R v Pedevski
[2016] VSC 314
•2 May 2016 (Revised 6 June 2016)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0046
Between:
| THE QUEEN | |
| and | |
| SLAVE PEDEVSKI | Accused |
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JUDGE: | Croucher J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 7 March and 2 May 2016 | |
DATE OF JUDGMENT: | 2 May 2016 (Revised 6 June 2016) | |
CASE MAY BE CITED AS: | R v Pedevski | |
MEDIUM NEUTRAL CITATION: | [2016] VSC 314 | |
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CRIMINAL LAW – Murder – Consent mental impairment hearing – Accused, in grips of psychotic episode, killed elderly father by striking him multiple times to head with hammer – Verdict of not guilty by reason of mental impairment directed – Custodial supervision order imposed – Accused committed to Thomas Embling Hospital for nominal period of 25 years – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 20, 21, 24, 26, 27, 28, 41, 42 & 47.
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms D Piekusis | Office of Public Prosecutions |
| For the Accused | Mr J Fitzgerald (7 March 2016) Mr S Payne (2 May 2016) | Victoria Legal Aid |
HIS HONOUR:
Overview
A psychotic man bashes his father to death with a hammer
On the morning of Sunday 23 November 2014, Slave (“George”) Pedevski (“Mr Pedevski”) killed his elderly father Risto Pedevski by striking him multiple times to the head with a hammer in the back yard of the family home.
Mr Pedevski has had a long history of serious mental illness – in particular, chronic schizophrenia. Over many years, he has behaved in very unusual ways when suffering acute episodes of that illness. He was in the grips of a floridly psychotic episode when he bashed his father to death.
After his arrest, Mr Pedevski was charged with murder. Ultimately, he was committed for trial in this Court on that charge.
Fitness to stand trial
Initially, the question whether Mr Pedevski was unfit to stand trial was raised.[1] An investigation into that issue was heard before Macaulay J and a jury. On 16 December 2015, the jury empanelled on the investigation found Mr Pedevski fit to be tried.
Consent mental impairment hearing
[1] See Part 2 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
On 7 March 2016, the matter then came before me on what is commonly referred to as a consent mental impairment hearing. Usually, in this State, unless there is a plea of guilty, whether a person is guilty or not guilty of murder is determined by a jury. However, pursuant to the Crimes (Mental Impairment and Unfitness to be Tried Act 1997 (Vic) (“the Act”), if a person is charged with an indictable offence (such as murder) and, before the empanelment of a jury, the prosecution and the defence agree that the proposed evidence establishes the defence of mental impairment, the trial judge may hear that evidence and, if satisfied that it does establish the defence of mental impairment, may direct that a verdict of not guilty because of mental impairment be recorded.[2]
[2] See s 21(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
Both Ms Piekusis, who appeared on behalf of the Director of Public Prosecutions, and Mr Fitzgerald, who appeared on behalf of Mr Pedevski, submitted that the proposed evidence established that Mr Pedevski had available to him a defence of mental impairment. This was because the evidence showed that, at the time of the killing, as a result of the effects of his psychiatric illness, Mr Pedevski did not know the conduct he engaged in was wrong – that is, he could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong.[3]
[3] See s 20(1)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
I accepted the evidence and the parties’ submissions and found Mr Pedevski not guilty of murder by reason of mental impairment. I also declared him liable to supervision under Part 5 of the Act; adjourned the matter to 2 May 2016; and directed that, pending the making of a supervision order, he be remanded in custody in an appropriate place, namely Thomas Embling Hospital,[4] and that the necessary further report and a certificate of available services be prepared.[5]
Final orders
[4] See ss 24(1)(b) and 24(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic). A certificate of available services for Mr Pedevski to be treated at the Thomas Embling Hospital pending the making of a supervision order was provided to the Court by the Victorian Institute of Forensic Mental Health. Mr Pedevski was, by that time, already in custody at the Thomas Embling Hospital, having been transferred there from the Acute Assessment Unit of the Melbourne Assessment Prison on 18 February 2015.
[5] See ss 24, 26, 41 & 47 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
The matter came back before me on 2 May 2016. By that time, I had received a report from Dr Grant Lester, a consultant psychiatrist with the Victorian Institute of Forensic Mental Health (“VIFMH”), also known as Forensicare.[6] In Dr Lester’s opinion, Mr Pedevski required further hospitalisation to ensure the reduction of his risk of violence and risk of recurrent mental illness. Dr Lester concluded that a custodial supervision order was the most appropriate level of supervision. I had also received a certificate of available services, declaring that a bed remained available for Mr Pedevski at Thomas Embling Hospital.
[6] See s 41 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
Consistently with the submissions of the parties, I made a custodial supervision order committing Mr Pedevski to the custody of the VIFMH (Thomas Embling Hospital) with a nominal term of 25 years from 23 November 2014, the date of his arrest.[7] I declined to fix a review period for the custodial supervision order[8] as there was no evidence supporting such a course.
[7] See ss 26, 27 & 28 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
[8] See s 26(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
On 2 May 2016, I gave ex tempore reasons for my decision but indicated I would publish detailed written reasons at a later time. These are those reasons.
Summary of the evidence
I turn now to a detailed summary of the evidence. This summary is taken largely from the prosecution opening read to the Court and tendered in evidence by Ms Piekusis.
Risto Pedevski
Risto Pedevski was born in Macedonia on 15 July 1935. He married Danica Pedevska in Macedonia in 1964. Slave Pedevski was born to that marriage in 1965. The family immigrated to Australia in 1967. A second child, Valentina, was born to the marriage in 1980. Valentina died in the 1990s as a result of a motor vehicle collision.
In the early-1990s, Risto Pedevski and his family moved to Yarraville, where they resided together until the time of this incident. Risto Pedevski was aged 79 years when he died.
Slave Pedevski
Slave Pedevski was aged 49 years when he killed his father. He did not complete his secondary school education and commenced training within the field of catering and hospitality. He did not complete his training in this field. He was employed briefly as a factory worker for Kraft Cheese and as a wool tester when aged in his 20s. He has not worked since.
At the time of his arrest, Mr Pedevski was based at the family home in Yarraville, although he would spend nights away, staying at the Palms Motel in Footscray, as well as on occasions sleeping on the streets in the western suburbs of Melbourne.
Early psychiatric history
In January 1988, at the age of 22, Mr Pedevski was diagnosed with schizophreniform disorder and schizoid personality disorder.
In January 1990, at 24, he was further diagnosed with schizophrenia. Medical records note his typical psychiatric symptoms as including the following:
a)being aggressive to family members;
b)being suspicious, isolative and uncommunicative;
c)refusing medication;
d)having thought disorder;
e)having paranoid and somatic delusions;
f)having impaired judgment and insight;
g)having a delusional belief that his parents were imposters, which evolved into the belief that his biological parents were in fact his foster parents; and
h)having olfactory hallucinations.
Records also reveal three suicide attempts by Mr Pedevski (in 1991, 1992 and 1997), together with multiple involuntary admissions into mental health facilities in Victoria and South Australia.
Mr Pedevski’s mental health was predominantly case managed by Mercy Mental Health Services (Saltwater Clinic) and his private psychiatrist of approximately 20 years, Dr Rod Peterson.
Mr Pedevski typically denies that he has a mental illness, and has a history of opposing engagement with mental health services and medication. He has directed blame for his mental health service engagement towards his parents. This blame has been accompanied by aggressive behaviour towards his parents and threats to kill them.
Over the years, Risto Pedevski had contacted police and psychiatric services for assistance with his son. On 4 December 1996, police attended the Yarraville address to assist psychiatric services, who were in attendance because Mr Pedevski’s parents had reported that their son had become threatening and irrational. Mr Pedevski became aggressive towards police and began wielding weapons, including a claw hammer which he had concealed in a plastic shopping bag.
On 10 August 2012, Mr Pedevski was examined at the Western Hospital Emergency Department. Medical records noted that on this occasion he was carrying a hammer and scissors.
Risto Pedevski often threatened his son that he would call the police if he did not do what he was told. Mrs Pedevska had raised concerns with her husband about such threats as their son was scared of police and would become louder and angrier towards his father when the police were mentioned.
The killing
On Friday 21 November 2014 at approximately 10:12 a.m., Mr Pedevski checked in at the Palms Motel in Footscray. He stayed there for most of the day. At 9:52 p.m., he attended the reception desk, returned the room key and then returned home to Yarraville. Throughout the night, Mrs Pedevska could hear her son snoring in his bedroom.
On Saturday 22 November 2014, Mr Pedevski left home sometime between 4:00 a.m. and 5:00 a.m. At 9:37 a.m., he returned to the Palms Motel and had a brief conversation with a staff member at reception before leaving again. He did not book a room for that night.
Between 6:00 p.m. and 7:00 p.m., Mr Pedevski was seen walking towards his home at Yarraville. On arrival, he switched off the gas hot water system. He had repeatedly done the same thing in the past as he believed he could smell gas. This was a constant source of friction between Mr Pedevski and his parents, as, on occasion, tradesmen were required to assist to turn the gas back on. Mr Pedevski had turned the gas off about twenty times since ceasing to take his medication.
The next morning, Sunday 23 November 2014, Risto Pedevski was woken by his wife at about 8:00 a.m. He took his medication and ate his breakfast. At about 10:30 a.m., he went to the rear yard to hang washing on the clothesline, while his wife remained in the kitchen preparing food. He used a walking frame for assistance.
He met his son in the rear yard. They had a heated conversation regarding the hot water system. Mrs Pedevska heard her husband tell their son, “Don’t touch the hot water system. If you don’t switch it [back] on, I’ll go to police.”
While his father began to hang out the washing, Mr Pedevski removed a claw hammer from a blue plastic bag. He then struck his father repeatedly to the head and face with the hammer. Risto Pedevski tried to protect himself, which resulted in defensive injuries to his hands. During the struggle, the clothesline snapped and Risto Pedevski fell to the ground with his walking frame falling on top of him. His son then fled, leaving the hammer behind.
After preparing food and a period of rest on the couch, Mrs Pedevska became concerned that her husband had not come back inside. She went outside and found him in the rear yard. She saw flies over his face and the hammer nearby.
At 1:28 p.m., Mrs Pedevska contacted emergency services requesting police attendance as her husband had died. Emergency services attended. Resuscitation of the deceased was not attempted.
Arrest and investigation
Later that evening, at 8:20 p.m., Mr Pedevski went to the Palms Motel and requested a room for the night. He was checked in and provided with a key to room number 11.
The motel manager contacted police, as he knew they were searching for Mr Pedevski.
At 8:55 p.m., police attended at room 11, arrested Mr Pedevski and then conveyed him to Footscray Police Station.
A record of interview was commenced. Among other things, Mr Pedevski said the following in the interview:
a)he was not involved or present at the death, and he had never left Footscray;
b)his parents live in Macedonia, he does not have a father in Australia, and he does not know the person who died;
c)he had been at the shops and walking and exercising throughout the day;
d)he does not know the names of his parents or any of their details;
e)he has been at the Palms Hotel all of his life but last night he spent the night at Footscray park;
f)he was not taking any medication and had not been diagnosed with any conditions;
g)the shirt he was wearing in the interview was the shirt he had worn the previous day;
h)he had never heard of the Yarraville address; and
i)he did not care about the Risto Pedevski, and it was his bad luck that he died and had been murdered by somebody.
Risto Pedevski’s blood was detected on a shirt worn by Mr Pedevski and in his possession at the time of his arrest.
Autopsy
On 24 November 2014, a post mortem examination was conducted on Risto Pedevski’s body. The following injuries were observed:
a)at least 12 separate injuries to the face and neck, including lacerations to both orbits, a laceration to the forehead, two lacerations to the left side of the face, two lacerations to the back of the head and a laceration to the upper lip;
b)two underlying skull fractures;
c)bruising to the skin of the neck, strap muscle haemorrhaging and a fractured hyoid bone;
d)fractured C7 vertebrae;
e)fractured left clavicle;
f)fractured mandible; and
g)lacerations to the dorsum of both hands.
The cause of death was found to be the result of head and neck injuries.
Psychiatric evidence
After his arrest, Mr Pedevski was placed in the Acute Assessment Unit of the Melbourne Assessment Prison. On 18 February 2015, Mr Pedevski was transferred to the Thomas Embling Hospital.
On 6 July 2015, Mr Pedevski was assessed at that hospital by Dr Lester Walton, a consultant psychiatrist. Dr Walton’s report was put before the Court. He found that Mr Pedevski has an unequivocal diagnosis of chronic paranoid schizophrenia. Mr Pedevski asserted the belief that his foster parents had falsely presented themselves as his biological parents. In addition to this delusion, Mr Pedevski also experienced auditory hallucinations and described hearing voices instructing him to prevent his father from turning the gas hot water service back on. He was convinced that was a dangerous procedure because he could smell toxic gas emanating from the water heater. Thus, he was also suffering from olfactory hallucinosis.
Dr Walton was of the view that Mr Pedevski was in the grips of an acute psychosis at the time of the killing. He opined that Mr Pedevski was unlikely to have been able to reason with a moderate degree of sense and composure as to the wrongfulness of his actions.
Dr Walton’s report also recorded that, on 8 August 2002 in South Australia, Mr Pedevski was found not guilty by reason of mental impairment in relation to charges of indecent assault, indecent behaviour and resisting police. He was placed in Adelaide’s forensic psychiatric hospital, James Nash House, and treated with the antipsychotic medication ‘clozapine’. In July 2003, Mr Pedevski was transferred to Glenside Psychiatric Hospital in South Australia. He returned to Melbourne in 2004.
Dr Grant Lester, a psychiatrist, also assessed Mr Pedevski on 5 and 11 August 2015. His report was also before the Court. He detailed that Mr Pedevski denied having any mental illness and stated the deceased was his foster father, not his father. He denied being present at the family home at the relevant time and he denied killing his foster father. While at Thomas Embling Hospital, Mr Pedevski continued to report smelling gas.
Dr Lester found that, at the time of the killing, Mr Pedevski was suffering an acute relapse of his chronic paranoid schizophrenia related to non-compliance with medication. He was distracted and preoccupied with a number of delusions, most relevantly that God or the devil was speaking to him and commanding him, and that his parents were in fact not his parents but his foster parents who were misleading him.
Dr Lester found that, while Mr Pedevski knew the nature and quality of his conduct, he did not know that the conduct was wrong as a result of his long-standing delusional belief, ‘direction’ from God and thought disorder.
At the consent mental impairment hearing on 7 March 2016, I heard viva voce evidence from both Dr Lester and Dr Walton.
Dr Lester adhered to the opinion expressed in his report. He said that Mr Pedevski has a significant and documented history of chronic paranoid schizophrenia, dating back over 25 years. During his examination, Dr Lester found Mr Pedevski to be showing symptoms of ongoing chronic paranoid schizophrenia. He also noted that, at the time of his father’s death, Mr Pedevski had been off his medication for months to years, as far as he could determine. He was of the opinion that, at the time of the killing, Mr Pedevski was acutely psychotic and would have been angry, irritable and fearful, and driven by paranoid delusions. He also believed Mr Pedevski was in a very thought-disordered state driven by hallucinations from God and physical somatic hallucinations of the devil trying to grab his body. It was in this mental state that Mr Pedevski got into an argument with his father, driven by his delusions of smelling gas, and subsequently killed him. Dr Lester concluded that Mr Pedevski was not able to reason with any sense or composure at the time as to the wrongfulness of those actions.
Dr Walton also maintained the views expressed in his report. He agreed with the evidence of Dr Lester. He said Mr Pedevski has a well-established diagnosis of entrenched chronic schizophrenia. He agreed with Dr Lester that, at the time of the killing, Mr Pedevski was afflicted by a range of delusions and hallucinations such that, while he remained capable of understanding the nature of his acts, he had lost the capacity meaningfully to distinguish right from wrong. In Dr Walton’s opinion, Mr Pedevski could not reason with a moderate degree of sense and composure as to the wrongfulness of his actions.
Submissions and conclusions on mental impairment
I accepted the opinions of Dr Walton and Dr Lester as expressed in their reports and in their viva voce evidence. I was satisfied on the evidence that Mr Pedevski was suffering from a mental impairment of the relevant kind at the time he killed his father, and that he did not know that his actions were wrong. I accepted the parties’ joint submission that he must be found not guilty by reason of mental impairment.
Accordingly, at the hearing on 7 March 2016, I directed that a verdict of not guilty by reason of mental impairment be recorded in respect of the charge of murder. I also made orders on that day that are commonly made following such a finding. In particular, I declared Mr Pedevski liable to supervision under Part 5 of the Act and adjourned the matter further so that, pursuant to ss 41 and 47 of the Act, a report could be prepared and a certificate of available services might be provided.
Evidence, submissions and conclusions in respect of final orders
Evidence
As I indicated earlier, at the hearing for final orders on 2 May 2015, Dr Lester provided an additional report pursuant to the Court’s direction under s 41 of the Act.
Dr Lester’s recommendation in his report was that there be a custodial supervision order (“CSO”) rather than a non-custodial supervision order (“NCSO”). In Dr Lester’s view, Mr Pedevski’s chronic paranoid schizophrenic illness remains symptomatic and he continues to be in only an early partial remission of his illness. He has poor insight into his symptoms and illness, and into the need for hospitalisation, medication and psychiatric follow-up. Mr Pedevski also shows a number of deficits in self-care and social connectedness, and an inability to begin to address them at this time.
In Dr Lester’s opinion, Mr Pedevski will require some months to years to bring his illness into either a stable partial or full remission. Ongoing treatment is also expected to take an equally long period of time. A number of Mr Pedevski’s life domains remain in deficit, particularly his lack of any support network in the community, which will need to be addressed before he can begin a transition back to living in the community. In Dr Lester’s view, these factors contributed to Mr Pedevski currently representing a moderate to high risk of recurrent mental illness if released into the community. Directly associated with the risk of recurrent mental illness is Mr Pedevski’s moderate to high risk of future violence. Dr Lester concluded that Mr Pedevski requires months to years of further hospitalisation to ensure the reduction of his violence. Accordingly, in his view, a CSO was the most appropriate order to be made.
Submissions
Ms Piekusis made submissions consistent with Dr Lester’s opinion. In particular, she submitted that a CSO was the only appropriate order. Mr Payne, who appeared for Mr Pedevski on this occasion, conceded that he was in no position to make any contrary submission.
Conclusions
I accepted Dr Lester’s opinion and Ms Piekusis’s submission (and Mr Payne’s concession). In my view, the only appropriate order to be made in the circumstances was a CSO committing Mr Pedevski to the custody of the VIFMH (Thomas Embling Hospital). As required by s 28 of the Act, the nominal term of the order must be for 25 years.
No fixed review period
Section 27(2) of the Act empowers the Court, when making a supervision order, to direct that the matter be brought back to the Court for review at the end of a specified period. However, given the opinion in Dr Lester’s final report about Mr Pedevski’s current state of mental health and his prediction for the future, it seemed to me that there was no proper basis to set a review period at this stage. Rather, if in the future those treating Mr Pedevski at Thomas Embling Hospital consider that such an application should be brought or if the Crown or Mr Pedevski or his lawyers take that view, then, of course, such an application for review may be made an appropriate time.
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