. The defendant said that he had experienced a nightmare and had come to Pauline's bedroom three times to strangle her while she slept. While the defendant and Pauline argued, Ann asked if she and Pauline could go to the bathroom which was a ruse to avoid the defendant's behaviour. They waited in the bathroom until he had returned downstairs.
In relation to Count 22, the defendant spoke words of threat to Pauline on 29 July 2019 of the effect that she should kill herself and otherwise he should kill her. On 29 July 2019, the defendant intimidated Pauline by speaking those words. Pauline did in fact fear physical or mental harm.
In relation to Count 23, the defendant grabbed Pauline by both arms, shoved her against the wall and shoved her head into the wall whilst placing his open hands on either side of her head and squeezing it such that she felt pain. That impact with the wall and squeezing did not leave a mark or swelling.
In relation to Count 24, the defendant did intimidate Mary by threatening to kill her. Mary did in fact suffer fear of physical or mental harm.

Count 27/Count 28/Sequence 7/Sequence 8/Sequence 9/Sequence 10/Sequence 11

Counts 27, 28 and the Sequences 7, 8, 9, 10 and 11 charges concern the Ruger Semi-Automatic Rifle, the rifle bag, each ammunition magazine and the rounds of ammunition. The defendant was the owner and possessor of the rifle, the rifle bag, the magazines and the ammunition, stored at the Beechwood Avenue home on 15 August 2019. The rifle, the rifle bag, the magazines and the ammunition had been at the Pitt Street home as well as in the Beechwood Avenue home. The defendant had never been seen to use the rifle. The defendant never expressly incorporated the use of the rifle in his threats to the family. The family members did associate his threats to shoot them with their knowledge of the existence of the rifle in the home.

Sequence 12/Sequence 14

On 28 August 2019, on a legal police search of the Beechwood Avenue home (Exhibit A tab 13A) each of the silver mobile phone taser (Sequence 12) and nunchaku also known as Kung Fu Fighting Sticks (Sequence 14) were located. There is no contest to the fact of the defendant's possession of the silver mobile phone taser the subject of Sequence 12 or of the nunchaku the subject of Sequence 14.

Sequence 19/Sequence 20/Count 25/Count 26

Each of Sequences 19 and 20 and Counts 25 and 26 concern events which occurred on 15 August 2019. It is efficient to deal with the evidence of that day simultaneously. Throughout 15 August 2019, until Pauline escaped from the defendant's presence by leaving the family car on the afternoon return trip from picking Peter and Ann up at school, the defendant continued to argue with Pauline aggressively.
Whilst Pauline and the defendant were alone in the family car, a little after 9:00am, on the return trip to home from having dropped the youngest children, Peter and Ann at school in Westmead, the defendant said to her "I should kill you for what you've done": Count 26. Pauline asked if they could continue home. The defendant turned and with his hand in a position of palm vertical and fingers at 90 degrees horizontal pushed his fingers in a stabbing motion into the side of Pauline' neck causing a mark near her Adam's apple. She suffered pain in her neck and found it hard to breath. She felt scared, her heart was racing and she moved away from the defendant as much as she could in the car so that he did not have much access to her: Count 25.
At about 2:30pm the defendant and Pauline left home to pick up Peter and Ann from school. At around 3:40pm, Pauline telephoned Mary to inform her that the defendant had kicked her out of the car and Mary gave evidence of the defendant arriving home, banging the door and screaming "I'm going to kill this bitch".
In relation to Count 26, Pauline did in fact fear physical or mental harm. That Pauline later in the day made her escape from the defendant was clear evidence of her fear.
Sequence 19 and Sequence 20 concern what happened in the family car on the return trip from picking Ann and Peter up from school at Westmead up to the point Pauline left the car not to return to the presence of the defendant. The defendant deliberately applied the force of taking hold of Pauline's chin to turn her face toward him: Sequence 20.
In relation to Sequence 19, the defendant's statement to Pauline, "don't make me hit you in the neck Pauline" can be heard in a passage of the recording surreptitiously obtained by Ann in Exhibit K in which the defendant, in heated fashion spoke those words.

Defendant's Presentation in Court

During the trial, the defendant sat on a chair in the dock with his hands on top of his single Canadian crutch and his forehead resting on his hands. He also spent quite some time with his head elevated from his hands and observing the proceedings. There were extensive periods of him sobbing. On the occasions on which he stood, he raised himself slowly, using the assistance of his crutch and the woodwork of the dock around him. On the occasion that he exited the court room, to avoid observing a portion of the recorded evidence, he walked with a slow gait the 10m to the door. His right arm and elbow were supported by his support person and his walking was in very short strides.
In Exhibit A, at tab 10, is the statement made 14 August 2020 by Constable Idrisoglu. The Constable says that at noon on 12 June 2020, at Stockland's Mall Merrylands, when he was off duty, he observed the defendant: at [5] "walking unaided with any device or object, and unassisted by any other person, he wasn't hunched over and at no time during my interaction with him did he appear to struggle to walk". at [6] "I found his behaviour strange; I've had many interactions with the accused while working station shifts at Merrylands Police Station and know that he reports three (3) times per week as per his current bail conditions. Each time the accused walked into Merrylands Police Station, I saw that he walked with a severe limp and a cane. He always appeared hunched forward, hobbling or limping. It appeared that he had great difficulty getting around. The accused would often cry about how the police had ruined his life and he appeared sickly and decrepit on each occasion."
Constable Idrisoglu took a few seconds of video of the accused walking on the level surface of the shopping centre, from behind. The defendant is depicted to walk at a normal pace, not quickly, and in the style of a swagger. After concluding the recording on his mobile phone, Constable Idrisoglu observed the defendant walk down approximately 30 steps without holding the railing for support. He then observed the defendant cross McFarlane Street, Merrylands.
The observation of the defendant's capacity to walk unaided on 12 June 2020 does not fit with the extent of physical disability reported in the medical literature to which I will come. Succinctly, the extent of reported physical disability meets with my observation of the defendant's display of physical frailty and very limited mobility presented by him in the courtroom.
I note the circumspection as to the truthfulness of the defendant described by Dr Banks, clinical psychologist, given his personality disorders. However, each of Professor Woods and Dr Samuels accept the extent of the defendant's physical restrictions, ailments and limitations described by his treating General Practitioner Dr Das. Dr Samuels accepted Professor Woods summary of the physical state of the defendant obtained from Dr Das as follows at [29]: "Prof. Woods noted correspondence to the author dated 20 January 2023 from Dr Das, general practitioner, which makes reference to the fact that Mr Boujandy suffers from heart disease, has attended the Emergency Department at Westmead for urgent treatment for the last one and a half years and is under the care of Professor Birch, cardiologist, with the next scheduled appointment 12 February 2023. His thyroid condition has deteriorated and he is under the care of an endocrinologist, Dr Girgis, with their next appointment 10 March 2023. He has shoulder pain, neck pain, back pain, leg pain, left hand pain, deteriorated using a walking stick and Dr Das notes that Mr Boujandy is prescribed Norspan 15 mg long acting once a week, Endone 5 mg x 1 tablet twice a day if required, Voltaren 50 mg x 1 tablet three times a day, Sigmaxin 250 mg x 1.5 tablets per day, metoprolol 50 mg x 2 tablets a day, risperidone 4 mg x 1 tablet at night, olanzapine 10 mg x 1 tablet at night, duloxetine 30 mg x 3 tablets a day, and Neo-Mercazole 5 mg as directed by a specialist."
Given that Professor Woods and Dr Samuels had the opportunity to observe the defendant during consultation, the evidence is overwhelmingly persuasive of acceptance of those physical restrictions, ailments and limitations. Indeed, Dr Samuels agrees with Professor Woods that the defendant's current physical state would limit his capacity for violence and aggression: Dr Samuels Report 1 March 2023 at [75].
I note also that the common observation of the psychiatrists and psychologists reporting in the case is that the defendant maintains his innocence. For instance, Dr Samuels recorded that the defendant insisted that he had never hit anybody: Report 1 March 2023 at [53].
In his Report 17 April 2023, Dr Samuels noted that at [59] of his report Dr Banks suggested that "assessments of his physical capacity were affected by the defendant's likely exaggeration of physical symptoms" and then expressly disagreed with Dr Banks observation, reporting: "Again Dr Banks has not seen [the defendant], he is not a medical practitioner and is not well placed to provide this opinion. I do however accept that even though [the defendant's] physical state has deteriorated, this is not necessarily a protective factor under all circumstances, for example, if he had access to a weapon."

Context Evidence of Fear of Family - Dominating, Aggressive Disposition

The overwhelming evidence of at the Special Hearing was that over the course of the marriage the defendant had regularly struck Pauline and used other types of force when assaulting her. Her evidence was that she had suffered bruising and other injuries numerous times and on one occasion, broken ribs.
Exhibit F is a collection of text messages from mobile phones of Pauline, Sally, Mary, Peter and Ann. I observe that Pauline and her children engaged in a practice of messaged communication monitoring the defendant's anger and the risk of him harming Pauline and that they shared that practice fearful of being heard or seen doing so by him. The messages regularly referred to being able to speak by telephone because the defendant was not present or that they had to cease speaking by telephone because the defendant was coming. Exhibit F is evidence of a sibling wide practice designed for the protection of their mother Pauline and established on their fearful assessment because of the risk of the defendant harming Pauline.
When during evidence in chief, Sally was shown the Exhibit 1 family Santa Clause photographs at Christmas with smiling faces (1993 - 2018) she said that her father insisted on keeping up that family tradition. In relation to the endearing messages by Sally, Pauline and the siblings on the defendant's birthday and Fathers' Day cards, Sally answered during cross examination that the defendant liked receiving cards expressing the family's love and affection for him: T 115. 25. In re-examination she said that because of the "constant threat" presented by the defendant, writing the messages of endearment was a "survival tactic" of her's and "….I would not have meant it deep down, not - not all of it. I would have hoped to one day mean it and hoped that - but no. No": T 116. 20.
During cross examination Michael was shown the Exhibit 1 Santa photos and the Exhibit 2 Father's Day and birthday cards. He said that if he had not written something "nice" to appease the defendant, the defendant would get "pissed off". He said that he felt compelled to write that which the defendant would not take in a negative way because he was concerned that the defendant would otherwise harm the family. Michael described the defendant as someone who would "break out" if he did not get his own way and gave the illustrative fact that when the defendant was told that Sally and he had actually purchased a home, the defendant became "really angry", which Michael interpreted this as the defendant wanting control.
During her DVEC Sara told police that the defendant had struck her and threatened to kill her on multiple occasions. She said: "from childhood to now there's been a lot of things, um, trying to step in when he is bashing mum to me getting hit from trying to push him away. Um, there was one incident that was really bad, years ago….dad was….hitting mum many, many, times. I lost count. And he came inside and he shoved me and he pushed me onto the couch. And he started hitting me and punching my face. My mum came and she tried kicking him off me. That's when my brother, my brother came at the time. He was really small. He tried jumping on his back to try and get him off me. And he just continued. And my little sister was just screaming. If he can, if he can hit us, he can kill us. That's the thing. And I'm so convinced that he can and he would do that".
Sara told Constable Hepburn that the injuries she and Pauline had suffered were bruises and scratches.
Peter described the defendant, in August 2019 as a large man of weight approximately 100 kgs and of "amazing fitness". He said that as long as he could remember, the defendant had trained one to two times per day. He would do a lot of weight training and martial arts including kung fu and boxing. There was extensive gym equipment in the home including for martial arts training such as Nunchaku and swords as well as weight machines and punching and kicking bags. In my principal judgment, 20 October 2022 I described the equipment when discussing the police search of the property.
Peter had trained in the martial arts since he was 4 years of age. He said that he was not given a choice and was forced to train.
In her DVEC Pauline said that she presently fears that the defendant will track her down and possibly kill her or her children.
Evidence of the defendant's rage, shouting and threats directed at Pauline can be appreciated from tendered recordings; Exhibits H, J and K
Each of his children, called in evidence, said, as did Pauline, that they were fearful of informing police of the defendant's assaults and intimidation upon them. The common evidence was that the defendant had convinced them of his close relations with police, particularly officer Detective Sergeant Kylie Whiting and that he would find out if they reported him. There is no evidence that the officer would have conducted herself in that way. The evidence is overwhelmingly that the defendant was a threateningly controlling individual. Pauline was fearful of being alone with any male in any situation of which the defendant might learn.
Following the 16 August 2016 event of the defendant holding a butchers knife to the throat of Pauline (Counts 15, 16 and 17), Mary messaged her boyfriend Vikram of her fear that although the defendant had gone to his office and quietened down: "…..if it gets yeah again I think ill just call the police….i don't know what else to do" (Exhibit G, page 3 - 16, August 2016 at 11:13 am). Mary's elder sister Sally was not at home. She was at the College of Law. Exhibit G messages show that Vikram was concerned that Mary be careful. He texted "Mary I'm begging you. Please be safe. Please" (Exhibit G, page 4 - 16, August 2016 at 11:17 am). On 18 August 2016 at 1:48 pm, Mary messaged Vikram (Exhibit G, page 5) that the defendant was trying to make up for it to Pauline and Mary was concerned for Pauline. She further informed Vikram that when in the kitchen she opened the kitchen draw and on seeing knives, her "stomach completely turned". Mary's following evidence (T 176. 43 - 177. 34) described her extreme fear at that time. Q. And if you go to page 3, at the top of the page, you're again communicating with Viktram and you're indicating that your father is - he's in the office? A. Yes. Q. You speak there of "I think I'll call the police"? A. Yes. Q. Did you? A. No. Q. Why not? A. I was too scared. Dad always threatened us that if we told anyone what was happening, he would kills us all, then kill himself. And again, because of the connections he said that he had, he would find out if we told the police. I couldn't. Q. On page 4, you indicate your first message is, "She's at the College of Law", who are you referring to there? A. My sister, Sally. Q. Further down, "It will be too obvious that I've told her, then he will lash out at me". What are you referring to there? A. If I told my sister to come home from - so if I told my sister to come home because of what had happened, dad would then know that I told her what happened and to - dad would then hit me for telling Sally, so I couldn't tell Sally to come home. Q. Can I take you to the next page and it's dated 18 August 2016. So, it's two days after the event with the knife. And again, tell me if I'm right, because I see the "V" at the top, is this communication with Vikram? A. Yes. Q. Right at the top of the first message, you say this, "This is where he tries to make up for it to mum". Do you see that? A. Yes. Q. What do you mean by that? A. So, after almost every time, not every - most of the time after dad would bash mum, whether it be the same day or the next day, he would say sorry, I won't do it again. But that obviously would happen again. Him making up for it was saying sorry I won't do it again. Q. How was he behaving when he was saying "Sorry, I won't do it again"? A. Sometimes he'd seem apologetic, but he was - was genuinely sorry but then there were a lot of times where it was almost just words to him, and he'd just say it for the sake of saying it.
Vikram (by his statement), who was Mary's partner from 2015, and Mary each gave evidence of their arrangement that if Mary communicated to him the code symbol "V" (which she never in fact did) he was to call police and ambulance. Their evidence was that the code was necessary because the defendant monitored the families mobile phone use. Mary informed Vikram of her fear, of which she also gave evidence, that if the defendant found that she had spoken of his assaults and intimidation to others, he would kill the family.
Vikram's evidence included his observation, when at family events, of Pauline avoiding being alone with other males for fear that the defendant would accuse her of cheating on him and would turn violent against her. He said that when the defendant could see them Pauline would not make eye contact with him and that their spoken conversations were minimal. He described Pauline as appearing, "cautious, fearful and frightened whenever she was alone with someone other than [the defendant]. When she was with [the defendant], Pauline appeared less on edge and rushed."
He observed that after the engagement party for Sally and Michael, the Boujandy children, Michael and a couple of friends returned to the Pitt Street house where he witnessed: "Pauline sitting in corner of the living room of the house; she was looking at the floor the whole time, not talking to anyone. [The defendant] was speaking and occasionally he would look towards Pauline and check on her. [The defendant] also mentioned that he was in the Army and told us his stories about his service. The atmosphere appeared hostile between Pauline and [the defendant]; Pauline seemed scared, reserved and anxious. She was not making eye contact with anyone and anything she did seemed hurried or rushed."
Sally and Michael were to go to Lebanon on 26 July 2019, so in that month, Michael and Sally put on a Sunday lunch for the Boujandy family. Mary recalls that Michael and the defendant went for a walk. Later in that week, the defendant, when driving Mary, told her that he did not approve of Michael and that "when he went for a walk with Michael, that Sunday had just passed, that he said to Michael - I'm going to get you done over at Lebanon and make sure you don't come back.": T 184. 5 - 10.
In her DVEC (Exhibit E/E2), when describing the event of the morning of 29 July 2019 (Counts 22, 23 and 24), Mary described her fear caused by the defendants threats and actions in the following terms: "I've gone through this and witnessed things like this my whole life, um, and its not the first time he's made a threat, um, and I feel like there's where he, when he clicks. I don't know what gets to him and he becomes so violence. Like, nothing will stand in the way, and I've tried to intervene, and even whist trying to calm it down, I've gotten hit before, numerous of times. So, um, no, I think he's….he is very capable".
When asked why she had not made reports to police Mary answered "we couldn't. If we were to do that he would have hurt us….he has always said that whatever happens in the house stays in the house….one time my brother mentioned that his parents were arguing, that, like, my parents were arguing at school….um, to his teacher and the teacher ended up speaking to my Dad and my brother pretty much got a whooping." Mary said that if any of the family were to speak to a third party then she would think that all of their lives would definitely be in danger.
In her DVEC, Mary also said that the defendant, during their arguing, had blamed Pauline for the marriage of Sally and Michael and he threatened on 26 July 2019, the day of their departure, that "I'm just going to kill you all, then I'm going to kill myself".
Exhibit J included four recordings surreptitiously obtained by Sara of the defendant's behaviour on the evening of 29 July 2019. Whereas Exhibit J - recording J1 is headed with the timing 7:30 pm, Sara said that she did not return from university until after 9:00 pm and therefore the recording was created after 9 pm. Recordings were obtained after 9 pm, around 10 pm, 10:13 pm and 10:21 pm respectively. There is a constant theme throughout all four recordings, spanning as they do, more than an hour following Sara's return home from university. This was in the late evening; the arguing having commenced 11 hours beforehand in the morning.
The theme was that for the whole of their marriage and indeed as the defendant shouted it "after fucking 40 years now" (Exhibit J/J1) he believed that Pauline had been unfaithful and continued to be. In the recordings he accused her of wanting to have sexual intercourse with a technician two years before moving into the Beechwood Avenue property, sexual intercourse with men she met at Merrylands shops and her work colleague whilst she and the defendant were engaged to be married. Throughout the recordings the defendant was shouting and raging and Pauline was speaking quietly, submissively and appeasingly. The furious discussion occurred in the presence of their children, whose voices are heard, Sally, Peter and Sara. Each of them spoke to the defendant, appeasingly and calmly also.
The following selected passages encapsulate the underlying threat to kill Pauline or himself and Pauline maintained in his raging: (Exhibit J/J1 at 2 minutes 33 seconds): "I just want you outta my life. All right. Just understand something, Paul. I can't keep going like this cuz one day I'm gonna lose it and they will lose both of us. Just go fucking live your life. All right. Go find another guy or find some guys that you, all these fucking guys that you fucked was in the shops down at Merrylands huh how many are, how many fucking shops you've gone to in Merrylands and you screwed with them. You tell me how hard is that for you?" (Exhibit J/J4 at 0 minutes 20 seconds): "I should have killed you a long time ago. That was my mistake. I should have either left you or fucking done away with you the minute you fucking slept in my bedroom. So guys, I should have gone in the fucking house and done you over, but you know why I didn't fucking kill you then because I would've lost the kids. So I had to fucking live with the fucking pain of knowing you're in my fucking bed, getting fucked. And I didn't want to lose them because you know why? Because I called you called the police. You're in the right. Cause it doesn't matter. She has rights. It doesn't matter if she's sleeping with someone, else in the bed. Hm. She's like Moses' mom. If, if her husband was to slap her and she calls the police, he'll get locked up. Not her that she's doing the wrong thing. And if you were to call the police back then in those days, what would've happened, they would lock me up. Why? Because everybody wants to fuck you then…Because Sally and Mary-Anne are kept why I got sick all these fucking years because I tried to keep them all together. Then these guys come and you think that stopped you? No. How do you think I feel….How do you think? I feel every time I look at you, I can imagine how you were fucking with other guys. Where was I in your life then? Hmm, where was I? Where was she? When she was a fucking baby on your leg and someone puts his hand on you fucking leg. What did you feel like? Oh, he wants to fuck me. So what that's it? You were trying to fucking screw him. Did you think you had their baby in your hand? He was a fucking baby at fucking Parramatta pool in your hand. And you're trying to show your fucking tits to the guys. Give their attention, you know? And what does he do when we come home? He jumps on my back." [This is a reference to Peter in other evidence] (Exhibit J/J4 at 2 minutes 59 seconds) "…how do you think I can die in peace? You think I can trust you to look after them? What you think I can trust you to look after them?...If you and Mike, you had fucking fucked together. You think you would've told Sally if I didn't come out of the room second; what the hell you think you're doing? What happened? You got carried away was fucking Mikey and that stupid fucking daughter refuse to marry him. [this is a reference to Sally] If I didn't have Sally's, Sarah Jane's friends on my back and the cops, there's no way in the world….I would've let him marry her…."
Following the playing of Exhibit J in court, in response to my observation of the defendant's complaints of illness, his counsel said that the references to the defendant's illness were to physical ailments, not mental ailments: T 212. 45 - 47.

Impression of the Defendant's Offending Behaviour and Mental Illness

Pursuant to s 63 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (MHCIFP Act), the focus of nominating a Limiting Term is a sentence of imprisonment which would have been imposed for each Count, if any (alternative sentences are available); as if the Special Hearing had been an ordinary trial of criminal proceedings and the defendant had been fit to be tried for each Count, for which verdicts pursuant to s 59 of the MHCIFP Act have been determined. The parties have agreed that my approach include consideration of the matters which were before the Court pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) (CP Act) for context.
The evidence of those s 166 matters and the evidence I have referred to under the heading "Context Evidence of Fear of Family - Dominating, Aggressive Disposition" did give me an impression of the defendant's conduct which helps me understand the expert evidence commenting on his mental health and to employ those opinions in my assessment of the extent to which the defendant's mental health informed the offence the subject of each Count, separately assessed. That expert opinion evidence must be considered in relation to sentencing for each Count.
Triggers for his rage which arise include his perception (without true foundation in the evidence at the hearing) of the infidelity of his wife Pauline from before marriage and throughout the 40 years of their marriage, his perception of behaviours of members of his family contrary to his rigid views on correct "Christian" behaviour, and anything done by persons from which he perceived a displayed lack of respect for himself. An example of this last trigger is seen in the Count 11, 12 and 13 offending. He perceived that he was shown disrespect at a luncheon by his son in law's sister serving the first piece of cake, brought by the Boujandy family, to her father and not to himself.
The offending for which he is to be sentenced occurred over a period of in excess of 11 years. He did not come to mental health assessment or treatment during that period. The expert opinion evidence is based upon consultations after the offending, commencing in or about late 2019. The diagnosis is of his present mental health. The expert witnesses have been asked to comment on the nexus, if any, between his present mental state and the offending, at the time of the offending. Whilst the expert witnesses generally agree on present diagnosis and that there was a nexus to his offending, their opinions differ as to the degree to which the defendant's mental health informed his offending over that long period. The expert opinions are therefore retrospective and expressed in somewhat general terms. I come to Dr Mayur's opinion regarding diagnosis and its aetiology, with which they generally agree at [95] below.
There are 3 purely factual observations, based on the evidence, which I make and which will carry with me as I give detailed consideration to the expert opinion evidence and will in that way remain in my consideration of appropriate sentence for each Count. They are: 1. There is not a common and equal contribution of the defendant's mental illness across the offending. The triggering event must be considered separately in relation to each offence. The triggering by the event to offending was not in every offence informed by his mental illness. His mental health in relation to some offences did exacerbate his abhorrent behavioural response even when his mental illness did not inform the triggering. In relation to specific events when the offending occurred, I make the following observations: 1. In Counts 1 and 2 (between 30 September 2008 and 1 November 2008) the trigger for the defendant punching his daughter Sally on the face and slamming her head into the tiled shower wall whilst shouting threats to kill her (Count 1) and his threat directed to Pauline, that if she did not leave the bathroom where she was attempting to defend Sally, he would cut Sally up (Count 2), was that he felt disrespected because Sally asked him for permission to go to Laura's house to study whilst Laura was present, instead of asking for permission "to the side". The defendant insisted, and Pauline complied, that Pauline go to Laura's house to keep watch. He was also concerned that Laura's brother, who was 10 years older than Laura or Sally, also resided at Laura's home. I understand, the offending in relation to Counts 1 and 2 (a single episode) to have been triggered by the defendant's cruel, tyrannical, controlling and vindictive behaviour inflicted on the members of his family and associated with his want to uphold, as he saw it, "Christian" values. The retribution beyond reasonable doubt driving his offending against Sally did not involve his belief in Pauline's infidelity. His moral culpability is not reduced by his then mental health. 2. I understand the defendant's offending the subject of Counts 3 and 4 (between 31 August 2010 and 1 October 2010) directed at Sally also to be not informed by his delusional system involving infidelity thinking. Whilst he did call Sally "slut" as he threatened to kill her and savagely bashed her because she had skipped school to attend a McDonald's store with friends and there were boys present; it was again his cruel, tyrannical, and controlling behaviour to uphold his strict view of "Christian" conduct within the family which beyond reasonable doubt drove him and his retribution was directed at Sally, not at Pauline who was in his company. The defendant's mental health did not to my understanding inform the offending such that his moral culpability would be reduced. 3. In Counts 5 and 6, being a follow on of the same incident involving Counts 3 and 4 and for the same reasons, beyond reasonable doubt, the defendant's mental health did not, to my understanding, inform the offending such that his moral culpability would be reduced. 4. In relation to Counts 7, 8 and 9, the defendant became enraged and physically attacked Pauline (Count 9) but also threatened to shoot Sally (Count 7) and Mary (Count 8) because he felt disrespected when the family presented him with a birthday cake made by them (22 November 2010) and sang him "Happy Birthday". His objection was that they had not purchased a cake for his birthday. The event occurred during the period in which, as he told his treating psychiatrist, Associate Professor Mayur, he had forgiven Pauline for her earlier infidelity. That he directed the physical attack to Pauline does not characterise his offending on that occasion as significantly informed by his mental health such that his moral culpability would be reduced. COMMENT: My above findings concerning Counts 1 to 9 are also consistent with the factual aetiology of the defendant's onset of mental illness, as reported by Associate Professor Mayur (Report 19 September 2020) which aetiology and diagnosis I accept as most consistent with an overall consideration of the expert opinions of Professor Woods, Ms Cat, Dr Banks and Dr Samuels. Indeed, Dr Samuels, who's evidence I found most persuasive for the reasons stated in this judgment, adopted and employed Associate Professor Mayur's opinion on aetiology and diagnosis. At page 2 of his Report, Associate Professor Mayur recorded the defendant's personally stated history. The defendant had told him that having detected Pauline to have been unfaithful to him in 1992 and in 1995, he forgave her and moved on raising his family of five children. The defendant told Associate Professor Mayur that it was not until an event in a public swimming pool when he saw his wife's cleavage attracting another male person in 2013 that he restarted worrying about her infidelity. Associate Professor Mayur explained the parameters of the defendant's delusional system of infidelity composed in the diagnosis of Persistent Delusional Disorder as not involving other kinds of suspicions, referential thoughts or other manners of persecutory beliefs but contained to his "expressed delusional beliefs concerning his ex-wife's unfaithfulness" (page 2). It is based on that history that Associate Professor Mayur opined that the delusional system of infidelity thinking, which is the embodiment of his progressive mental illness, commenced and progressed at least from 2013. My principal judgment, 20 October 2022, exposed that the swimming pool event to which Associate Professor Mayur referred as having occurred during the January 2013 school holidays (Sequence 1/Sequence 2/Sequence 3 - see [17]-[18] above). Whilst specifically that event involved threats and violence directed to his daughter Sara and son Peter, the defendant's rage was directed at his wife Pauline. Sara and Peter were attempting to protect her. 1. The Count 10 offending occurred after the early onset of the defendant's delusional, infidelity system of thinking (31 December 2013 and 1 January 2015) and was triggered by his thinking that Pauline was looking at the pictures of male models on packets of underwear purchased for Peter. However, whilst that was the trigger for his rage directed at Pauline, she was not the victim of the offending. Rather, the offending was his threat directed at Sara that if she did not stay out of his argument with Pauline, he would cut her up and feed her to the pigs. In my opinion, it is beyond reasonable doubt that the offending was part and parcel of his cruel, tyrannical and controlling action against Sara as a member of his family, his narcissistic/grandiose sense of self motivating him to threaten to kill Sara in the course of his enforcement of his role as the "Christian" saviour of his family by enforcement of his strict "Christian" rules. The rule was that Sara does not disrespect his dominance and actions by interfering. My finding based on my lay interpretation of the evidence whilst mindful of the expert medical opinion, is consistent with Associate Professor Mayur's Report that he had "not been able to determine presence of personality traits of being antisocial or emotionally unstable" (page 2 - italics added for emphasis) and that the defendant's "distinct and immutable urge to keep his family together" and vision of himself as "being the saviour of his family and its reputation" being the features of his narcissistic/grandiose sense of self, might be connected with the departure of his father which he experienced in youth but is not directly connected to the onset of the delusional system. In his Report 17 April 2023, Dr Samuels, whilst deferring to Associate Professor Mayur and Professor Woods opinions on diagnosis and present state of mental health, observed that the defendant's cruel, tyrannical, controlling and vindictive behaviour, does not preclude the possibility that he has also developed a psychotic illness (Dr Samuels Report 17 April 2023 at [11]). Thus, whilst the delusional system of thinking progressed and ultimately dominates, it informed this offending against Sara only minimally and by a mere indirect association with his delusional belief in the infidelity of Pauline. As Dr Samuels put it in that report at [13], "Mr Boujandy's offending occurred over a lengthy period and involved multiple offences. It is difficult to gain a clear picture of his mental state at the time of these offences. I agree with Dr Banks that personality factors are likely to have been a driver of these offending behaviours particularly in the early years. It is my opinion however that in more recent years an emerging psychotic illness has exacerbated the situation and that delusional ideation and disordered thinking and mood have further contributed to offending behaviour." 2. In relation to Count 11/Count 12/Count 13, in my opinion, it is beyond reasonable doubt, that the trigger for the defendant's rage being that he was not served the first piece of cake when at his future son-in-law's parents' home; was a trigger unrelated to his delusional system thinking but again for his cruel, tyrannical, vindictive and narcissistic imposition of his rules of respect for him as the guardian of rules of conduct. The offending act was not even committed by a member of his family, but by Michael's sister. In short, beyond reasonable doubt, the defendant's rage emanated purely from his feeling disrespected. The question then arrives as to whether his directing his vindictive reprisal against Pauline in the car and in the garage at home, punching her and telling her "I should kill you" whilst holding a screwdriver to her neck with force to leave a red mark and threats to kill her are informed by his delusional system of thinking. That his vindictiveness directed toward Pauline bears close nexus to his treatment of her by mid-2014 as the unfaithful wife, I accept on the balance of probabilities, diminished the moral culpability for the offending in Counts 11,12 and 13 to some degree. However, in my opinion, his delusional the belief system, beyond reasonable doubt, did not cause the offending, but on the balance of probabilities exacerbated the offending and to that extent reduced the moral culpability and objective seriousness of the offending to some degree. 3. In relation to Count 15, which occurred on 16 August 2016, the argument in the car which continued into the home during which the defendant punched and slapped Pauline (Count 17) and in the kitchen held a knife against her throat (Count 15) as he abused her, is an event which on the balance of probabilities, given his focus on Pauline, emanated in the absence of a substantial other trigger and was substantially informed by the dynamic of his delusional infidelity reasoning, of his then progressing mental illness. In my opinion, the objective seriousness of the offending is significantly reduced accordingly. However, having considered those circumstances, I also observe his presence of mind in that he continued to be able to drive the car to the home, drag his wife into the house away from public view and with the knife, press it against her neck but not cause serious injury. In my opinion, beyond reasonable doubt those elements show a substantial degree of control and awareness of the wrong of that which he was doing in his decision-making the time in relation to the offence. In my opinion, beyond reasonable doubt, the defendant's cruel and controlling behaviour informed each of the offences to a significant degree also. 4. Count 17 occurred in the course of the same event as Count 15. For the same reasons, I make the same finding of reduced moral culpability and therefore reduced objective seriousness. 5. In relation to Count 18, which occurred on 27 October 2017, the defendant arguing with Pauline in the car and punching her in the face with sufficient force to cause bleeding of her mouth, swelling of her lips and loosening of her front teeth, on the balance of probabilities, bears hallmarks of the dynamic in their relationship informed by the defendant's delusional infidelity belief system. This is apparent by his focus upon her. However, that he was of sufficient presence of mind to continue to be able to drive the car, even whilst assaulting her, that he chose to drive her to the rooms of Dr Bui, Dentist and chose to remain with her during the consultation, in my opinion, are facts which beyond reasonable doubt show that in the course of the offending behaviour the defendant remained of presence of mind and decision-making in which he was able to exercise sufficient planning and control, particularly in regard to avoiding his being exposed for assaulting his wife. In my opinion, beyond reasonable doubt, the offending was significantly informed the defendant's controlling, cruel and vindictive behaviour as well as his mental illness. In my assessment, the objective seriousness should be assessed as significantly reduced in proportion with it being informed by the defendant's mental illness. 6. In relation to Count 19, that the defendant became enraged because Peter turned off the lights in the television room (on a New Year's Eve between 31 December 2017 and 1 January 2019) was again a trigger which in my opinion, beyond reasonable doubt, was unrelated to his delusional infidelity system of thinking. That trigger was of his cruel, tyrannical, vindictive and controlling imposition of his strict demand for respect of him from his family. That he was narcissistic and grandiose in his view of himself in that position is not a mental illness according to the diagnosis explained by Associate Professor Mayur and to which Dr Samuels deferred. The time of the offending shows that the delusional disorder and psychosis should be accepted on the balance of probabilities as having progressed to also inform his reaction. Consistent with that history, the offence concerns his reaction focused on Pauline being the intimidation of his threat that he would shoot the family. His reaction was, on the balance of probabilities, exacerbated by and therefore informed by his delusional mental illness to some extent. The moral culpability and objective seriousness of the offending is reduced. 7. In relation to Count 20, there is nothing about the defendant taking Peter's statement that the defendant was "getting mad", meaning angry, and the defendant's response of a threat to shoot Peter, which was informed by the defendant's mental illness. It was the defendant's cruel, tyrannical, and vindictive response to his perception of having been disrespected. His moral culpability and objective seriousness of the offending was not reduced. 8. In relation to Count 22/Count 23/Count 24, the events of 29 July 2019, by aetiology explained by Associate Professor Mayur, are seen to be at a stage when the defendant's mental health behaviours were dominated by his infidelity delusional system of thinking. This is apparent from the defendant's ranting recorded in Exhibit J and discussed at [74]-[80] above. Each of the offences bore no trigger other than his treatment of Pauline consequent of his Persistent Delusional Disorder. His rage was maintained throughout the day because it was driven by his mental ill-health. Each of the offences under Count 22 - threat to kill Pauline, Count 23 - grabbing Pauline by her arms and shoving her against a wall and her head into the wall and squeezing her head until she felt pain, and Count 24 - intimidating Mary by threat to kill her because she interfered; in my opinion, are offences for which the defendant's moral culpability is significantly reduced because of his mental illness and therefore the objective seriousness of the offending is to be discounted accordingly. Whilst Count 24 was focused on Mary, and in relation to other offending I have been satisfied beyond reasonable doubt that the focus on the victim being not Pauline is of great significance in the assessment of objective seriousness; in relation to Count 24, the intimacy of Mary's interruption of the defendant's assault on Pauline to protect her mother, in view of his diagnosis and the aetiology as explained by Associate Professor Mayur, cause me to conclude, on the balance of probabilities, that the objective seriousness should be discounted. I also observe the defendant's awareness of his wrongful conduct, of the risk of attracting Police attention and his restraint against going further in his offending (also heard in Exhibit J). The defendant's moral culpability, in my assessment of the total evidence was not fully informed by his mental illness. 9. In relation to Counts 25 and 26, these Counts relate to an assault and an intimidation by threat of Pauline on 15 August 2019 when the defendant's mental illness as diagnosed by Associate Professor Mayur only months later, was dominating his behaviour. In my opinion, for that reason, the moral culpability of the defendant's offending behaviour is to be assessed as very substantially reduced. 10. In relation to Counts 27 and 28, these Counts relate to firearm offences and therefore the defendant's mental health is irrelevant. 1. Of the contextual matters (for which the defendant is not to be sentenced or to suffer more severe punishment in the sentence for any Count), I observe that the defendant's anger triggered when Sally and Michael (having been married) had managed to purchase a house to live in independently. That does not, to my lay understanding, fit within his delusion of Pauline's infidelity. His rage was stimulated, as Michael said in evidence, by his tyrannical want to control his family. 2. Generally, that the punching and other forms of physical assault inflicted by the defendant upon the members of his family, whilst causing significant injury, did not cause injury requiring hospitalisation. As I heard the descriptions of assaults, and whilst noting that the punching to Sally's face, the subject of the offences charged in Counts 4 and 6 caused visible bruising and swelling of her face requiring her to take one week off school, and the defendant's punch to the face of Pauline the subject of the Count 18 offence was of such force as to cause her front teeth to loosen and her lips to swell requiring treatment by Dr Bui, dentist; I thought it significant that he was an extremely fit male of weight approximately 100 kilograms, who trained in martial arts and physically once or twice per day. I gained the definite impression that throughout all of the offending he exercised a degree of conscious restraint. As I heard the evidence it struck me to be a matter of common sense that had he wanted to inflict more serious injury he would have done so. Even as recently as 29 July 2019, as heard from himself in the Exhibit J recording, the defendant as conscious of restraining himself from inflicting greater harm or death as would attract Police attention. I remain of the view, to which I came during the hearing, that the defendant was at the time of offending consciously exercising a degree of restraint or control. I do not understand the expert medical opinion evidence to comment on that factual observation. The defendant's motivation for restraint included avoidance of detection as the assailant. This fits with his threats to family not to inform Police and for instance his accompanying Pauline during her consultation with Dr Bui and in 2014 his instructing his children to not inform ambulance officers that it was his violent and abusive treatment of Pauline which caused her overdose. I am satisfied beyond reasonable doubt that he was aware of the harm he was inflicting and retained conscious control to measure the severity of it. He was not, even when enraged, in a mental state which robbed him of that conscious ability to restrain and therefore to measure to some extent, the punishment he inflicted.
I stated these 3 observations here, because they are informed by my understanding of the opinions individually expressed by Associate Professor Mayur, Professor Woods, Dr Banks, Dr Samuels and Ms Cat of the degree of nexus between the defendant's mental illness and the subject offending. This is relevant to my assessment of moral culpability as an element of objective seriousness in regard to each offence.

Life Background

The defendant was born on 22 November 1957. He is a large man of approximately 185cm to 190cm in height, and when fit during the course of the offending, of a weight range of approximately 100 kilograms weight. He remained employed until his arrest.
The defendant suffered a very abusive and neglectful childhood at the hands of his mother which escalated at 14 or 15 years of age when his father left the family. Due to the abuse the defendant was taken out of school. He did not receive any treatment for childhood trauma. He has not come to any form of psychological treatment until in the course of these proceedings, as reported in the medical literature in evidence. The defendant told his treating medical practitioners that his siblings did not endure the same abuse or neglect and that he believes his mother inflicted it upon him because he was named after his father.
Professor Woods thought the aetiology of the defendant's mental disorders could be found in his early life exposure to multiple traumas including physical and psychological abuse by his mother and paternal abandonment. Treating psychiatrist, Associate Professor Mayur thought those deprivations of upbringing were only of peripheral affect. Associate Professor Mayur's opinion in this regard is quoted in full below.
As will be a repeated observation in these reasons, I prefer the opinion of Dr Samuels, consultant psychiatrist, to that of Professor Woods. For his reports, Professor Woods had not read the judgment but relied on the history given by the defendant who is generally in a state of denial as to the offending and his context behaviour. My separate observation, with which, during oral submissions, counsel for the defendant expressly did not disagree, is that given the common medical opinion of a delusional disorder and Dr Samuels references to psychotic traits, I prefer the opinion of psychiatrists Associate Professor Mayur (treating) and Dr Samuels (medico-legal) to that of Professor Woods, who is a clinical and forensic psychologist.
Generally, I prefer the opinions of Professor Woods, Dr Banks and Dr Samuels to those of Ms Cat, psychologist, where they disagree because of their higher medical qualification and experience in these matters. Of all of the expert medical opinion reporters, Associate Professor Mayur, Professor Woods, Ms Cat, Dr Banks and Dr Samuels, only Dr Samuels read my judgment of 20 October 2022 and was thereby appraised of the facts of the offending and also consulted with the defendant for the preparation of his report.
In his Report of 19 April 2020, Associate Professor Mayur, having viewed those harsh circumstances of the defendant's upbringing, could find no presence of personality traits of being antisocial or emotionally unstable (page 2). He concluded that the deprivations and abuse the defendant suffered as a child and even the severe physical assault he suffered in 1995 are, "at best", events distally predisposing "and may not be directly connected to the onset of the delusional system" (page 3).
The impression based conclusion at which I have arrived from consideration of all of the reported expert medical opinion evidence and from the oral evidence given by Professor Woods, Dr Banks and Dr Samuels (Associate Professor Mayur did not give oral evidence) is that Dr Samuels provides a persuasive composition of the clinical treatment opinions of Associate Professor Mayur, Professor Woods and Ms Cat which are based on acceptance of the self-reporting by the defendant whilst aware that he is in denial of the facts of the offending but whilst unaware of the real facts of the offending. Dr Samuels commented on the literature only based opinion of consultant clinical psychologist Dr Banks. That Dr Samuels composition is to be preferred, is a conclusion upon which I confidently arrive given he was not successfully challenged as to it during his oral evidence and because he arrives at his own opinions following recognition of Professor Woods advantage as treating psychologist to gain the most accurate impression of the defendant. Professor Woods and Dr Samuels generally proceed from an acceptance of the diagnosis determined by Associate Professor Mayur in his Report dated 19 September 2020.
Having weighed in his consideration that there were multiple offences which occurred over a lengthy period (11 years), Dr Samuels determined that it was difficult to gain a clear picture of the defendant's mental state at the time of the respective offences: Report 1 March 2023 at [13]. Dr Samuels agreed with Dr Banks that personality factors were likely to have been a driver of the offending behaviours particularly in the early years of the offending, but that in more recent years an emerging psychotic illness exacerbated the situation and that delusional ideation and disordered thinking and mood further contributed to offending behaviour.
In the following quoted passage from the Report of Associate Professor Mayur, dated 19 September 2020 (at page 3), he explains this opinion concerning diagnosis and its aetiology: "Charlie has a psychotic illness predominated by delusions of infidelity against his wife that has had a gradual onset since at least 2013. Charlie meets the diagnostic criteria for Persistent Delusional Disorder (as per DSM-5 classification). The diagnosis was made on the 4th of May 2020. On the same day, after the session, I had a telephonic conversation with Professor Woods (Forensic psychologist). Professor Woods concurred with the diagnosis of Delusional Disorder. The mental illness had been untreated for many years. The onset and progression of a delusional system of infidelity for the past several years, can be framed in the presence of events that truly occurred in the past- a narrative of actually witnessing his ex-wife's infidelity. Although this cannot be independently verified and is Charlie's version, it is plausible. Even though there is a history of sudden disappearance of his father from his life, a history of childhood deprivation, possible abuse from his mother and a history of being severely physically assaulted in 1995, these events appear at best to be distal predisposing events and may not be directly connected to the onset of the delusional system. Charlie also has a narcissistic/grandiose sense of self and it is possible that he envisions himself to being the saviour of his family and its reputation. There appears to be a distinct and immutable urge to keep his family together so that there is no repeat of his own past separations."

Submissions of the Parties as to Approach

The Crown, by Written Submission 30 November 2022 (MFI 1) submits that the serious nature of the Counts 5, 11, 15, 27 and 28 offending and the "full combination" of offending on the indictment, means that sentences of full-time imprisonment would have been imposed had the Special Hearing been an ordinary trial of criminal proceedings and the defendant had been fit to be tried.
The Defence makes a global submission in relation to all offences, that instead of a sentence of imprisonment and principally because of a nexus between the defendant's offending and his mental illness at the time of offending, had the Special Hearing been an ordinary trial of criminal proceedings and the defendant had been fit to be tried for the offences, no Limiting Term is appropriate; but rather, "… lengthy community correction orders or conditional release orders would be within range.": Defence Supplementary Written Submission 14 July 2023, MFI 7, at [14]. The Defence withdrew its concession made 30 November 2022 (MFI 2, at page 4) that the offending would ordinarily justify the imposition of a significant custodial term.
The Defence submits that the defendant's moral culpability in all of the offences, which occurred over an 11 year period, is to be seen as reduced from that which it would ordinarily be, consequent of the defendant's mental illness contributing to the commission of each of the Counts which I determined to be proved, in a material way: Defence Written Submission MFI 8 and Supplementary Submissions MFI 7 at [4]-[8]. On 14 July 2023, I invited the parties to address the contribution of the defendant's mental health to each offence, considered separately, for the purposes of sentencing. The parties responded with Further Written Submissions of the Crown (MFI 9) and of the Defence (MFI 10). In each of those submissions, objective seriousness was assessed without consideration of contribution, if any, of the defendant's mental illness to the offending.
The defendant's mental illness is a psychosis predominated by delusions of infidelity against his wife that has had a gradual onset since at least 2013: Exhibit 4 - Associate Professor Mayur Updated Report dated 1 August 2023; Exhibit 1 - Associate Professor Mayur Report dated 19 September 2020 at page 3.
In my opinion, the defendant's mental impairment is effectively a constituent element of some of the offending. I distinguish it, in that way, from the subjective consideration of the effects of his childhood deprivation when considering his narcissistic, tyrannical, cruel and vindictive behaviours. That subjective factor, unlike the psychotic delusional disorder, cannot properly be used to reduce the assessment of objective seriousness: DS v R; DM v R [2022] NSWCCA 156 at [96]; R v Eaton [2023] NSWCCA 125. When on 10 August 2023 I raised this with the parties, they agreed that I might properly proceed to consider the purely objective seriousness of the act in relation to each offence and the contribution of the defendant's mental illness in coming to my assessment of objective seriousness. I have employed the parties Written Submissions MFI 9 and MFI 10 in that way.
On the basis of the three above identified observations I made of the evidence during the Special Hearing at [85] above and my understanding of the expert medical opinion evidence; the disadvantage, hardships, abuse and cruelty experienced by the defendant during his upbringing are relative subjective factors for consideration in regard to each offence but not of great significance in the assessment of the objective seriousness of any offences. Associate Professor Mayur refers to an onset of mental illness at least from 2013. I note that by 31 January 2013 the offences the subject of Counts 1 to 9 had been committed. I repeat that I am not persuaded by the Defence argument for a pervasive nexus of the delusional disorder and psychosis beyond the parameters of the above quoted passage from Associate Professor Mayur's Report.
In his Report dated 17 April 2023, after agreeing with Dr Banks that the defendant very likely has a significant personality disorder with paranoid and narcissistic features (presently), and deferring to the opinion of Associate Professor Mayur and Professor Woods, who have seen the defendant clinically over a period of time, that he has features of psychotic illness with a delusional component (at [9]), Dr Samuels stated at [11] as follows: "the fact that [the defendant] has, according to Dr Banks, 'cruel, tyrannical, deceptive, controlling and vindictive behaviour', does not preclude the possibility that he has also developed a psychotic illness."
Immediately preceding his opinion under subheading "Diagnosis and aetiology" in his 19 September 2020 Report, treating psychiatrist Associate Professor Mayur, recounted the disadvantage, hardship and cruelty experienced by the defendant in his upbringing and (at page 2): "[The defendant] reported strong feelings towards keeping his family together and upholding traditions of Christianity. I have not been able to determine presence of personality traits of being antisocial or emotionally unstable. … He is a well built muscular man who had obvious difficulty in walking. He would become easily moved to tears and would appear in obvious psychological pain and distress especially while talking about his children and ex-wife. He expressed delusional beliefs concerning his ex-wife's unfaithfulness …" (bold added for emphasis).
Associate Professor Mayur dated the onset of the defendant's delusional system of infidelity thinking as from at least 2013 because the defendant told him that he detected Pauline's unfaithfulness in 1992 and again later in 1995 but forgave her and it was not until an event in a swimming pool in 2013 when his wife's cleavage caught the attention of the male swimmer, that "Since then he has had a restart of worries about what she might be doing" (page 2). The evidence in the hearing identified the event referred to by Associate Professor Mayur in 2013. On the evidence in the hearing, it was the only event in which the trigger for the defendant's rage at Pauline was his thinking that she had exposed her cleavage to a male swimmer in a public swimming pool. It occurred during the January 2013 school holidays and was the subject of the Sequence 1/Sequence 2/Sequence 3 context matters. On the basis of his five consultations with the defendant during 2020, in his Report of 19 September 2020, after recounting the history given to him by the defendant, Associate Professor Mayur concluded that the defendant, "did not report other kinds of suspicions … did not report referential thoughts or other manners of persecutory beliefs" and was not "emotionally unstable". He simply put it that the defendant "expressed delusional beliefs concerning his ex-wife's unfaithfulness."
I do not agree with the Defence submission that the "psychotic illness predominated by delusions was described by Associate Professor Mayur as extending beyond the parameters of the defendant's delusion of infidelity concerning Pauline". My understanding of the expert opinion evidence of Dr Samuels is that it does not offer support for the defendant's submission. I understand Associate Professor Mayur to describe the psychotic illness predominated by delusions, being the Persistent Delusional Disorder, to have been of a progressive onset commencing at least in 2013. This is his description of it in the first sentence quoted above and in the middle of the passage, with the words "… onset and progression of a delusional system of infidelity for the past several years …". Dr Samuels does not express a different view. Associate Professor Mayur, to my understanding, in the passage quoted above deliberately and precisely expressed his assessment of the connection between the defendant's deprivations of childhood and his mental state. In this he said that "at best" those events were distally predisposing but may not have direct connection to the onset. Also, he was deliberate and precise in separating the "delusional system" of thought according to the diagnosis of Persistent Delusional Disorder on the one hand, and the defendant's "narcissistic/grandiose" sense of self on the other. It is this last feature of personality which Dr Banks observed in the defendant's tyrannical, cruel, controlling and vindictive behaviour.
The defendant is universally assessed as a person who denies, almost completely, the offending. Associate Professor Mayur was not given the opportunity of providing a report after having considered my principal judgment of 20 October 2020. I note that at the time of his Report of 19 September 2020, as treating psychiatrist, he had consulted with the defendant on five occasions.
In my opinion, the Defence submission wrongly elides the expert opinion evidence of the defendant's present state of mental illness with his state of mental illness at the time of each offence. The expert opinion of Associate Professor Mayur is that the defendant's delusional system of infidelity reasoning commenced in at least 2013. The subject offending commenced in 2008 (Count 1). The overwhelming impression to be gained from the expert opinion evidence is that the defendant's mental illness has increasingly progressed to its present state across that intervening 15 years.
Accurate application of the opinion of Dr Samuels (discussed in Defence Submissions for instance MFI 7 at [6] and MFI 8 at [5]-[8]. Note: the whole of Associate Professor Mayur's expression of that aetiology and opinion is not included in the quoted submission at [4]) requires the understanding that Dr Samuels opinions in his Final Report of 17 April 2023 and in his earlier Report of 1 March 2023 were expressed by him in response to questions asking him to comment on Professor Woods' earlier expert reports. Professor Woods was unaware of the offending in the subject Counts. To him the defendant generally denied having been violent toward his family. I repeat that Dr Samuels read the judgment. During oral examination of the doctors on 13 July 2023, Dr Samuels and Professor Woods were not asked questions about nexus.
In that context, in his 1 March 2023 Report at [89], Dr Samuels explained that Professor Woods, because of his opportunity as treating forensic psychologist, may be better placed to comment on the question of nexus between the defendant's present state of mental health and the subject offending; but, neither for the purposes of his report evidence nor in oral evidence was Professor Woods given the opportunity to express his opinion on nexus to the offending after having had the benefit of reading the judgment which described the offending. At [88], after acknowledging that he had not had an opportunity to explore the defendant's offending behaviour in detail, Dr Samuels commented that having reviewed my principal judgment: "… it's clear the family lived in terror for many years and the slightest perceived infraction could unleash serious consequences for family members especially his wife. During this period of offending it seems his mental state was extremely volatile and unpredictable and I think it is more probable than not that many of these outbursts and threats stemmed from an underlying mental disorder as well as personality factors." (emphasis added)
My understanding of Dr Samuels opinion is that he, in the above passage, clearly expressed that the defendant's underlying mental disorder informed to some extent many of but not all of the offending events. Further, that Dr Samuels was not expressing any opinion as to the extent of the contribution of mental disorder to any particular offence. Finally, that in Dr Samuels opinion, personality factors outside of the underlying mental disorder were also involved.
The Defence relies on part of [94] of Dr Samuels Report of 1 March 2023. Firstly, I observe that Dr Samuels was there answering a question not about nexus of mental disorder to the specific offences over that earlier period, but rather to assessment of "risk of reoffending" if that nexus be not resolved. The part of Dr Samuels paragraph [94] quoted in the Defence Submission MFI 8 at [8] is merely Dr Samuels' acknowledgement of some nexus, without reference to particular offences, to which I have just referred. The balance of the paragraph deals with his assessment of the question of continuing risk presented by the defendant in his present state of mental health. So it is, the passage of Dr Samuels opinion, from his recent Report of 17 April 2023, at [14], relied on by the Defence in MFI 7 at [6] is another statement by Dr Samuels that personality factors were likely to have been a driver of the offending behaviours in the early years and that in more recent years the emerging psychotic illness exacerbated the situation and that delusional ideation and disordered thinking and mood further contributed to the later offending behaviour. Overall, Dr Samuels' opinion, consistent with the diagnosis expressed by Associate Professor Mayur, is that the underlying mental illness progressed, commencing from at least 2013.

Approach

The parties' written submissions do not differ as to the principles of law to be applied in this sentencing exercise.
Section 63 MHCIFP Act provides that if the Court would have imposed a sentence of imprisonment for an offence if the Special Hearing had been an ordinary trial of criminal proceedings and the defendant had been fit to be tried, the Court must nominate a Limiting Term that is the best estimate of the sentence the Court would have imposed on him in those circumstances (s 63(2) MHCIFP Act); and, if the Court would not have imposed a sentence of imprisonment, the Court may impose any other penalty or make any order it might have imposed or made in those circumstances (s 63(3) MHCIFP Act).
In determining a Limiting Term or other penalty, the Court must take into account that, because of the defendant's mental health impairment, he has been unable to demonstrate mitigating factors for sentencing and has been unable to enter a guilty plea for the purposes of obtaining a sentencing discount (s 63(5)(a) MHCIFP Act). The Court may apply a discount of the kind that represents part or all of the sentencing discounts that are capable of applying to a sentence because of those factors or a guilty plea (s 63(5)(b) MHCIFP Act). The Court must take into account the defendant's custody or detention before, during and after the Special Hearing that related to the offence (s 63(5)(c) MHCIFP Act).
The Court must refer the defendant to the Mental Health Review Tribunal if it nominates a Limiting Term for the defendant and must notify the Tribunal of the orders it makes (s 65(1) MHCIFP Act); and when the Court chooses the alternative course, that if the Special Hearing had been an ordinary trial of criminal proceedings and the defendant had been fit to be tried for the offences, it would not have imposed a sentence of imprisonment, again the Court must notify the Mental Health Review Tribunal that a Limiting Term is not nominated for the defendant (s 63(6) MHCIFP Act).
An aggregate sentence cannot be imposed to address the defendant's overall offending (s 54D(1)(b) Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act)).
I proceed by application of those statutory directions.
Both parties relied on the principles explained in R v Mailes (2004) 62 NSWLR 181; [2004] NSWCCA 394. In the following passage at [32], the Court of Criminal Appeal explained the important distinctions between sentencing following an ordinary trial of a defendant who is fit to plead and the determination of a Limiting Term to include that in the latter punishment is not a purpose: "The objects of sentencing a person who has been convicted of a crime following a trial are the punishment of such person and the other objects set out in s 3A of the CSP Act. The object of nominating a limiting term is not to punish the person who has not been convicted of any crime, but to ensure that he or she is not detained in custody longer than the maximum the person could have been detained if so convicted following a proper trial, although such person may be released prior to the expiration of such limiting term depending on the person's condition, or if such person becomes fit to be tried during such term, he or she can be tried according to law and if found guilty at such trial, can have a proper sentence fixed with a non-parole period. The maximum time that a person can be detained if convicted at a proper trial is the head or total sentence not the non-parole period." (reference to Mental Health (Criminal Procedure) Act 1990 (NSW) s 28 - presently s 63 MHCIFP Act)
Principles and purposes of the Mental Health (Forensic Provisions) Act 1990 (NSW) (MHFP Act), which remain instructive for application of the present MHCIFP Act are set out in the guideline judgment Director of Public Prosecutions v Khoury (2014) 306 ALR 86; (2014) 238 A Crim R 251; [2014] NSWCA 15. The principles I select from that case, for application here are as follows:

the Limiting Term is to be the "best estimate" of the sentence of imprisonment that would have been imposed had the defendant been an ordinary offender (at [48]);
once a limiting term is nominated the question of whether or not the defendant remains detained is for determination by the Tribunal and not by the Court, the Tribunal being a specialist body (at [47]); and
once the Court has determined that a Limiting Term is appropriate, any power to release the defendant prior to the expiration of the term is vested in the Tribunal (at [19]).

Given the defendant's present state of mental health, the purposes of sentencing listed in s 3A CSP Act of punishment (s 3A(a) CSP Act), making the defendant accountable for his actions (s 3A(e) CSP Act) and to specifically deter the defendant from committing similar offences (s 3A(b) CSP Act) have no real role to play. During oral evidence, Dr Samuels explained that the defendant has quite limited ability for insight into his offending behaviour and on that basis, punishing the defendant to make him sense his accountability and a specific deterrence based penalty is unwarranted. In this exercise of sentencing the defendant, given his mental health, protecting the defendant's family including his son-in-law Michael and the community generally (s 3A(c) CSP Act), general denunciation of such offending (s 3A(f) CSP Act) and recognising the harm done to the defendant's family and his son-in-law Michael, being the victims of the crimes (s 3A(g) CSP Act) are relevant considerations in the synthesis of the present sentencing discretion. Promoting the rehabilitation of the defendant (s 3A(d) CSP Act) is a consideration which would fall within the specialist realm of the Mental Health Review Tribunal as it might determine his detention or release, treatment whilst detained or treatment within the community and the conditions of his detention or release. Particularly given that the Court does not for a Limiting Term order a sentence of non-parole and a term during which the defendant might be eligible for parole, as would be the case for an order of ordinary offender, consideration of promotion of rehabilitation is not of utility in the setting of the Limiting Term (see my further response to Defence Submissions regarding rehabilitation at [138]).
In my opinion, general deterrence and the related consideration of denunciation for the offending are moderated to the extent that I have described in relation to each offence according to the contribution of his mental illness. I have observed that the greater the contribution of the defendant's mental illness to an offence, so was his moral culpability lessened because of his lacking the capacity to reason and to exercise judgement and control of self, as an ordinary person might, in his or her recognition of the wrongfulness of the offending conduct: Muldrock v The Queen (2010) 244 CLR 120 at [54].
In regard to s 63(3) MHCIFP Act; considered separately, the gravity of each offence is such that I would have imposed a sentence of imprisonment for each offence if the Special Hearing had been an ordinary trial of criminal proceedings and the defendant had been fit to be tried for each offence (s 63(2) MHCIFP Act). After considering each offence separately, I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. I make this determination now to assist in the orderly presentation of the sentencing to which I will come. Whilst it might appear premature at this point before I have set out my findings of the objective seriousness of each offence and before I have set out my consideration of the defendant's subjective case and special circumstances; nevertheless, I do so aware of those matters to which I will come and (again) for convenience in the presentation of these reasons. Pursuant to s 5 CSP Act, in my opinion, sentences of imprisonment are required to address sentence for even the offences of less relative gravity to others. This is because, in my opinion, the defendant would (if an ordinary offender) not be entitled to the leniency of alternative sentencing in the surrounding circumstances of his ongoing psychological and physical abuse of the members of his family. As an ordinary offender, in the circumstances, I would assess his narcissistic, tyrannical, and cruel long-term behaviour to persuade me that no alternative to imprisonment would be an appropriate sentence for any of the offences, considered separately. In addition, Limiting Terms are required to have regard to the protection of his family victims, including Michael and the community. In the general synthesis of sentencing in this regard, I apply the following statement of principle from the Veen v The Queen (No 2) (1988) 164 CLR 465 at 472; [1988] HCA 14: "It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible."

Synthesis

The defendant is entitled to individual sentencing and for that purpose I have in these reasons attempted to expose my reasoning based on the application of the statutory law and the case law, particularly at ss 63 and 64 MHCIFP Act, addressing the functions and purposes of sentence by Limiting Term and the objective and subjective considerations upon which my exercise of discretion as to sentences is based. I repeat, that I have taken into account that because of the defendant's mental health impairment he is not able to demonstrate mitigating factors for sentence or make a guilty plea for the purposes of obtaining a sentencing discount. I will not repeat all of those considerations here.
I have expressed my understanding of and acceptance of the expert medical opinion, particularly as reported by Associate Professor Mayur and expressed by report and in oral evidence of Dr Samuels of the defendant's mental illness and its aetiology. I have determined in relation to each Count the degree, if any, to which the defendant's moral culpability was reduced on account of his mental health. I have found that the medical opinion evidence convinces me that there is not a direct medical rationale of connection between his offending and his childhood deprivation. However, that medical opinion was principally expressed in terms of diagnosis of his serious mental illness of Persistent Delusional Disorder which presents in his delusional system of infidelity thinking in relation to Pauline. That is a psychotic process of mind and thought. I have found that the defendant's other narcissistic behaviours including his tyrannical, cruel and vindictive treatment of his family, is generally to be seen in his offending behaviour as quite separate from his serious mental illness. I accept in this that there would be degrees of intermeshing of behaviours such that they are not easily entirely separated in relation to much of the offending, particularly the offending which occurred after the Count 9 offending.
The effects of profound childhood deprivation as was suffered by the defendant, do not diminish with the passage of time or with his repeated offending. Full weight must be given to the defendant's deprived background in consideration of sentencing for each offence. When giving weight to the principles of sentencing, I accept that the defendant's narcissistic, cruel and vindictive treatment of his family, premised in his thinking as some form of enforcing strict "Christian" rules and values, involved compromised decision-making and self-control to some extent the product of that profound childhood deprivation: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [45]. His moral culpability, as a subjective consideration in this point of my reasoning, is recognised as reduced on account of his compromised decision-making and self-control on that basis. I also have determined, as the High Court recognised in that passage in Bugmy at [45]; that were he to be free from control by way of detention or supervision, there is a substantial risk that those very features of his narcissistic behaviour would cause him to pursue and cause harm to the members of his family including his son-in-law Michael, as indeed they have expressed in evidence to be their fear.
I have identified as a significant consideration the special circumstance of the hardships which the defendant is likely to suffer whilst incarcerated. Dr Samuels explained in oral evidence, that he would likely receive less access to medical treatment than he has done whilst at liberty in the community. Indeed, the defendant is likely to suffer significant hardship whilst incarcerated, beyond that of another prisoner, because his physical restrictions and limitations of mobility will continue to cause him significant discomfort, difficulty at moving about the prison environment without assistance (even were he permitted to continue with use of his crutch) and his physical limitations would make him obviously physically vulnerable to confrontation including physical confrontation. His vulnerability, as I understand the opinion of Dr Samuels, is likely to be exacerbated because of his promotion of his strict "Christian" rules and values which could make him a target in the general prison population. He is assessed, in his present state of mental health, as likely to find great difficulty in tolerating what he perceives as a view or other opposition to his promotion of those rules and values. As explained by Dr Samuels, the defendant is not suitable for placement in the general prison population. Further hardship is likely to be suffered by him, on the basis that he will have added restriction of his freedom and experience greater confinement by placement in acute mental health care within the prison. I also assess it is a significant matter of hardship, compounding the considerations just stated, that because of the demands on the mental health services within the NSW Corrective System, in which he is likely (according to Dr Samuels) to be rated as a fairly low priority, it is likely that he will suffer significant periods during which his needs which would be properly serviced in the Long Bay Hospital cannot be met and he would suffer his medical state elsewhere placed in a Correctional Centre. In my view, those hardships are out of the realm of another case where the offender has medical needs which can be reasonably met by Justice Health within a Correctional Centre. The defendant's needs are at a high level.
In R v Mailes [2003] NSWSC 707, when speaking of nominating the length of the term, Wood CJ at CL observed at [67] that it was the intention of the legislation to ensure that a Limiting Term is neither more harsh nor more lenient than a total sentence would have been in a case of a person fit to plead. In my opinion, that observation is instructive also of considering the individual justice for the defendant, given that he will, due to his physical and mental health, in comparison to the general prison population, suffer significant hardship whilst incarcerated. In my opinion, appropriate sentencing requires some mitigation on account of the special circumstance of hardship whilst incarcerated likely to be suffered by the defendant. However, I note that concern is to some extent ameliorated by knowledge that whilst serving a Limiting Term, the defendant's welfare would be managed by the specialist Mental Health Review Tribunal, including as to whether he be treated whilst in prison or in the community. I have not found that separation from his family is a special circumstance because they are all adult and have made their independent choice to have no contact with him.
The Limiting Term will be the defendant's first experience with full-time incarceration. This is a special circumstance requiring some mitigation of sentence. However, and again, the concern is to some extent ameliorated by knowledge that while serving a Limiting Term, whether he remains incarcerated or is permitted to be in the community, is for determination of the Mental Health Review Tribunal.
I have had regard to the sentencing statistics attached to the Defence Supplementary Written Submissions delivered 14 July 2023 (MFI 7) and find that those statistics are supportive of the sentences by way of Limiting Term, to which I will come. The sentences are in accordance with the sentences of imprisonment I would impose if the Special Hearing had been an ordinary trial of criminal proceedings and the defendant had been fit to be tried for the offences (s 63 MHCIFP Act). Whilst not included with the parties' submissions, JIRS Statistics for the offence of common assault (s 61 Crimes Act 1900) show sentence disposition by way of imprisonment at 6.8% in the Local Court (29,794 cases) and at 40.7% in the District Court (54 cases). In relation to the offence of intimidation (s 13(1) Crimes (Domestic and Personal Violence) Act 2007), JIRS Statistics show sentence disposition by way of imprisonment at 13.5% in the Local Court (18,424 cases) and at 42.3% in the District Court (123 cases). JIRS Statistics for the offence of assault occasioning actual bodily harm (s 59(1) Crimes Act 1900) show sentence disposition by way of imprisonment at 18.6% in the Local Court (15,065 cases) and at 62.1% in the District Court (182 cases). For purposes of comity of sentencing and reference to sentencing statistics as a yardstick for sentencing, I take into account both the District Court and Local Court sentencing dispositions: Peiris v R [2014] NSWCCA 58.
I have considered the defendant's medical treatment for his physical health, the benefit of which he presently receives. There is nothing before me to suggest that the defendant's physical medical needs would not be met in the course of a Limiting Term should it be served in a Correctional Centre or other place of detention or on release into the community as might be determined by the Mental Health Review Tribunal.
I take into account the statutory goalposts of the maximum penalties for each offence and the standard non-parole period for the Count 27 offence. I will impose concurrent and partial accumulation in order to appropriately address the important consideration of overall totality. Given there are multiple offences, I have endeavoured to ensure that the ultimate sentence imposed is just and appropriate having regard to the totality of the defendant's offending and his personal circumstances: R v Pearce (1998) 194 CLR 610; Stratford v R [2007] NSWCCA 279. I have not offered any kind of a discount for the multiple offending: R v MAK [2006] NSWCCA 381.
In my opinion, sentence by way of Limiting Terms as follows is appropriate:

Count 1 - 9 months.
Count 2 - 5 months. Sentence for Counts 1 and 2 to be served concurrently and backdated to commence 19 July 2023 and terminate on 18 April 2024 after allowing for 14 days custody plus a discount on account of the special circumstance of his deprivation of liberty during bail already served.
Count 3 - 6 months.
Count 4 - 1 year.
Count 5 - 1 year and 6 months.
Count 6 - 6 months. Sentence for Counts 3, 4, 5 and 6 to be served concurrently and to commence 13 March 2024 and terminate on 12 September 2025.
Count 7 - 4 months.
Count 8 - 5 months.
Count 9 - 6 months. Sentence for Counts 7, 8 and 9 to be served concurrently and to commence 7 August 2025 and terminate on 6 February 2026.
Count 10 - 5 months. Sentence for Count 10 to be served commencing 7 January 2026 and terminating on 6 June 2026.
Count 11 - 9 months.
Count 12 - 6 months.
Count 13 - 5 months. Sentence for Counts 11, 12 and 13 to be served concurrently and to commence 7 May 2026 and terminate on 6 February 2027.
Count 15 - 1 year.
Count 17 - 3 months. Sentence for Counts 15 and 17 to be served concurrently and to commence 7 December 2026 and terminate on 6 December 2027.
Count 18 - 7 months. Sentence for Count 18 to be served commencing 7 September 2027 and terminating on 6 April 2028.
Count 19 - 3 months. Sentence for Count 19 to be served commencing 7 March 2028 and terminating on 6 June 2028.
Count 20 - 2 months. Sentence for Count 20 to be served commencing 23 May 2028 and terminating on 22 July 2028.
Count 22 - 2 months.
Count 23 - 2 months.
Count 24 - 2 months. Sentence for Counts 22, 23 and 24 to be served concurrently and to commence 10 July 2028 and terminate on 9 September 2028.
Count 25 - 2 months.
Count 26 - 2 months. Sentence for Counts 25 and 26 to be served concurrently and to commence 27 August 2028 and terminate on 26 October 2028.
Count 27 - 2 years and 6 months.
Count 28 - 1 year. Sentence for Counts 27 and 28 to be served substantially concurrently and partly consecutively and substantially concurrently with Counts 17-20 and Counts 22-26 and to commence 7 November 2027 and terminate on 6 May 2030.

Section 166 Matters in my Principal Judgment of 20 October 2022

In my principal judgment I determined the following offences, which were before the Court pursuant to s 166 CP Act to have been committed by the defendant, beyond reasonable doubt, on the limited evidence available: 1. Sequences 1-3, 10-11, 17-21 of H72032147; 2. Sequences 7-12 and 14 of H74249358; and 3. Sequences 21 and 45 of H72451736.
Following my judgment, the parties requested that these matters be dealt with pursuant to s 32 of the MHFP Act, with which course I agreed: R v Boujandy (No. 4) [2023] NSWDC 124.
In consequence, each of the charges in those matters which were before the Court pursuant to s 166 CP Act, whilst available to be proved beyond reasonable doubt, do not constitute a finding of offence proved at law because, on the evidence now before me, the defendant has a mental health impairment which makes it more appropriate, as the parties pressed and I accepted, to deal with him in relation to those charges otherwise than in accordance with law. On the expert medical opinion evidence before the Court, which was not evidence in the Special Hearing, there is no dispute that the defendant suffers serious mental illness and has a serious mental health impairment with features of disturbance of thought, mood, volition, perception and which impairs his emotional well-being, judgement, and behaviour. His mental illness is presently obviously significant. His mental illness, which includes Persistent Delusional Disorder, a form of psychotic disorder, is ongoing and is not related to a substance use disorder.
I am satisfied with the parties' joint application, on the basis of the evidence in the Sentencing Hearing, that the suitability of sentencing options, the defendant's treatment plan with which he has been compliant, his otherwise clear antecedent criminal history and proceeding to judgment on the offences described in the Counts in the Indictment on sentence in accordance with ss 63 to 68 MHCIFP Act, makes it appropriate to deal with the defendant in relation to the s 166 CP Act matters as the parties propose, in accordance with s 32 and Part 3 of the MHFP Act rather than under the general criminal law. In my opinion, particularly given the evidence of the present state of the defendant's mental illness and progression of his mental illness across the 11 years of the offences, proceeding in this way pays due regard to the seriousness of the offending conduct and that it is in the public interest to divert the sentencing for those s 166 CP Act matters from the criminal justice system.
For these reasons, as earlier indicated, each of those matters which were before the Court at the Special Hearing will be dismissed.
I have determined to nominate a Limiting Term, pursuant to which order the defendant's care and treatment for a significant period will be managed by the Mental Health Review Tribunal. I make recommendations for the defendant's early mental health review on his detention. For the purposes of s 32 MHFP Act, I make no further order or set any further conditions concerning discharge of the defendant into the care of a responsible person.

Placement - s 65(2) MHCIFP Act

Over an extended period, the parties but most particularly the defendant, contemplated presenting argument for the placement of the defendant for the purposes of s 65(2) MHCIFP Act, other than in a Correctional Centre. s 65(2) MHCIFP Act provides that 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. There is no evidence before the Court of a place at which the defendant may be detained pending review of him by the Mental Health Review Tribunal, other than a Correctional Centre.

Orders

I make the following orders: 1. Pursuant to s 32 Mental Health (Forensic Provisions) Act 1990 (NSW) each of the following charges is dismissed: 1. Sequences 1-3, 10-11, 17-21 of H72032147; 2. Sequences 7-12 and 14 of H74249358; and 3. Sequences 21 and 45 of H72451736. 1. I nominate a Limiting Term for the offending in regard to the Counts as follows: 1. Count 1 commencing on 19 July 2023 and terminating on 18 April 2024. 2. Count 2 commencing on 19 July 2023 and terminating on 18 April 2024. 3. Count 3 commencing on 13 March 2024 and terminating on 12 September 2025. 4. Count 4 commencing on 13 March 2024 and terminating on 12 September 2025. 5. Count 5 commencing on 13 March 2024 and terminating on 12 September 2025. 6. Count 6 commencing on 13 March 2024 and terminating on 12 September 2025. 7. Count 7 commencing on 7 August 2025 and terminating on 6 February 2026. 8. Count 8 commencing on 7 August 2025 and terminating on 6 February 2026. 9. Count 9 commencing on 7 August 2025 and terminating on 6 February 2026. 10. Count 10 commencing on 7 January 2026 and terminating on 6 June 2026. 11. Count 11 commencing on 7 May 2026 and terminating on 6 February 2027. 12. Count 12 commencing on 7 May 2026 and terminating on 6 February 2027. 13. Count 13 commencing on 7 May 2026 and terminating on 6 February 2027. 14. Count 15 commencing on 7 December 2026 and terminating on 6 December 2027. 15. Count 17 commencing on 7 December 2026 and terminating on 6 December 2027. 16. Count 18 commencing on 7 September 2027 and terminating on 6 April 2028. 17. Count 19 commencing on 7 March 2028 and terminating on 6 June 2028. 18. Count 20 commencing on 23 May 2028 and terminating on 22 July 2028. 19. Count 22 commencing on 10 July 2028 and terminating on 9 September 2028. 20. Count 23 commencing on 10 July 2028 and terminating on 9 September 2028. 21. Count 24 commencing on 10 July 2028 and terminating on 9 September 2028. 22. Count 25 commencing on 27 August 2028 and terminating on 26 October 2028. 23. Count 26 commencing on 27 August 2028 and terminating on 26 October 2028. 24. Count 27 commencing on 7 November 2027 and terminating on 6 May 2030. 25. Count 28 commencing on 7 November 2027 and terminating on 6 May 2030. 1. I direct that the Mental Health Review Tribunal be notified of the Limiting Terms nominated. 2. I direct that the following documents be delivered to the Mental Health Review Tribunal: 1. R v Boujandy [2022] NSWDC 496. 2. This judgment. 3. The following Medical Reports: 1. Dr Anthony Samuels, Consultant Psychiatrist: 1. Report dated 29 June 2021. 2. Report dated 20 September 2021. 3. Report dated 1 March 2022. 4. Report dated 6 April 2022. 5. Report dated 1 March 2023. 6. Report dated 17 April 2023. 1. Dr Gary K Banks, Consultant Clinical Psychologist: 1. Report dated 13 March 2023. 1. Professor Stephen J Woods, Forensic Psychologist: 1. Report dated 24 September 2020. 2. Report dated 22 October 2020. 3. Report dated 19 May 2021. 4. Report dated 29 November 2022. 5. Report dated 31 January 2023. 6. Expert Certificate Cover Page dated 31 January 2023. 1. Associate Professor Prashanth Mayur, Consultant Psychiatrist: 1. Report dated 19 September 2020. 1. Jayne Cat, Psychologist: 1. Report dated 26 August 2020. 1. The following miscellaneous documents: 1. Dr Gobinda Das: 1. Medical certificate dated 13 August 2021. 1. Dr Vera Kinzel: 1. Letter dated 21 February 2023. 2. Letter dated 19 June 2023. 3. Printout dated 7 July 2023 re upcoming appointment. 1. Associate Professor Christian M Girgis: 1. Undated letter re upcoming appointment. 1. Dr Samuel Birch: 1. Letter dated 7 July 2023 re appointments. 1. Jane Anne, George Street Consulting Rooms: 1. Letter dated 8 July 2023 re appointments. 1. Jisha Sivian, Bay Audio - Seven Hills: 1. Letter dated 20 June 2023. 1. List of medications. 2. Wentworth Medical Centre Pharmacy: 1. Patient history for the period 11 April 2023 to 11 July 2023. 1. I recommend that the Mental Health Review Tribunal consider treatment and management of the defendant in the community with supervision by a Mental Health Forensic Team in accordance with the expert medical opinions of treating clinical and forensic psychologist, Professor Woods and the opinion of Dr Samuels, psychiatrist. 2. I recommend that on placement in a Correctional Centre the defendant be immediately managed as a significantly mentally-ill person. 3. Following placement, I recommend that the defendant be assessed by the Mental Health Screening Unit at the earliest possible time pending his review by the Mental Health Review Tribunal. 4. I direct that the Correctional Centre at which the defendant is placed be provided immediately on his placement with the following documents: 1. R v Boujandy [2022] NSWDC 496; 2. This judgment; 3. The following Medical Reports: 1. Dr Anthony Samuels, Consultant Psychiatrist: 1. Report dated 29 June 2021. 2. Report dated 20 September 2021. 3. Report dated 1 March 2022. 4. Report dated 6 April 2022. 5. Report dated 1 March 2023. 6. Report dated 17 April 2023. 1. Dr Gary K Banks, Consultant Clinical Psychologist: 1. Report dated 13 March 2023. 1. Professor Stephen J Woods, Forensic Psychologist: 1. Report dated 24 September 2020. 2. Report dated 22 October 2020. 3. Report dated 19 May 2021. 4. Report dated 29 November 2022. 5. Report dated 31 January 2023. 6. Expert Certificate Cover Page dated 31 January 2023. 1. Associate Professor Prashanth Mayur, Consultant Psychiatrist: 1. Report dated 19 September 2020. 1. Jayne Cat, Psychologist: 1. Report dated 26 August 2020. 1. The following miscellaneous documents: 1. Dr Gobinda Das: 1. Medical certificate dated 13 August 2021. 1. Dr Vera Kinzel: 1. Letter dated 21 February 2023. 2. Letter dated 19 June 2023. 3. Printout dated 7 July 2023 re upcoming appointment. 1. Associate Professor Christian M Girgis: 1. Undated letter re upcoming appointment. 1. Dr Samuel Birch: 1. Letter dated 7 July 2023 re appointments. 1. Jane Anne, George Street Consulting Rooms: 1. Letter dated 8 July 2023 re appointments. 1. Jisha Sivian, Bay Audio - Seven Hills: 1. Letter dated 20 June 2023. 1. List of medications. 2. Wentworth Medical Centre Pharmacy: 1. Patient history for the period 11 April 2023 to 11 July 2023. 1. The defendant is to be placed in a Correctional Centre unless his placement is otherwise directed by the Mental Health Review Tribunal or Justice Health pending his review and subsequent management by the Mental Health Review Tribunal. 2. I recommend that the defendant be placed in a Correctional Centre with a Mental Health Screening Unit pending his review of management by the Mental Health Review Tribunal. 3. I recommend that the defendant not be placed in the general prison population but in an acute mental health facility within the Correctional Centre at which he is placed pending a review by the Mental Health Review Tribunal and that he remain separate from the general prison population pending the review. 4. I recommend that whilst placed in a Correctional Centre pending review by the Mental Health Review Tribunal, the defendant's medical treatment plan as follows be continued: 1. Physical Diagnoses: thyrotoxicosis, lumbosacral spondylosis and radiculopathy, cervical spondylosis with radiculopathy, atrial fibrillation; 2. Medications: Norspan 15 mg long acting once per week, Endone 5 mg x 1 tablet twice a day if required, Voltaren 50 mg x 1 tablet three times a day, celecoxib 160 mg x 1 tablet twice a day, Rosuvastatin 10 mg x 1 tablet a day, Sigmaxin 250 mg x 1.5 tablets per day, metoprolol 50 mg x 2 tablets a day, risperidone 4 mg x 1 tablet at night, olanzapine 10 mg x 1 tablet at night, duloxetine 30 mg x 3 tablets a day and Neo-Mercazole 5 mg as directed by specialist; 3. Psychologist Review; and 4. Psychiatrist Review.

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: 16 August 2023

Mental Health (Criminal Procedure) Act 1990(NSW)s 28

Mental Health (Forensic Provisions) Act 1990(NSW)

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