Lupco Slaveski v The Queen
[2018] VSCA 44
•2 March 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0018
| LUPCO SLAVESKI | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, PRIEST JA and KIDD AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 27 February 2018 |
| DATE OF JUDGMENT: | 2 March 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 44 |
| JUDGMENT APPEALED FROM: | [2015] VSC 416 |
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CRIMINAL LAW – Appeal – Sentence – Extension of time – Contempt of court – Fresh evidence – New psychiatric opinion – New diagnostic label – Substance of diagnosis unchanged – Effect of condition known at time of sentence – Significant discount given – Appropriate recognition of causal connection – Whether subsequent improvement in condition relevant - No miscarriage of justice – No prospects of success – Application for extension of time refused – R v Verdins (2007) 16 VR 269 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Dr T R Alexander with Mr P J Smallwood | Marcevski Lawyers |
| For the Respondent | Mr J Langmead QC with Ms M Norton | Victorian Government Solicitors Office |
MAXWELL P
PRIEST JA
KIDD AJA:
Summary
In August 2015, the applicant was convicted on nine charges of contempt of court. He was sentenced to 23 months’ imprisonment, with a non-parole period of 15 months. He now seeks leave to appeal against sentence. He also seeks an extension of time to file notice of his application for leave.
After sentence was imposed, the applicant purported to file an application for leave to appeal against conviction and sentence. He had, however, left Australia by then, in order to evade the execution of a warrant for his arrest made by a judge of this Court.[1] On 18 September 2015 this Court refused leave to appeal without an adjudication on the merits.[2]
[1]Slaveski v Attorney-General (Vic) [2015] VSCA 31 [68].
[2]Slaveski v The Queen [2015] VSCA 264.
There is one proposed ground of appeal. It is that this Court should receive, as fresh evidence, the expert opinions of a consultant psychiatrist, Dr Anthony Cidoni, set out in reports dated respectively 25 February, 23 March and 1 November 2017. It is said that this evidence sheds fresh light on the psychiatric condition from which the applicant suffered at the time of the offending and that consideration of the evidence should lead this Court to impose a lesser sentence.
For reasons which follow, we would refuse the application for an extension of time. There is, of course, the threshold difficulty of the earlier, failed application for leave and the very long delay since then. More fundamentally, however, the ground of appeal has no prospects of success.[3] The proposed expert evidence simply does not meet the requirements for fresh evidence.[4] As explained below, the sentencing judge was fully informed of the relevant features of the applicant’s psychiatric condition and of its causal connection with the offending.[5] Her Honour expressly stated that she had reduced by 50 per cent the sentence she would have imposed on the applicant but for his psychiatric condition.[6]
[3]See s 280 of the Criminal Procedure Act2009.
[4]See R v Eliasen (1991) 53 A Crim R 391; see also R v Duy Duc Nguyen [2006] VSCA 184.
[5]See [18] below.
[6]R v Slaveski [2015] VSC 416 [28] (‘Sentencing Reasons’).
Factual background
The conduct constituting the various contempts of court is set out in detail in the reasons for judgment of King J given at the conclusion of the applicant’s trial.[7] In summary, the applicant sent abusive and threatening emails, made a threatening phone call to a judge’s associate and committed contempt in the face of the court before the Chief Magistrate. In sentencing the applicant her Honour said that the applicant ‘did intend to interfere with the course of justice’.[8] Specifically, he wanted the contempt proceedings against him stopped, her Honour found.[9]
[7]Rv Slaveski [2015] VSC 400.
[8]Sentencing Reasons [4].
[9]Ibid.
Her Honour also referred to threats against judges which, in her Honour’s view, could only be described as:
revenge for the judgments and decisions that you consider not to be in your favour. The language you used towards them was violent, with threats of physical harm and sexual assault upon them as well. Your language was offensive and abusive, with the constant use of swear words in your email communications with almost every person with whom you dealt.[10]
[10]Ibid.
The judge had before her, and heard submissions about, a long series of medical reports which she identified in her reasons for sentence. (We will refer to two of these reports below).[11] Her Honour quoted the following passage from the reasons for sentence of Whelan J, who had sentenced the applicant for an earlier contempt:
On the evidence before me, I conclude that you suffer from a mental disturbance involving, among other things, very significant anxiety. One psychiatrist, Dr Sullivan, considers that you suffer from a delusional disorder; another, Dr Farnbach, is of the opinion that you meet the criteria for post-traumatic stress disorder. Ms Ranaweera, a psychologist, has also diagnosed post-traumatic stress disorder. Both Dr Farnbach and Dr Duggal consider that there will be, or may be, deterioration in your psychiatric condition if you are imprisoned.
I am satisfied that at the time of your offence you suffered from a mental disorder or abnormality or impairment of mental function, and that you still do so. It does not matter how that condition is to be categorised. It was a condition which impaired your ability to exercise appropriate judgment.
In accordance with applicable authority my conclusion is that your mental condition was such that it reduces your moral culpability, it has a bearing on the kind of sentence to be imposed, it moderates without eliminating the need for general deterrence and specific deterrence, it means that a sentence of imprisonment will weigh more heavily on you than on others, and there is a risk of an adverse effect on your mental health if imprisonment is imposed on you.[12]
[11]Ibid [15].
[12]Sentencing Reasons [17] quoting R v Slaveski [2012] VSC 7 [12]–[14].
Her Honour expressed agreement with those findings.[13] It seems clear that her Honour was agreeing with what Whelan J said both about the applicant’s impaired mental functioning and about its implications for the applicable sentencing considerations.
[13]Ibid [18].
Her Honour noted, however, that in this case there had been
no attempt by you to mitigate your contempts. There have been no apologies, or attempts at apology and in fact it would appear that your behaviour has continued unabated.[14]
As to rehabilitation, her Honour said:
I believe you have exceedingly poor prospects of rehabilitation in light of your inability to view any factual circumstance from anything other than your totally fixed, rigid, biased viewpoint.[15]
[14]Ibid [19].
[15]Ibid [27].
Her Honour then imposed terms of imprisonment ranging between two and nine months on the individual contempt charges. With orders for cumulation, the total effective sentence was 23 months’ imprisonment, and a non-parole period of 15 months was fixed. Her Honour’s reasons concluded with this statement:
Declare that but for your mental health condition, the sentence imposed would have been at least double.[16]
[16]Ibid [28].
The proposed fresh evidence
As noted earlier, the applicant now seeks to rely on three reports from Dr Cidoni, who interviewed the applicant in February 2017. This followed the applicant’s voluntary return to Australia in January 2017 and his incarceration under the 2015 sentence.
The turning point, it appears, was the applicant’s detention in Germany in October 2016 for attempted predatory blackmail (for an email sent to Australia demanding his disability pension). According to Dr Cidoni’s first report:
Once he withdrew from the benzodiazepines, it is noted that persecutory ideas about the German and Australian authorities, and their cooperation, emerged. It translated that ‘the affective involvement was high’, which appears to refer to elevated mood.
He was treated with the antipsychotic risperidone up to 2mg daily.
His diagnosis is incorrectly translated [from the German] as ‘Delicate disturbance’; the ICD-10 code F22.0 refers to delusional disorder. He was also diagnosed with benzodiazepine dependence.[17]
[17]Emphasis added.
The relevant part of Dr Cidoni’s opinion is in these terms:
1.Mr Slaveski has been diagnosed with bipolar disorder and schizophrenia; the most likely diagnosis is a schizoaffective disorder with a longstanding history of persecutory delusions accompanied by episodes of elevated mood and in more recent times depressed mood.
2.It is my opinion that the delusions (and therefore the schizoaffective disorder) arose in 2000 and were not recognised as such until at least 2012, when Dr Allnut raises the prospect of delusional disorder, the same condition … Dr Sullivan diagnoses. I disagree with Dr Farnbach when he says that Mr Slaveski was not psychotic in 2009.
…
4.He has a previous history of post-traumatic stress disorder and a recent history of polysubstance abuse including alcohol and heroin.
5.I believe that his antipsychotic treatment risperidone should be reinstituted.
6.In relation to the offences, I believe that Mr Slaveski was suffering from the delusional aspect of his condition for all the offences; there is a clear [theme] of conspiracy and persecution throughout, and there is a degree of disorganisation, indicative of thought disorder, throughout.[18]
[18]Emphasis in original.
As Dr Cidoni correctly records, there was a 2012 report from Dr Stephen Allnutt, a forensic psychiatrist (‘Allnutt report’). The relevant part of Dr Allnutt’s report said:
His level of his pre-occupation raises concern for querulousness (that is a serious and debilitating pre-occupation with his experience of unjust treatment at the hands of the police and the pursuit of retribution and vindication, at significant cost to himself); it also raises concern for a diagnosis of delusional disorder; I am however unable to conclude delusion with reasonable medical certainty, based on the available information and this requires further clinical exploration and examination of corroborative information which was unavailable at the time of the … assessment; I maintain a high clinical suspicion in this regard; notwithstanding the specific diagnostic issue, his level of distress and pre-occupation contribute to serious impairment in his functioning consistent with a significant psychiatric disorder.[19]
[19]Emphasis added.
Dr Cidoni also mentions the 2009 report from Dr Danny Sullivan, another forensic psychiatrist (‘Sullivan report’). The relevant part of Dr Sullivan’s report stated as follows:
Mr Slaveski appears to suffer from a delusional disorder. His preoccupation with police harassment is extreme and has consumed his life. This may well be grounded in reality, but some of Mr Slaveski’s inferences are likely delusional in nature.
The concern that his beliefs are delusional relates to his absolute conviction in his opinion and Mr Slaveski’s inability to consider alternative explanations. At interview with me he was so fixed in his opinions that I did not believe that any new evidence or contrary information would have been accepted without sustained and heated debate.
While I make no claims as to the veracity of information which is before the court, his unshakeable belief in his interpretation of events appeared to be in the delusional realm. I should reiterate that this is not a judgment about the truthfulness of Mr Slaveski’s beliefs, but rather reflects his thinking style. It may well be that some of his claims are true. However he takes seemingly unrelated events as self-referential, the interpretation he chooses is consistently one which supports Mr Slaveski’s beliefs that he is subject to ongoing police persecution, and his conviction that this is correct is unshakeable.[20]
[20]Emphasis in original.
The Allnutt report and the Sullivan report were both provided to the sentencing judge, and are specifically referred to in her Honour’s reasons.[21] In relation to the latter report, her Honour noted that Dr Sullivan:
refers to you having fixed and rigid views which are not amenable to logical persuasion. I have to agree; that is apparent from your obsessional behaviour in respect of these matters over the years. Despite your fixed and rigid views and the mental health situation behind them, both general and specific deterrence continued to play a role.[22]
[21]Sentencing Reasons [15], [22].
[22]Ibid [22].
As counsel for the applicant properly conceded in this Court, it is plain that the diagnosis of delusional disorder was the subject of expert opinion presented to the sentencing judge on the applicant’s behalf and, further, that those opinions were accepted by her Honour without qualification. It is equally plain that Dr Cidoni is of the same opinion. As has been seen, his report quite clearly expresses agreement with the diagnosis of delusional disorder.
Thus her Honour was aware at the time of sentencing not only of the formal diagnosis but, importantly, of the actual impact on the applicant of his impaired mental functioning. The expert reports made quite clear that, because of his condition, the applicant had fixed, delusional views about the court and judges and the justice system. It was made clear, moreover, that these delusions were operative at the time of the offending conduct and contributed to the commission of the offences.
It follows that Dr Cidoni’s opinion is not fresh evidence. On the contrary, it is simply a confirmation of what the judge already knew about the applicant’s condition. The fact that Dr Cidoni would apply a different diagnostic label — ‘schizoaffective disorder’ — is immaterial. As the Court in R v Verdins[23] emphasised, diagnostic labels by themselves are of no assistance to sentencing judges. What matters is what the expert evidence shows about the impact of the condition on the offender at the relevant time. As we have pointed out, the reports which her Honour had were very informative in that regard.
[23](2007) 16 VR 269 [8], [13].
The applicant’s improved condition
The submission for the applicant ultimately rested on the submission that he was now a ‘changed person’. This was said to be relevant to the judge’s adverse finding about his prospects of rehabilitation, set out above.[24] It was also relevant, it was said, that the applicant was now prepared to apologise to the Court, which he did via video link during the hearing of this application.
[24]See [9] above.
With respect, changes in the applicant’s mood and attitude — which, if sustained, are to be greatly welcomed — could not qualify as fresh evidence. As was pointed out in argument, a variety of circumstances can be imagined in which a mental illness, operative at the time of criminal offending, subsequently diminished in its intensity or disappeared altogether. This might happen for a range of reasons: a change in medication or engagement in other forms of therapy or spontaneous remission or some combination of these.
In the applicant’s case, the introduction of risperidone appears to have been very significant initially but, once the applicant was back in Australia, he took medication only for a brief period in April 2017. To the extent that the applicant’s improved condition has been maintained since then, it has evidently occurred independently of medication.
Self-evidently, a change in circumstances of that kind does not ‘shed fresh light’ on facts which existed at the time of the offending. Rather, these are subsequent developments which will be relevant, if at all, to the decisions which the executive must make — in particular, decisions on eligibility for parole.
Accepting for the purposes of argument that the applicant’s prospects for rehabilitation are now a good deal better than they were at the time of sentence, that in no way affects the sentencing judge’s finding. Nor does it suggest that there has been in any way a miscarriage of justice. The judge correctly sentenced the applicant on the basis of the material available to her at the time. She could not possibly have anticipated how things might change in the future. If it mattered, the applicant’s continued erratic behaviour while overseas in 2015 and 2016 would only have reinforced her Honour’s pessimistic assessment of his prospects for rehabilitation.
Conclusion
For the reasons we have given, there has been no miscarriage of justice. The sentencing decision was made on the basis of all the necessary information about the applicant’s mental illness and, as we have pointed out, the sentencing judge gave the applicant a very substantial discount by reason of that illness and its causal significance to the offending.[25]
[25]See [10] above.
In the circumstances we do not need to explore the reasons given for the long delay in the bringing of this application.
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