Director of Public Prosecutions v Jovanovski

[2016] VCC 1087

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00109

DIRECTOR OF PUBLIC PROSECUTIONS

v

SASHO JOVANOVSKI

---

JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	20 June 2016
DATE OF SENTENCE:	29 July 2016
CASE MAY BE CITED AS:	DPP v Jovanovski
MEDIUM NEUTRAL CITATION:	[2016] VCC 1087

REASONS FOR SENTENCE
---

Subject:  Arson; Reckless Conduct; Threat to Kill
Catchwords:
Legislation Cited:
Cases Cited:            Verdins
Sentence:                  Seven-year Community Corrections Order

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms. D. Mandie
For the Accused	Mr M. Mykytowiycz

Pages 1 - 8

 

 

HIS HONOUR: 

1Sasho Jovanovski, on 20 June 2016 you pleaded guilty to one charge of arson, for which the maximum penalty is 15 years' imprisonment, and one charge of reckless conduct endangering persons, for which the maximum penalty is five years' imprisonment, and one charge of making a threat to kill, for which the maximum penalty is ten years' imprisonment.  Each of the offences occurred on 26 April 2015.

2You have for a long time suffered from the mental illness of paranoid schizophrenia. In the lead-up to these offences you had been suffering from delusional thoughts and you had been hospitalised.  Because of your state of mental health, both at the time of offending and now when you fall to be sentenced, the prosecution concedes that each of the principles set out by the Court of Appeal in this state in a case known as Verdins have application in framing an appropriate sentence to be imposed upon you for your crimes.  Having regard to the state of the evidence, that is an appropriate concession and in passing sentence I have applied those principles.

3Because of this, and because the prosecution properly conceded that a Community Corrections Order could properly form part of any sentence, at the conclusion of sentencing submissions I adjourned my sentence pending the receipt of a full pre-sentence report as to your suitability to be the subject of a Community Corrections Order, which was the disposition urged upon me by your counsel.  I have now received that report and made copies available to both the prosecution and the defence.  The report is dated 20 July 2016.  You were assessed as suitable for receipt of a disposition involving a Community Corrections Order.

4To be clear, the prosecution submission on sentence was that a Community Corrections Order in combination with a term of imprisonment was within an appropriate sentencing range having regard to the level of your offending.

5The circumstances of your offending are set out in some detail in a summary of prosecution opening dated 15 June 2016.  I admitted that document into evidence as Exhibit A on the plea and it was read in a summary way by the learned prosecutor Ms Mandie.  It is not necessary that I again here set out that which is found in the prosecution opening except in a very summary way.  These sentencing remarks, however, need to be read in the light of what is set out in more detail in the written summary.

6Your counsel accepted that the summary was accurate and forms a proper basis upon which I can proceed to pass sentence upon you.

7As I said earlier you have long suffered from paranoid schizophrenia.  Around 17 March 2015 you were admitted pursuant to s.351 of the Mental Health Act to the Werribee Mercy Hospital Psychiatric Unit, where you remained as an involuntary in-patient until your discharge on 19 April 2015 and release on 21 April 2015.

8When you were released you returned to live with your mother at 53 Hotham Street in Seddon.  Upon your release you were provided with a mental health plan that primarily consisted of medication.

9In the evening on 25 April 2015, only four days after your release from Werribee, your mother made contact with a crisis assessment team clinician and advised that you had been undergoing a number of panic attacks and psychiatric episodes through the course of the day and that you appeared to have relapsed.  Your mother has had a great deal of experience in dealing with you and your mental health issues over a long period of time.

10A CATT team clinician attended your residence accompanied by police on 25 April 2015, where your mental health was reassessed as a "failed discharge".  When you were assessed you told the CATT team that you were having persecutory delusions, including that your neighbour at 51 Hotham Street was burning your eyes out using a laser.  You were again returned to Werribee as an involuntary patient pursuant to s.351 of the Mental Health Act.

11Around 9 am on the following day, 26 April 2015, you absconded from the emergency department at Werribee where you had been waiting for a bed.  You returned to your mother’s address at 53 Hotham Street, Seddon.  A short time later you set fire to the weatherboard wall of the house on the adjoining property.  You used kerosene as an accelerant.  At the time your neighbour was inside the house.  Fortunately for you, the sound made by the ensuing fire alerted your neighbour, who ran out of the house.  The fire was in and on the western wall of the lounge room.  You were observed by your neighbour crouching between the two houses.  Realising that your neighbour had seen what you were doing, you grabbed hold of a shovel and threatened to kill him.  Firemen managed to contain the fire, but the house was extensively damaged.

12A short time later you returned to the scene accompanied by your mother.  You approached the police and told them that you were responsible for lighting the fire.  You said that you had lit it deliberately because you were having problems with your neighbour stating, "They are constantly shining lasers at me".  You were immediately arrested and cooperated with police, although it was considered that you were unfit for interview.

13It can be seen that your conduct in committing each of these offences represents a serious example of what are serious offences.  The sentence I impose needs to reflect that fact.

14The evidence does not show that you had a defence of mental impairment pursuant to s.20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1977. However, as I said earlier, Verdins principles do apply; because of your mental state at the time of offending, your moral culpability for this offending is reduced and the sentence imposed must reflect this and reflect reduced reliance upon application for principle of general deterrence.  Further, because of your present state of mental health, the sentence imposed by me is influenced by the fact that you would find a lengthy term of imprisonment very difficult.  Further your state of mental health would likely further decline should a lengthy term of imprisonment be imposed.  

15Having said that, in sentencing you I must impose a sentence that properly denunciates your offending, provides for protection of the public and, so far as possible, ensures that you get appropriate and constant attention to your state of mental health.  You did intend to set the fire.  You proceeded to light the fire knowing that your neighbour inside would probably be injured if you did so, yet you went ahead regardless.  When you threatened to kill him you raised the shovel, thereby indicating to him an intention to carry out your threat.

16All of this needs to be taken into account in order to ensure that the sentence imposed properly addresses the purposes of sentencing, namely general and specific deterrence, just punishment, rehabilitation and, where necessary (as here), protection of the community.

17You have pleaded guilty to the charges having indicated that you would do so on 15 June of this year.  I treat you as having indicated that you would plead guilty at the earliest available opportunity.  Because of your pleas of guilty you have saved the time and cost of a trial and your pleas of guilty are evidence of your remorse.  I note that when you were examined by Dr Walton for the purposes of providing a report he noted that you had not made a comprehensive expression of remorse.  Dr Clayer, another psychiatrist who examined you, thought you had partial insight into your illness and you told her that you need to be on medication at all times, otherwise you become unwell and experience delusions.  Importantly you do accept that you are mentally ill and that from time to time you require hospitalisation, especially where there has been a lapse in your taking your medication.

18I admitted into evidence a comprehensive 21-page outline of submissions prepared by your counsel, which is very helpful.  In those submissions your counsel set out in detail your personal circumstances and I borrow briefly from them.

19You were born on 30 June 1965 and you are now 41 years of age.  You were 40 years of age at the time of offending.  You have no prior convictions.

20You were born in Macedonia and migrated to this country with your parents in the late 1960s when you were three years of age.  Your father passed away in the year 2000.  Your mother, who is aged in her late 70s, survives, as does your maternal aunt.  You have a younger brother Konstantine who is a drug addict and who suffers from his own mental health problems.  Your parents were typical hard-working migrants after they came to this country.

21You completed year 11 at Williamstown High School aged 17 years and you then worked as an assembler for about three months.  You next worked in a fish processing factory for about three months, at which time you obtained work as a clerk at the Department of Defence.  You have not worked since your mid 20s due to your psychiatric illness and you remain on a disability support pension.  You have had past relationships, but you have not been in any relationship for some time and you have no children.

22Your pathway to mental illness and of offending is a well-worn one.  It has probably been caused by drug abuse.  You began smoking cannabis when you were aged around 18 and you did so continuously for about ten years.  You also experimented with other exotic drugs and amphetamines.  You attribute your development of your mental illness to your drug abuse.  You ceased abusing drugs about 20 years ago.  I was told and accept that, having appreciated that it was drugs that have caused your mental health to decline, you chose to cease using drugs in that is to your credit.

23However, having rid yourself of drugs, you abused alcohol.  I was told and accept that you currently drink about half a bottle of whiskey a day and this has reduced in quantity from a peak where you were drinking a full bottle of whiskey a day for about six years leading up to this offending.  You apparently turned to drinking alcohol seeking to ameliorate the side effects of the drugs that you must take to stabilise your paranoid schizophrenic state. 

24There is no dispute on the evidence here that at the time of offending and for many years prior to it and subsequent to the offending and now you suffer from chronic paranoid schizophrenia.  I do not need here to refer to the lengthy and helpful medical reports provided from Dr Kirsten Clayer and Dr Lester Walton that were tendered in relation to you.  Further, there is no issue that you require constant and permanent medication to control your illness together with support from Salt Water Clinic, Maribyrnong Community Mental Health Team.  When you are properly medicated and treated I accept the opinions from the psychiatrists that the likelihood of your re-offending like this is relatively low.

25You were remanded in custody after your arrest on 26 April 2015 and you were granted bail on 26 May 2015 on conditions.  It is agreed you have served 32 days' pre-sentence detention.  Your neighbour, who was the victim of these offences, obtained an intervention order that prohibited you from living with your mother, as her house is next door to the house he then occupied.  Your neighbour has now moved out of the home and the intervention order has expired in the result that you can and now do live with your mother and will continue to do so.  That is a good thing because she is probably the best qualified person for you to live with, because she knows exactly what to expect of your behaviour and, through her experience with you, she is best able to identify when you need psychiatric help.  In the past she has contacted the CATT team having herself recognised that you had become psychotic and were experiencing delusions.

26I accept submissions made on your behalf that your best prospects for rehabilitation in the sense of preventing you re-offending are directly linked to you continuing to engage in appropriate mental health treatment.  It is important to understand that, this offending aside, up until the age of 40 you had led an unblemished life.  In passing sentence I have given full consideration to that fact.

27Whilst acknowledging the seriousness of your offending, your counsel submitted that having regard to your diagnosed state of mental health and the need for you to have available and receive ongoing treatment, an appropriate sentence here would be to impose a Community Corrections Order with conditions designed to ensure that you continue to receive proper treatment. In doing so, she relied upon application of s. 5(4B) of the Sentencing Act 1991 and the principles referred to by the Court of Appeal in Boulton v The Queen [2014] VSCA 342, where the court said that in appropriate cases a Community Corrections Order with appropriate conditions can meet each of the purposes of sentencing that I have referred to above.

28As I have already said, the prosecution did not disagree with these submissions but argued a Community Corrections Order could be made in combination with a term of imprisonment.

29I have taken the view that the community needs protection from you for a reasonably long time.  I can make a Community Corrections Order for a term equivalent to the maximum sentence.  I have decided that a Community Corrections Order is appropriate.  I will impose a term of imprisonment equivalent to time served on Charge 2.

30On charges 1 and 3 I make a Community Corrections Order for a term of seven years commencing this day.

31The Community Corrections Order will be subject to the following conditions in addition to the core conditions: 

(1) that you undergo assessment and treatment (including testing) for drug abuse or dependency;

(2) that you undergo assessment and treatment (including testing) for alcohol abuse or dependency;

(3) that you undergo assessment and treatment that may include any mental health assessment and treatment, and that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility;

(4) that you undergo programs that address factors related to your offending;

(5) that you continue to attend as required or advised upon the Saltwater Clinic at Werribee Health for treatment for mental health and obey any lawful instructions that you may be given from time to time by doctors or psychiatric clinicians or nurses at that clinic;

(6) that you continue to reside with your mother at 53 Hotham St, Seddon.  I make this condition on the basis that your brother Konstantine is not to reside at that address;

(7) supervision; and

(8) judicial monitoring every six months.

32On Charge 2 you are convicted and sentenced to a term of imprisonment of 32 days. 

33Just stopping there for a moment, the Community Corrections Order will be with conviction.

34I declare that there has been 32 days' pre-sentence detention already served under the sentence passed this day on Charge 2 and direct that 32 days be reckoned as having been already served and be entered into the records of the court and deducted administratively.

35I have been asked to make a forensic sample order for the taking of a forensic sample from your body, Mr Jovanovski.  Having regard to the seriousness of your offending and the fact that the making of the order was not opposed and me being of the view that it is in the public interest that such order be made, I have signed the order, which means that you will have to report to the Werribee police station within the next 28 days for that to be done.  Do you understand?  Very well.

36Are there any questions?

37MS MYKYTOWYCZ:  No, Your Honour.

38MS MANDIE: Your Honour, I am not sure that s.6AAA applies, but since there is a term of imprisonment - - -

39HIS HONOUR:  I am sorry, yes, it does.

40MS MANDIE:  Yes.

41HIS HONOUR: It does. It does, I am sorry. I passed a term of imprisonment in respect of Charge 2 and I have made a Community Corrections Order on the other two charges. For the purposes of s.6AAA of the Sentencing Act I say that had it not been for your pleas of guilty to the charges I would have imposed a term of imprisonment of six years and I would have set a minimum term of four. 

42MS MANDIE:  Thank you.  No further - no other questions.  Sorry, apologies, Your Honour.  There is also disposal orders just with regard to the lighting material and so forth.

43HIS HONOUR:  Yes, there were disposal orders which I have signed.  They were not opposed.  I thought I had already signed them.

44MS MANDIE:  Did you sign those already, Your Honour?

45HIS HONOUR:  I think I have already signed them. 

46MS MANDIE:  Yes, all right.  That is what happened.

47ASSOCIATE:  Mr Jovanovski, do you confirm this is your signature?

48OFFENDER:  Yes, it is.

49ASSOCIATE:  Thank you.

50HIS HONOUR:  Mr Jovanovski, do you understand the conditions in the Community Corrections Order?

51OFFENDER:  Yes, I do, Your Honour.

52HIS HONOUR:  You have signed the order.  I assume that you are prepared to comply with those conditions.

53OFFENDER:  Yes.

54HIS HONOUR:  You need to understand that you must comply with each of them.

55OFFENDER:  Yes, Your Honour.

56HIS HONOUR:  Otherwise you run the risk of being brought back here and I can resentence you.  Do you understand that?

57OFFENDER:  Yes, I do.

58HIS HONOUR:  You must not re-offend, that is commit any offences punishable by a term of imprisonment, during the term of this order, which is seven years.  Do you understand?

59OFFENDER:  Yes, I do.

60HIS HONOUR:  If you do so, you will be brought back and dealt with.  Do you understand that?

61OFFENDER:  Yes, Your Honour.

62HIS HONOUR:  I have also provided a condition for judicial monitoring, which means that I am going to keep an eye on you in summary form.  Do you understand that?

63OFFENDER:  That is okay.

64HIS HONOUR:  I will get a report every six months.

65OFFENDER:  Yes, Your Honour.

66HIS HONOUR:  If you slip up I will deal with you.  Do you understand that?

67OFFENDER:  Yes.

68HIS HONOUR:  Because I will be told about it straight away, you understand that?

69OFFENDER:  Yes.

70HIS HONOUR:  I will also have a transcript of everything I have told you today and that transcript will have on it your replies to me, do you understand?

71OFFENDER:  Yes, I do, Your Honour.

72HIS HONOUR:  So when you come back here, I will read that back to you.

73OFFENDER:  Okay.

74HIS HONOUR:  So do not mess up and I wish you well.  You are free to leave.

75OFFENDER:  Thank you, Your Honour.

76HIS HONOUR:  Could I thank both counsel for your submissions in this matter, which I found very helpful, thank you.

77MS MYKYTOWYCZ:  Thank you, Your Honour.

- - -