Director of Public Prosecutions v Slaveski

[2018] VCC 1622

IN THE COUNTY COURT OF VICTORIA Revised
Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-00943
CR 18-00875/76

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUPCHO SLAVESKI

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	20 July 2018
DATE OF SENTENCE:	2 October 2018
CASE MAY BE CITED AS:	DPP v Slaveski
MEDIUM NEUTRAL CITATION:	[2018] VCC 1622

REASONS FOR SENTENCE
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Subject: Mental Impairment
Sentence: Non-Custodial Supervision Order: Term - 5 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Gibson
For the Accused	Dr T. Alexander

HIS HONOUR: 

1Having ordered on each indictment before me that Mr Slaveski be found not guilty on the ground of mental impairment, I now must decide how Mr Slaveski is supervised, whether it be in custody or in the nature of a non-custodial supervision order.

2I am satisfied on the evidence before me in Exhibit E, the psychiatric report of the three psychiatrists which I referred to earlier dated 20 September 2018, that it is appropriate on each indictment to make a non-custodial supervision order commencing this day for a period of five years.

3I will also order that this order be reviewed on a date which my associate will advise me in a few minutes.

4There will be conditions of the non-custodial supervision order, and they will be six in number and I adopt the conditions recommended by the psychiatrists in the report of 20 September 2018.  Each of those conditions will be made in the order.  You did not wish to make any submissions about those conditions, did you, Dr Alexander?  I did not ask you about that, I should have.

5DR ALEXANDER:  No, I don't have any - no, I don't, Your Honour.

6HIS HONOUR:  Very well. 

7DR ALEXANDER:  And these of course can be - should any of these present a problem in due course there's a review in any event.

8HIS HONOUR:  They can come back.  Yes.

9DR ALEXANDER:  Yes.  Thank you. 

10HIS HONOUR: Very well. That then leaves the question of whether I should accede to an application by the prosecution that a forensic sample order within s.464ZFAAA of the Crimes Act 1958 should be made.

11Dr Alexander, who appears for Mr Slaveski opposes the making of that order having regard to the nature of the defence successfully made out in each of these matters.  However, the Act clearly envisages the court having the power to make such an order, notwithstanding the success of a defence of mental impairment.  In my view the intent of the legislation is to protect the community and to have the DNA identity of those who commit acts of a serious criminal nature recorded on the register.  Here there is no issue about the commission of the acts the defence has succeeded on the ground of mental impairment.  In my view, having regard to the seriousness of the acts constituting the offending in the charges, it is in the public interest that I make such an order and I will do so. 

12Now, Mr Slaveski, that means that you may be approached by a member of the police force and asked to give what is called a forensic sample which is really just the taking of a swab from the inside of your mouth.

13OFFENDER:  It's - it's fine if Your Honour - if Your Honour says that I ‑ ‑ ‑

14HIS HONOUR:  It is a straightforward procedure.

15OFFENDER:  It's okay, Your Honour.

16HIS HONOUR:  Yes.

17OFFENDER:  If you say that I do, I (indistinct) it.  Yes. 

18HIS HONOUR:  Yes.  But I am obliged to tell you ‑ ‑ ‑

19OFFENDER:  Yes.

20HIS HONOUR:  ‑ ‑ ‑ that if you resist a member of the police force may use reasonable force to take the sample.

21OFFENDER:  It's okay.

22HIS HONOUR:  Very well. 

23OFFENDER:  As long as they use it appropriately, that's fine.

24HIS HONOUR:  Yes.  Well I will make that order.  Do you have a copy of the orders, Mr ‑ ‑ ‑

25MR GIBSON:  Yes, Your Honour.  Yes.

26OFFENDER:  Thank you, Your Honour.

27HIS HONOUR:  I will order that a transcript be prepared of this morning's proceedings and made available to each of the parties.

28DR ALEXANDER:  If it please the court.

29HIS HONOUR:  Is there any need for me to make any other orders, Mr Gibson.

30MR GIBSON:  No, there isn't, Your Honour.  Just to clarify one matter for Mr Slaveski, he's currently undergoing a sentence.

31HIS HONOUR:  Yes.

32MR GIBSON:  The minimum non-parole period expired in April of this year but the head sentence expires in December of this year and of course his status from this day until December remains in the hands of the parole board.

33HIS HONOUR:  Yes.

34MR GIBSON:  If Your Honour please.

35DR ALEXANDER:  I'm very grateful to my friend for that indication.  Mr Slaveski now understands that it's not this court's order that detains him but rather the ‑ ‑ ‑

36HIS HONOUR:  No.

37DR ALEXANDER:  ‑ ‑ ‑ fact that the parole board has not yet granted him parole and there's nothing really Your Honour can do about - in fact there is nothing Your Honour can do about that.

38HIS HONOUR:  No, that is right.  So Mr Slaveski, you will just have to let - be patient and let matters take their course.

39OFFENDER:  Yes, Your Honour.

40HIS HONOUR:  The court has done everything it can.  I do not have power to do anything else.

41OFFENDER:  Thank you.

42HIS HONOUR:  And you will have to await the outcome of your application for parole.

43OFFENDER:  Thank you, Your Honour.

44HIS HONOUR:  I wish you well. 

45OFFENDER:  God bless.  Thank you.

46HIS HONOUR:  The date for the review will be 3 July - he has got to be reviewed each year, does he not, Mr Gibson?

47MR GIBSON:  Yes.  Yes.  I'm just trying to get that section, Your Honour.  Excuse me.

48HIS HONOUR:  Yes.  Just we had better make sure - is it 35?  No, yes, it is three months before the end of the nominal term. 

49MR GIBSON:  Yes.  I'm just looking at - my learned instructor's brought to my attention to s.27(2), "When making a supervision order the court may direct that the matter be brought back to the court for review at the end of the period specified."  Your Honour referred to section thirty ‑ ‑ ‑

50HIS HONOUR:  Five.

51MR GIBSON:  Thirty-five.  Yes, that's a major review so that's a different one.  So under 27(2) Your Honour can ‑ ‑ ‑

52HIS HONOUR:  I do not - unless - I have not heard from Dr Alexander but I am inclined to just let the matter go without review until such time as - and then a decision will have to be made as to whether or not it is extended at the end of the nominal term.

53DR ALEXANDER:  Yes, Your Honour, I don't dissuade Your Honour from that course.  This isn't a case where it's a custodial supervision order in ‑ ‑ ‑

54HIS HONOUR:  Yes.

55DR ALEXANDER:  ‑ ‑ ‑ forensic facility where different considerations might apply.

56HIS HONOUR:  Yes.  Yes.

57DR ALEXANDER:  So I don't request a period other than ‑ ‑ ‑

58HIS HONOUR:  And it sometimes happens, I have had experience in the past where I have made orders for the nominal period and both sides have come back before the end of the nominal period in respect of a non-custodial supervision order and asked me to cancel the order full stop.  Depends upon the progress.

59DR ALEXANDER:  Yes.  Yes, I'm ‑ ‑ ‑

60HIS HONOUR:  So I will order that there be a non-custodial supervision order with the conditions that I have referred to for a period of five years and I will order that there be a major review on or before ‑ ‑ ‑

61MR GIBSON:  Yes, five years less three months, that's right.  So it'll be ‑ ‑ ‑

62HIS HONOUR:  Five years minus three months.  On or before 3 July 2023. 

63MR GIBSON:  Your Honour please.  Thank you.

64DR ALEXANDER:  Please the court.

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