Director of Public Prosecutions v Stevanovic
[2021] VSC 222
•9 June 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0161
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| DRAGAN STEVANOVIC | Accused |
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 November 2019, 18 December 2019 |
DATE OF JUDGMENT: | 9 June 2021 |
CASE MAY BE CITED AS: | DPP v Stevanovic |
MEDIUM NEUTRAL CITATION: | [2021] VSC 222 |
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CRIMINAL LAW – Judgment – Murder – Accused stabbed wife repeatedly – Dementia – Jury found accused not guilty by reason of mental impairment – Accused liable to supervision – Remanded in custody to an appropriate place pending making of supervision order – Monash Health – Non-custodial supervision order with a nominal term of 25 years – ss 24(1)(b) and 26(1)(b) Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr N. Hutton | Office of the Public Prosecutions |
| For the Accused | Mr P.J. Smallwood | Doogue + George |
HIS HONOUR:
Introduction
The accused man Dragan Stevanovic was indicted with the murder of his wife Radmila Stevanovic at Noble Park on 2 February 2018. On 25 January 2019, a jury found him not guilty of the charge of murder by reason of mental impairment.
Mr Stevanovic stabbed Mrs Stevanovic multiple times to her upper body, head and neck, and thereby caused her death.
Mr Stevanovic was diagnosed with vascular dementia in 2011. His condition progressively worsened in the lead up to, and following, the offending. Medical records seized after the offending refer to an apparent decline in his memory and cognitive functioning. They also confirmed that he was receiving ongoing treatment for heart disease, prostate cancer, colon cancer, kidney cancer, anaemia and stroke.
Circumstances of the offending
The relevant facts necessary to understand these reasons are as follows. They were not disputed on behalf of Mr Stevanovic, and thus can be taken as accepted.
Dragan Stevanovic was 71 years old at the time of his offending. He lived with the victim Radmila Stevanovic in a unit on Dunblane Road in Noble Park.
Radmila Stevanovic was 65 years old. She had been married to Mr Stevanovic since 1973. They emigrated from Serbia to Australia together in 1984. They shared two sons. Mrs Stevanovic had been caring for Mr Stevanovic on almost a full time basis since 2008, following his first stroke and the subsequent deterioration of his health.
On 2 February 2018, between 9.00am and 9.15am, a neighbour heard very loud and persistent screaming from one of the units on Dunblane Road. The screaming ceased by the time he walked to the front of his property to investigate and he departed.
Sometime after 9.22am, Mr Stevanovic travelled by foot to his friends’ house on Ellendale Road. His friend observed him to be “slightly shaken”. In the presence of his two friends, Mr Stevanovic made numerous statements that he had “killed” or “murdered” his wife. He also made references to her “…always stealing money, always” and “always taking my money, bloody money”. Mr Stevanovic further said that he had used a “big knife” or “sotara” to kill Mrs Stevanovic and that there was “blood everywhere”. When his friends quizzed him about his statements, he maintained that his wife was dead and he had killed her. When asked directly why he had done it, Mr Stevanovic replied “money”.
The witnesses noted the absence of visible blood on Mr Stevanovic or his clothing. When asked what he intended to do, Mr Stevanovic replied that he would tell the police what he had done if he saw them. He expressed concern, however, that he would not be understood and asked his friends to accompany him.
Mr Stevanovic left the house after approximately five minutes. Subsequently, the witnesses drove to a pharmacy in Noble Park and informed an employee who spoke Serbian of what Mr Stevanovic had told them. At approximately 10.50am, the employee called triple zero and made a report to police.
At approximately 11.10am, police forced entry into the Stevanovic’s unit and found Mrs Stevanovic lying face down on the floor with a number of serious injuries to her upper body. The ambulance attended the scene and verified her death at 11.33am.
Soon after the discovery of Mrs Stevanovic, police observed Mr Stevanovic wandering alone on a nearby roadway. He was arrested and transported to the police station in Dandenong.
During a police record of interview, and with the assistance of a Serbian interpreter, Mr Stevanovic made numerous admissions that he had killed Mrs Stevanovic. He also expressed an apparent difficulty in collecting his thoughts. A fitness for interview assessment was conducted by a Forensic Medical Officer, who found Mr Stevanovic to be unfit for further interview.
Post-mortem examination
On 3 February 2018, forensic pathologist Dr Essa Saeedi conducted a post-mortem examination on Mrs Stevanovic. Dr Saeedi determined the cause of death to be multiple stab wounds.
Fitness investigation
On 10 December 2018, a fitness investigation was held under Part 2 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘CMIA’). The Court received medical reports from consultant forensic psychiatrists Dr Prashant Pandurangi and Dr Ann Louise Brennan. Both psychiatrists opined that Mr Stevanovic was unfit to stand trial, as he suffered from severe dementia which was not amenable to treatment and would progressively worsen over time. Dr Brennan also provided evidence at the investigation, during which she confirmed her opinion that Mr Stevanovic was unfit to stand trial on all bases set out in s 6(1) of the CMIA.
The jury found Mr Stevanovic was unfit to stand trial for the charge of murder. Pursuant to s 11(4)(a) of the CMIA, I determined it was unlikely he would be fit to stand trial within the next 12 months.
Special hearing
On 23 January 2019, a special hearing under Part 3 of the CMIA commenced before me. Dr Brennan once again provided medical evidence as to Mr Stevanovic’s mental state. On 25 January 2019, the jury found Mr Stevanovic not guilty of murder by reason of mental impairment.
The evidence placed before the Court was not contested. Following the jury’s findings, I declared Mr Stevanovic liable to supervision under Part 5 of the CMIA and remanded him to custody in a prison pending the making of a supervision order. I further directed that the Court be provided with reports under s 41 and 47 of the CMIA.
Section 41 reports and section 47 certificates
On 3 June 2019, consultant psychiatrist Dr Sonny Atherton provided the Court with a report on Mr Stevanovic’s current mental condition. Dr Atherton’s assessment of Mr Stevanovic reflects that he has a severe cognitive impairment which is irreversible and his condition appears to have significantly declined during his period of incarceration. Dr Atherton opined that it is difficult to comment definitively on prognosis of dementia, although Mr Stevanovic’s significant cognitive and functional decline over recent years may, by extrapolation, give some indication of his future trajectory. Dr Atherton further opined that placing Mr Stevanovic on a custodial supervision order at Thomas Embling Hospital would not best meet his overall physical and mental health needs. Thomas Embling Hospital is a secure forensic psychiatric facility, focusing on the treatment and rehabilitation of people who have committed serious violent offences in the context of mental illness. It was Dr Atherton’s assessment that given Mr Stevanovic’s severe dementia he would not be amenable to rehabilitative interventions of the kind offered at the hospital as it does not specialise in the care of persons with dementia. The Court was also provided with a s 47 certificate which stated that there were no suitable facilities or services available at Thomas Embling Hospital in relation to Mr Stevanovic’s needs.
On 11 September 2019, the Court received an updated s 41 report by consultant forensic psychiatrist Dr Danny Sullivan dated 5 September 2019. Dr Sullivan recommended an adjournment of the matter to allow an assessment of Mr Stevanovic by Monash Health for his potential admission to its mental health service. The Court also received an updated s 47 certificate providing that there were no appropriate treatments or services which could be provided by Forensicare at that time. I granted the adjournment sought.
On 24 October 2019, Dr Sullivan, through an updated s 41 report, informed the Court that Mr Stevanovic was being assessed by the Mental Health Service of Monash Health that day. Another s 47 certificate was provided which stated that there continued to be no appropriate treatments or services which could be provided by Forensicare to Mr Stevanovic at that time.
Following a further assessment of Mr Stevanovic, the Court received un updated s 41 report from Dr Sullivan dated 21 November 2019, in which he recommended that the Court grant bail Mr Stevanovic to reside at Monash Health for a three-month trial period. The Court also received a letter dated 16 December 2019 from Dr Christos Plakiotis, Consultant Psychiatrist and Unit Head, Aged Persons Mental Health Service, Monash Health. Dr Plakiotis also recommended that Mr Stevanovic be placed in the care of Monash Health for a three month period to facilitate further specialist assessment and treatment of his mental and physical health and suitability for residential care placement.
Dr Plakiotis noted that Mr Stevanovic would be placed in the Biala Unit, being an acute mental health inpatient ward that provides multi-disciplinary assessment and treatment of older people with mental health conditions, including dementia.
The Court also received an updated s 47 certificate stating that facilities and services were available to Mr Stevanovic at Monash Health.
Subsequent hearings
On 18 December 2019, I ordered that Mr Stevanovic be remanded to custody at Monash Health for three months pending the making of a supervision order. I did so as I concluded it was not possible to grant bail Mr Stevanovic given his lack of capacity to enter an undertaking of bail, and the absence of a provision in the Bail Act 1977 or any other legislation allowing someone else to enter bail on his behalf. I also directed that the Secretary to the Department of Health and Human Services provide the Court with a s 47 certificate in respect of the matter by 18 March 2020.
On 18 March 2020, the Court received an updated s 41 report co-signed by Dr Sullivan and Dr Plakiotis dated 17 March 2020. In the report, Dr Sullivan opined that Mr Stevanovic continued to experience moderate to severe dementia and was staying in an acute psychogeriatric mental health unit at Monash Health which was appropriate for his care needs.
Dr Sullivan recommended that Mr Stevanovic be placed on a non-custodial supervision order with the following conditions:
(a) That he be under the supervision of the Authorised Psychiatrist of the Victorian Institute of Forensic Mental Health (‘VIFMH’) or their delegate;
(b) That he reside in a location known and approved by the Authorised Psychiatrist of the VIFMH or their delegate;
(c) That he abide by the lawful directions of the Authorised Psychiatrist of the VIFMH or their delegate;
(d) That he comply with any treatment, testing and attend any appointments as directed by the Authorised Psychiatrist of the VIFMH or their delegate or their nominee; and
(e) That he does not leave the State of Victoria without the written permission of the Authorised Psychiatrist of the VIFMH or their delegate.
Counsel for Mr Stevanovic submitted that the certificate of available services provided by Monash Health confirmed compliance with the terminology used in the Act. It was further submitted that Monash Health was the most appropriate place for Mr Stevanovic to reside.
The prosecution and defence agreed that it was appropriate to follow the instructions of Dr Sullivan in his latest report which recommended that Mr Stevanovic be admitted into Monash Health for a three-month trial period prior to any formal supervision order being made. It was submitted that at the conclusion of the trial period the parties would have more information to determine an appropriate and more permanent plan for his continued care.
Both parties agreed that a non-custodial supervision order [‘NCSO’] should be made with the conditions recommended by Dr Sullivan. Counsel for Mr Stevanovic submitted that an additional order should be made that the matter be brought back to the Court for review at the end of 12 months.
Conclusion
Having previously declared Mr Stevanovic to be a person liable to supervision, pursuant to s 24(1)(b) of the Act, I ordered that Mr Stevanovic be remanded in custody at Monash Health, pending the making of a supervision order under s 26 of the Act. I concluded that Monash Health was an appropriate place. I was satisfied that the Court had received a certificate under s 47 of the Act stating there were available facilities and services to adequately care for Mr Stevanovic. In addition, the Court heard evidence from Dr Sullivan who provided further information to the Court regarding the suitability of Monash Health to received Mr Stevanovic as a resident.
In all the circumstances, and now having considered all reports and certificates provided to the Court following the trial period undertaken, I have concluded that pursuant to s 26(2)(b) of the CMIA it is appropriate to order an NCSO in this case. I am satisfied that the Court has received an appropriate Certificate under s 47 of the Act, and that the facility provided by Monash Health is an appropriate place.
I am satisfied in the particular circumstances of this case, substantially including Mr Stevanovic’s significant and permanent dementia, that pursuant to s 26(4) of the Act there is no practical alternative in the circumstances. The evidence that has been put before the Court establishes to my satisfaction that Mr Stevanovic is an elderly, ill man and is a low risk to the community. Further, it is not envisaged that his physical and mental health will improve over time, but rather that he will continue to deteriorate in these respects.
In forming the above conclusion I gave to the purposes, and provisions, set out in the CMIA. Mr Stevanovic has an enduring severe cognitive impairment which is irreversible, and which appears to have significantly declined during his period of incarceration.
Orders
Under s 26(2)(b) of the CMIA, I ordered that Mr Stevanovic be released on a non-custodial supervision order on the following conditions:
(a) That he be under the supervision of the Authorised Psychiatrist of the Victorian Institute of Forensic Mental Health (‘VIFMH’) or their delegate;
(b) That he reside in a location known and approved by the Authorised Psychiatrist of the VIFMH or their delegate;
(c) That he abide by the lawful directions of the Authorised Psychiatrist of the VIFMH or their delegate;
(d) That he comply with any treatment, testing and attend any appointments as directed by the Authorised Psychiatrist of the VIFMH or their delegate or their nominee; and
(e) That he does not leave the State of Victoria without the written permission of the Authorised Psychiatrist of the VIFMH or their delegate.
Pursuant to s 28 of the CMIA, I ordered that the nominal term of the supervision order is 25 years from 20 March 2020.
Pursuant to s 27(2) of the CMIA, I ordered that the matter be brought back to the Court at the end of 12 months, being 20 March 2021, for further review.
As provided by s 36(4) of the CMIA, I ordered that Mr Stevanovic is not required to attend Court for the making of these orders as I was satisfied that it would be detrimental to his health, given his condition and the current circumstances surrounding COVID-19.
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