Cosic v The Queen
[2011] VSCA 209
•21 July 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0238
| GORAN COSIC | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | HANSEN JA and WHELAN and ROSS AJJA | ||
WHERE HELD: | MELBOURNE | ||
DATE OF HEARING: | 21 July 2011 | ||
DATE OF JUDGMENT: | 21 July 2011 | ||
MEDIUM NEUTRAL CITATION: | [2011] VSCA 209 | ||
JUDGMENT APPEALED FROM: | R v Connelly & Ors (Unreported, County Court of Victoria, Judge Millane, 18 February 2010) | ||
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Criminal law – Sentencing – Aggravated burglary – Two years’ imprisonment with non-parole period of 12 months – Fresh evidence – Prison more burdensome than anticipated – Re-sentenced to 18 months’ imprisonment.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C T Carr | Victoria Legal Aid |
| For the Crown | Mr B Sonnet | Mr C Hyland, Solicitor for Public Prosecutions |
HANSEN JA:
The appellant pleaded guilty in the County Court to one count of aggravated burglary and, on 18 February 2010, was sentenced to two years’ imprisonment. The judge fixed a non-parole period of 12 months.
On 10 December 2010 Bongiorno JA granted the appellant leave to appeal against sentence in respect of what his Honour described as ‘grounds 1 and 2 in the applicant’s written outline of submissions filed on 22 November 2010’. The appellant subsequently filed a written case which raised four grounds of appeal, different in terms to the two grounds in respect of which Bongiorno JA granted leave. Following receipt of the Crown’s written case, the appellant sought to add a further ground of appeal, identified in an email sent by the appellant’s counsel to the Court of Appeal Registry.
Today we gave the appellant leave to rely on these five grounds and it is on those grounds that the appellant sought to rely. Notwithstanding this, the issues before us were considerably confined at the outset of the hearing today.
In essence, the appeal came down to one issue that was raised by the first ground in the written case, and that arose out of the provision of a medical report by Dr Sullivan dated 11 May this year which the Court considered ought be received.
The Court indicated at the outset that being of that view, and subject to anything that counsel might have said to the contrary, the question that had to be considered was whether any different sentence should be imposed upon the appellant. Counsel did not suggest to the contrary and, accordingly in the circumstances, it has not been necessary to hear counsel upon the balance of the grounds, and our consideration has thus been confined to the question whether in view of the materials disclosed in Dr Sullivan’s report, a different sentence should be imposed.
The Court has been much assisted by the submissions of counsel on what is a difficult sentencing question. The difficulty arises in the consideration of what is the appropriate disposition in view of the appellant’s mental illness and his continued failure to take medication or, to put it another way, his decision not to.
In addition to the report of Dr Sullivan, we were provided with a psychiatric report of Dr McInerney dated 30 March 2011. That report came to our attention because Dr Sullivan referred to it in his report as a report that had been provided to the parole board.
It should be said that the sentence in question was a head sentence of two years and a non‑parole period of one year. The sentence having been passed on 18 February 2010, the non‑parole period has passed, but notwithstanding which the appellant has remained in custody. We have not been informed why the parole board has not acted and that has left the information before us somewhat incomplete. Nevertheless, we have to do the best we can in the circumstances.
In the end, counsel for the appellant accepted that rather than this Court ordering a reduction of the head sentence so as to effect, as it were, an immediate release of the appellant, there was a wisdom in allowing a shoulder of time before that might occur in which planning as to the release into the community of the appellant, and the conditions on which that might occur, could be undertaken.
Agreeing with the sense of that matter of disposition, counsel for the Crown suggested that the appropriate disposition of the case was to reduce the head sentence to a period of 18 months. That would allow a period of several weeks in which any necessary consideration of the condition of the appellant and circumstances of his release and going into the community could be undertaken.
If that were to occur, that is to say if the Court were to be of the view that it was an appropriate disposition to reduce the present sentence in that way, there would be no need to fix a non‑parole period, that period having now expired.
The Court has had the opportunity, since argument, to consider the appropriate disposition. It is unnecessary to labour the detail in the report of Dr Sullivan or that in the report of Dr McInerney. In short, it reveals that the appellant is a person who will require, whether it be in several weeks’ time or in February next, what I would describe as a measure of supervision or control because he has a history of determining not to take medication which is necessary for the maintenance of balance and control in his personal life.
I have given anxious consideration to whether it is, in the circumstances, appropriate to vary the order made below. I should first say that in the light of the matters that were before her Honour when sentencing the appellant, the disposition that she determined upon was appropriate. The materials that we now have are of a significant nature in showing that the reasons for the appellant not taking his medication and suffering a heavier than anticipated burden of incarceration are related to his mental condition. In my view it is not necessary to go further than to identify, as I have just done, the basal problem in the case. It seems to me that it is appropriate in the circumstances to accede to the appellant’s request to reduce the head sentence and I would do so by setting aside the sentence imposed and in lieu imposing a sentence of imprisonment of 18 months. I would not fix a non‑parole period. There would have to be a declaration for the purpose of s 6AAA and I would suggest that the declaration be that but for the appellant’s plea of guilty, the Court would have imposed a sentence of 26 months’ imprisonment and fixed a non‑parole period of 14 months.
(Discussion re time already served)
Subject to anything that counsel may say or my colleagues might point out as an omission, the Court will make the following orders:
1. The appeal is allowed.
2. The sentence imposed below is set aside. In lieu the appellant is sentenced to a period of 18 months’ imprisonment. There is a declaration of time served of 523 days, including today, and an order that that be recorded in the records of the Court.
3. There will be a declaration under s 6AAA of the Sentencing Act
1991, that but for the appellant’s plea of guilty, the Court would have imposed a sentence of imprisonment of 26 months and fixed a non-parole period of 14 months, and otherwise the orders made in the County Court are confirmed.
WHELAN AJA:
I agree. I would only add two things.
Firstly, in my view, her Honour’s disposition on the material before her was perfectly appropriate. It is only because fresh evidence has been admitted revealing that incarceration has been significantly more burdensome than might have been anticipated, that, as the Crown submitted, it is now inevitable that the sentence must be reduced.
The second matter I would add is that the solicitors for the Office of Public Prosecutions should ensure that Corrections Victoria and the mental health authorities are aware of this man’s pending release, and of the contents of the reports of Dr Sullivan and Dr McInerney, particularly in relation to his non-compliance with medication.
ROSS AJA:
I also agree with the orders proposed by Hansen JA. I agree with the observations of Whelan AJA that now that a precise release date is known, the discharge planning process should commence immediately and we would rely on the Office of Public Prosecutions to inform the relevant authorities.
The only other matter I would add is that for my part, I accept that the appellant’s non-compliance with his medication regime is an aspect of his mental illness and his lack of insight into that illness rather than a question of choice.
(Orders pronounced)
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