R v HADDAD [2011] NSWDC 137

District Court New South Wales

Medium Neutral Citation: R v HADDAD [2011] NSWDC 137 Hearing dates: 14 June 2011 Decision date: 14 June 2011 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Sentenced to imprisonment consisting of a non parole period of two years and three months and a head sentence of four years and six months. Catchwords: CRIMINAL LAW - Sentence - Form 1 - Mentally ill at time of offending - Sexual intercourse with a child between the ages of 10 and 14. Legislation Cited: Mental Health Act Crimes Act Category: Sentence Parties: The Crown Wadi Farid Haddad Representation: Mr W Creasey - The Crown Mr P Marr - The offender Director of Public Prosecutions Burke Elphick and Mead Lawyers File Number(s): 2009/235914 Publication restriction: There is to be no publication of the name of the complainant or of any material which may tend to identify the complainant

SENTENCE 1HIS HONOUR: On 21 October 2009 the offender, Wadi Farid Haddad, committed a very serious criminal offence. It would ordinarily see him serve a lengthy period of imprisonment. 2However, there is one particular circumstance concerning the offender's mental health which substantially reduces the offender's moral culpability for his offending. It probably does not in any way lessen the impact of the serious offence upon its victim, so the fact that the young boy was assaulted by someone who was mentally ill is unlikely to be any comfort to him. But the fact that the offender was mentally ill at the time of committing this offence means that the sentence I will impose upon him is substantially less than it would otherwise be. 3In the months leading up to 21 October 2009 it is clear that the offender was substantially mentally unwell. He had been admitted to James Fletcher Hospital in April 2009 after relapsing into a manic episode involving behaviour that was impossible to explain. This period of admission followed many other episodes in the offender's life when he exhibited symptoms of psychosis. 4He was living alone at the time of the offence. It was in those circumstances that he and the complainant in this matter, who were strangers to each other, met near the Charlestown Library. The complainant was heading off to work. He was then thirteen years of age. Before going to work he intended to go to the library to access the internet. The offender, who I repeat was a stranger to the complainant, rode up on his bicycle and stopped in front of the complainant. He said hello and asked him where he was from. Upon learning that the complainant was from a country where French was spoken, the offender told the complainant that he was from Egypt, and they thereafter spoke in French. 5The offender told the complainant things about himself and asked the complainant questions about things such as the complainant's hobbies and the like. The offender also produced a stethoscope, telling the complainant that he was a doctor. In fact, the offender had been a doctor, but lost his registration on one occasion because of an offence broadly similar to that which I am about to describe. 6The complainant told the offender that he wanted to go to the library to check his emails, but the offender asked him to stay a while. He then placed his hand between the complainant's legs and rubbed him. The complainant tried to get the offender to stop, but he kept going. 7A female passer-by came on the scene, which caused the offender to stop. The complainant asked her to stop, but she did not. 8The offender then took a notepad from his backpack and wrote on it personal details of his, and also told the complainant his mobile phone number. He then said to the complainant, "If you give me a little favour, then I will give you money." 9The offender then grabbed the complainant, said, "I love you," and kissed him on the mouth. The complainant asked to be let go. 10The offender told the complainant, "Just go and wait in the library; I'll be right in." Once they got inside the library, the offender insisted that the complainant go into the bathroom with him. 11It must be remembered that this young boy was only thirteen years of age. He complied with the offender's demand because, as he told police, he thought the offender was going to bash him if he did not do what he was asked. So the two of them, the offender and the complainant, went into the bathroom. 12The offender removed his clothes and the pants of the complainant. Various forms of sexual activity occurred, until the offender put the complainant's penis in his mouth. He told the complainant, "I'm not going to stop until you come." Eventually the complainant ejaculated. The offender then stood up and kissed the complainant on the mouth and told him, "Kiss me, kiss me." He then grabbed the complainant's hand and placed it on his penis. 13The act of fellatio that I have just described forms the basis of the offence for which the offender must be sentenced, that of having sexual intercourse with a child between the ages of ten and fourteen, namely, thirteen years. The maximum penalty for that offence is sixteen years imprisonment. 14The act of grabbing the complainant's hand and placing it on his penis forms the basis of an offence that the offender asks that I take into account when sentencing him for the substantive matter. 15After the incidents that I have just described, they both dressed. The offender asked the complainant to keep in contact with him, and he left the bathroom. 16Various people in the library identified that something suspicious was going on. One of the library staff saw the offender come out of the bathroom about two or three minutes after the complainant had approached her and asked her to call the police. She knew the offender because he was a user of the library. She was able to identify his name and pass that on to police. 17Various forensic tests, in particular those involving DNA analysis, were carried out and evidence suggesting that sexual activity such as I have described took place was found. 18The offender was arrested on 23 October 2009, two days after the offence. He refused to speak to police but a search warrant was executed at his premises and incriminating items were found, including the stethoscope that I mentioned. 19Quite clearly, objectively this is a very serious matter. The offender was a complete stranger to the complainant and yet through his actions he was able to commit a most serious criminal offence upon him. He was able to take advantage of the young boy's fear to satisfy what he was then feeling, sexual attraction to young men. 20I mentioned before that this offence occurred some months after the offender had been admitted to a psychiatric hospital. Upon the offender being taken into custody he showed signs of mania, including cleaning his cell naked with a broom and water for two or three hours and presenting himself to the clinic in the police cells wearing a blanket as a toga. 21He was subsequently admitted to the Mental Health Screening Unit in Long Bay Hospital, where he was diagnosed with a mood disorder and treated under the Mental Health Act . 22The community is sometimes entitled to be a bit suspicious when a person commits an offence such as this and then claims to be mentally ill at the time, but there is substantial evidence of a significant mental illness affecting the offender, both before and after the offence was committed. 23I am satisfied that the offender was suffering from a bipolar disorder at the time of the offence. Most importantly, when his moral culpability is concerned, his mental disorder had a substantial impact on his ability to control his impulses. 24The offender has been treated whilst in custody and is now regularly taking a drug which controls his disorder. He said in evidence today that he is a different person to the person who committed this offence. He no longer, he says, has an attraction to young men and now is in a position to recognise what he has done, and says that he has remorse, both for the victim of his crime and for his family. 25The offender is now sixty-three years of age. He was born in Egypt but came to Australia as a child. He graduated from the University of New South Wales with a Bachelor of Medicine and worked as a GP, but even at that early stage in his life, problems with his mental state were apparent. Whilst still a medical student he had been admitted to Callan Park Psychiatric Hospital. 26In 1994 he was deregistered. That followed on from the commission by him of a criminal offence involving a sexual assault upon one of his patients. He manipulated the patient's penis and testicles and hugged and kissed him, and solicited the patient to engage in oral sex. 27He denied his guilt in that matter but was found guilty by a jury, although ultimately the judge who came to sentence him dismissed the matter under section 556A as it then was of the Crimes Act in the light of the offender's character and service to medicine. (I will not pause to discuss the problems with that reasoning). 28However, the offender remained deregistered until 1998, when he briefly worked again as a GP. He is now no longer registered as a medical practitioner and so what he was doing with a stethoscope is difficult to determine. 29The effects that the fact that a person is mentally ill at the time of an offence have upon the sentence to be imposed are well known. Perhaps most importantly, the offender's moral culpability is reduced. He was less able than a person who is psychiatrically well to control the impulses that he must have been feeling on 21 October 2009. The commission of the offence is in that way connected to the mental illness from which he was then suffering. 30The offender is a person upon whom it is inappropriate to impose a sentence which contains a large measure of general deterrence. On the other hand, I am satisfied that there is a need for the offender to be personally deterred. 31I cannot say that the offender is unlikely to re-offend. He is doing well at present whilst in custody upon the medication that he is taking, but his behaviour in the community as a free person is, of course, unknown. There are indications that he will continue to take his medication, but he needs to be reminded that if he does not, and if he thereby commits a criminal offence, he will receive significant punishment. 32There is no doubt that the offender has caused harm to the complainant. There was no evidence regarding the psychological impact upon the complainant because the complainant did not wish to provide a victim impact statement. That is perfectly understandable. A person in the position of the complainant is quite likely to wish to put the matter behind him, but of course, the absence of a victim impact statement does not mean that no harm has been occasioned by the offender's conduct. 33That the victims of crimes such as these will suffer psychologically in the future is well known, and it is what makes offences of this kind particularly serious. 34Some time was spent discussing the appropriate discount for the offender's plea of guilty. It did not come early, and it was only in fact the day after the offender's trial was due to commence that he entered a plea of guilty. 35Mr Marr suggested there may be a reason for that, relating to the offender only being well enough to appreciate what he had in fact done shortly before the plea was entered. That may well be the case. But the fact remains that the utilitarian value of the offender's plea of guilty was limited. In those circumstances I propose to impose a sentence upon the offender which is 10 per cent less than it would otherwise have been. 36It cannot be denied that objectively this is a most serious offence. Following a chance meeting between the two, the offender invited the complainant into the library and committed the offence upon him. He was the stranger that we warn our children about. 37If I looked only at the objective circumstances of this offence, I would impose upon the offender a very lengthy term of imprisonment, but as I mentioned at the outset of these remarks on sentence, the fact that the offender was mentally ill at the time of the offence means that I will impose a sentence upon him which is substantially less. 38It is my job to impose a sentence which is appropriate both for the offence and the offender, and when I look at the offender, I look at what he was then and what he is now. I could quite understand anyone who looked only at the facts of this matter forming the view that the sentence I am about to impose is manifestly inadequate, but when account is taken of the mental state of the offender at the time he committed the offence, the sentence I am about to announce is, I believe, the appropriate one. 39I will make a finding of special circumstances in the offender's favour, due to his age and this being the first time he has served a sentence of imprisonment. 40Taking into account the matter of the Form 1, the offender is sentenced to imprisonment. It will date from 23 October 2009, the day on which the offender went into custody and has remained since. I set a non-parole period of two years and three months, which will expire on 22 January 2012 and a head sentence of four years and six months. The offender is thus eligible to be released to parole on 22 January 2012.