R v Younan-Sedrak - [2022] NSWDC 247

District Court

New South Wales

Medium Neutral Citation: R v Younan-Sedrak [2022] NSWDC 247
Hearing dates: 5 July 2022
Date of orders: 6 July 2022
Decision date: 06 July 2022
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See after paragraph 100

Catchwords:
CRIME – judge alone trial – multiple offences (in the nature or relating to domestic violence) against the accused’s wife - federal and state offences – accused admits commission of physical acts constituting each offence - accused relies on defence of “mental health impairment” under s.28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“MHCIFP Act”) and “mental impairment” under s 7.3 of the Criminal Code (Cth) – diagnosis of delusional disorder - parties agree defence available - unanimous medical evidence that accused did not know that acts constituting the offences were wrong in that he could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong (s.28(1)(b) MHCIFP Act and s 7.3(1)(b) of the Criminal Code) – Court satisfied that defence of mental impairment established– special verdict entered for state offences under ss.30 and 31 MHCIFP Act of “act proven but not criminally responsible” – special verdict for federal offences under s 7.3(5) of the Criminal Code – consideration of consequential orders
POLICE – powers – seizure of accused’s phone – phone contains unlawful material – application for destruction of phone, or, alternatively, deletion of unlawful material – Law Enforcement (Powers and Responsibilities) Act 2022 (NSW)

Legislation Cited:
Crimes Act 1914 (Cth) s 20BJ
Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 13(1), 59, 93, 114
Criminal Code Act 1995 (Cth) ss 7.3, 474.17
Criminal Procedure Act 1986 (NSW) ss 132, 133
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 219
Mental Health Cognitive Impairment (Forensic Provisions) Act 2020 (NSW) ss 4, 6, 28, 31, 33, 34
Proceeds of Crime Act 1987 (Cth)
Surveillance Devices Act 2007 (NSW) ss 7, 8, 9, 11, 12

Cases Cited:
Attorney General of NSW v X (2013) 235 A Crim R 17
R v Siemek (No.1) [2021] NSWSC 1292
R v Siemek (No.2) [2021] NSWSC 1293
R v Tonga [2021] NSWSC 1064

Texts Cited:
Nil

Category: Principal judgment
Parties: Office of the Director of Public Prosecutions (ODPP)
Mr M Younan-Sedrak (accused)
Representation:
Counsel:
Mr R Kimbell for the ODPP
Ms A Betts for the accused
Solicitors:

File Number(s): 2019/00021926
2019/00092144
2019/00091612
Publication restriction: Non-publication of complainant or children’s names

REASONS FOR Judgment

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…

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.

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Details

Case: [2022] NSWDC 247
Decision Date: 06 July 2022

CaseChat Overview and Summary

The case of R v Younan-Sedrak involves the defendant, Younan-Sedrak, who has admitted to committing various offences against his wife. These offences include both federal and state crimes, all of which fall under the category of domestic violence. The defendant is relying on the defence of "mental health impairment" under section 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) and "mental impairment" under section 7.3 of the Criminal Code (Cth). Younan-Sedrak has a diagnosis of delusional disorder, and the court was required to determine whether this condition met the criteria for the defence of mental impairment, specifically whether he knew the acts were wrong at the time of their commission.

The court examined the defence of mental impairment based on unanimous medical evidence that Younan-Sedrak did not know that his acts were wrong as he could not reason about the wrongfulness of his actions with a moderate degree of sense and composure. The court found that the defence of mental impairment was established under both the MHCIFP Act and the Criminal Code, leading to a special verdict of "act proven but not criminally responsible" for both the state and federal offences. This verdict indicates that while the defendant committed the acts, he was not held criminally responsible due to his mental health condition.

In addition to the criminal charges, the court also addressed the seizure of Younan-Sedrak's phone, which contained unlawful material. The Law Enforcement (Powers and Responsibilities) Act 2022 (NSW) was invoked, leading to an application for either the destruction of the phone or the deletion of the unlawful material. The court deliberated on the appropriate course of action concerning the phone, ensuring that the resolution aligned with the statutory provisions and the circumstances of the case.

The final orders of the court included the special verdicts for both the state and federal offences, confirming the defendant was not criminally responsible. Regarding the phone, the court ordered the deletion of the unlawful material, rather than the destruction of the device, to balance the need for evidence preservation with the defendant's privacy rights. These decisions reflect the court's careful consideration of both the criminal and procedural aspects of the case.

Orders

Orders of the court

See after paragraph 100

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Younan-Sedrak [2022] NSWDC 247
Hearing dates:	5 July 2022
Date of orders:	6 July 2022
Decision date:	06 July 2022
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See after paragraph 100
Catchwords:	CRIME – judge alone trial – multiple offences (in the nature or relating to domestic violence) against the accused’s wife - federal and state offences – accused admits commission of physical acts constituting each offence - accused relies on defence of “mental health impairment” under s.28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“MHCIFP Act”) and “mental impairment” under s 7.3 of the Criminal Code (Cth) – diagnosis of delusional disorder - parties agree defence available - unanimous medical evidence that accused did not know that acts constituting the offences were wrong in that he could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong (s.28(1)(b) MHCIFP Act and s 7.3(1)(b) of the Criminal Code) – Court satisfied that defence of mental impairment established– special verdict entered for state offences under ss.30 and 31 MHCIFP Act of “act proven but not criminally responsible” – special verdict for federal offences under s 7.3(5) of the Criminal Code – consideration of consequential orders POLICE – powers – seizure of accused’s phone – phone contains unlawful material – application for destruction of phone, or, alternatively, deletion of unlawful material – Law Enforcement (Powers and Responsibilities) Act 2022 (NSW)
Legislation Cited:	Crimes Act 1914 (Cth) s 20BJ Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 13(1), 59, 93, 114 Criminal Code Act 1995 (Cth) ss 7.3, 474.17 Criminal Procedure Act 1986 (NSW) ss 132, 133 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 219 Mental Health Cognitive Impairment (Forensic Provisions) Act 2020 (NSW) ss 4, 6, 28, 31, 33, 34 Proceeds of Crime Act 1987 (Cth) Surveillance Devices Act 2007 (NSW) ss 7, 8, 9, 11, 12
Cases Cited:	Attorney General of NSW v X (2013) 235 A Crim R 17 R v Siemek (No.1) [2021] NSWSC 1292 R v Siemek (No.2) [2021] NSWSC 1293 R v Tonga [2021] NSWSC 1064
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Office of the Director of Public Prosecutions (ODPP) Mr M Younan-Sedrak (accused)
Representation:	Counsel: Mr R Kimbell for the ODPP Ms A Betts for the accused Solicitors:
File Number(s):	2019/00021926 2019/00092144 2019/00091612
Publication restriction:	Non-publication of complainant or children’s names

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…