Director of Public Prosecutions v Ercegovic

[2023] VCC 194

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-00461

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMIE ERCEGOVIC

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	13 February 2023
DATE OF SENTENCE:	16 February 2023
CASE MAY BE CITED AS:	DPP v Ercegovic
MEDIUM NEUTRAL CITATION:	[2023] VCC 194

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence.

Catchwords:              Plea – Burglary – Theft – Damaging property.

Legislation Cited:      Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic); Mental Health Act 2014 (Vic).

Cases Cited:R v Engert (1995) 84 A Crim R 67; R v Mooney [1978] VR 272; R v Anderson [1981] VR 17; R v Verdins (2007) 16 VR 269

Sentence:                  Total effective sentence of 12 months’ imprisonment

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr F. Cameron	Office of Public Prosecutions
For the Accused	Ms J. Swiney	Chris McLennan & Co.

HIS HONOUR:

1In 1995, the following was insightfully said by an eminent judge, then the Chief Justice of New South Wales, Chief Justice Gleeson, in the well-known case of R v Engert.[1]  He commenced his judgment with the following:[2]

Persons suffering from mental disorders frequently come into collision with the criminal justice system.  Sentencing such persons commonly confronts judicial officers with the need to make a sensitive discretionary decision.  Sentencing is essentially a discretionary exercise requiring consideration of extremely variable facts and circumstances of individual cases and the application of those facts and circumstances to the principles laid down by statute or established by the common law.

[1] (1995) 84 A Crim R 67.

[2] Ibid p 67.

2Those comments apply with considerable force in your matter, Mr Ercegovic. 

3The entire circumstances that have led to this point of the Court to impose sentences upon you for offences you committed in October 2021 are troubling.  Your enduring mental illness has in the past and again with this matter caused extreme difficulty in managing you and seeing ultimately a proportionate sentence imposed on you.  I have since May 2022 managed your case.  It has presented diabolical difficulties as you for long periods insisted on representing yourself while very unwell.

4I do not intend to repeat every step that had preceded this ultimate resolution.  What is to be noted is that your mental health has stabilised and stabilised once you accepted treatment and medication.  You are now fit to plead whereas for a long time it was clear that you were not.

5What brought you before the courts commenced on the morning of 2 October 2021.  You were in the vicinity of the shopping centre on Tooronga Road.  You were agitated and only half dressed.  You approached a complete stranger and were able to use that man's phone to ring your sister. 

6Your sister is well aware of your longstanding mental illness.  She could tell that you were in a state of serious mental decline. You asked her to come and pick you up and take you to a hospital.  She could not do that but offered to call an ambulance. 

7She also feared you would go to her home where two of her children were on their own.  The children were rung and told to remain inside and hide, which they did, because you did go to your sister's home.  When she learnt that you were there, she rang her neighbour to inform the neighbour and to ask her to ensure that you did not go into her – that is, your sister's – house.  Your sister asked the neighbour to go outside and see what you were up to.

8What you did thereafter was set out in the prosecution summary tendered on the plea.  It makes clear just how delusional and unwell you were.  Once the neighbour was outside and saw you, she saw that you were pacing up and down and were very agitated.  She tried unsuccessfully to calm you down.  You told her that you thought your sister was inside her house, as you could hear noises.

9The neighbour retreated back to her house and rang Triple 0.  She then observed you walk into her driveway, rummage through a large skip and take out a large metal pole.  You paced up and down in front of the neighbour's house, carrying the bar.  You then used force to open the door of the neighbour's garage, and you went in.  That was an offence of burglary.

10Your intent was to steal, and you did take two cans of spray paint and a framed Geelong Cats premiership poster that was in the garage.  You then walked back to your sister's home and spray-painted the word 'help' and 'Triple 0' on the front garage door of her house and on the front rendered brick veneer fence.  The neighbour rang Triple 0 again.

11At some point, you went inside the property of your sister and smashed the gas main that was there with such force that the valve snapped off, causing gas to emit freely.  This was an inherently dangerous act.  You then climbed up onto the roof of your sister's house and began to remove tiles, throwing them off the roof and onto the driveway.  You did attempt to squeeze into the roof cavity but were unable to fit.  You then paced up and down on the roof.

12A short time later, the police and Emergency Services arrived, and they commenced to negotiate with you to try and get you to surrender.  They noticed the strong smell of gas.  Ultimately, a police officer bravely went to where the gas was leaking and turned it off.

13Once you were on the roof and involved in negotiations, this continued for three and a half hours where you were combative, aggressive and uncooperative.  You took tiles from time to time and threw them.  According to the police negotiator, you appeared to be paranoid, delusional and in a state of psychosis.  You mentioned paperwork that you had that established, in your mind, the Victorian Police and other government agencies were working against you.

14Ultimately, at 5.20, you came down from the roof and were arrested by a critical incident response team.  You were transported back to a police station.  It was quickly determined that you were unfit to be interviewed.

15Thereafter, you have been held in custody ever since.  When you were remanded, you were acutely unwell and remained that way until recent times.  You have been in custody for now, I think it is, 502 days.  The lawyers will correct me if I am wrong about that.

16When the matter came to the Magistrates' Court, you represented yourself.  The charges that you faced of burglary and criminal damage and theft are the sort of charges that are routinely dealt with in the Magistrates' Court but because of your level of mental illness, the Magistrate refused to accept any plea, and you were committed to this court because of a real and substantial question as to your fitness.

17That question was the focus of various chaotic hearings before me since May 2022.  You filed voluminous documents which served only to emphasise that you were acutely unwell, delusional, unable to represent yourself, and importantly, it appeared that you were not fit to enter a plea.

18You were at various times in custody at Ravenhall in units dedicated to the treatment of mentally unwell accused as well as at Thomas Embling Hospital. A report ordered by the court pursuant to s 10 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) was prepared by Dr Clarkson, a consultant psychiatrist. She was of the opinion that you had a delusional disorder. Your presentation was such that she concluded that you were unfit to stand trial. However, she believed with intense treatment – in particular, pharmacological treatment directed at your delusionary beliefs – that you may become well enough to stand trial within 12 months. This report was dated 27 June 2022. It was very helpful at the time and remained so.

19You did engage some lawyers at various points, but most importantly, your current lawyers, Mr Chris McLennan and his office, were engaged.  I pause to commend Mr McLennan for his and his firm's efforts in a very difficult case.  He has for decades provided sound legal advice and help to very vulnerable accused.  His efforts in this case yet again enhanced his reputation and reiterated just how valuable criminal defence lawyers are in the difficult cases that bedevil the criminal justice system.  Ultimately, Mr McLennan briefed Ms Swiney of counsel, who likewise utilised her years of experience to sort out a case that looked near-on impossible.

20A report dated 21 December 2022 as to fitness was secured from Dr Adam Deacon.  He had seen you in the past – I think as long ago as 2010 – but in broad terms, Dr Deacon agreed with Dr Clarkson that your intense delusions meant you were, in practical terms, unfit to stand trial, but he too was of the view that with appropriate treatment, you may become fit within 12 months.

21Dr Deacon interviewed you again on 3 February 2023 and prepared a supplementary report dated 6 February 2023.  That assessment was markedly different from those that went before.  You had complied with the regime of antipsychotic medication at Ravenhall, it seemed, so as to avoid a transfer back to Thomas Embling Hospital. The effect was that you engaged in the interview, were not delusional or tangential.  You were better focused.  Dr Deacon was clear you were now fit to enter a plea of guilty.  You have always given that broad indication that you wanted to plead guilty, but as I have said, until recent times you were not fit to enter any plea. 

22Dr Deacon's report having been received by the parties and the court led to you instructing your lawyers in a clear-headed way that you would plead guilty to the charges arising out of a frightening but nonetheless sad episode played out on the roof of your sister's house on 2 October 2021.

23You do have a lengthy criminal history with many sentences of time served or thereabouts imposed by a magistrate.  Here I emphasise how difficult it is with mental illness to propose a proportionate sentence.  Many times, I am sure, magistrates are in the same position that I am in; that is, you have spent such time in custody longer than might have been imposed, had there not been the complications of your mental illness. Many of the prior convictions are for similar offences to those on the indictment.  There are crimes of violence, criminal damage, endangerment and breach of intervention orders.  There are also many drug offences, as you have a longstanding addiction to drugs.  As noted, you have served many terms of imprisonment.  It seems any Community Corrections Order imposed appears to have been breached shortly after being imposed.  There are not many years, if any, between 2002 and now that you have not been before the courts a number of times.  Your past history is testament to your poor mental health.

24You are now 43.  Your parents attended court and are here again today.  They continue to support you.  It has been, no doubt, a long and hard journey for them supporting you through your deterioration in mental health, likewise to your siblings. You instruct that you have three children.  You have worked in construction as a plasterer.  You have accommodation in Richmond managed or supported by the Salvation Army.  To their great credit and in a turn of events that gives me a good deal more confidence than otherwise, that accommodation has been kept open for you over the time of your remand.  Stable housing for you is, in my view, very important. You have little insight into your mental illness.  You are well now on the medication you are taking.  It is critical to continue with this regime in the community.  The community mental health agencies need to be fully engaged.  Your level of mental impairment and its causative connections to the crimes means that your moral culpability for the crimes on 2 October must be seen as much lower.  Your level of impairment at the time is, in my view, just short of a defence of mental impairment. As the jurisprudence in this area from the cases of R v Mooney,[3] in the late 1970s and R v Anderson,[4] in the 1980s all the way through to the well-known case of R v Verdins (‘Verdins’),[5] all make clear that when the level of mental impairment is as it is in your case, then an accused can be properly dealt with a reduced sentence because they have a significantly reduced level of moral culpability. So too does general deterrence fall almost away.  You are not the one to be used as an example to others.  The other mitigatory matters in Verdins are engaged, but so too is the other side of the same sentencing coin. That is, your mental impairment and the fact of your years of offending mean you do present as a risk, and protection of the community looms larger in your case.

[3] [1978] VR 272.

[4] [1981] VR 17.

[5] (2007) 16 VR 269.

25You have been in custody in difficult circumstances due to COVID; that is, since 2 October 2021, now over 500 days.  That is a significant sentence for these matters on indictment.  I pause at this moment to say there were two appeals that were before the court.  They have been resolved by one appeal – the Director of Public Prosecutions withdrew those charges, so that appeal fell away.  Likewise, the second appeal, you abandoned your appeal on the basis you had done every day of the head sentence imposed in that matter. So the point that I am driving at now that you have served over 500 days. That is a significant sentence for the matters that remain on indictment.  The time that you have served is a just and appropriate sentence.  It should be no longer.  My fear is that indeed it is too long, and the sentence that I impose will be less than the time that you have served.  I cannot just contrive a sentence, tailor it to the days that you have served.  It has to be just and appropriate, and if it is less than the time you have served, it is less. To impose any longer sentence would simply warehouse someone who is in need of care and treatment by the mental health system, not the criminal justice or corrections system.  That point has been reached.  Of course, there are risks, but it is incumbent now on those that operate the mental health system to take care of you, make you safe and the community likewise.  If those risks are such that you are not safe to yourself, or the community is not safe, then they have the capacity to seek orders under the Mental Health Act 2014 (Vic) or make orders under the Mental Health Act 2014 (Vic) to bring about an amelioration of risk.

26Your release will no doubt, it would seem to me, cause concern to your family, and I appreciate what they have endured, but I note that your parents are here and supportive. The protection to you and to others is if you continue with a steady, stable life.  That comes from treating your underlying mental illness as it has of late been treated in prison.  I emphasise again – I sound repetitive, but it is necessary – that level of treatment must continue in the community.

27You have a general practitioner.  You are known to the community mental health practitioners or agencies, and it is necessary that you engage with them as soon as possible.  Go and see your general practitioner just to see what the next steps are.  No one wants to see you arrested again and back in prison and just repeating all of this.  No one wants to deal with you when you are unwell because it can be frightening.

28Now, your plea of guilty is acknowledged for all the matters because you are now fit.  It is still in COVID times, and so your plea of guilty is a matter that takes on added utilitarian benefit.  Dealing with those that are unfit to plead in COVID times adds a real burden to the system, particularly if they wish to, in their state of mind, represent themselves.  All that has been sorted, but your plea must get more weight than otherwise would be the case.

29What I have decided to do is that for the burglary, the theft, criminal damage – these can be dealt with in a single aggregate sentence.  That is how I expect it would have been dealt with in the Magistrate’s Court.  I have the powers to do that.  Stealing spray paint and a poster is not as serious as breaking into places and all the circumstances of being on the roof and tiles being thrown and whatever.

30So in saying that, the aggregate sentence that I impose is a sentence of 12 months' imprisonment.  I decline to fix a non-parole period.  I do not have to at 12 months, but it is clear that that is not necessary or practical in the circumstances.  What I declare is that you have done 502 days.  I am just going to pause and ensure that that is right.  Can one of the ‑ ‑ ‑

31MR CAMERON:  Agreed, Your Honour.

32HIS HONOUR:  Agreed?

33MS SWINEY:  Yes, Your Honour.

34HIS HONOUR:  All right.  You have done 502 days.  That is over 16 months, so you can see what has happened here.  But I declare that you have served 502 days.  I will ensure that declaration is entered into the records of the court so that the prison authorities are left in no doubt that you have served every day of the sentence that I have just imposed.  I do not know how emergency days work, but it is probably even more than that.

35In any event, with the appeals now dealt with, unless the Office of Corrections has other information regarding other matters that holds you in custody, then you have served each and every day of the sentence that I have just imposed and are eligible under my sentence to be released.

36Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a head sentence of two years and two months and a non-parole period of 16 months.

37Is there anything further required?

38MR CAMERON:  No, Your Honour.

39MS SWINEY:  No, Your Honour, not from us.

40HIS HONOUR:  There was a summary charge.  What is the summary charge?  I miss them all the time.

41MS SWINEY:  The contravention of the bail.

42HIS HONOUR:  Contravention of bail.  That is part of the aggregate term even though it is kind of unrelated.  I would not add one day to the sentence that I have just imposed by breach of the bail; that is, committing an offence while on bail.  The substance of that matter was all dealt with, so there is no extra penalty for that.  If there is nothing further, again I thank counsel for their assistance.

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