R v Younan-Sedrak

District Court of NSW|2022-07-05

Background

The accused is charged on indictment with multiple offences, mainly violence related, in a period spanning 1 June 2017 to 21 January 2019. A table of the offences is as follows: Charge Statutory provisions Description 1 S 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) Between 1 June 2017 and 31 July 2017, at Beverly Hills, the accused did intimidate the complainant with the intention of causing her to fear physical or mental harm 2 S 59(1) of the Crimes Act 1900 (NSW) Between 31 January 2018 and 1 January 2019, at Beverly Hills in the State of New South Wales, the accused did assault the complainant thereby occasioning to her actual bodily harm 3 S 474.17(1) of the Criminal Code Act 1995 (Cth) On 27 April 2018, at Beverley Hills in the State of New South Wales, the accused did use a carriage service to menace, harass or offend 4 S 474.17(1) of the Criminal Code Act 1995 (Cth) On 16 May 2018, at Beverley Hills in the State of New South Wales, the accused did use a carriage service to menace, harass or offend 5 S 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) On 8 September 2018, at Beverley Hills in the State of New South Wales, the accused did intimidate the complainant with the intention of causing her to fear for physical or mental harm 6 S 7(1)(a) Surveillance Devices Act 2007 (NSW) Between 1 October 2018 and 23 March 2019, at Beverly Hills in the State of New South Wales, the accused did knowingly install a listening device, to overhear a private conversation to which he was not a party, without the express or implied consent of the the complainant 7 S 8(1)(a) Surveillance Devices Act 2007 (NSW) Between 4 October 2018 and 22 February 2019, at Beverly Hills in the State of New South Wales, the accused did knowingly use an optical surveillance device, namely a camera, to record a private conversation to which he was not a party, without the express or implied consent of the complainant 8 S 9(1)(b) Surveillance Devices Act 2007 (NSW) Between 1 October 2018 and 23 March 2019, at Bexley North in the State if New South Wales, the accused did knowingly install a tracking device, to determined (sic) the geographical location of a person, being the complainant, without the express or implied consent of that person 9 S 114(1)(a) of the Crimes Act 1900 (NSW) Between 1 November 2018 and 30 November 2019, at Beverly Hills in the State of New South Wales, the accused was armed with a weapon, namely a sword with intent to commit an indictable offence, namely intimidation 10 S 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) Between 1 November 2018 and 30 November 2019, at Beverly Hills in the State of New South Wales, the accused intimidated the complainant with the intention of causing her to fear physical or mental harm (in the alternative to charge 9) 11 S 474.17(1) of the Criminal Code Act 1995 (Cth) On 23 November 2018, at Beverley Hills in the State of New South Wales, the accused did use a carriage service to menace, harass or offend 12 S 7(1)(a) Surveillance Devices Act 2007 (NSW) Between 1 December 2018 and 29 December 2018, at Beverly Hills in the State of New South Wales, the accused did knowingly use a listening device, namely a camera, to record a private conversation to which he was not a party, without the express or implied consent of the complainant 13 S 12(1) Surveillance Devices Act 2007 (NSW) Between 17 December 2018 and 26 December 2018, at Beverly Hills in the State of New South Wales, the accused did possess a record of a private conversation or the carrying on of an activity knowing that it has obtained (sic), directly or indirectly, by the use of a listening device and optical surveillance devices in contravention of Part 2 of the Surveillance Devices Act 2007 14 S 11(1) Surveillance Devices Act 2007 (NSW) On or about 28 December 2018, at Bexley North in the State of New South Wales, the accused did communicate a private conversation that came to Michael Younan-Sedrak's knowledge as a direct result of the use of a listening device and optical surveillance device in contravention of a provision of Part 2 of the Surveillance Devices Act 2007 15 S 12(1) Surveillance Devices Act 2007 (NSW) On or about 28 December 2018, at Bexley North in the State of New South Wales, the accused did possess a record of a private conversation or the carrying on of an activity knowing that it has obtained (sic), directly or indirectly, by the use of a listening device and optical surveillance devices in contravention of Part 2 of the Surveillance Devices Act 2007 16 S 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) Between 20 January 2019 and 21 January 2019, at Beverley Hills in the State of New South Wales, the accused did intimidate The complainant with the intention of causing her to fear for physical or mental harm

On 9 June 2022, the accused elected, and the Crown consented to, the trial being by judge alone, pursuant to s 132(1) of the Criminal Procedure Act 1986 (NSW) (the 'CP Act').
When the trial commenced before me on 5 July 2022, the accused was represented by Ms Betts of Counsel.
The Crown and the accused jointly submitted that the acts, or physical elements, of the state and federal offences were admitted. This agreement is reflected in a statement of agreed facts (numbering 31 paragraphs) signed by the Director and by or on behalf of the accused (dated 29 June 2022). The agreed facts appear within the Joint trial bundle (Exhibit A) and I will return to them later in these reasons. What had been in issue was whether the relevant mental elements of the offences, were satisfied to the extent applicable.
The accused had been committed for trial on 14 November 2019. On 2 December 2020, Judge Townsden found that he was unfit to be tried. But on 5 July 2021, the Mental Health Review Tribunal decided that the accused was now fit for trial.
The Crown and the accused jointly submitted that the evidence, which I will turn to after addressing the agreed facts, establishes a defence of mental impairment, as that defence appears in s 28 of the Mental Health Cognitive Impairment (Forensic Provisions) Act 2020 (NSW) (the MHCIFP Act') and also "mental impairment" under s 7.3(8) of the Criminal Code.

The evidence relating to the Accused's mental impairment defence

Two reports from forensic psychiatrists were before the Court. These were from Dr Stephen H Allnutt (dated 21 March 2022) and from Dr Adam Martin (7 June 2022).

Dr Allnutt's opinion

Dr Allnutt is a Senior Consultant Forensic Psychiatrist. He had previously reported on the accused in October 2020 and had reviewed Dr Martin's earlier report from November 2020. He read other material as well, including an ERISP interview of the accused on 22 March 2020.
Dr Allnutt alluded to the accused having been diagnosed with deep depression from 2014.
The offending acts were triggered by an unhappy marriage entered into in 2002. Within months, the accused believed that his wife had married him, in Egypt, for the ulterior purpose of coming to Australia. After 2009, they were rarely intimate. The accused appeared to become obsessed that she was having an affair from 2011. Nevertheless, they persevered through 2016 and 2017 until he started to think about a divorce. In 2017 and 2018, he felt bad. He knew the marriage was over and he was concerned about his own future and the two children from the marriage (both of whom are now adults). He began to get tired and with the responsibility of ownership of a chicken shop, he became more irritable and short-tempered. He suffered from a loss of short term memory and his concentration diminished. His wife and he started to commence relationship counselling in 2017 but from his perspective, this was unsuccessful. Meanwhile he set about collecting information which, he thought might prove her infidelity to him. Amongst other things, he put a video camera in the smoke alarm in her bedroom and a GPS tracker on her car. He sent offensive texts, containing threats. From late 2018 to early 2019, tensions escalated.
Dr Allnutt opined that the accused's belief about his wife's infidelity was 'pathological'. The diagnostic dilemma for him was whether he laboured under a delusional disorder, or an 'overvalued' idea sourced in a pathological personality. His resolution of that dilemma was provisional: if there was no evidence that could lead a person to reasonably conclude that his wife was having an affair, he would diagnose a delusional disorder. If there was such evidence, however, it was an overvalued idea. On balance, he thought he had a delusional disorder.
The accused's belief was, at any rate, pathological; and caused him to suffer from significant emotional distress, maladaptive behaviours and social and interpersonal dysfunction. Dr Allnutt considered that suffering a depressive disorder with pathological beliefs in his wife's infidelity meant that he manifested disturbance of thought, mood or perception. This has impaired his emotional wellbeing, his judgement and influenced his behaviours. The impairment has arisen because of an affective disorder, clinical depression, and a psychotic disorder, being a delusional disorder.

Dr Martin's opinion

Dr Martin is a general and forensic psychiatrist and is also a panel member of the Mental Health Review Tribunal.
He interviewed the accused on 24 May 2022. He had earlier interviewed him, via audio-visual link, in November 2020. Amongst other things, he also read Dr Allnutt's report of 21 March 2022.
Dr Martin opined that, on balance, the accused suffered from a delusional disorder, characterised by persistent false beliefs of a 'non-bizarre nature' causing him significant distress and impairment.

The parties' submissions

The parties prepared submissions separately, though they were directed towards the same conclusion.
The Crown submits that, on the balance of probabilities, the accused is not criminally responsible for the offences at the times the acts giving rise to the offences were, respectively, committed. He had a mental health impairment.
The Crown noted s 31 of the MHCIFP Act and submitted that in circumstances where the accused was legally represented, where there was agreement as to impairment and there was further agreement that the evidence establishes the defence of mental health impairment, the Court may enter a special verdict if, after considering the evidence, it is satisfied that the offences are established. The special verdict is "act proven but not criminally responsible".
The Crown also noted that in circumstances where, as here, the matter has been set down for trial by judge alone, in the event that the Court is satisfied that the defence is made out it is unnecessary for the Court, in its reasons, to set out relevant principles of law, each of the factual findings relied upon in reaching the verdict, paying heed to all of the warnings that a jury would be given had it been empanelled in conformity with ss 132 and 133 of the CP Act [1] . The Court is not, however, relieved of the duty to provide reasons [2] .
The accused's Counsel joined in these submissions.

Approach to ascertaining and explaining defence of mental health impairment

Although the events giving rise to the trial of the accused occurred, in some cases, years before the legislation was enacted, the MHCIFP Act (which commenced on 27 March 2021) applies to this trial: R v Tonga [2021] NSWSC 1064 at [6]-[10].
Section 28 of the MHCIFP Act provides for the defence of mental health impairment: "28 Defence of mental health impairment or cognitive impairment (1) A person is not criminally responsible for an offence if, at the time of carrying out the act constituting the offence, the person had a mental health impairment or a cognitive impairment, or both, that had the effect that the person - (a) did not know the nature and quality of the act, or (b) did not know that the act was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong). (2) The question of whether a defendant had a mental health impairment or a cognitive impairment, or both, that had that effect is a question of fact and is to be determined by the jury on the balance of probabilities. (3) Until the contrary is proved, it is presumed that a defendant did not have a mental health impairment or cognitive impairment, or both, that had that effect. (4) In this Part, act includes - (a) an omission, and (b) a series of acts or omissions."
The reference in s 28(2) to a question to be determined by a jury extends to a trial by Judge alone: s 6 of the MHCIFP Act.
For counts 3, 4 and 11, all relating to Commonwealth offences, the defence appears in s 7.3 of the Criminal Code [3] , which provides: "7.3 Mental impairment (1) A person is not criminally responsible for an offence if, at the time of carrying out the conduct constituting the offence, the person was suffering from a mental impairment that had the effect that: (a) the person did not know the nature and quality of the conduct; or (b) the person did not know that the conduct was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong); or (c) the person was unable to control the conduct. (2) The question whether the person was suffering from a mental impairment is one of fact. (3) A person is presumed not to have been suffering from such a mental impairment. The presumption is only displaced if it is proved on the balance of probabilities (by the prosecution or the defence) that the person was suffering from such a mental impairment. (4) The prosecution can only rely on this section if the court gives leave. (5) The tribunal of fact must return a special verdict that a person is not guilty of an offence because of mental impairment if and only if it is satisfied that the person is not criminally responsible for the offence only because of a mental impairment. (6) A person cannot rely on a mental impairment to deny voluntariness or the existence of a fault element but may rely on this section to deny criminal responsibility. (7) If the tribunal of fact is satisfied that a person carried out conduct as a result of a delusion caused by a mental impairment, the delusion cannot otherwise be relied on as a defence."
The term "mental health impairment" is defined in s 4 of the MHCIFP Act: "4 Mental health impairment (1) For the purposes of this Act, a person has a mental health impairment if - (a) the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and (b) the disturbance would be regarded as significant for clinical diagnostic purposes, and (c) the disturbance impairs the emotional wellbeing, judgment or behaviour of the person. (2) A mental health impairment may arise from any of the following disorders but may also arise for other reasons - (a) an anxiety disorder, (b) an affective disorder, including clinical depression and bipolar disorder, (c) a psychotic disorder, (d) a substance induced mental disorder that is not temporary. (3) A person does not have a mental health impairment for the purposes of this Act if the person's impairment is caused solely by - (a) the temporary effect of ingesting a substance, or (b) a substance use disorder."
For the federal offences, the concept of mental impairment is defined in s 7.3(8) and (9) of the Criminal Code as follows: "mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder." (9) The reference in subsection (8) to mental illness is a reference to an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary external stimuli. However, such a condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.
As noted earlier, s 31 of the MHCIFP Act applies to this trial, insofar as it concerns the state offences. That section provides: "31 Special verdict where defendant and prosecutor agree on impairment The court may enter a special verdict of act proven but not criminally responsible at any time in the proceedings (including before the jury is empanelled) if - (a) the defendant and the prosecutor agree that the proposed evidence in the proceedings establishes a defence of mental health impairment or cognitive impairment, and (b) the defendant is represented by an Australian legal practitioner, and (c) the court, after considering that evidence, is satisfied that the defence is so established."
Section 7.3(5) of the Criminal Code provides for a special verdict to be entered that a person is not guilty of an offence because of mental impairment if and only if the Court is satisfied that the person is not criminally responsible for the offence(s) only because of a mental impairment.
If the Court is satisfied beyond reasonable doubt that the physical acts, or elements for each of the offences were committed, before any further consideration of whether the mental elements of the offences are respectively established, the Court is to consider the defence of mental impairment: Tonga at [15].
The defence of mental health impairment under s 28 of the MHCIFP Act has two limbs. The first limb is that the Accused, at the time of carrying out the act constituting the offence, had a mental health impairment or cognitive impairment or both: s 28(1) of the MHCIFP Act. The second limb is that the relevant impairment had one or other of the effects referred to in s 28(1)(a) or (b).
The presence of each limb is to be determined on the balance of probabilities (s 28(2)) and, until the contrary is proved, it is presumed that the Accused did not have a mental health impairment or cognitive impairment (or both) that had the effect set out in s 28(1): s 28(3) of the MHCIFP Act. A presumption against a person suffering from a mental health impairment also arises in respect to the federal offences: s 7.3(3) of the Criminal Code. For both the State and federal offences, the presumption is displaced on the balance of probabilities: (ss 28(2) and (3) of the MHCIFP Act; s 7.3(3) of the Criminal Code).

The acts constituting the offending

I make the following findings, based primarily upon the Agreed Facts, but also the admissions, or concessions, made by the accused's Counsel at trial.
The accused, Michael Younan-Sedrak and the complainant were in a domestic relationship at the time of the alleged offences.
In September 2002, the accused and the complainant married in Egypt. Shortly thereafter, the couple relocated to Australia. The accused and the complainant have two children together: V and A.
After two or three years of marriage, the relationship between the accused and the complainant began to deteriorate. By 2008, the accused and the complainant had separated their incomes. Around Easter 2015, the complainant returned her wedding ring to the accused.
The accused and the complainant continued to reside together in the same house in Beverly Hills, but slept in separate rooms.
In mid-2017, the accused then threatened to set the complainant on fire, or cut the brakes in her car due to her behaviour (Count 1). The complainant felt scared.
On 27 April 2018 at 1:24 PM, the accused sent a multimedia message to his daughter, V. In the text portion of the message, the accused said that if he found photos of the complainant "with a lover boy", V would "have a dead mother". The accused also told V to remember honour killings, because "that's what happens to a cheating wife" (Count 3).
In 2018, the accused and the complainant commenced relationship counselling with Abdoul Massiah, a priest at Saint Mina Coptic Church in Bexley. On 16 May 2018 at 8:10 PM, the accused sent a text message to Mr Massiah asking him to advise the complainant against getting "the police and the courts involved". The accused also said that "the moment the police comes [sic] knocking on my door she'll be dead" (Count 4).
On 8 September 2018, the accused and the complainant attended a counselling session with Mr Meseah. Later that evening, the accused convened a family meeting with the complainant and their children at their home. During the meeting, the accused told his children that if the complainant left the family, "that will be the end of her as far as you two are concerned". The accused also said that "if she battles me in courts, and police, I'll just simply kill her". The accused said that he "won't be away in jail for a long time", because he has "enough support from everybody else" (Count 5). The complainant felt scared and her heart began to race as she did not know what the accused was capable of.
In October 2018, the accused purchased a tracking device off eBay. Between 4 October and 4 December, the accused sent a series of text messages to 0481386516. The number was saved in the accused's contacts as "Li Fei Tracker".
During one evening in November 2018, the complainant and the accused were seated in the lounge room with their children. A verbal argument ensued, and the accused grabbed a small sword that was stored in the headrest of his chair. The blade of the sword was about 20 centimetres in length. The accused got out of his chair and stood less than a metre away from the complainant, who was seated in her chair. The accused then threatened to kill the complainant with the sword (Count 9 in the Alternative Count 10).
The accused took the cover off the sword as he was telling the complainant, "I can do it now, I can do it now". The complainant felt scared and said to the accused, "Perfect, you can do it now in front of the kids", before their daughter V intervened and pushed the accused away from the complainant.
On 23 November 2018 at 4:43 PM, the accused sent three text messages to the complainant in quick succession. The accused told the complainant that rather than deciding "to kill you for trying to break up our family", he had resolved to win her back. The accused also said that he would "kill that man that's trying to take you from your family", and asked the complainant to "give us a chance" (Count 11).
In November and December 2018, V received a number of phone calls from the accused about the complainant. The accused told V that if the complainant did not "come back to the family", he would have no choice but to kill her. The accused also told V that if the complainant called the Police, he would "kill her before they get here".
Between 24 and 27 December 2018, the complainant began to hear strange noises coming from the fire alarm above her bed. On 27 December 2018, the complainant asked her daughter V to help her with the fire alarm. V bought a chair for the complainant to stand on. The complainant removed the fire alarm cover and saw a small black camera about the size of a 50-cent coin, with a black cord leading into the roof cavity. The camera had a small red light on it, and there was a memory card inside (Count 12, Count 7).
The complainant broke the memory card and pulled apart the camera before throwing both parts in the bin. On the evening of 28 December 2018, the accused asked the complainant about the whereabouts of the camera in her room. The accused later showed videos of the complainant in her bedroom to his daughter V (Count 14). In one of the videos, which had sound, the complainant could be heard speaking on the phone in Arabic. The accused told V that the complainant was cheating on him.
On 31 December 2018, the complainant was asleep at home with her children. The accused was also present, and was drinking. At approximately 11:30 PM, the accused started playing an audio recording on his computer. The recording captured a conversation between the complainant and a male friend whilst an Arabic song played in the background (Count 15). The accused had recorded the conversation in late December 2018 using the CCTV camera he had placed in the smoke alarm in the complainant's bedroom.
The sound of the recording woke the complainant. The accused then started knocking loudly on the complainant's door and said, "Wake up, listen to your cheating husband". The complainant got up and told the accused to stop playing the recording as their children were asleep. The accused refused, and continued to play the recording for another two hours.
At approximately 1:40 AM on 1 January 2019, the complainant got up and went to the bathroom, closing the door behind her. As she was sitting on the toilet, the accused burst into the bathroom holding a dark silver sword approximately 25-30 centimetres in length. The accused said to the complainant, "You are cheating with your husband with a man on the phone. How dare you. You fucking bitch woman".
The complainant stood up off the toilet and pulled up her underwear. The accused then poked the complainant with the sword three times to her chest area, causing red marks and a small cut which bled (Count 2). Fearing for her safety, the complainant pushed the accused on his chest using her hands and grabbed her keys before running out of the house.
The complainant drove around the corner from her home and waited. She used her mobile phone to take photos of her injuries. At 1:45 AM, the accused sent the complainant a text message which read, "Sorry. Get your arse back home now for kids [sic] sake".
The accused woke his daughter, V, and told her to bring the complainant home "before he finishes her off". Shortly thereafter, the complainant received a series of text messages from V, asking her where she was and imploring her not to contact the Police, because "you know only bad things is [sic] going to happen if you do that". The complainant sent a photo of her injuries to V, and then drove home. V came and sat with the complainant in her vehicle, and said that "Dad is sorry about what he did tonight".
On 20 January 2019 at approximately 8:30 PM, the complainant went and spoke to her children in V's room. The accused was present. The complainant asked her children why they were not responding to her calls and texts. V said that she had been instructed by the accused to "eliminate" talking to the complainant until she "confesses that she is cheating and lying".
After about 10-15 minutes, the complainant stood up and walked towards the doorway, where the accused was standing. The accused blocked her exit and said, "Call the Police and I will kill you right here bitch, right now" (Count 16). The accused then asked his son A to go and retrieve a sword from his bedroom so he could "finish this now before the police come".
The complainant grabbed A's mobile phone and tried to unlock it, but was prevented from doing so by V, who feared for the complainant's safety if she called the Police.
The complainant tried to push the accused out of the way, but she fell over. The complainant then got up and walked out of the room. She grabbed her mobile phone and called Triple 000. As the operator answered, the accused and both her children tried to snatch the phone from her. The accused eventually succeeded, and handed the phone to V before instructing her to end the call.
The complainant then took her keys and tried to leave the house. As she was doing so, the complainant pushed the accused and bit him on the arm, as he was blocking her exit. The accused eventually moved out of the way, and the complainant and her children went next door to Selwa Sedrak's house. They returned home shortly before midnight.
At approximately 9:30 AM on 21 January 2019, Police attended the complainant's house and obtained a Domestic Violence Evidence in Chief ('DVEC') recording from her. The complainant provided photos of her injuries, along with screenshots of text messages sent between herself, the accused, and her daughter V. Police then obtained recorded statements from V and A in audio form.
At approximately 11:50 AM on 21 January 2019, the accused attended Kogarah Police Station, where he was arrested and charged. The accused refused to participate in an electronically recorded interview with Police, and was released from custody that same day.
As part of their investigation, Police seized the accused's mobile phone. A cellebrite download of the phone revealed that the accused had 356 still images and visual recordings on his phone (Count 13). Those images and recordings, which featured the complainant in her bedroom, were obtained by the accused using the secret camera he installed in the smoke alarm.
On 22 March 2019, Police searched the complainant's motor vehicle. Underneath the steering wheel column hidden from view, Police located a small black box which was attached to a steel support using a magnetic base (Count 8). The box had a SIM card inside. Police suspected that the SIM card was associated with 0422 281 774, the mobile phone number the accused provided to Le Fei Tracker via text message in October 2018. Police called the number, and the call was automatically answered. Audio from inside the motor vehicle could be heard by Police through the phone. (Count 6).
As indicated, the accused admits that he committed the physical acts (or physical elements) constituting all of the offences with which he is charged.

Medical opinions

Dr Allnutt opined that the accused suffered a delusional disorder and a depressive condition, the conditions were created which distorted the accused's perception of events, increased a tendency in him to interpret events negatively and caused him to engage in the offending behaviour. He believed that the accused was unable to reason, with a moderate degree of sense and composure, whether the acts he admittedly engaged in were perceived by a reasonable person to be wrong.
Dr Martin accepted that the accused fulfilled the criteria of having a mental health impairment, in that he had highly disordered thought processes of a delusional nature, in the context of a delusional disorder; with preoccupying and distressing beliefs about his wife's infidelity causing him anger. He agreed with Dr Allnutt that he would not have been able to appreciate the wrongfulness of the acts constituting his offending, nor reason, with moderate composure about whether the acts, as perceived by a reasonable person, were wrong. His acts were consistent with 'Othello syndrome', being a delusional disorder marked by morbid jealousy. A delusional disorder of this kind is often associated with violent behaviour through anger and distress.
I am satisfied that, at the time of the acts constituting the commission of the alleged offences, the Accused had the necessary "disturbance" for the purpose of s 4(1) which arose from (at least) disorders satisfying the requirements in s 4(2)(b), if not also s 4(2)(c), of the MHCIFP Act.
It is clear on the evidence that the impairment of the Accused as at the dates of the alleged offending was not caused solely by the temporary effect of ingesting a substance or a substance use disorder. Accordingly, the exclusionary provision in s 4(3) of the MHCIFP Act does not apply in this case.
I am satisfied on the balance of probabilities that, at the time of carrying out the act or acts which constituted each count on the indictment, the Accused had a "mental health impairment" so that the first limb of s 28(1) of the MHCIFP Act is established.
For the purpose of s 28(1)(b), both Dr Allnutt and Dr Martin agreed that the accused did not know that his acts were wrong, that is, he could not reason with a moderate degree of sense and composure about whether the acts, as perceived by reasonable people, were wrong.
Accordingly, the Court is satisfied, having considered the evidence in the proceedings, that the defence of "mental health impairment" under s 28 of the MHCIFP Act (for counts 1-2, 5-10 (inclusive) and 12-16 (inclusive)), and the defence of "mental impairment" under s 7.3(1) of the Criminal Code (for counts 3, 4 and 11) are established in this case.
That being so, and noting that the preconditions in s 31 of the MHCIFP Act are all satisfied, in respect to counts 1-2, 5-10 (inclusive) and 12-16 (inclusive) on the indictment, I find that, in each case, the acts are proven, but that the accused is not criminally responsible.
In relation to the federal offences, counts 3, 4 and 11, that for the purposes of s 7.3(1)(b) of the Criminal Code, at the time he carried out the conduct constituting those offences, he was suffering from a "mental impairment" (being a mental illness under s 7.3(8) and (9) of the Criminal Code) which had the effect that the accused did not know that his conduct was wrong. That is, he did not reason, with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong.
The verdicts that will be entered on the indictment dated 5 July 2022, in respect to counts 1-2, 5-10 (inclusive) and 12-16 (inclusive) is: "Act proven but not criminally responsible".
The verdicts that will be entered in respect to counts 3, 4 and 11 will be "not guilty because of mental impairment".

The statutory provisions

Where the Court returns a special verdict of act proven but not criminally responsible under s 30 of the MHCIFP Act, it is necessary for the Court to consider what further orders should be made under s 33 in circumstances where the Court must refer an accused person to the Mental Health Review Tribunal under s 34 of the MHCIFP Act if such a special verdict has been returned.
Section 33 provides: (1) On the return of a special verdict of act proven but not criminally responsible, the court may make one or more of the following orders: (a) an order that the defendant be remanded in custody until a further order is made under this section, (b) an order that the defendant be detained in the place and manner that the court thinks fit until released by due process of law, (c) an order for the unconditional or conditional release of the defendant from custody, (d) other orders that the court thinks appropriate. (2) Before making an order for the release of a defendant, the court may request a report by a forensic psychiatrist or other person of a class prescribed by the regulations, who is not currently involved in treating the defendant, as to the condition of the defendant and whether the release of the defendant is likely to seriously endanger the safety of the defendant or any member of the public. (3) The court must not make an order for the release of a defendant unless it is satisfied, on the balance of probabilities, that the safety of the defendant or any member of the public will not be seriously endangered by the defendant's release. Note - A person for whom a special verdict of act proven but not criminally responsible is entered is a forensic patient unless unconditionally released and is to be dealt with under Part 5.
Section 33 of the MHCIFP Act is directed to the protection of persons in the community, together with the welfare of the person who has committed the act or acts which gives rise to the special verdict(s): Attorney General of NSW v X (2013) 235 A Crim R 17; [2013] NSWSC 1392 at [87]-[92]. In no sense is Mr Younan-Sedrak being sentenced or punished by the Court.
The corresponding provisions for the federal offences are in s 20BJ of the Crimes Act 1914 (Cth). These are as follows: "(1) Where a person has been charged with a federal offence on indictment and the person is acquitted because of mental illness at the time of the offence, the court must order that the person be detained in safe custody in prison or in a hospital for a period specified in the order, not exceeding the maximum period of imprisonment that could have been imposed if the person had been convicted of the offence charged. (2) The Attorney-General may, at any time, by order in writing, vary the prison or hospital at which a person is detained under subsection (1). (3) Where, for urgent medical or security reasons it becomes necessary to do so, an officer of the State or Territory in which a person is detained under this section may vary the prison or hospital at which the person is detained but, where the officer does so, the officer must forthwith notify the Attorney-General, in writing, of the variation and of the reasons for the variation. (4) Despite subsection (1), the court may, if in the court's opinion it is more appropriate to do so than to make an order under subsection (1), order the person's release from custody either absolutely or subject to conditions to apply for such period as the court specifies in the order, not exceeding 3 years. (5) The conditions may include: (a) a condition that the person remain in the care of a responsible person nominated in the order; and (b) a condition that the person attend upon a person nominated, or at a place specified, in the order for assessment of the person's mental illness, mental condition or intellectual disability and, where appropriate, for treatment. (6) Where a person has been released from custody subject to conditions, the person or the Director of Public Prosecutions may, at any time, apply to the court to vary those conditions."

The evidence

The accused has been subject to a Mental Health Review Tribunal Community Treatment Order. There was a reported dated 5 July 2021, in which the Tribunal indicated its satisfaction that, having regard to his mental illness and a history of non-compliance with treatment, such order was appropriate. This order of 17 June 2021 expired on 16 December 2021 and was (on 15 December 2021) extended for 6 months and was extended again on 14 June 2022. The current order is due to expire no later than 30 December 2022.
A handwritten note on the community treatment order made by the Tribunal on 14 June 2022, recorded that Mr Younan-Sedrak had previously been opposed to receiving treatment, but had been cooperative under current order. The Tribunal expressed its view that a CTO was the least restrictive, safe and available treatment for him and was "implementable".
Annexed to the community treatment order made on 14 June 2022 was a treatment plan for the accused. It provided for the accused to be detained in the St George Community Mental Health facility, under the specific supervision of the treating psychiatrist, Dr Andrew Pethebridge. A care co-ordinator (Anne Kasakaitis) was appointed for him. The treatment plan set out an obligation upon the accused to take such medication as was prescribed (or varied) by Dr Pethebridge (or his delegate), and also an obligation upon him to attend reviews by that psychiatrist at least once every 3 months. He was also obliged to meet with Ms Kasakaitis (or her delegate) at least monthly.
The accused had been granted bail in October 2021. One condition was his compliance with the forensic treatment order.
Both parties referred to the evidence of Dr Martin on the issue of his risk of violence. Dr Martin considered that the accused's risk, which he thought would mainly be directed to his wife (from whom he was separated) could reasonably be mitigated by ongoing mandated assertive psychiatric treatment. On the assumption that his current treatment regimen was adhered to, Dr Martin did not find that his safety, or the safety of any other member of the public would be seriously endangered by his release.

The parties' submissions

The accused's Counsel submitted that the current community treatment order on foot satisfies Dr Martin's recommendation for mandated assertive psychiatric treatment.
The Crown and the accused jointly submit that an order should be made under of the MHCIFP s 33(1)(c) Act, in respect to the state offences and ss 20BJ (4) and (5) of the Crimes Act.
The Crown submits that the same orders made under a 33(1)(c) for the state offences should be made, at least insofar as it is practicable in connection to the federal offences.
The parties' common position, that the accused be conditionally released means that, in respect to the state offences, the Court is required to refer the accused to the Mental Health Review Tribunal.
There are also additional orders sought by the Crown relating to finalising an extant Apprehended Violence Order and forfeiting the accused's phone or, alternatively, deleting unlawful items on it. The accused's Counsel consents to finalisation of the AVO.
Counsel for the accused did not oppose an order that the accused's phone be destroyed. That neutrality does not bind the Court, especially where there is doubt as to the Court's power. In my view, it would be inappropriate to order the destruction of the phone. The Court is empowered, under s 219(2)(d) of the Law Enforcement (Powers and Responsibilities) Act 2022 (NSW), to forfeit property to the Crown. But, as is apparent on the face of s 219(2)(d) and also s 219(1), the Court's power to order forfeiture specifically, and to order the disposition of property generally, arises only where the owner of the property cannot be found. The general position, reflected in s 219(1), is that property seized should be returned to its rightful owner; and it is only when the owner cannot be ascertained that the Court's general power to make orders to dispose of it is engaged. That has not occurred here.
As to the alternative, in my opinion, but for s 219(1), there would be much to be said for an order to permit Police to delete unlawful material on the phone. That option would: 1. be consistent with the general objects of law enforcement under the Act; 2. might arguably be in accordance with the text of s 219(2)(a), which on its face is broadly to be construed - hence the reference to 'partial' rights of 'extinguishing' property rights (in this case the right to exploit information or material on the phone); and 3. deletion of unlawful material might be viewed as being necessarily incidental to or ancillary to partial extinguishment of an interest in the property; 4. as a matter of discretion, it would be desirable for the material to be deleted as a prophylactic measure.
However, orders under s 219(2) are subject to binary factual predicates in s 219(1). Section 219(1) indicates that property, once seized is to be returned to the owner, where the owner is ascertained. This is not a case where there were competing claimants to proprietary interests in the phone. In my view, if the owner of the property is ascertained, the power in s 219(2) is not enlivened.
I note further that no application was brought under the Proceeds of Crime Act 1987 (Cth).

State offences

For the purpose of 33(3) of the MHCIFP Act, the Court is satisfied, on the balance of probabilities, that the safety of the defendant or any member of the public will not be seriously endangered by the defendant's release.
It is unnecessary for the Court to require a further report, of the kind envisaged under s 33(2), given Dr Martin's expression of opinion, which I accept.
I am persuaded, on the basis of Dr Martin's opinion, the treatment plan appended to the community treatment order, and the Tribunal's very recent opinion that such plan is 'implementable', that it is appropriate for an order to be made pursuant to s 33(1)(c) of the MHCIFP Act.

Federal offences

Although there is not identical correlation with s 33 of the state legislation, the orders I propose, pursuant to ss 20BJ(5)(a) and (b) of the Crimes Act, are intended to provide for substantial alignment to or correspondence with the state provisions.
Section 20BJ(4) provides that where a person is to be released (conditionally or unconditionally) a period should be specified. The Court raised with Counsel what they submitted should be an appropriate period. The joint response was 'less than three years'. Counsel for Mr Younan-Sedrak also indicated her expectation that her client's treatment plan was expected to roll over after 30 December 2022.
Noting the capacity of both Mr Younan-Sedrak and the Director of Public Prosecutions (Cth) to apply for variations (s 20BJ(6)) of conditions, I propose to make the period as long as the legislation permits in anticipation that if circumstances change, either Mr Younan-Sedrak or the DPP may apply to reduce the period.
I also propose to make some additional directions, notifying regulatory authorities, which are modelled upon what Johnson J ordered in R v Siemek (No.2) [2021] NSWSC 1293.
I propose to make the following orders, subject to hearing from the parties' legal representatives.

As to the state offences 1. The verdicts that will be entered on the indictment dated 5 July 2022, in respect to counts 1-2, 5-10 (inclusive) and 12-16 (inclusive) is: "Act proven but not criminally responsible". 2. Pursuant to s 34 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the Court refers Michael Younan-Sedrak to the Mental Health Review Tribunal. 3. Further, pursuant to s 33(1)(c) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, the accused be released on custody on condition that he comply with the conditions attached to the community treatment order made by the Mental Health Review Tribunal on 14 June 2022. 4. Pursuant to s 93 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), order that the current Interim Apprehended Violence Order be made final for a period of two years, commencing from the date of these orders.

As to the federal offences 1. The verdicts that will be entered in respect to counts 3, 4 and 11 on the indictment dated 5 July 2022 will be "not guilty because of mental impairment". 2. Pursuant to ss 20BJ(4) and (5)(a) and (b) of the Crimes Act 1914 (Cth), for a period of two years and 364 days, order the release from custody of Mr Younan-Sedrak on condition that he remain under the care of Dr Andrew Pethebridge (as treating psychiatrist) and Ms Anne Kasakaitis (care co-ordinator) and the treatment administered by them (and their respective delegates) at the St George Community Mental Health facility.

General 1. I make the following further directions: 1. The Judicial Registrar is to notify the Minister for Health and Medical Research, as soon as practicable, of the making of these orders. 2. The Judicial Registrar is to notify the Mental Health Review Tribunal, as soon as practicable, of the making of these orders and is to provide to that Tribunal the following documentation: 1. a copy of the Court's reasons for verdict and for making these orders; 2. copies of the reports of Drs Allnutt (21 March 2022) and Martin (7 June 2022). 1. I direct that the Judicial Registrar notify Justice Health and Forensic Mental Health Network ("Justice Health", South East Sydney Local Health District), as soon as practicable, of the verdict and orders in this matter and to provide to Justice Health copies of the following documents: 1. a copy of the reasons of the Court for verdict and making these orders; 2. copies of the reports of Drs Allnutt and Martin (as indicated above). 1. Pursuant to s 212 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), the swords and knife seized from the accused are to be forfeited to the Crown.

Endnotes

R v Tonga [2021] NSWSC 1064 ("Tonga") per Wilson J at [98]-[100]; approved in R v Siemek (No.1) [2021] NSWSC 1292 per Johnson J ("Siemek No.1") at [17]-[18]
Siemek No.1 at [20]-[22].
Being a schedule to the Criminal Code Act 1995 (Cth) (hereafter 'the Criminal Code') 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: 06 July 2022

Law Enforcement (Powers and Responsibilities) Act 2022(NSW)

Mental Health Cognitive Impairment (Forensic Provisions) Act 2020(NSW)ss 4, 6, 28, 31, 33, 34

Crimes Act 1914(Cth)s 20BJ

Criminal Code Act 1995(Cth)ss 7.3, 474.17

Surveillance Devices Act 2007(NSW)ss 7, 8, 9, 11, 12

At a glance

Court

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Judgment (18 paragraphs)

Parties

Legislation Cited (11)

Cases Cited (4)