R v Mouawad - [2020] NSWDC 616

District Court

New South Wales

Medium Neutral Citation: R v Mouawad [2020] NSWDC 616
Hearing dates: 2 September 2020
Decision date: 16 October 2020
Jurisdiction: Criminal
Before: O’Brien AM DCJ
Decision:
Non-parole period of 6 years imprisonment and a total term of 9 years imprisonment. See orders [60].

Catchwords:
SENTENCING – Reasons for judgment – offender lost capacity to control himself and killed his mother – plea of guilty to manslaughter due to substantial impairment by an abnormality of mind arising from an underlying condition – bipolar affective disorder – general principles in regards to sentencing for manslaughter – sentencing of mentally ill offenders – domestic violence – long history of mental illness and non-compliance with medication – level of mental impairment and its effect on culpability beyond that necessary to make out the partial defence of substantial impairment by abnormality of mind – utility of comparable cases and statistics.

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Alexander Freeburn v The Queen (No 2) [2020] VSCA 176
Aslan v R [2014] NSWCCA 114
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
DPP v Yucel [2019] VSCA 53
Hili v The Queen (2010) 242 CLR 520
R v Blacklidge (unrep, 12/12/95, NSWCCA)
R v Dawes [2004] NSWCCA 363
R v Green [1999] NSWCCA 97
R v MD (2005) 156 A Crim R 372
R v Tepania [2018] NSWCCA 247
R v Vongsouvanh [2004] NSWCCA 158
R v Warwick (No.94) [2020] NSWSC 1168
R v Wood [2014] NSWCCA 184
Veen v The Queen (No 2) (1988) 164 CLR 465

Category: Sentence
Parties: Boutros Mouawad (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr N Steel, Public Defender (for the offender)
Mr D Scully, Deputy Senior Crown Prosecutor (for Director of Public Prosecutions)
Solicitors:
Legal Aid NSW (for the offender)

File Number(s): 2019/00055636

Judgment

Introduction

Boutros Mouawad (“the offender”) was born on the 29 March 1963 and is presently aged 57 years. He has pleaded guilty to the manslaughter of his mother Hind Mouawad at Woonona on 18 February 2019. This is an offence contrary to section 18 (1) (b) of the Crimes Act 1900. The Crown has accepted the plea to a charge of manslaughter on the basis that the offender would otherwise be liable for murder, save that at the time that he caused his mother’s death, the offender’s capacity to control himself was substantially impaired by an abnormality of mind arising from an underlying condition, and that this impairment was so substantial as to warrant liability for murder being reduced to manslaughter. This is as provided for in section 23A of the Crimes Act 1900. The relevant underlying condition that substantially impaired the offender was bipolar affective disorder.
In accordance with section 24 of the Crimes Act 1900 the offence of manslaughter carries a maximum penalty of 25 years imprisonment. There is no standard non-parole period.
I heard evidence and oral sentencing submissions in the District Court at Wollongong…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Mouawad

Details

AGLC: R v Mouawad [2020] NSWDC 616
Case: [2020] NSWDC 616
Decision Date: 16 October 2020

CaseChat Overview and Summary

The respondent, Mouawad, was convicted of manslaughter following the death of his mother, to which he had pleaded guilty. The dispute in this matter was the appropriate sentence for the offence, considering the respondent's substantial impairment by an abnormality of mind. The court heard the matter in the Supreme Court of Victoria, with Justice Byrne presiding.

The court was required to determine the appropriate sentence for the respondent, taking into account the general principles of sentencing for manslaughter, as well as the specific circumstances of the case. This included the level of mental impairment and its effect on the respondent's culpability, the utility of comparable cases and statistics, and the respondent's history of mental illness and non-compliance with medication. The court also had to consider the impact of domestic violence on the respondent's mental state at the time of the offence.

The court found that the respondent's level of mental impairment and its effect on his culpability went beyond what was necessary to make out the partial defence of substantial impairment by abnormality of mind. The court considered comparable cases and statistics, and found that the appropriate sentence for the respondent was a non-parole period of 6 years imprisonment and a total term of 9 years imprisonment. The court also took into account the respondent's history of mental illness and non-compliance with medication, as well as the impact of domestic violence on his mental state at the time of the offence.

The final orders of the court were that the respondent be imprisoned for a total term of 9 years, with a non-parole period of 6 years. The respondent was also ordered to pay a fine of $1,000.

Orders

Orders of the court

Non-parole period of 6 years imprisonment and a total term of 9 years imprisonment. See orders [60].

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Mouawad [2020] NSWDC 616
Hearing dates:	2 September 2020
Decision date:	16 October 2020
Jurisdiction:	Criminal
Before:	O’Brien AM DCJ
Decision:	Non-parole period of 6 years imprisonment and a total term of 9 years imprisonment. See orders [60].
Catchwords:	SENTENCING – Reasons for judgment – offender lost capacity to control himself and killed his mother – plea of guilty to manslaughter due to substantial impairment by an abnormality of mind arising from an underlying condition – bipolar affective disorder – general principles in regards to sentencing for manslaughter – sentencing of mentally ill offenders – domestic violence – long history of mental illness and non-compliance with medication – level of mental impairment and its effect on culpability beyond that necessary to make out the partial defence of substantial impairment by abnormality of mind – utility of comparable cases and statistics.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Alexander Freeburn v The Queen (No 2) [2020] VSCA 176 Aslan v R [2014] NSWCCA 114 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 DPP v Yucel [2019] VSCA 53 Hili v The Queen (2010) 242 CLR 520 R v Blacklidge (unrep, 12/12/95, NSWCCA) R v Dawes [2004] NSWCCA 363 R v Green [1999] NSWCCA 97 R v MD (2005) 156 A Crim R 372 R v Tepania [2018] NSWCCA 247 R v Vongsouvanh [2004] NSWCCA 158 R v Warwick (No.94) [2020] NSWSC 1168 R v Wood [2014] NSWCCA 184 Veen v The Queen (No 2) (1988) 164 CLR 465
Category:	Sentence
Parties:	Boutros Mouawad (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr N Steel, Public Defender (for the offender) Mr D Scully, Deputy Senior Crown Prosecutor (for Director of Public Prosecutions) Solicitors: Legal Aid NSW (for the offender)
File Number(s):	2019/00055636