R v Troselj
[2022] ACTSC 35
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Troselj |
Citation: | [2022] ACTSC 35 |
Hearing Date: | 3 March 2022 |
DecisionDate: | 3 March 2022 |
Before: | Norrish AJ |
Decision: | See [35] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – assault occasioning actual bodily harm – possession of a drug of dependence – extensive criminal history – background of significant mental health issues – purposes of sentencing – convictions recorded – wholly suspended sentence of imprisonment imposed – good behaviour order imposed |
Legislation Cited: | Crimes Act 1900 (ACT), s 24 Crimes (Sentencing) Act 2005 (ACT), ss 7, 10, 12, 33, 35 Mental Health Act 2015 (ACT) |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 R v Verdins [2007] VSCA 102; 16 VR 240 |
Parties: | The Queen (Crown) Zoran Troselj (Offender) |
Representation: | Counsel D Swan (Crown) J De Bruin (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 115 of 2020 SCC 116 of 2020 |
NORRISH AJ:
Zoran Troselj appears today for sentence in relation to an offence to which he pleaded guilty on arraignment as an alternative charge, or a second charge, to an indictment containing an allegation of acting with intent to cause harm to a person in a building as a trespasser. What he pleaded guilty to is the charge of assault occasioning actual bodily harm. That is an offence contrary to s 24 of the Crimes Act 1900 (ACT) that carries a maximum penalty of five years’ imprisonment.
In relation to that charge, there is a related charge exposed in its circumstances in the Statement of Facts concerning his possession of a small quantity of a drug of dependence contrary to s 169 of the Drugs of Dependence Act 1989 (ACT). That carries a maximum penalty of two years’ imprisonment and/or a fine of $8000. The offender was committed for trial to the Supreme Court of the Australian Capital Territory (ACT) in respect of the more serious charge and, as I understand the matter, pleaded guilty to the second count on the indictment after criminal case conferencing and after some delay arising out of the issue of whether the offender was fit to plead.
His fitness to plead of course would always be a background issue given the character of his mental health. But ultimately it is clear, having regard to various matters, that he is fit to plead at least in relation to the offences with which I am now concerned. The fitness to plead investigation was concluded on 8 October 2021, or was ‘resolved’. The matter, I might point out, was initially listed for trial to commence on 19 April 2021.
With regard to the issue of an appropriate discount if a sentence of imprisonment is to be imposed, having regard to the terms of ss 10 and 35 of the Crimes (Sentencing) Act 2005 (ACT), hereinafter to be referred to as ‘the Sentencing Act’, the parties indicated to me that there is some utilitarian benefit in the plea in the matter. Measuring utilitarian benefit is complicated by the fact that the matter was listed for trial but that trial could not proceed because the issue of fitness to plead had to be investigated. I propose to accord the offender a discount of 15 percent upon the otherwise appropriate sentence, the s 10 threshold having been passed in my view having regard to all the circumstances of the matter. But ultimately, to ensure there is a sentence of some cogency, I have rounded the figure down to providing the offender with a discount of four months rather than the 3.6 months that emerges as 15 percent of an appropriate sentence of two years, having regard to the objective facts and the subjective matters to be taken into account.
There is an agreed Statement of Facts in the matter and I will not dwell upon it beyond making some observations about it and setting out some basic details. The offender and the victim were known to each other for a number of years. At various times, it would seem that the offender, who was a person with significant mental health issues, was homeless and was living in the victim's car. They obviously had a close relationship. In the scheme of things, without having to drill down into the merits of the matter, the offender had a belief that there was property held by Mr Williams belonging to the offender. The offender came to Mr Williams' house at 9.00am in November 2019 and it is clear on the facts the offender was concerned, if that is the correct expression, about this issue of property he believed belonged to him.
This sort of obsessive behaviour could well be related to his mental health issues. There was a confrontation. Mr Williams tried to speak reason to the offender, which he declined to accept as proper advice. Mr Williams, in fact, did look for property that belonged to the offender and in the course of the altercation over this property that the offender was claiming to be in Mr Williams' possession, the offender kicked Mr Williams in the head, causing a laceration to his bottom lip. The offender was asked to calm down and leave and the victim then ran to seek assistance.
I point out in relation to the circumstances of the offending, noting what the Crown said about aspects of it, that this is an offence that occurred in daylight hours. It was not an offence that occurred in the early hours of the morning. It is not an offence involving the attack upon a stranger in those particular circumstances and as I said, it seems, without anyone having undertaken a detailed analysis of it, apparent from the facts that, putting aside the issue of the relationship between the offender and the victim, the offender had property that he believed that was in Mr Williams' premises but acted quite unreasonably in seeking to regain it.
I note in relation to the drug of dependence possession charge, when the offender was arrested a relatively short time later, within 35 minutes of the principal offence occurring, he volunteered to the police that he had the drugs the subject of the charge in his possession and police, on searching him, found a small clip bag containing a crystalline substance that weighed almost 0.098 g, a very small quantity of methylamphetamine, the offender having a background of drug use and abuse.
The offender was bail refused for a period of time and I have taken into account in fixing the appropriate penalty the fact that he was in custody for 14 days. His criminal history is one that ostensibly does him no credit. In fact, it does not entitle him to any special leniency. But it seems also that his criminal history is a reflection of matters that emerged from the mental health assessments which have been provided for to the court.
He has been appearing in courts in the ACT and New South Wales (NSW) since 2001 at least. I am referring now to appearances in adult courts. He has appearances in the Childrens Court in the ACT. He has a large number of findings of guilt, both in the Childrens Court, but particularly as an adult in respect of offences of violence and common assault usually. He also has a finding of guilt in the ACT Supreme Court in 2008 for what is described in the criminal history as aggravated robbery in company for which he was sentenced to three years' imprisonment with a non‑parole period of two years, which is a substantial sentence reflecting serious criminality.
I am not favoured with the facts of that matter, nor am I favoured with details as to the facts of other findings of guilt over an extended period of time. He has findings in the Local Court in 2001 at Queanbeyan in relation to possession of implements to enter a motor vehicle, receiving stolen property, using an unregistered vehicle and the like that were dealt with pursuant to the Mental Health Act 2007 (NSW) (‘NSW Mental Health Act’), again reflecting what I was saying about the relationship of at least some of his offending with his mental health issues.
It might be thought by reference to his extensive criminal history, which includes, I hasten to say, a recent finding of guilt in respect of a matter of a common assault dealt with in the Local Court, that his offending would not entitle him to any leniency. But when one has regard to the other evidence in the case, it is clear that matters that are specifically adverted to in the Crown's very helpful written submissions are of some significance in this case. I will come back to the detail of the Crown's submissions in relation to the relevance of mental health after I just briefly deal with the evidence available to me in respect of that aspect.
Two mental health assessment reports were prepared and are in evidence in this case. The offender was assessed on 24 February 2021, when in custody, and a report was prepared on 25 February 2021. He was assessed again in early February this year. The first report in time is probably the more extensive, but both reports are consistent with one another. The report of this year does give an up‑to-date picture as to the situation of the offender so far as his relationship with the Mental Health Act 2015 (ACT) (‘Mental Health Act’).
To summarise the matter by reference to the first report in time, that is, the report prepared on assessment when the offender was in custody, the offender has had contact with mental health services in NSW and the ACT since 1999, when he was 27 years of age. He is currently 50 years of age, I point out, being born in 1971. He had developed symptoms of psychosis and suicidal ideation arising from methamphetamine use. Those diagnoses were revised to schizophrenia, which the offender denies he has, and his condition is characterised by persecutory and referential delusions, auditory hallucinations, thought disorder and aggression towards others. The clinical record notes comorbid diagnoses of anti-social personality disorder, reflected in his extensive criminal history and substance use disorder.
The offender has had a number of admissions to mental health institutions for treatment, in NSW in 2003 and 2006 and in the ACT in 2005, 2014 and 2016. These admissions are often in the context of substance abuse or use and consequently increased psychotic symptoms, it being commonly known that the use of amphetamines particularly will lead to psychotic reactions on occasions. He has also received extensive community treatment. He was receiving community treatment under a Psychiatric Treatment Order which expired on 25 May 2021. Then, as reported in February of this year, he continued to be treated under a further Psychiatric Treatment Order for a further 12 months.
Over the last 12 months, there has been settlement in his condition. This reflects a change, if I could use that expression, from the circumstances that the offender, for example, leading up to the time of the offending in late 2019. He has been compliant with treatment and has been the subject of supervision from the Forensic Community Outreach Service and the city mental health team. It was noted that when his care was transferred to these outreach services there were “Nil significant concerns for him”. He had missed a handful of appointments but had made up for that by making other appointments.
At the time of the assessment in February 2022, the offender was living in a community called ‘Ainslie Village’ which apparently is a public housing establishment where there are many people of a similar background to this offender in terms of mental health issues, anti-social behaviour and the like. I am mindful of the fact that the material before me suggests that there has been an incident at the Village, resulting in the offender being found guilty of an offence of assault. Again, I do not have the facts in relation to that, but it occurred as recently as late February of this year and as a consequence of that finding of guilt, the offender no longer can live in Ainslie Village and is temporarily living with a friend at another public housing community but which is more amenable or accessible to the general community entitled to public housing.
The assessment of him in February of this year noted that with an established diagnosis of schizophrenia, anti-social personality disorder and substance use disorder and with the mental health presentation characterised by paranoid and persecutory delusions and other hallucinations as well as behavioural disturbance, threats and aggression, his presentation in recent years has been generally “well managed”, but his substance use is a significant contributor to deteriorating mental state from time to time.
The offender continues to receive mandatory treatment under the Mental Health Act for the foreseeable future and this is to manage the risk arising out of the symptoms of his mental illness and his lack of insight and it is clear that he has a lack of insight given comments made by him about the state of his own mental health. The reporter noted in February of this year that the offender was keen to address his substance use and it was recommended “strongly” that he continue to work with the Forensic Mental Health Services to work towards reduced methamphetamine use and that he continue to receive other support services.
The Crown has properly pointed out, of course, that the situation of his current accommodation is quite unsatisfactory and it is an element in the equation that needs to be taken into account as contributing to the potential for instability. I note, hence, my disappointment at the failure to have an up-to-date ACT Corrective Services report which would have provided me with a more accurate picture of his current circumstances.
I note from what has been said from the bar table, the offender not having given evidence, that the offender has acquired a dog, which is providing some support for him and providing a mechanism for him to divert his attention away from the use of drugs and his resources away from the purchase of drugs. I also have received a report dated 2 March 2021 from an organisation called ‘Directions’, which has provided a report that has under the name Directions the subheading, 'Pathways to Recovery'. This organisation is a community-based organisation assisting people with drug and alcohol issues and supporting people in a range of ways with counselling support, providing primary healthcare, withdrawal and residential rehabilitation and mechanisms for harm reduction. The reporter found the offender at this point: “highly motivated not only to address his addiction issues but to seek help around his [mental health]”.
Since engaging with this service, the offender had commenced opioid replacement therapy and the Crown has raised with me again specifically a concern about the difficulty of receiving depot injections now that he is no longer within the Ainslie Village community, where these can be organised, it seems, in conjunction with treatment of other people. He is noted as being polite and grateful for the treatment he receives. The report refers to the offender as a “lovely, kind soul” who has “suffered much”.
On the other hand, these comments need to be seen in the context of what his criminal history reveals and the facts of the case with which I am concerned reveals. The report indicates Directions' willingness to continue to assist the offender. It is quite clear, if there is to be any suspension of any term of imprisonment, the offender will need supervision in the community beyond simply that provided by the provision of a treatment order under the Mental Health Act.
I have noted everything put skilfully on behalf of the offender by Dr De Bruin. He acknowledges, it seems, that the s 10 threshold has been passed, but he submits that I should suspend the term of imprisonment to be imposed in respect of the offence of assault occasioning actual bodily harm. The Crown's helpful written submissions go into greater detail about technical matters and the like, and I have had regard to the maximum penalty of course.
I note what the Crown has said about the character of the assault and the objective seriousness of it. I would not regard the offence as one of low objective seriousness, but it is not quite clearly the most serious offence of its type and its objective seriousness, as I said, needs to be considered in the context of the observations I made about it being an offence committed in circumstances where the offender, rightly or wrongly, believed there was some issue between himself and Mr Williams relating to the offender's property, although Mr Williams had obviously extended him kindnesses in the past. I note it occurring in daylight hours, as I have said. The character of the injury is clearly actual bodily harm, not requiring medical intervention. One can see that the actual bodily harm itself was at the lower end of the scale of injuries contemplated by the concept of 'actual bodily harm'.
On the other hand, the assault was unprovoked and unnecessary, and did occur within the victim's home. I have already made observations about the possession of the drugs. As I have said earlier, the assessment of the objective seriousness of the offence also needs to consider the agitated state of the offender in the context of his history of mental illness.
I have already dealt with his criminal history and I have taken into account the time spent in custody. His plea of guilty is some evidence of his remorse, but I do not believe that the offender is specifically remorseful. There are very few indications of that. He has not given evidence to me that he is remorseful, and little in the way of remorse emerges from the mental health reports. But having said that, it is common with mental health offenders such as this offender for them to have difficulty in having the insight that is required to properly express remorse.
I come now to what the Crown has put in relation to the issue of mental health arising from the Victorian decision of R v Verdins [2007] VSCA 102; 16 VR 240 (Verdins). This decision predates the decision of the New South Wales Court of Criminal Appeal in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 (De La Rosa), a decision from 2010 where McClellan J, in a bench of five, addressed the issue of mental health and mental disability as it is relevant to the sentencing principle.
Verdins and De La Rosa have been approved recently by the High Court, but ultimately, clearly the mental health of the offender is relevant in a range of ways, both in an assessment of the objective facts and a consideration of the relevance of subjective matters and in regard to the ‘purposes of sentencing’ pursuant to s 7 of the Sentencing Act.
Where a person has a significant mental health matter or issue that is causally connected to offending, sometimes it need not be causally affected but in this case it seems to me it is, that may be a matter that might operate to require lesser weight to be given to general deterrence. General deterrence will always be relevant in sentencing for crimes of violence, particularly crimes of violence committed in the home of the victim, whatever the relationship between the parties.
As was made clear by the New South Wales Court of Criminal Appeal in the decision of R v Engert (1995) 84 A Crim R 67, which has been approved by the High Court in a number of decisions, including Bugmy v The Queen [2013] HCA 37; 249 CLR 571, there are occasions where a person's mental health, insofar as it contributes to offending, whilst it might require lesser weight to be given to general deterrence, may require greater weight to be given to specific deterrence. All the purposes of sentencing, pursuant to s 7 of the Sentencing Act, have a role to play in this particular matter. There still will be required some consideration of general deterrence, hence the requirement ultimately to impose a term of imprisonment, and the danger that the offender may present to the community is a relevant matter to take into account given his past history and his conduct towards the victim in this particular matter. But having said that, there is also requirement to promote his rehabilitation as the matter is specifically referred to in s 7 of the Act.
The Verdins principles the Crown refers to discuss a range of considerations, some of which I have already identified, relevant to the issue of mental health of an offender contributing to offending. It seems to me that proper application of the Verdins principles does not deny the need for the imposition of a term of imprisonment, but the circumstances of the matter, both objectively and subjectively also require consideration of the promotion of the offender's rehabilitation and assistance in relation to providing him with an incentive that might operate as a form of personal deterrence from further offending, if that is possible. One needs to approach this matter, of course, with considerable circumspection given his criminal history and, of course, the character of his mental illness, which unfortunately for him will be with him throughout his life.
The Crown ultimately, by reference to the ultimate disposition of the matter, noted that the s 10 threshold has been crossed and that is accepted by Dr De Bruin. But noting the recommendations contained within the mental health reports, the Crown concedes that there is a likely benefit, at least, for the offender in having some form of community supervision, particularly in relation to drug use. It seems to me, particularly in relation to both drug use and also continuing mental health treatment, but I say that with no disrespect to the detail of the learned Crown prosecutor’s submissions.
Thus, having regard also to s 33 of the Sentencing Act – and I need not go through the various matters identified within that section relevant to this case because I believe I have addressed them in the course of my remarks – I am prepared, whilst imposing a term of imprisonment reflecting a discount for the utilitarian benefit of the plea of guilty. But the term of imprisonment at this stage be suspended with hopefully appropriate orders for the supervision of the offender.
Orders
The orders of the Court are:
1.The offender is convicted of the offences of assault occasioning actual bodily harm and possession of a drug of dependence.
2.In respect of the offence of assault occasioning actual bodily harm (CC2019/13137) the offender is sentenced to 20 months’ imprisonment commencing on 3 March 2022 and expiring on 2 November 2023.
3.The sentence is wholly suspended pursuant to s 12 of the Crimes (Sentencing) Act 2005 (ACT) on the condition that the offender enter a Good Behaviour Order for a period of 20 months commencing on 3 March 2022 and expiring on 2 November 2023 with core conditions pursuant to s 86 of the Crimes (Sentence Administration) Act 2005 (ACT): including supervision by the Director of Corrective Services, particularly requiring the offender to comply with reasonable directions as to prohibited drug use treatment and rehabilitation and as to mental health treatment as advised by Canberra Health Services and/or Justice Health Services.
4.In respect of the offence of possession of a drug of dependence (CAN12335/19) I sentence the offender to the rising of the court.
| I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Norrish. Associate: Date: 10 March 2022 |
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