R v Micetic
[2006] VSCA 176
•23 August 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 371 of 2004
| THE QUEEN |
| v. |
| VLADO MICETIC |
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JUDGES: | NETTLE, J.A., COLDREY and BELL, A.JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 23 August 2006 | |
DATE OF JUDGMENT: | 23 August 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 176 | |
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CRIMINAL LAW – Conviction – Whether applicant was fit to plead – Appeal dismissed.
CRIMINAL LAW – Sentencing – Whether manifestly excessive – Multiple offences – Theft – Dishonesty – Aggravated burglary – Attempted armed robbery – Applicant suffering from significant psychiatric disorder – Whether a danger to the community – Appeal upheld – Re-sentenced to four years and three months with a non-parole period of three years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T. Gyorffy | Ms A. Cannon, Solicitor for Public Prosecutions |
| The Applicant in person |
NETTLE, J.A.:
On 1 December 2004, the applicant, Vlado Micetic, pleaded guilty before a judge of the County Court at Melbourne to two counts of theft of a motor vehicle registration plate (counts 1 and 2), one count of dishonestly handling a stolen police identification badge (count 3), one count of aggravated burglary (count 4) and one count of attempted armed robbery (count 6).
After hearing a plea in mitigation, on 15 December 2004 the judge sentenced the applicant to three months' imprisonment on each of the counts of theft and handling stolen goods, two years' imprisonment on the count of aggravated burglary and four-and-a-half years' imprisonment on the count of attempted armed robbery. His Honour ordered that ten months of the sentence imposed on the count of aggravated burglary be served cumulatively on the sentence imposed on the count of attempted armed robbery, thereby making for a total effective sentence of five years and four months' imprisonment. He set a non-parole period of four years.
On 24 December 2004, Victoria Legal Aid filed on behalf of the applicant an application for leave to appeal against sentence. That application was subsequently listed to be heard before a single judge of the Court pursuant to s.582 of the Crimes Act 1958 on 24 June 2005.
On 10 June 2005, however, the applicant himself purported to file a holograph application for leave to appeal against conviction, albeit without an application for leave to extend time, and subsequently, on 16 June 2005, the applicant wrote to the Registrar stating that he wished to appeal against conviction because he had been coerced to plead guilty.
After discussions between the Registrar and Victoria Legal Aid, it was established that the applicant no longer wished Victoria Legal Aid to represent him, and so, therefore, the application for leave to appeal against sentence was taken out of the list.
In July 2005, the applicant sent to the Registrar an application for an extension of time in which to appeal against conviction. It suggested that the applicant may be dissatisfied with the way in which he was represented before the County Court. But then, on 22 September 2005, the applicant’s sister telephoned the Registrar and informed him that the applicant had again sought the assistance of Victoria Legal Aid and that it had appointed Messrs Balmer & Co, solicitors, to represent him.
Then, contrary to that indication, on 21 November 2005, the applicant himself wrote to the Registrar advising that Mr Richard Revill of Messrs Robert Stary & Associates would thenceforth be acting for him, and soon after that Mr Revill confirmed directly to the Registrar that he was acting for the applicant and that the Registrar should no longer correspond directly with the applicant. The application for leave to extend time was thus listed to be heard before a single judge of the Court on 12 May 2006.
Next it emerged that the applicant may have again dispensed with the assistance of Victoria Legal Aid and so would be unrepresented. So, after a video conference with the applicant, the Registrar determined that the matter should be listed to be heard before a Court of three members. That led to a notification from Messrs Robert Stary & Co to the Registrar that the firm was still acting for the applicant and that counsel would be briefed to appear.
In the following weeks, the applicant wrote directly to the Registrar several times that he was having trouble preparing his appeal in prison. But one way or another, he seems to have overcome those difficulties. He later submitted to the Registrar a document entitled "Presentment Case No. C0303242", and later still a replacement document of the same title dated 20 June 2006, and on that basis the Registrar listed the matter to be heard this day.
Soon after the matter was so listed, a member of counsel spoke to the Registrar and informed him that she had conferred with the applicant on several occasions, but that the applicant had decided that he did not wish to be legally represented and so would appear for himself.
The application for an extension of time in which to apply for leave to appeal against sentence
The notice of application for leave to appeal against conviction appears to relate only to the conviction on the count of attempted armed robbery and states expressly that "not appealing on aggravated burglary". Thereafter, it sets out the proposed grounds of appeal as follows:
"Unsafe & unsatisfactory. Onus of proof. Specific reference to the fact of identification. Wheather [sic] fact was addresses. Wheather [sic] the issue of credibility. Wheather [sic] accused had rights to the law. Wheather [sic] reasnable [sic] doubt ableyed [sic]. Wheather [sic] unsafe and unsatisfactory approach. Wheather [sic] everyday dealling [sic] with the law was an issue."
The document "Presentment Case No. C0303242" reads thus:
"1. Presentment will show that s.464 of arest [sic] procedure was unsafe and unsatisfactory.
2. Further presentment will show that s.464 of identification was unsatisfactory and inadmisible [sic].
3. Further presentment will show that instructions were not allowed and conflict of intrest [sic] did arise.
4. Further presentment will show that charges were brought down to cohers [sic] into a guilty plea.
5. Further presentment will show that the hering [sic] of 15 December 2004 was unsafe and unsatisfactory.
6. Further presentment will also show that the defence was inadiquite [sic] and a conflict of interest was at issue.
7. Further presentment will show that Errors of law resulted from the defence approach to the presentment.
8. Further facts will show that the testimony of phyciatric [sic] nurse was unsafe and unsatisfactory.
9. Further facts will show that my past did result in Error to structor [sic] sentence.
10. Further facts will show that the 18th of June 2005 was unsafe and unsatisfactory for acting solicitor to be involved in.
11. Further facts will show that the both witness [sic] could not identifie [sic].
12. Further presentment will show that an adiquite [sic] legal agument [sic] was not given for an aggravated burgulary [sic] for defence.
13. Further presentment will show that an agreement was broken at the Sunshine Magistrates' Cort [sic].
14. Further facts will be presented that the defence did result His Honour to Error honrabley [sic]."
Some parts of these documents, such as the references to 18 June 2005 and the agreement which was broken at the Sunshine Magistrates' Court, do not appear to make a great deal of sense. According to the court's records, nothing occurred in this matter on 18 June 2005, which was a Saturday, and although it may be that the reference to the Sunshine Magistrates' Court is a reference to the committal hearing, that was in March 2003. Other parts of the document could only be relevant if the applicant's guilt had been in issue, and the plea of guilty means, of course, that it was not in issue.
Contrastingly, however, paragraphs 3, 4 and possibly 8 of the document "Presentment Case No. C0303242" appear directed to a contention that the applicant was led by his legal advisers to plead guilty, when, if he had been differently and adequately advised, he would not have done so, and it may be that other parts of the document should be seen as relevant to establishing that, if the applicant had pleaded not guilty to the count of attempted armed robbery, he would likely have been acquitted. The substance of what the applicant has said to us this morning has been more or less to the same effect.
Needless to say, however, a plea of guilty duly recorded provides the strongest evidence of guilt, and accordingly leave to appeal against conviction will be refused unless the applicant did not appreciate the nature of the charge, or did not intend to admit he was guilty of it, or unless upon the admitted facts he could not in law have been convicted of the offence charged.
The applicant’s ability to appreciate the nature of the charge
As to whether the applicant appreciated the nature of the charge of attempted armed robbery, it is relevant to note, as the judge did in his sentencing remarks, that the applicant has longstanding psychiatric problems. They date from an occasion early in his 'teens, when it is said that he saw his grandparents shot dead, and they are likely to have been much exacerbated by drug abuse. According to evidence which was before the sentencing judge, the applicant had, and probably still does have, poorly developed coping behaviours and a tendency to slip into substance abuse when levels of stress run high. He had recently expressed some paranoid ideation and he had suffered from a paranoid psychosis. So much, perhaps, suggests that the applicant may not have appreciated the nature of the charge, or did not intend to admit that he was guilty of it.
On the other hand, the weight of the evidence before us is that the applicant did appreciate the nature of the charge and the consequences of pleading guilty to it. In December 2002, the applicant was assessed by consulting psychiatrist Dr Douglas Bell, in order to ascertain whether it was open to take the defence of not guilty on the grounds of mental impairment. Dr Bell reported that it was possible the applicant was suffering at the time of the offences from a paranoid psychosis consisting of persecutory delusions involving a widespread conspiracy to kill, perhaps the consequence of long-term abuse of psychogenic substances, but that the applicant had been aware of the nature and quality of his actions and knew that what he was doing was wrong.
Dr Bell was also asked to assess the applicant's fitness to stand trial, as to which he reported:
"… despite his continuing psychotic symptoms, provided you are satisfied that he is able to give you instructions, Mr Micetic is in my view fit to stand trial. Provided he remains on his current regime of antipsychotic treatment, it is likely that his symptoms will continue to diminish over the next few weeks to months. If at any stage there is a deterioration in his mental state then I would expect that he will be
reassessed regarding whether or not he needs to return to the Thomas Embling Hospital."
In April 2003 the applicant was further assessed by Dr Bell. At that time Dr Bell reported that the applicant's mental state had improved, to the degree that, provided he could be given an adequate level of supported accommodation as would be available through ACSO, or by living with his family, and also that arrangements could be made for his ongoing treatment through the relevant area mental health service, it would be reasonable, from a clinical perspective, that he be granted bail to live in the community. Dr Bell added that,
"As indicated in my earlier report, he remains fit to stand trial."
In August 2004 the applicant was further assessed by another consultant psychiatrist, Dr Alan Jager, who opined that on that day of examination in August 2004 the applicant would have been unable to instruct legal counsel and that as a consequence he would have been unfit to stand trial, and on that basis the trial was adjourned.
That examination was followed by another, by a third consultant psychiatrist, Dr Debra Wood of Forensicare, on 9 November 2004. Dr Wood reported on her examination of the applicant as follows:
"Mr Micetic could give an appropriate date for his trial, and understood that in court evidence would be presented against him, and that he would have the opportunity for rebuttal through his defence counsel. We discussed the charges that led to his recent incarceration, and also those pertaining to events in 2002. By his responses, Mr Micetic indicated that he understood the range of pleas open to him, including that of mental impairment. He understood in broad terms the potential consequences of the plea options on whether or not a trial was required, and potentially on his sentence if convicted.
Although I think it very likely that Mr Micetic harbours some persecutory delusional beliefs, I could not elicit any evidence that these currently involved either the judicial process, the police or his solicitor … Consistent with this, Mr Micetic expects that police will leave him alone once he has completed any sentence that may arise from his current charges ...
Mr Micetic gave a reasonable estimate of his sentence should he be convicted, and gave no indication that he thought the judicial process was in any respect corrupt. He was pleased with his previous solicitor's work and stated that ‘she tried to help … was professional … she had done her best ...
In my opinion, Mr Micetic was on the day of our interview, fit to stand trial as enunciated in Section 6 of the Crimes (Mental Impairment) Act. He understood the nature of the trial process and the range of plea options, his rights in relation to legal counsel and jurors, and could have followed the course of the trial adequately. Although Mr Micetic suffers from a psychotic disorder, it did not appear at the time of my interview that he harboured any delusional beliefs that might have affected his attitude towards, or capacity to participate in, the judicial process. At interview, he was clearly able to exercise discretion as to the information he disclosed."
All things considered, I see no reason to doubt that the applicant made an informed decision to plead guilty, in the expectation, and no doubt in the hope, that it may lead to a reduced sentence compared to that which was likely to be imposed if he contested his guilt.
Whether open to convict on the admitted facts
I turn then to the question of whether it was open upon the admitted facts to convict the accused of the offence of attempted armed robbery with which he was charged. In my view it was.
The facts alleged in the presentment, and thus admitted, were that:
"Vlado Micetic and Christopher Wayne Phillips at St Kilda in the said State on the 20th September 2002 attempted to rob Josh McConnell of certain money and at that time Vlado Micetic had with him an offensive weapon."
The details, which were stated by the prosecutor by agreement and therefore admitted, were that on 20 September 2000 or earlier, the following morning, the applicant attended at the Beaconsfield Hotel in St Kilda and with another man walked up to the bar. The other man said to the man behind the bar to 'open the drawer' and the applicant produced from his jacket what appeared to be a gun and commenced to wave it around. The man behind the bar moved away from the applicant and the actions were observed by another of the bar staff in attendance, who also moved away from the bar area. The applicant then left the hotel without any money. The judge observed that he was not satisfied that the object produced by the applicant was a gun, but that in the event it did not make a great deal of difference. His Honour said that he was satisfied that the applicant intended that people who were in the vicinity would think that it was a firearm, and that the applicant expected that they would be intimidated and frightened by what they saw.
In the result, by his plea of guilty I take the applicant to have admitted that he attended at the bar of the Beaconsfield Hotel in St Kilda, armed with an offensive weapon, and attempted to steal while using the weapon to put a person or persons in fear that they would be subjected to force. Accordingly, in my view it was open on the facts admitted to convict the applicant with the offence of attempted armed robbery.
This morning in the course of his oral submissions, Mr Micetic has made mention of a number of additional considerations which he urged in support of his application for an extension of time in which to appeal against conviction. The first of those was that he said that an error had occurred in the transcription of the hearing on 1 December 2004 at the County Court at which he was arraigned and pleaded guilty. The error, as he correctly identified, is that, as transcribed, it is said that he pleaded guilty to count 6 (the count of attempted armed robbery) and that he pleaded not guilty to that count. I do not consider that to be a point of significance. It is plain from the transcript and from the recording of what occurred that he pleaded guilty to count 6. It is equally clear from what is said by the prosecutor in his opening to the judge and by what is said in response by defence counsel, and it is clear in the way in which the whole of the hearing was conducted, that the applicant intended to plead guilty to count 6.
The second point was to the effect that, if one has regard to witness statements made by Joseph Carl Waller on 23 September 2002 and Josh McConnell on 31 October 2002, it can be seen that the way in which the applicant was identified from photo boards shown by investigating police to the witnesses fell short of the requirements of s.464 of the Crimes Act 1958, and thus rendered evidence as to his identity inadmissible. I regard that point as precluded by the plea of guilty. Whatever occurred at the committal hearing was replaced by the plea of guilty and the consequence of the admission to the facts alleged.
The third point was to similar effect. The applicant referred to what occurred on Tuesday 26 August 2003 before his Worship Magistrate Hopkins. During the course of the committal hearing, when the applicant was represented by counsel, he contended that there was not sufficient identification of him in relation to count 6. That point seems to me to be deficient in two respects. First, the failure of the witness to identify the applicant relates to count 8, of which, of course, the applicant was not convicted. The second is that, in any event, it is surpassed by the plea of guilty to the facts alleged.
The applicant's third point was that if one has regard to the transcript of what occurred on 15 December 2004, one may see there that he did not plead guilty on that day to the offences of which he has been found guilty. The answer to that, of course, is that he was arraigned and pleaded guilty to those offences on 1 December 2004 and that what occurred on 15 December 2004 was in effect a continuation of the hearing from that day. What he said and did on 1 December 2004 applied as much on 15 December 2004 as it had on the first day of the hearing.
The applicant's fourth point was to refer to paragraph 9 of the sentencing judge's sentencing remarks and to submit that it was apparent from what his Honour said there that counsel who represented the applicant at the plea laboured under a conflict of interest which precluded him adequately or at all from representing the applicant. I think I need only say about that submission that it misconceives the effect of what the judge said at paragraph [19]. The judge's observations at that point are directed to an analysis of submissions put by defence counsel in support of the plea and go to a reduction in the sentence which it appears that the judge would otherwise have imposed.
Finally, it was submitted by the applicant that it was one way or another apparent from the transcript or from the judge's sentencing remarks that the applicant had not been given an adequate chance of rehabilitation, largely, as he contended, because of his previous criminal offences, and that, because he had not had access to adequate rehabilitational facilities, the judge was left with the point of view that the applicant’s prospects for rehabilitation in the future were not as good as they might otherwise have been.
Despite the force of what is said by the applicant on that point, I am unable to detect in what is said in the transcript or in the sentencing reasons that the judge failed to have adequate regard to the difficulties under which the applicant labours because of his psychiatric disorder. As it seems to me, it is a factor to which the judge directed express attention and therefore must be taken to have brought to account.
It follows, for these reasons, that I do not consider that there is a reasonably arguable basis for granting the applicant leave to appeal against conviction, and I would refuse his application to extend time in which to apply for leave to appeal against conviction.
Application for leave to appeal against sentence
I turn then to the application for leave to appeal against sentence. As already noticed, the application for leave to appeal against sentence was prepared by the applicant's former solicitors. It lists as the proposed grounds of appeal:
1.That the sentence imposed by the Trial judge on 30 November 2004 [sic - 15 December 2004] was manifestly excessive in all the circumstances.
2.That the judge failed to give sufficient weight to the evidence relating to the appellant's mental capacity.
I have already referred to the facts relating to the offence of attempted armed robbery and it is unnecessary to repeat them. The facts relating to the remainder of
the offences were described by the sentencing judge in his Honour's sentencing remarks and in greater detail by the prosecutor in his opening address to the judge as follows.
On 20 September 2002 the applicant and another man attended premises at Matlock Avenue, Mulgrave. The other man remained in a car in the driveway in the premises while the applicant approached the door. The applicant knocked on the door and identified himself to the female occupant. He claimed that he was a Sergeant Smith from the Special Operations Group and produced a police badge. He said to the woman that he was there in relation to a gun amnesty and had come to collect a snub-nosed revolver. She said that she did not own any such firearm and refused the applicant entry.
The applicant continued to ask the woman where the gun was and called out to the person who was in the car for backup. The woman then told the applicant that he could go in and have a look, and he did go in to the main bedroom. She continued to indicate, however, that she was very unhappy with his presence inside the house without a warrant, and he eventually left the house and closed the door behind him. This was not before she called the police. That constitutes the facts which resulted in the count of aggravated burglary (count 4).
On 22 September 2002 the applicant went to a pharmacy in Glenhuntly Road, Caulfield, and after some time police were called to the premises. They enquired of the applicant how he had travelled to the pharmacy and he told them that he had driven there in a white Nissan Pulsar which was parked behind the shop. When police inspected the vehicle they found that it had a number plate at the front which did not match with the plate at the rear, and upon further enquiry they ascertained that both plates had been stolen. They are the facts which constitute the two counts of theft (counts 1 and 2).
The police also found the applicant in possession of a police identification wallet and badge which had previously been reported stolen from an off-duty policeman in 1994. They are the facts which comprised the count of possession of stolen goods (count 3).
In his sentencing remarks, the judge gave a detailed summary of the applicant's personal and psychological history. His Honour stated that he took into account the applicant's plea of guilty, but also observed that the applicant had what the judge accurately described as a remarkable history of offending. The applicant was born on 5 June 1969 and was therefore 33 years old when the offences were committed in August and September 2002. He had a large number of convictions from many appearances before several Magistrates' Courts, extending back to 4 March 1987. A significant proportion of those convictions were for offences of theft and dishonesty, and others included being armed with offensive weapons, causing wilful damage, being in possession of a firearm being suspected of having been stolen, possession of an unregistered firearm, causing injury recklessly, being in possession of property suspected of being stolen, being in possession of articles of burglary, and possession and use of prohibited substances. In those circumstances, a fairly stiff sentence would appear to have been in order. The judge said, however, that the applicant's psychiatric condition was such that aims of general deterrence and specific deterrence did not have the same significance as they might ordinarily have had, and that the sentence to be imposed was to be structured accordingly.
The maximum sentence for the offence of aggravated burglary is 25 years' imprisonment, and while the aggravated burglary to which the applicant pleaded guilty is not by any means the worst that may be imagined, it was a serious offence, which was aggravated by the pretence of being a police officer. I do not regard a sentence of two years' imprisonment as excessive. Equally, with respect, I see nothing about the sentences imposed on the counts of theft which should be regarded as manifestly excessive.
But the sentence imposed on the count of attempted armed robbery is, I think, of a different order. A sentence of four-and-a-half years' imprisonment for an attempted armed robbery with a pipe, in the circumstances which I have outlined, would be a relatively harsh sentence for an accused who has pleaded guilty, even if the offender were not afflicted with the sorts of psychiatric and psychological difficulties by which the applicant was and is clearly burdened. When, then, one takes into account the difficulties to which the accused was and is subject, it strikes me that it is beyond the bounds of sound sentencing discretion and so, therefore, manifestly excessive to impose a sentence of four-and-a-half years' imprisonment. Accordingly, I would allow the application for leave to appeal against sentence and treat the appeal as having been initiated and heard instanter.
In re-sentencing the appellant, I would have regard to his plea of guilty, the relatively low level of offending involved in the count of attempted armed robbery, the fact that it does not appear that it caused any severe, or even significant, victim impact, the applicant's significant psychiatric and psychological difficulties, and the fact that while he has been sentenced to imprisonment on a number of previous occasions, those sentences have been of relatively short duration. Of course, I also bear in mind the need for community protection, but at the same time it seems to me, particularly having regard to the psychiatric reports to which I have referred, that the applicant's prospects for rehabilitation are not to be regarded as insignificant.
In the result, I would re-sentence the applicant on each of counts 1, 2 and 3 to three months' imprisonment; on count 4 to two years' imprisonment; and on count 6 to three-and-a-half years' imprisonment. I would order that nine months of the sentence imposed on count 4 be served cumulatively on the sentence imposed on count 6, thereby making for a total effective sentence of four years and three months' imprisonment, and I would order that the applicant serve not less than three of those years before being eligible for parole.
COLDREY, A.J.A.:
I agree, for the reasons advanced by the learned presiding judge, that the application for an extension of time to appeal against conviction should be refused. I also agree that the application for leave to appeal against sentence should be dealt with in the manner and for the reasons advanced by the learned presiding judge.
BELL, A.J.A.:
I also agree.
NETTLE, J.A.:
The orders of the Court will be as follows:
1. The application to extend time in which to appeal against conviction is refused.
2.The application for leave to appeal against sentence is allowed and the appeal is taken to have been instituted and heard instanter and is allowed.
3.The sentences passed below are set aside and the applicant is re-sentenced to be imprisoned for a term of three months on each of counts 1, 2 and 3, for a term of two years on count 4 and for a term of three years and six months on count 6. Nine months of the sentence imposed in respect of count 4 are to be cumulated upon the sentence imposed in respect of count 6. The total effective sentence is one of four years and three months' imprisonment. A period of three years is fixed before the appellant is to be eligible for parole.
4.It is declared that a period of 993 days of the sentence has already been served and it is ordered that the fact that the declaration has been made and its details be entered in the records of the Court.
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