R v Laganin
[2010] VSC 538
•20 September 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0005 of 2009
| THE QUEEN |
| v |
| JOVANKA LAGANIN |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 September 2010 | |
DATE OF RULING: | 20 September 2010 | |
CASE MAY BE CITED AS: | R v Laganin | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 538 | |
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CRIMINAL LAW – Attempted Murder – Arson - Plea of not guilty by reason of Mental Impairment – Consent Hearing - s 21 Crimes (Mental Impairment & Unfitness to be Tried) Act 1997 – Circumstances of offending – Diagnosis of schizophrenia - Reports furnished pursuant to s 41 of the Crimes (Mental Impairment and Unfitness to be Tried) Act.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms C. Barbagallo | Office of Public Prosecutions |
| For the Accused | Mr J. McQuillan | Paul Vale Criminal Law |
HIS HONOUR:
Today, 20 September 2010, Jovanka Laganin pleaded not guilty to one count of arson and five counts of attempted murder.
The matter proceeded before me as a hearing pursuant to s 21(2)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (“the Act”). This provision allows the trial judge to determine whether a person charged with an indictable offence was suffering from mental impairment at the time the conduct constituting the offence occurred. The prerequisite to my role in hearing such a case without a jury is the agreement of the prosecution and defence that the proposed evidence establishes the defence of mental impairment (see s 21(4) of the Act).
“Mental impairment” is defined in s 21 of the Act in these terms:
“Section 20, defence of mental impairment sub‑s (1):
The defence of mental impairment is established for a person charged with an if at the time of engaging in conduct constituting the offence the person was suffering from a mental impairment that had the effect that ‑
(a) he or she did not know the nature and quality of the conduct; or
(b) he or she did not know that the conduct was wrong, that is he or she could not reason with a moderate degree of sense and composure about whether the conduct as perceived by reasonable people was wrong.”
Sub‑section(2) of s 20 provides:
“If the defence of mental impairment is established the person must be found not guilty because of mental impairment.”
As it is the second limb of the definition of mental impairment that I am concerned with in this case, if I am satisfied on the balance of probabilities that Ms Laganin was suffering from mental impairment at the relevant time, a verdict of not guilty by reason of mental impairment may be recorded. If I am not so satisfied, an order that the charge be heard by a jury must be made.
The facts surrounding the incident have been deposed to by the informant, Detective Senior Constable Grant Harrison, and are contained in the depositional material. They may be briefly stated. They are, in précis form, the opening read by the Crown prosecutor, Ms Barbagallo, who appeared for the Crown. The opening is Exhibit 1 on the trial.
On 25 July 2009, the accused was living with her family at 18 Laura Court, Bayswater North. Her husband, Ranko, daughters Natasha and Tatjana, son Nemanja and Natasha’s boyfriend, Apelu Falelima, were also living in the house.
At about 3.30am, when everyone else was asleep, the accused started to pour petrol around the house. She began in the loungeroom, kitchen and dining areas and proceeded down the hallway towards the bedrooms. She set fire to the petrol with matches.
Jovanka Laganin then poured petrol in the bedroom occupied by her husband and son and attempted to set fire to the bed coverings. She then spread petrol in the next bedroom where her daughter Natasha and Apelu Falelima were asleep. Her attempts to light the petrol were unsuccessful. She then attempted to set fire to Tatjana’s bedroom. Tatjana woke up but was unable to stop her mother setting fire to the petrol. She yelled at her mother, which woke her father, who got out of bed to find the house on fire. Tatjana told him that it was the accused burning the house.
The family all managed to escape; Tatjana and Nemanja out of the back door and Natasha and Falelima out the window, and Ranko removed the accused, who was attempting to set herself on fire, from the house. She was not wearing shoes and socks and her jeans were on fire.
Tatjana tried to put the fire on the jeans out, but the accused went back into the house. Although removed again, she had forcefully tried to re‑enter the house on at least one other occasion.
The accused suffered burns to 30 percent of her body and was treated at the Alfred Hospital. She was later admitted to the psychiatric unit at the Maroondah Hospital, where she remained until 21 September 2009. She has spent a significant amount of time in that hospital since admitted as an involuntary patient under the Mental Health Act.
The question which arises in this case is, what was the accused’s mental state at the time that she set the fire.
As I have already observed, the accused has been under treatment at the Maroondah Hospital by a team under the leadership of Professor Paul Katz and she has been under treatment there at various times over the last three years.
I received a report from Dr Walton, a very experienced forensic psychiatrist, dated 5 May 2010. It became Exhibit 3 on the hearing. Dr Walton had prepared that report at the request of solicitors for the accused.
I heard evidence from and received a report from Dr Fiona Toal from Forensicare on behalf of the prosecution.
The two psychiatrists were of the opinion that on the balance of probabilities Mrs Laganin was fit to stand trial. They also agree that she suffered from a mental illness now confirmed to be schizophrenia. Both doctors were of the opinion that at the time of this episode, Mrs Laganin was floridly psychotic. It followed that they both accepted that at the time of the episode she was unable to reason with a moderate degree of sense and composure about whether her behaviour as perceived by reasonable people was wrong.
The prognosis is somewhat guarded and dependent on the results of trials presently being undertaken in relation to the use of the antipsychotic medication Clozapine. Clozapine has to be very carefully managed for general health reasons in addition to monitoring such matters going to its benefit as an antipsychotic.
I am satisfied, however, that the evidence establishes that the defence of mental impairment has been made out. I direct that a verdict of not guilty by reason of mental impairment be entered, pursuant to s 20(1)(e) of the Act. I am satisfied that Mrs Laganin, at the time that she set the fire, did not know that her conduct was wrong. That is she could not reason with a moderate degree of sense and composure about whether the conduct as perceived by reasonable people was wrong.
As a result of my conclusion, it would follow that Mrs Laganin will become subject to a supervision order pursuant to s 26(1) of the Act. The question that needs and has yet to be resolved is what the form of the supervision order pursuant to s 26(2) of the Act might be. That is, whether it be a custodial supervision order pursuant to s 26(2)(a) or a non‑custodial supervision order pursuant to s 26(2)(b).
I direct that a report or reports be obtained from Forensicare setting out recommendations as to the future course of this matter.
I am satisfied that there is sufficient prospect of the imposition of a non‑custodial supervision order that I will order that Mrs Laganin’s bail continue.
I should direct that the report that I referred to earlier should be a report pursuant to s 41(1) of the Act. That will have to be provided within 30 days.
MS BARBAGALLO: Unless Your Honour ‑ it says “within 30 days after the declaration or within such longer period as the court allows" so Your Honour can ‑ ‑ ‑
HIS HONOUR: I will ask Dr Toal. Doctor, is 30 days long enough?
DR TOAL (from body of court): 30 days is the minimum time that we require ‑ ‑ ‑
HIS HONOUR: You will need to come forward, I think. If you come over to the microphone.
DR TOAL: It takes a minimum of 30 days for the appointment to be made.
HIS HONOUR: Yes, all right. The report required pursuant to s 41 of the Act be provided within 60 days.
MS BARBAGALLO: Thank you, Your Honour.
HIS HONOUR: And I will adjourn the further hearing of this matter until 22 November and I will extend Ms Laganin’s bail until that date.
I should indicate that the period of any order that I will make will be for 12 and a half years.
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