District Court New South Wales Medium Neutral Citation: Khoury v R (No 2) [2021] NSWDC 435 Hearing dates: 21 July 2021 Date of orders: 21 July 2021 Decision date: 21 July 2021 Jurisdiction: Criminal Before: Montgomery DCJ Decision: See Orders Catchwords: CRIME — Appeal and review — Appeal from Local Court to District Court MENTAL HEALTH – Mental Health (Forensic Provisions) Act 1990 (NSW) s 32 Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) s 12 Mental Health (Forensic Provisions) Act 1990 (NSW) s 32 Cases Cited: Charara v the Queen [2006] NSWCCA 244 Sullivan v The Director of Public Prosecutions New South Wales [2020] NSWSC 253 Category: Principal judgment Parties: Mr Khoury, Appellant Regina Representation: Mr Kemp, Solicitor for the ODPP Mr Tuckey, Counsel for the Appellant File Number(s): 2020/00208748 Decision under appeal Court or tribunal: Local Court of NSW Jurisdiction: Criminal Date of Decision: 11 March 2021 Before: Robinson LCM File Number(s): 2020/00208748 Judgment (ex tempore) 1. On 11 March these proceedings came before the Learned Magistrate Robinson at Blacktown Local Court. Whilst this is an All-Grounds Appeal I briefly note that for the subject defending her Honour refused to proceed under section 32 of the Mental Health (Forensic Procedures) Act 1990 (NSW). Thereafter and because of that refusal, the appellant entered pleas of guilty. 2. Her Honour sentenced the appellant for the offence committed on 17 April 2018 under section 61 of the Crimes Act 1900 (NSW), to a nine month Conditional Release Order commencing that day and expiring 10 December 2021, of standard conditions with the additional condition of supervision by Community Corrections and for the offence committed on 16 February 2019 pursuant to s 59(1) Crimes Act 1900 (NSW) to a Conditional Release Order of 15 months commencing the same date and concluding 10 June 2022 with the same conditions. 3. Her Honour directed in addition, the appellant to enter an Apprehended Domestic Violence Order ('ADVO') for two years on standard conditions including that he is not to assault, threaten, stalk, harass or intimidate the victim or destroy or damage any property that belongs to her or is in her possession. I am told that ADVO will expire on 10 March 2023. 4. In this appeal, the Crown has reversed its position. Whereas the prosecutor below informed her Honour that the Crown did not wish to be heard against the s 32 application; in this hearing the Crown does oppose the Court proceeding under section 32. Specifically the Crown relies on the reasons for Judgment of the Learned Magistrate as submissions of the Crown in this hearing. But the Crown concedes, as an error of the Learned Magistrate in her reasoning, that the symptoms of the accused's mental health condition had abated at the time of the hearing below and remain substantially abated presently. The Crown now submits that there is no benefit to the community or purpose or utility in proceeding under section 32. 5. Applying Charara principles, it is not my purpose to find error law in the Learned Magistrate's reasoning. 6. The agreed facts are that the victim and the appellant married in December 2016, and that there are no children of the marriage. 7. In June 2020 they separated, however they continued to reside at an address in Blacktown at the time of the first offence of common assault. That event happened on 17 April 2018, when they were in the bedroom at the victim's parent's home, not their own home, and they were arguing and yelling which was apparently too common a circumstance of their fractious marital relationship. The victim's mother knocked on the bedroom door to ask if they were okay, the appellant replied "stay out of it" and used his hands to grab the victim on her upper arms applying pressure and threw her onto the bed. The victim yelled "Justin I'm pregnant, don't touch me, what are you doing?" While, the victim was caused significant distress, there were no visible injuries suffered by her. 8. The second alleged offence was of assault occasioning actual bodily harm. The event occurred on 16 February 2019, ten months after the first. Again there was yelling. On this occasion, the victim began to record the appellant as he yelled because she wanted to show him his behaviour at a later point. The appellant exhibited a loss of control, yelling at the victim to "fuck off", "fucking shut up", and "are you kidding me, shut the fuck up". They were in a motor vehicle, the appellant hit the victim's phone causing the recording to end. There is no factual evidence that in doing so he struck the body of the victim. He then leant across to the victim who was in the passenger seat and grabbed her by the arms and began to squeeze and shake her, that action caused bruising resembling finger marks. 9. The victim took photographs of that bruising, the victim did not report either the first or second event to police at those times. She was scared of the appellant and possible repercussions and she did not want to bring shame upon her family. 10. That was until 10 July 2020, 17 months after the second event and more than two years after the first. At Blacktown Police Station, she gave a DVEC statement. Police obtained clinical notes from Ms Chamoun, the counsellor who the appellant had been already consulting to address his disturbance of mood, anger and abhorrent behaviour. The victim and the accused had sought marriage counselling from Ms Chamoun prior to there being any complaint by the victim to the police. The police applied for Apprehended Domestic Violence Order. 11. There has been no circumstance other than those two events of the appellant approaching or causing trouble toward the victim. 12. In regard to the actual bodily harm, in the form of bruising, there is no evidence of restriction, disability or the seeking of medical treatment. There is no evidence other than photographs that bruising could be seen. It is relevant to observe, in my opinion, that each of the offences fall into the low range for offending of the type, and specifically in the domestic environment. The Crown joins in that observation because it was a finding of the Learned Magistrate below. 13. The appellant is a person of good character. The offending was an aberration from his behaviour outside of when in the presence of or confronted by the dynamic stressor of his fractious relationship with the victim. This is thoroughly and consistently reported through the medical literature in evidence as well as the testimonial evidence. His mental health condition at the time of the offending was reported by his treating GP, Doctor Medhat El-Wahsh, 6 March 2020, to include poor sleep, early morning wakening, depressed mood, anxious, relationship problems, irritability, irrational fears, panic attacks. Doctor El‑Wahsh diagnosed adjustment disorder with mixed anxiety and depressed mood. He prescribed Valdoxan which was taken on prescription by the appellant between 10 August 2020 until January 2021. 14. A report from the appellant's current treating psychologist, obtained for the purposes of the proceedings through the appellant's solicitors, Ms De Santa Brigida is based on assessments on 30 July 2020 and 6 March 2021. It is dated 9 March 2021. 15. It contains a thorough assessment and explanation of the appellant's mental health condition for the period of the offending. I obtain from that report, that: * The offending occurred in the context of the marriage which had encountered significant problems which the appellant did not feel he had the ability to resolve; * The appellant expressed his remorse for what had occurred; and * The appellant had a normal upbringing and was educated and employed throughout life. 1. Ms De Santa Brigida recorded that the appellant had suffered from anxiety at an early age and that at school he was bullied and had few friend. When his marriage encountered problems in 2017, he began to struggle as he did not feel that he had the skills to resolve their problems. He and his wife attended counselling with psychologist, Ms Rola Chamoun. Ms Santa De Brigida was able to consider Ms Chamoun's clinical notes as well as the referral from the appellant's then GP, Dr Nasr on 23 August 2019. The appellant felt under-valued and unequal in the marriage and the appellant's referral for medical and psychological assistance included referral for management of his anger problem. His symptoms included insomnia, attenuation in appetite, energy motivation and feelings of irritation. He was including him over-thinking the marital problems. Ms Santa De Brigida stated that in her opinion, the applicant had met the criteria for Adjustment Disorder with disturbance of conduct, anxiety and depression including outbursts at the time of the offending. 2. Her opinion is to be received with the weight of its context, that being, she having considered the clinical notes of the counselling sessions between the parties in the period contemporaneous with the events. 3. A matter that concerned the Learned Magistrate and therefore is composed in the Crown's submission, but not thoroughly supported in the Crown submission as a matter of significance, is that as of March 2021, the appellant's symptoms of Adjustment Disorder appeared to have been alleviated completely. This is reflected in psychometric test results. 4. Ms Santa De Brigida concluded with specific reference to s 32, that at the time of the alleged commission of offending, the appellant was suffering from a mental condition for which treatment was, and is available, in a mental health facility and that he is not a mentally ill person. She expressly concluded her report stating: "It is the assertion of this author that there is a direct nexus between the alleged offences and the adjustment cap disorder. It is noted that Mr Khoury has no previous history of offending. A separate treatment plan annexure is attached to this report and this is for 12 months". 1. I observe that an order under s 32 can support a plan for six months. 2. There is also in the Exhibit 1, a copy of that treatment plan. What I consider significant in it is that it includes Cognitive Behavioural Therapy (CBT) which, in the experience of the Court, is known to be a long term monitoring under the management and supervision of a skilled psychologist, permitting and endeavouring for the patient to be able to cope with and manage the stresses of life. To his credit, by 6 February 2021, the applicant had completed an anger management programme. 3. Ms Chamoun, psychologist, who it will be remembered, was the joint marriage counsellor for the victim and the appellant when they were married, has continued as treating psychologist for the appellant. There are two letters before the Court from her. In her letter of 22 April 2020, Ms Chamoun stated that the appellant had attended ten consultation sessions under a Mental Health Plan devised by his treating General Practitioner, that he presented with fluctuating mood such as anger and frustration behaviours but that he was responding positively to CBT and anger management treatment. She described him as a pro-active patient. The appellant has maintained his signed consent for his psychologist to share his file for the purposes of intervention. 4. The testimonials, consistently support that but for when in the presence of the specific stressor of his estranged wife, the appellant is a kind and well-behaved individual. Before the Court of 10 March 2021 is a letter from the Chancellor, Maronite Catholic Church, Father Azize, PhD, LLB. Father Azize has known the appellant for ten years. He stated for the Court, his observation that the alleged criminal events of assault and of assault occasioning actual bodily harm were "so completely out of character in this behaviour for him, that my initial response to hearing this was surprise, verging on disbelief". 5. Father Azize shared with the Court his observation that the appellant is of customarily calm, gentle and kind demeanour. His opinion is that the appellant is deeply and sincerely concerned to growing as a person in life and not to give up learning from his mistakes which he bitterly regrets. Father Azize stated: "Other than for a brief period when the separation was at its most stressful, Justin has always seemed to me to be the same gentle person. I was, for a little while, concerned by how personally he was taking the breakdown of his marriage, in particular, the criticisms which were made of him. I can only conjecture, that very sensitivity made him internalise the breakdown of his marriage, so that he had a personal breakdown of sorts. I think that, now he has accepted that the marriage is over, he is past any such episode". In my opinion, Father Azize's observation is consistent with the report of Ms Santa De Brigida, psychologist, to which I just referred. 1. With leave granted, unopposed, the appellant tenders updated medical reporting. It includes from Mindways Psychological Services being, the practice at which Ms Santa De Brigida is engaged, a Confidential Psychological Treatment Plan. There is a letter from Ms Chamoun of 15 July 2021 in which she states that from 14 July, the appellant has re-engaged in psychological consultation according with the Mental Health Care Plan review dated 14 July 2021 by his GP, Dr El-Wahsh. It confirms the present state of the applicant's mental health condition to include that the applicant is currently experiencing heightened stresses exacerbating his overall mood and wellbeing including his anxious and depressive symptoms and fluctuating mood. Moving forward, his treatment plan will include fortnightly psychological consultations with a focus on alleviating symptoms and developing his coping strategies further. The intervention will include evidence-based cognitive behavioural therapy or as I termed it before, CBT as well as acceptance and commitment therapy and mindfulness based strategies. The updated treatment plan is included in the tender, Exhibit A. 2. I observed earlier that the Learned Magistrate found, and it is an uncontested fact, that the appellant's psychological symptoms had abated at about the time of her judgment. The literature in my opinion does not support the Crown's submission (being the Learned Magistrate's reasons for Judgment) that, symptoms having abated, the underlying psychological conditions, had entirely dissipated. Ms Chamoun's letter to the Court in exhibit A, confirms that. The Mental Health Care Plan devised by medical practitioners confirms that in their opinion, the underlying conditions persist. What was significant on 11 March and remains of great significance now is that the single identified stressor which has caused the applicant to engage in conduct attracting the attention of police and these charges, has been removed. That stressor was the fractious relationship with the victim during the marriage. 3. They have been separated for a significant period. In the Family Court they have achieved resolution of their property dealings and interests. The Apprehended Violence Order to which I referred, remains in place. That there was evidence of symptoms abated by March 2021 was an observation of fact. There is no evidence of medical opinion or otherwise that the underlying mental health conditions of Adjustment Disorder, fluctuating mood, depression, anxiety with panic attacks and anger management problems have resolved. Indeed, the medical opinion was, and remains, as I have observed to the contrary. Further, there was no evidence on 11 March, nor is there today, that a Mental Health Care Plan was in some way futile or of no value to the community in the sense of the applicant learning to manage his underlying psychological and mental health conditions. Indeed, the whole of the evidence is to the contrary. There is great utility in continuing the Mental Health Plan in the opinion of all reporting medical practitioners. They recommend that it continue. This fits, as I have said, with all the testimonial evidence. 4. The Crown summarised its submission as it is "not necessary" to proceed by the diversionary scheme of s 32. I do not accept that expression as an accurate description of the position at all. The Crown referred to the nature of offending and to general deterrence, in that the Crown adopted as its submissions here, her Honour's reasons. I reject that argument. 5. As is recognised in Sullivan v The Director of Public Prosecutions New South Wales [2020] NSWSC 253, particularly at para 48; section 32 has another purpose. That purpose arises for considerations when the accused person suffered from a mental illness at the time of the offence. In some cases, the mental health condition will have been treated by the time of the hearing, in others not. In cases where it has been treated and resolved at the time of the hearing, it is open to the Court to dismiss the charge unconditionally under s 32(3)(c). I quote: "In this respect, s 32 is not merely a diversionary scheme with a protective purpose, but also a provision that ensures that criminal liability is not attributed to somebody who was mentally ill at the time of the offence." 1. In my opinion, proceeding by way of the diversionary scheme pursuant to s 32 properly addresses the seriously moderated criminal culpability and considerations of general deterrence in this case. There would be little point proceeding to deal with the appellant other than by the diversionary scheme. The appellant is eligible to be dealt with under s 32 and it is appropriate to deal with him in accordance with the provisions of that scheme, otherwise than in accordance with law. 2. The alternative outcome of available sentencing is not more than, even as the Crown put it today, that there would be the restrictions of the Conditional Release Order as a punishment and a denunciation of the offending and the appellant could go about seeking the medical treatment in any event. For the reasons I have stated, the need for denunciation of this offending and the important principle of deterrence are significantly moderate by the evidence which, in an entirely consistent presentation, is of the effect that: a temporary excitement of the applicant's underlying mental health condition, specifically only in response to the stressor of his relationship with the one human being, being the victim, and in the context of marriage; resulted in the behaviours, the subject of the counts. 3. To proceed by the diversionary scheme wholly addresses, in accordance with the purposes of that scheme, those behaviours particularly noting that the appellant over a significant period has not attempted to approaching the victim and has been compliant with the ADVO. Orders 1. In my opinion, it is appropriate to deal with the applicant according to s 32 than by sentence at law. 2. I make the following Orders: 1. To comply with treatment pursuant to mental health care plan devised by Dr El-Wahsh from time to time and all modality and requirements of treatment as directed by Ms Rola Chamoun from time to time. 2. Such compliance with mental health care plan and treatment to be supervised by Ms Chamoun. The court notes the agreement of Ms Chamoun to supervise the mental health care plan and treatment and to report any breach to the court promptly. 3. These orders are to commence today and to continue for a period of 6 months. ********** 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: 24 August 2021