R v Mijac
[2010] VSC 670
•10 November 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0075 of 2010
| THE QUEEN |
| v |
| ROBERT MIJAC |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 November 2010 | |
DATE OF SENTENCE: | 10 November 2010 | |
CASE MAY BE CITED AS: | R v Mijac | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 670 | |
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CRIMINAL LAW – Attempted Murder – 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 – Possible diagnosis of schizophrenia – Remanded pursuant to s 24 Crimes (Mental Impairment & Unfitness to be Tried) Act 1997.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Rose SC | Office of Public Prosecutions |
| For the Accused | Mr G. Steward | Pica Criminal Lawyers |
HIS HONOUR:
Today, 10 November 2010, Robert Mijac pleaded not guilty to the attempted murder of his uncle, Mijo Micha Bagaric. The matter proceeded before me as a hearing pursuant to s 20(1)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act.
That 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 the judge's 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.
I have set out the relevant section of the Act. This is such a case. Mental impairment is defined in s 20(1) of the Act in the following terms:
20. Defence of mental impairment
(1)The defence of mental impairment is established for a person charged with an offence 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 the section 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 definition of mental impairment that the court is concerned with in this case, if the trial judge is satisfied on the balance of probabilities that the person charged with the offence was suffering from mental impairment at the relevant time, a verdict of not guilty because of mental impairment may be recorded. If the trial judge is not so satisfied, an order that the charge be heard by a jury must be made.
The facts surrounding the incident are set out in detail in the prosecutor's opening which was tendered at the trial as Exhibit 1 and the facts may be stated briefly. They are in précis form really setting out the matters that appear in the prosecutor's opening read by Mr Rose SC, Senior Crown Prosecutor, who appeared for the prosecution.
The accused is 41 years of age. He was born on 1 March 1969. At the time of these events on 18 July 2009, Mr Bagaric was living temporarily in a makeshift bedroom located at the rear of the garage at his sister Milika Mijac and her husband Zvonomir Mijac's house. They are the parents of the accused.
The accused was the subject of an intervention order taken out by his father which prohibited him being at or within 200 metres of the family home. Mr Bagaric was asleep in his when he was awoken by somebody knocking on the door. It was then about 10 pm. It was the accused at the door. He struck his uncle over the head and knocked him out. He then proceeded to beat him and stab him a number of times.
The accused left the house and drove away. He was ultimately arrested at Parkmore Shopping Centre, his car having been recovered near Bendigo in the early hours of Sunday 19 July 2009. His uncle suffered the following injuries which were and have reasonably been described as life-threatening. They included a fractured skull with bleeding on the brain, fractured nose, bruising and swelling to the face and eyes, punctured left lung, eight broken ribs, multiple stabbing injuries to the head, upper chest, mid chest, the left wrist or hand, the upper left leg, the lower right leg and the left ankle. He had bleeding to the left lung and subsequently developed pneumonia.
I received on this hearing a report pursuant to s 42 of the Act setting out the consequences for Mr Bagaric of these events. Although it is fair to say that his physical recovery has been satisfactory, it cannot be said that it is any better than that and he continues to suffer a number of ongoing injuries, both physical and psychological, as a result of these events. In particular it has led to him ceasing any contact with his sister and her family.
His view of these matters will be more relevant to the ultimate disposition of this case than they are in relation to the present exercise but having referred to the material, it was important to have referred to it. The accused when arrested had made some admissions to the police but ultimately made a no comment record of interview.
The informant, Detective Senior Constable Meyers, gave evidence before me and confirmed the accuracy of the prosecutor's opening. Dr Lester Walton, a very experienced forensic psychiatrist, gave evidence and I should note that he also is the accused's treater as did Doctor Roberts, a consultant psychiatrist from Forensicare. The accused's history may be stated briefly.
He had become to demonstrate active psychotic symptoms at the time of his nephew's birthday party in June 2008. On that occasion he made a number of bizarre accusations about members of his family, alleging sexual abuse. His brother sought the assistance of a community psychiatric team. Over the next 13 months the accused continued to express bizarre and deluded thoughts and threatened suicide. That was particularly so in the second week of July shortly before these events.
The details of what was said to the various family members are set out in Dr Walton's report dated 18 May 2010. Although the accused was seen by the Maroondah CAT team on a number of occasions between 26 October 2008 and 21 November 2008, he was not subject to any compulsory treatment regime.
One of the delusions suffered by the accused was that he had been abused by his uncle and that this uncle had arranged significant abuse of him by others. It appears that at some stage in the time immediately leading up to these events the accused and his uncle had shared a motel room. An indication that in ordinary circumstances the relationship between the accused and his uncle was a good one. It is fair to say that his uncle, in the material provided for the purposes of this hearing, says as much. That for him, of course, is a cause of even greater distress.
After the events the accused did appear to know that he attacked his uncle and as much emerged in some admissions to the informant and made a series of enquires about his uncle's welfare.
After being assessed at the Acute Assessment Unit at the Melbourne Assessment Prison, the accused was transferred to St Paul’s Psychiatric Unit where he remains. He was first treated with anti-psychotic medication and his symptoms abated. But after the medication was withdrawn, his condition deteriorated.
Prior to that there had been a possibility that his psychosis had been a drug induced one but the deterioration on the withdraw of the medication was taken by Dr Walton, and for that matter Dr Rogers, as an indication that the psychosis suffered by the accused was, at least as an underlying cause, that of mental illness, whatever the possible effects of drugs might have been. Since medication has been restored to him, he has responded to it.
The accused came to Australia when he was eight. He had remained in Bosnia with his father's brother and his wife when his own family had come to Australia. He has been involved in several relationships and has an eight year old son. He has maintained work through the whole of the period of illness. He has physically suffered a number of head injuries and although of some importance, do not seem to have much to do with his present condition.
He had, at various times, used marijuana and amphetamines and was probably addicted to heroin at the time of these events, although he had been taking Buprenorphine as a substitute for heroin at the time of these events presumably directed towards avoiding his addiction.
Doctor Walton in his report of 18 May 2010 said, under the heading “Opinion”:
“1. My provisional diagnosis was that of psychotic episode which likely was induced by a combination of stress and drug abuse. The prompt and full recovery tended to confirm that diagnosis proposition. However the subsequent history is of a spontaneous relapse into psychosis again especially deluded thinking similar to the original episodes. Thus I've modified the diagnosis to that delusional order (probably schizophrenia) likely precipitated and aggravated by substance abuse and/or stress. But I do not regard Mr Mijac as having succumbed to a single drug induced and/or reactive psychosis rather an endogenous psychotic illness.
2. As best I can judge Mr Mijac has directly responded to the deluded ideas he had about the victim and the intensity of delusions at that time was such that he could not reason with a moderate degree of sense and composure as to the wrongfulness of his acts.
3. I am pleased to report that Mr Mijac is suffering from a treatment-responsive illness and therefore it follows that effective control of his symptoms having been achieved, that likely effectively eliminates the risk of his re-offending in a similar situation.
4. Mr Mijac is thoroughly embarrassed about the multiple false accusations he's directed at family members including the victims and he is now quite straightforwardly remorseful, specifically in relation to his offending.
5. It is perhaps leaping rather far ahead at this time, prior to this man's definitive presentation but should it be the case that a defence of mental impairment is not pursued or fails at trial, it probably is fairly obvious that it is my view that those principles enunciated in Verdins could be applied by the sentencer with considerable weight in this case.”
Because of that view and some other things that Dr Walton had said in his report of 7 July 2010 which had been provided for assistance to the Magistrates’ Court in relation to the hearing for some offences which are not the subject of anything before me or relevant really for present purposes, except to say that's how the report came into existence, Dr Walton was asked to provide a further report of 11 August 2010 in which he stated the following:-
“My opinion is that Mr Mijac, because he was suffering from an acute delusional psychosis at the time he attacked his uncle was not able to reason with a moderate degree of sense and composure as to the wrongfulness of that act. In my opinion, he has clearly available defence of mental impairment.
As you are well aware, mental impairment is not a true defence anymore in the sense that the accused can simply elect to run the defence or not because the issue can be raised by the trial judge or even the prosecution.
However, should Mr Mijac have the opportunity to plead to a lesser charge and elect to follow that course, it's my unequivocal opinion that it would be open to the sentencer to rely upon Verdins' consideration
Alternatively, should it be that the defence of mental impairment is run and succeeds, given the favourable circumstances surrounding Mr Mijac's response to treatment and his general background and character which are not a source of concern, I believe it would be entirely appropriate to attempt to persuade the judge that it would be inappropriate that the disposition of a non-custodial nature from the outset."
In relation to the question of the defence of mental impairment, those matters were unequivocally confirmed by Dr Walton before me in evidence today.
Dr Roberts provided a detailed report about the accused in which she concluded under the heading “Opinions and Recommendations” at paragraph 49 of her report:-
“Mr Mijac is a 41 year old single man with a seven year old son currently on remand for the above charges. Mr Mijac gives a history of a difficult childhood, with dislocation from his primary care givers aged eight with immigration to Australia. He abused cannabis and alcohol as a teenager and progressed to cannabis and heroin use in the aftermath of the relationship breakdown with the mother of his child.
From 2007 he appeared to develop a paranoid psychosis in the context of escalating cannabis use in the context of his relationship breakdown. From June 2008 his family became increasingly concerned about him and contacted the local area of Mental Health Service to facilitate assessment of his mental state. The Crisis Assessment and Treatment Team (CATT) assessed him on two occasions and although it was noted that Mr Mijac was reporting the belief that a family member had sexually assaulted him, he was felt not to fulfil criteria for involuntary treatment under the Mental Health Act.
Initially his psychosis could certainly have been attributed to solely to substance abuse based on his rapid response to anti-psychotic medication. However, once he was weaned off medication in consultation with the treating team, he suffered a relapse in the absence of illicit substances or any identifiable stressors. This provides stronger evidence that his psychosis was not only attributable to psycho-active substances, but likely exacerbated by them.
Dr Walton has discussed the most likely diagnosis as being a delusional disorder, given the rapid response to treatment in the absence of perceptional abnormalities and formal thought disorder. He did, however, consider a diagnosis of paranoid schizophrenia.
I would agree that the actual diagnosis bears little consequence on whether a defence of mental impairment is available or in fact on his treatment. I would, however, be more likely to support a diagnosis of schizophrenia, given his reference to auditory hallucinations, particularly voices discussing him between them and thought broadcast that he experienced, along with clear delusions.
In any event, from the material available to me, it appears that Mr Mijac was suffering from an acute paranoid psychosis at the time of the offence. He believed with full conviction that his uncle had sexually assaulted him and that he felt driven to confront him on this.
I believe that Mr Mijac was not able to reason with a moderate degree of sense and composure as to the wrongness of his act. I therefore support a defence of mental impairment.
Mr Mijac has responded well to treatment and is currently in remission. Given that his offences took place in the context of psychotic symptoms, I would suggest that he remain on antipsychotic medication to avoid relapse and to mitigate the risk of offending.
Fortunately Mr Mijac appears to have developed a good insight into his condition and the contribution that mental illness had on his offending behaviour. He seems to appreciate the requirements for ongoing antipsychotic treatment.
Mr Mijac should also seek abstinence from illicit substances due to the evidence existing that they have had a detrimental effect on his mental health. Mr Mijac would benefit from ongoing drug and alcohol counselling to assist him.
Should Mr Mijac be successful in seeking a diagnosis of mental impairment, I respectfully suggest, in agreement with Dr Walton, that a non-custodial disposition with the supervision such a finding would afford, may be appropriate.
On the evidence before me, I am satisfied that the defence of mental impairment has been made out and direct that a verdict of not guilty because of mental impairment be recorded. That finding is pursuant to s 21(4)(a) of the Act, the ground of mental impairment is that pursuant to s 20(1)(b) of the Act, that Robert Mijac, at the time he attempted to kill Mijo Micha Bagaric, did not know that the conduct was wrong, that is he could not reason with a moderate degree of sense and composure about whether the contact as perceived by reasonable people was wrong.
I therefore declare that pursuant to s 23(a) of the Act, that the defendant is liable to supervision under Part 5 of the Act. I should indicate that when I ultimately fix the order, it is my intention to fix an order for a period of 12 and a half years.
As I understand the Act, as I indicated in discussion during the hearing, the next step that must now be taken is that pursuant to s 41 of the Act, if a person is declared to be liable to supervision under Part 5, the appropriate person must arrange to have prepared and filed with the court that made the declaration a report prepared by a registered medical practitioner or registered psychologist on the mental condition of the person containing:
(a)a diagnosis and prognosis of the condition or an outline of the person's behavioural problems; and
(b)the person's response to treatment, therapy or counselling (if any); and
(c)a suggested treatment or other plan for managing condition. This report must be filed within 30 days after the declaration or such longer period as the court allows. There are some other matters that follow as to what happens into the future pursuant to that section.
Under s 26 of the Act, the question will now arise as to the type of supervision order that is to be made and the primary decision being as to whether that will be a custodial order or a non-custodial order. That will depend upon largely the material that will be provided under s 41.
Pursuant to s 24 I am required to make an interim order and notwithstanding the material that I have received from Dr Walton and Dr Rogers, I am of the view that it is appropriate to remand the accused in custody in a prison, that is where he is presently detained, and I do that because there is no practicable alternative available in the present circumstances.
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