Director of Public Prosecutions v Lukic
[2016] VCC 2010
•15 December 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR-16-01906
Indictment No. G12041713
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NIKOLA LUKIC |
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| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Geelong |
| DATE OF HEARING: | 17 November 2016 |
| DATE OF SENTENCE: | 15 December 2016 |
| CASE MAY BE CITED AS: | DPP v Lukic |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 2010 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – intentionally causing serious injury – young offender
Legislation Cited: Crimes Act1958 (Vic); Sentencing Act1991 (Vic)
Cases Cited:R v Verdins (2007) 16 VR 269; DPP v O'Neill [2015] VSCA 325; R v Tsiaras [1996] 1 VR 398; R v Misokka (unreported, Victorian Supreme Court of Appeal, Charles and Callaway JJA and Vincent AJA, 9 November 1995); R v Fotios Tsiamas and Greg Kastanis (unreported, Victorian Supreme Court of Appeal, Phillips CJ and Callaway and Batt JJA, 21 May 1997)
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr K. Doyle | Office for the Director of Public Prosecutions |
| For the Accused | Ms M. Fox S.C. | Michael Brugman Barristers & Solicitors |
HIS HONOUR:
1Mr Lukic, you can remain seated while I pronounce this sentence upon you. It is necessary for me to go through a number of matters that have been brought to the Court for the purpose of this sentence. When I finalise them, I will ask you to stand, and I will formally pronounce the sentence.
2This plea was conducted in the County Court sitting at Geelong on
17 November of this year, when Mr Lukic pleaded guilty to the one charge on the Indictment, being a breach of s16 of the Crimes Act1958 (Vic), in that on 24 July 2016 at his father's home he intentionally caused serious injury to Stephan Lukic, who was his father.3As has been stated today, the seriousness of such an offence is demonstrated by the fact that Parliament has prescribed a maximum penalty for such offending of twenty years' imprisonment.
4Mr Lukic is aged twenty at the moment. He turns twenty-one in five days, that is, on the 20th of this month. He is a contract worker. Because of his current age, he is defined as a young offender pursuant to the definition in the Sentencing Act1991, and as such the provisions of ss32-35 of the Act apply to him.
5The prosecution opening was Exhibit A, such being accepted by Ms Fox of counsel, as she then was and still is, of course, on 17 November 2016. However, she is now of Senior Counsel. The acceptance of those facts were the facts upon which I am to sentence her client.
6The circumstances set out by the learned prosecutor Mr Doyle from paragraphs [6] through to [26] are, I think as I described at the time, horrifying, and as I have just said today, Mr Lukic, your father, indeed his family, indeed the community, is very lucky that this matter did not end up across the road in a murder charge.
7The background to this offending all goes to, essentially, your drug addiction to ice and other drugs, which has led to you for some time suffering a form of paranoia. As described in paragraph [6] of the summary, that paranoia led you to believe that the cameras installed in the house had been installed by your father to keep you under constant surveillance.
8Such had led to a number of arguments with his father, and indeed was the background to what happened on this particular night, 24 July 2016. There was an argument with his brother, and subsequently his father. His father left the home and returned at approximately 1.01pm, and it was thereafter that this attack took place.
9In the argument his father described Mr Lukic as making noises, he had never seen him make before, snarling-type noises which his father described as similar to that of a tiger. Mr Lukic pronounced to his father that he was going to kill him, and kill him slowly, proceeded to chase him around and then stabbed him to the back of the neck with a number of knives that he had.
10Finally, this led to his father collapsing outside on Melbourne Road. The injuries suffered as a result of this attack are detailed at paragraphs [27]-[30] of the opening. They involved a 12-centimetre penetrating wound to the back of the neck, exiting in front of the clavicle, a 2-centimetre laceration to the right upper chest, a 5-centimetre laceration in the right lower chest resulting in a collapsed lung, a 2-centimetre laceration to the left upper abdomen immediately over the stomach resulting in a perforation of colonic mesentery, perforation of the small intestine, and laceration of the anterior surface of the pancreas, a 10-centimetre laceration of the right elbow cutting across the triceps tendon, minor defensive wounds on the arms and hands, and substantial blood loss.
11The victim, Mr Lukic Snr, was required to undergo five operations after being admitted to the Geelong University Hospital, which involved both orthopaedic and plastic surgeons. His injuries at the time of being admitted were deemed to be life-threatening.
12The neck injury had cut a branch artery, which in fact involved a 24 units of blood transfusion. The victim remained initially in the hospital until his first discharge, and he later returned for further surgery in September, and was ultimately finally discharged on 20 September 2016.
13Exhibit B is the report from Barwon Health essentially confirming all of these injuries that I detailed. That is a report signed by a Dr Paul Mestitz, senior medical specialist, safety and quality unit of Barwon Health. There is no information as to Mr Lukic Snr's current position, however it is noted in this report that subsequent to these operations and treatment Mr Lukic Snr made a good recovery although the report, at that stage, being August of this year, could not predict whether there would be any complications from the extensive intra-abdominal injuries which had occurred, and the subsequent surgery required to save his life.
14There was no Victim Impact Statement and during the plea we referred to the statement, Exhibit F, of the victim. Mr Lukic confirms the basis of this attack being this issue over the cameras. It would appear that Mr Lukic Snr placed the cameras in the home because of cars being broken into outside his house. Apparently, over the next few months his son became more and more paranoid about this and, as I said, started to accuse his father of spying on him. This was the background factor which led to this attack, that, and an argument, again, with this brother.
15As I said before, when the father came home after going out to get some fresh air, he tried again to calm his son down. However, he was so angry that his face was screwed up, and he was making the noises, that I have earlier referred to.
16Mr Lukic Snr stated on page 4 of his statement he "could not believe that his son Nik had done that to him", acknowledging that he was well aware that, in his view, his son was trying to kill him, and also that he was told by the medical practitioners that not only was he close to dying, but that his injuries would take a long time to heal. Objectively, therefore, as put by the learned prosecutor, and as I said in the hearing, this is a most serious example of such crime.
17By way of classification as required by the High Court in Ibbs v R [1987] HCA 46, I would classify the objective criminality of this crime as high on the scale of heinousness, somewhere between mid-range and high.
18The Crown sought a disposal order and an order under s464ZF, which I do consent to making. The plea conducted was a plea conducted initially at Geelong, and further supported by Ms Fox, tendering a brief outline of further submissions this morning.
19The material tendered today in support of that plea is Exhibit 1, the report of the psychologist, Mr David Ball. In that report in particular, at page 5 it is noted that Mr Ball attended upon Mr Lukic on 15 November. He noted from the psychiatric records, which form and make up Exhibit 2, the history of psychotic symptoms that appear most likely related to long-term stimulant abuse, and noted the symptoms of hallucinations, delusions, and the hearing of voices.
20Mr Ball was of the opinion that such symptomology, both previous and current, upon examination approximated what he described as paranoid schizophrenia. He was unclear whether this was a constitutional issue, or related to substance abuse. Mr Ball described his schizoid, paranoid, delusional, avoidant personality features as significant, and opined that a "frank mental illness was operating during the commission of the offence".
21Ms Fox, I should say, that is where I did see it - there was a suggestion of non-compliance in that matter. In the report page 5.
22MS FOX: Yes, your Honour, and I thought we had addressed this just earlier, that my understanding is Mr Lukic was not on any medication at that time.
23HIS HONOUR: Yes, it seems to be a misapprehension.
24MS FOX: Yes, and it seemed to be tied to Mr Ball's uncertainty as to whether he had this diagnosis of paranoid schizophrenia, or he did not. And not being a psychiatrist ‑ ‑ ‑
25HIS HONOUR: Yes, I covered that, but it just - it raised its head as I was looking at it. Despite what Mr Ball says in the report as to a nexus between this mental illness and non-compliance of medication, it would appear upon further reports, and in particular the report tendered today of Mr Sullivan's (Exhibit H, that is, the Forensicare report), there is no such connection.
26As I say, in addition was tendered Exhibit 2, being the history of psychiatric health that Mr Ball referred to, and in addition Exhibit 3, which was the treatment provided as a result of the injuries to Mr Lukic himself, suffered while he was attacking his father. Perhaps it is indicative of the ferocity of such attack. I do, obviously, take such into account in assessing the appropriate sentence in this matter.
27Ms Fox did not gainsay the seriousness of this crime or the fact of the injuries that I have referred to. She submitted that Mr Lukic was clearly a defined young offender with no priors whatsoever, and referred to the report, the background history between the family and the separation at a young age, the earlier issues of ADHD, potential autism and Tourette Syndrome, and the prescription of dexamphetamine. It is quite clear, however, that the real issues leading to the paranoia were closely connected with Mr Lukic's drug addiction, in particular his addiction to ice. Ms Fox further submitted that albeit this was a grave attack, it was unplanned and spontaneous, and while objectively serious, Mr Lukic is remorseful for his actions, and devastated by the attack upon his father.
28The prisoner’s background is fairly uneventful, I do not say that disparagingly, but there is nothing about his background that would indicate that he would be involved in a crime of this sort, the clear factor being his introduction to drugs at a young age; cannabis at approximately fourteen to fifteen, and ice from about 2013-2014. He may well have been impacted by the suicide of a close friend. He did live at one stage with his sister, but came back to live with his father, some seven months before this attack.
29It is clear in the father's statement, and was put by Ms Fox that, unfortunately, the impact of the drugs led to Mr Lukic being increasingly paranoid and acting in a manner, which ultimately led to the circumstances of this offending.
30Ms Fox, this morning, subsequent to the tendering of the additional material which I called for, that is, the Forensicare report, made a further submission to me. I will go to the Forensicare report first, that is now Exhibit H. It is dated
13 September 2016, of Dr Sullivan. At [25], Dr Sullivan says, having obtained the history prior to that:"Mr Lukic reported alcohol use from the age of 14, and felt this was a problem. He reported the cannabis use that I have referred to, beginning the ice at 18, and his continual abuse of such."
31At paragraph 30, Dr Sullivan spoke of Mr Lukic having used cocaine on four occasions, and of abusing prescription pills. So Mr Lukic is a person with multiple substance issues. As I said, there is no prior criminal history. Dr Sullivan noted at [50] the reporting of auditory and somatic hallucinations and persecutory ideation, which Mr Lukic had advised commenced early in his school years.
32The diagnosis of the disorder of which he suffers, and the disorder which led to this crime, made by Dr Sullivan, is one of Poly-substance-Induced Psychotic Disorder. He was of the opinion at [51] that such was caused both by way of a cannabis and methamphetamine-induced psychosis. Dr Sullivan was of the opinion that Mr Lukic did not meet the criteria for a diagnosis of paranoid schizophrenia. He said at [54] as follows:
“I consider that methamphetamine and cannabis use, and consequent psychosis engendered by this, was causally associated with the alleged offence, and impaired his capacity to think clearly and make calm and rational choices. This was evident in his level of anger, and persecutory ideation about being followed and having family members meddle with his computer. It is also likely that methamphetamine intoxication disinhibited him and was associated with impairment of his judgment.”
33Dr Sullivan was somewhat guarded about rehabilitation. Mr Lukic, he said, would require long-term abstinence from substance use, given his early age of onset and his limited capacity to engage in any treatment, he would require assessment and assistance to be able to overcome these problems in his life.
34In addition to that document was tendered two other documents this morning. Firstly, a Pre-sentence Report. That report was prepared for the Court, by Heather Gargett dated 6 December 2016, pursuant to the request made by this Court under s32 of the Sentencing Act. It was noted that this is Mr Lukic’s first involvement with the justice system, and that he has been approximately four-and-a-half months now, nearly five, in an adult prison.
35Mr Lukic was found suitable for detention in a juvenile justice centre. Also made on the plea was a request for a community correction order, and the report in that regard was tendered, Exhibit K. Such was a positive assessment in regard to Mr Lukic, with appropriate conditions given the difficulties he has with addiction.
36Following those reports being tendered, Ms Fox sought to further make submissions. She had, indeed, advised the Court in regard to those matters and perhaps that additional submission or, that submission, should be made (Exhibit 4 insofar as the plea is concerned.)
37The essential proposition, in all the circumstances, put, is that Mr Lukic is suitable for alternative punishment, rather than just a period of imprisonment. The major plea made is that any imprisonment be served by way of detention. If that was deemed by the Court to not be appropriate, then Ms Fox submitted that there should be a period of immediate incarceration with a community correction order attached.
38Insofar as that submission was concerned, Mr Doyle, on behalf of the Director, submitted that given the seriousness of this crime, and its objective criminality, this was a matter that would not be appropriately dealt with by way of a youth sentence order. He also raised the issue as to the impact of the principles in R v Verdins (2007) 16 VR 269. I have no doubt, confirmed by the report of Dr Sullivan, that for whatever reason, whether it be constitutional or just drugs, and I accept that Dr Sullivan says that it appears to be a psychotic paranoid episode, being drug-induced over some period that Mr Lukic’s capacity for appropriate judgment and determination was grossly impacted at the time of the commission of this crime.
39Mr Lukic’s father's description of his physical attributes during the attack, the intensity of the attack, the intensity of his own injuries from the attack, all indicate to me, clearly, that he was particularly florid on this day. I accept the limitations that relate to a Verdins determination, and the operation of the principles of Verdins. I do not find any foreknowledge in the particular circumstances of this case, such as would lead me to conclude that the ameliorating effects of a determination and finding of the Verdins principles should occur in this case.
40I am not too sure how long Mr Lukic was in this state, however his father and family clearly indicate it was for a period of some months. He appears to have not been treated in that time. The paranoia was developing up to the stage that this frantic attack was undertaken.
41There was a recent analysis by the Court of Appeal of the operation of the Verdins principles in DPP v O'Neill [2015] VSCA 325. In particular at [51], the Court referred to the principles set out in R v Tsiaras [1996] 1 VR 398, and the general concept that a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence.
42In this instance, I have no doubt that his psychiatric state at the time did have a direct connection with this offence, and I have no doubt that the impairment contributed to this offending.
43At [57], the Court referred to statements in Verdins and to Tsiaras, and noted the statement that whether general deterrence should be moderated or eliminated as a sentencing consideration depends on the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender.
44At [59] the Court said:
“Clearly, there must be an established evidentiary basis for moderating the principles of general deterrence in a particular case. For that to occur, it is not sufficient that the offender suffer from a particular mental impairment. There must be proper, and informed, consideration of how that impairment might have either materially diminished the capacity of the offender to reason appropriately at the time of the offence concerning the wrongfulness of his or her offending, or of how the offender’s condition might make the full application of the principles of general deterrence repugnant to the underlying sense of humanity which guides proper sentencing.”
45As I said given Mr Ball's report, Dr Sullivan's report and the circumstances as confirmed by the victim himself, I have no doubt that it is appropriate to apply the principles of Verdins, and for the sentencing consideration, which would normally be paramount in this case, of general deterrence, to be appropriately moderated.
46It is always difficult when dealing with a young offender who is involved in a commission of a serious crime. As has been highlighted by the learned prosecutor, this is a serious example of this particular crime brought about by this frenzied attack on his father.
47It is of importance to take into account, in considering this sentence, the principles expressed in R v Misokka (unreported, Victorian Supreme Court of Appeal, Charles and Callaway JJA and Vincent AJA, 9 November 1995) in particular the words of Callaway JA at [5] to [6] and Vincent AJA at [9] to [10].
48However, each case must be judged on its particular merits. In R v Fotios Tsiamas & Kastanis (unreported, Victorian Supreme Court of Appeal, Phillips CJ and Callaway and Batt JJA, 21 May 1997), which involved an orgy of physical destruction, Phillips CJ said at [6], that while the trial judge was not unmindful of the seriousness of imposing custodial sentences upon first offenders, he found that the “scale, persistence and ferocity of your behaviour put yourselves beyond the pale. In my judgment the only appropriate sentence is imprisonment.” Such words were adopted by the Court of Appeal.
49I do not in any way dismiss the submission of the learned prosecutor, who submitted on behalf of the Director that these matters were too serious for a sentence to be imposed by way of confinement in a Youth Justice Centre. However, taking into account all the principles relevant to sentencing of young offenders, I conclude, I should such suggested submission, and a sentence should be passed by me involving a Youth Justice Centre order.
50Yes, if you would stand please Mr Lukic?
51You will be sentenced, pursuant to s32 of the Sentencing Act, to a period of detention of three years in a Youth Justice Centre.
52I declare, pursuant to s35, that the period that you have already served - is there a number ‑ ‑ ‑
53MR DOYLE: It is 144 days, yes.
54HIS HONOUR: One hundred and forty-four days.
55MS FOX: Your Honour ‑ ‑ ‑
56MR DOYLE: Your Honour - just could I? Yes, sorry.
57MS FOX: Just on the 144 days, I note he spent two days in hospital under guard. So I am not sure if that makes it 142 or 144, I just thought I would check. He was under guard in hospital.
58MR DOYLE: I think he can probably have the 144, your Honour.
59HIS HONOUR: One-hundred and forty-four?
60MS FOX: I am happy with that, your Honour, I just thought I would check.
61MR DOYLE: Your Honour, just before your Honour goes ahead. I am not making a submission about this, I just wanted to clarify something about s32(1), the presentence detention.
62HIS HONOUR: Yes?
63MR DOYLE: Your Honour, the provision provides that it must be reckoned as already served, unless the Court otherwise orders, so I am just ‑ ‑ ‑
64HIS HONOUR: Is that where ‑ ‑ ‑
65MR DOYLE: Yes, there is a discretion in there, your Honour.
66HIS HONOUR: Well there is no reason ‑ ‑ ‑
67MR DOYLE: I am sure it makes no difference, but just so ‑ ‑ ‑
68HIS HONOUR: No, no reason why I should not make that order, is there?
69MR DOYLE: I am not submitting that you should not, I just wanted to ‑ ‑ ‑
70HIS HONOUR: Yes, well I will make that declaration, that such is a period of detention that has already been served, and that declaration be recorded in the records of this Court. I will sign the ancillary orders that you have sought, Mr Prosecutor.
71MR DOYLE: Yes your Honour.
72HIS HONOUR: That is a s464ZF and the disposal order, and also I think I am still required to make a declaration under s6AAA of the Sentencing Act, am I not?
73MR DOYLE: Yes, yes.
74HIS HONOUR: In those circumstances, to the best that I can do to comply with Parliament's requirement, all I can say is that certainly had there not been a plea of guilty in this matter, there would not have been imposition of a Youth Justice sentence order. Yes, Ms Fox, is there any other matters?
75MS FOX: No, your Honour.
76HIS HONOUR: I announced the period of three years, did I not?
77COUNSEL: Yes, you did, your Honour.
78MS FOX: And 144 days, yes.
79HIS HONOUR: Yes. All right, Mr Lukic, well good luck.
80OFFENDER: Thank you very much, your Honour.
81HIS HONOUR: It is very clear from your life you cannot touch drugs again, all right?
82OFFENDER: I promise.
83HIS HONOUR: No good at all.
84OFFENDER: I promise.
85HIS HONOUR: Yes, all right, well good luck to the family too.
86OFFENDER: Thank you very much, your Honour.
87HIS HONOUR: Yes. I can excuse counsel from the Bar table.
88MR DOYLE: Thank you, Your Honour.
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