District Court New South Wales Medium Neutral Citation: R v Boujandy (No. 4) [2023] NSWDC 124 Hearing dates: 5 September 2022 6 September 2022 7 September 2022 8 September 2022 9 September 2022 12 September 2022 13 September 2022 15 September 2022 20 October 2022 28 March 2023 Date of orders: 28 March 2023 Decision date: 28 March 2023 Jurisdiction: Criminal Before: Montgomery DCJ Decision: (1) The penalty hearing is to continue on 13 and 14 July 2023. (2) I confirm Order 5 made 1 December 2022 and direct a report pursuant to s 66(1) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 by a forensic psychiatrist as to the condition of the defendant and whether release of the defendant is likely to seriously endanger the safety of the defendant or any member of the public. Catchwords: CRIME – Procedure – Penalty Hearing following Special Hearing – s 32(1) Mental Health (Forensic Provisions Act 1990 – "in the course of the hearing of the proceedings" Legislation Cited: Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Criminal Procedure Act 1985 (NSW) Cases Cited: Mo v DPP [2023] NSWDC 27 Kitchingman v R [2023] NSWCCA 4 Category: Procedural rulings Parties: Rex (Crown) Charles Boujandy (Defendant) Representation: Counsel: Crown: Mr M Paish (Crown) Defendant: Ms S Carr (Defendant) Solicitors: Office of the Director of Public Prosecutions (Crown) Duffy Law Group (Defendant) File Number(s): 2019/372995 2019/269086 2019/256031 Judgment ex tempore 1. HIS HONOUR: By judgment delivered 20 October 2022 I found that I was satisfied, beyond reasonable doubt, on the limited evidence available and by separate determination, that the defendant committed a number of offences which were before the Court pursuant to s 166 Criminal Procedure Act 1985 (CPA). In that principal judgment at [322] and [323] I observed as follows: "During closing submissions, the Crown informed the Court, (see s 166(1)(a) of the CP Act) that each of the s 166 matters concerned a separate and not a related or back up offence. The Crown sought a separate verdict in relation to each matter before the Court pursuant to s 166. Counsel for the defendant stated that she could not offer any submission to the contrary, for the purposes of s 166 and s 167; Outline Submission on behalf of the Defendant (MFI 17), at last paragraph, pg 5. Each of the s 166 matters relates to a separate specific act and often concerning a different person to the principle offence arising from the occasion. In any event, each of them is an allegation of a separate specific offence. In my opinion it would be inappropriate in those circumstances to order that any of the s 166 charges be dismissed. It is in the interests of justice that separate verdicts be entered in relation to each charge, whether or not the defendant is found guilty beyond reasonable doubt, on the limited evidence available, that he committed another indictable offence arising from the event." 1. Those reasons in that principal judgment were referring to the statutory mechanism between ss 166 and 168 CPA. The question raised in this penalty hearing on 1 December 2022 is different. 2. At a penalty hearing before me on 1 December 2022 the Crown informed the court that it sought conditional dismissal of each of the s 166 charges and a consequent quashing of my verdicts in relation to each of them conditionally, pursuant to s 32(3) Mental Health (Forensic Provisions) Act 1990. That section provides that when making an order dismissing the charges and ordering discharge of the defendant in relation to them which in this case would be quashing verdicts and ordering the discharge of the defendant, the court is to order that the defendant enter into the care of a responsible person unconditionally or subject to condition or be on condition that the defendant attend on a person or at a place specified by the magistrate: 1. For assessment or treatment or both of the defendant's mental condition or cognitive impairment; or 2. To enable the provision of support in relation to the defendant's cognitive impairment or to dismiss the charge; or 3. Unconditionally. 1. It is unfortunate that due to administrative error within the obtaining of a report for the Court pursuant to s 66(1) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, the Justice Health Report ordered by me (Order 5) on 1 December 2022 has not been received. The parties require that report and will rely on other expert psychiatric evidence in relation to the issue of whether to pursue either unconditional or conditional dismissal of the s 166 matters pursuant to s 32(3). 2. This Court for the purposes of the Crown's application has the jurisdiction of a magistrate in relation to the s 166 matters. 3. Section 32(1) provides that the Court can make the orders sought "at any time during the course of the hearing of the proceedings". Since the application to proceed pursuant to s 32 came before the Court on very short notice on 1 December, I have had the opportunity to consider the availability of proceeding as the parties then proposed. In the relevant circumstances of the hearing, being judge alone, and a special hearing, I am satisfied that "the hearing of the proceedings" (s 32)(1)) and the Court's power to deal with the s 166 charges remains on foot because the hearing of the proceedings has not been finally disposed of. See Kitchingman v R [2023] NSWCCA 4 particularly at [29] and [30] per Basten AJA with whom Dhanji J and R A Hulme AJ agreed. 4. On the last occasion the parties informed the Court that magistrates regularly so proceed, that is after finding that the offence was committed, the magistrate will then, at the penalty hearing, proceed pursuant to s 32. I note also that to so proceed occurs on sentence appeals to this court from the Local Court of New South Wales, see Mo v DPP [2023] NSWDC 27. 5. When the matter is returned, subject to any further submission on the point of law either party would make, I will proceed pursuant to s 32 in relation to the s 166 matters. 6. I make the following orders: 1. The penalty hearing is to continue on 13 and 14 July 2023. 2. I confirm Order 5 made 1 December 2022 and direct a report pursuant to s 66(1) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 by a forensic psychiatrist as to the condition of the defendant and whether release of the defendant is likely to seriously endanger the safety of the defendant or any member of the public. ********** Amendments 05 June 2023 - Amended title to reflect correct numbering DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 June 2023