R v Vulic

[2000] NSWCCA 295

CITATION:	R v Vulic [2000] NSWCCA 295
FILE NUMBER(S):	CCA 60132/2000
HEARING DATE(S):	07/08/2000
JUDGMENT DATE:	7 August 2000
PARTIES :	Regina v Sinve Vulic
JUDGMENT OF:	James J at 1; Dowd J at 53

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/21/1312
LOWER COURT JUDICIAL OFFICER :	Gibson DCJ

COUNSEL :	PS Hastings QC - Applicant AM Blackmore - Crown
SOLICITORS:	Dennis Cooney - Applicant SE O'Connor - Crown
DECISION:	Leave to appeal granted. Appeal allowed

IN THE COURT OF
CRIMINAL APPEAL

No 060132/00

JAMES J
DOWD J

Monday 7 August 2000

REGINA v SINVE VULIC
JUDGMENT

1   JAMES J: Sinve Vulic has applied for leave to appeal against sentences imposed on him in the District Court by his Honour Judge Gibson on 3 March 2000.

2   The applicant had been indicted before his Honour on three counts, namely (1) attempting to discharge a loaded firearm at Geoffrey Patterson with intent to do grievous bodily harm, with an alternative charge of attempting to discharge a loaded firearm with intent to do grievous bodily harm to Geoffrey Patterson (2) assault occasioning actual bodily harm to Geoffrey Patterson and (3) possessing a loaded firearm in a public place.

3   The applicant pleaded guilty to the second count in the indictment but not guilty to the first count and to the alternative charge and he also pleaded not guilty to the third count. The jury found the applicant guilty on both the first count and the third count.

4 The first count was a charge under s 33 of the Crimes Act, for which the maximum penalty was penal servitude for twenty-five years. The second count was a charge under s59 of the Crimes Act, for which the maximum penalty was imprisonment for five years. The third count was a charge under s 93G (1)(a) of the Crimes Act, for which the maximum penalty was imprisonment for ten years.

5   On the first count Judge Gibson sentenced the applicant to a term of penal servitude for twelve years, consisting of a minimum term of ten years commencing 25 June 1998 and an additional term of two years. On the second count the applicant was sentenced to a fixed term of imprisonment of two and a half years, also commencing from 25 June 1998. On the third count the applicant was sentenced to a fixed term of imprisonment for four years, also commencing on 25 June 1998. All three offences had been committed on 25 June 1998. The applicant was arrested soon after committing the offences and remained in custody from 25 June 1998 to the date of sentencing.

6   In his remarks on sentence the sentencing judge, who had, of course, presided at the trial, said that the facts of the offences were simple and that he did not intend to repeat all the facts in his remarks on sentence.

7   Counsel for the applicant included a statement of the facts of the offences in his written submissions and counsel for the Crown said in the Crown's written submissions that this statement of facts was accepted by the Crown. The following statement of the facts of the offences is based on the statement in counsel for the applicant's written submissions, although I have also included some facts set out in documents in the appeal papers which would not appear to be disputed.

8   The victim Mr Patterson was a solicitor, who had acted as a solicitor for the applicant's brother in a Family Law dispute between the applicant's brother and the applicant's brother's estranged wife. This dispute included a dispute in relation to a house property. The applicant sought to establish, but was unsuccessful in establishing, that he had a proprietary interest in the house property and a court order was made awarding the house property to the applicant's sister-in-law.

9   The applicant blamed Mr Patterson for the failure to establish that the applicant had an interest in the house property. Subsequently, over a number of years, the applicant continually harassed Mr Patterson, for example, by sending threatening mail to him. In 1994 Mr Patterson obtained an apprehended violence order against the applicant. The applicant committed a breach of this apprehended violence order and was briefly imprisoned for the breach.

10   On 25 June 1998 the applicant armed himself with a semi-automatic rifle, which he had owned for twenty years, and a number of petrol bombs which he had manufactured at his home in the preceding few days. The applicant went to the vicinity of Mr Patterson's office at Blacktown and waited for Mr Patterson to arrive. As Mr Patterson walked down a laneway towards the front door to his office he observed the applicant and changed direction in the laneway. However, the laneway had been temporarily obstructed by a fence around a construction site and Mr Patterson was forced to turn back towards the applicant.

11   As Mr Patterson approached the applicant, the applicant pulled the rifle out of the bag in which he had been carrying the rifle and pointed the rifle at Mr Patterson. The rifle was loaded. Mr Patterson ran to the applicant and grabbed hold of the rifle. There was a struggle between the applicant and Mr Patterson, in the course of which Mr Patterson suffered lacerations to his nose and wrist. People who were nearby, including workers from the construction site, came to the assistance of Mr Patterson and were able to subdue the applicant. Police were called and the applicant was arrested. No shot was discharged from the rifle during the incident and Mr Patterson, accordingly, did not receive any gunshot injury.

12   The applicant was interviewed by police on 25 June 1998 and in answers during the interview he admitted that he had been waiting for Mr Patterson, with the intent of shooting him. He said he did not intend to kill Mr Patterson but had intended to shoot him in the leg.

13   In evidence given at the trial the applicant said that he had intended to shoot Mr Patterson, in order to cause him pain and make him suffer in the same way in which the applicant claimed that he himself had suffered.

14   I turn to the subjective circumstances of the applicant. The applicant was born in Croatia in 1944 and was fifty-three years of age when he committed the offences. He migrated to Australia in 1967. He married in 1970 and there were two children of the marriage. The applicant was a carpenter by occupation but had worked only irregularly, after suffering a back injury in 1982.

15   In 1995 he had been made bankrupt as a result of a costs order made against him in unsuccessful Workers Compensation proceedings brought by him. The family home had been sold but, with financial assistance from the applicant's grown-up children, a new family home was built.

16   Apart from the breach of the apprehended violence order, the applicant had only one previous conviction, which was not relevant to the sentencing of the applicant for the present offences.

17   The sentencing judge had before him psychiatric evidence from Dr Bruce Westmore, forensic psychiatrist, and Dr Walker, senior registrar in forensic psychiatry in the Corrections Health Service.

18   Dr Westmore made two reports about the applicant, a report dated 14 January 1999 which was provided to the applicant's legal representatives and a report dated 16 December 1999 which was provided to the Director of Public Prosecutions. The applicant's legal representatives consented to Dr Westmore seeing the applicant on behalf of the Director.

19   In his first report Dr Westmore recorded having received a history that the applicant had a grievance against Mr Patterson, not only because of the loss of the house, but because he believed Mr Patterson had conspired with another lawyer to prevent the applicant receiving workers compensation for his back injury.

20   In this first report Dr Westmore made a provisional diagnosis that the applicant was suffering from a paranoid schizophrenic illness. Dr Westmore noted that the applicant had “strong fixed views of a paranoid or persecutory type. These views appear to be quite encapsulated”. He added, “paranoid schizophrenia tends to be a difficult condition to treat and is often refractory to treatment. The course of the illness does tend to be somewhat chronic”.

21   In his second report Dr Westmore said that he had seen the applicant again on 15 December 1999. In this report Dr Westmore recorded:-

“I asked him would he take medication if he was out of prison and he said ‘If I need it, yes, if I don’t need, don’t take any’. I asked him did he think he needed it and he said ‘I don’t think so’. He then went on to say ‘Any kind of medication is like poison’”.

22   In this report Dr Westmore said inter alia:-

“While he was difficult to assess, it would seem to me that this man’s ideas about Mr Patterson are probably much the same as they were when I originally saw him… my view remains that this man is psychiatrically unwell, that he has a paranoid disorder… I note in my original report that paranoid disorders are particularly difficult to treat and this appears to be the case with Mr Vulic. Unfortunately, he has no insight into the nature and extent of his problems, is unlikely to want to take medication or to have psychiatric reviews on a voluntary basis… His risks of acting aggressively again, while he remains mentally ill, must be considered reasonably high, in my view… Unfortunately, at this stage Mr Vulic’s prognosis looks poor from a psychiatric point of view, he appears to have a long standing paranoid condition, which is treatment resistant, he has no insight into the illness and while mentally ill he has acted aggressively”.

23   In his report Dr Walker said that it appeared that the applicant has a delusional disorder. Dr Walker added:-

“It would appear that Mr Vulic believes that the victim of the…. offence ‘attacked’ him by losing his ownership of a house he bought from his brother. It would appear that this idea is false, fixed and out of keeping with the actual events. This disorder is not felt to respond well to anti-psychotic medication and it tends to be stable over time in the majority of patients”.

24   The sentencing judge also had before him a Victim’s Impact Statement prepared by a psychologist. The psychologist considered that Mr Patterson was suffering from a post-traumatic stress disorder and also “an adjustment disorder (chronic) with depressed mood, due to the traumatic experience of previous ongoing threats and harassment from the applicant and the commission of the offences themselves”.

25   In his remarks on sentence the sentencing judge, after referring very briefly to some of the facts, observed:-

“The evidence of Mr Vulic was clear in the trial and nothing would deter the prisoner from the thought that he had been wronged by Mr Patterson and nothing still will, apparently. He believes that he is entitled to get revenge…he is…quite obsessive concerning Mr Patterson”.

26   His Honour said that he had read the victim’s impact statement and observed “you can understand how he (that is Mr Patterson) feels”.

27   With regard to treatment, his Honour said:-

“As I understand it, the prisoner will not undertake treatment that is recommended to him. He can’t be forced to”.

28   In his remarks on sentence his Honour proceeded:-

“Normally in cases like this where there is a situation in which the psychiatric condition of the prisoner plays a serious part, one says, well, general deterrence doesn’t play any great part in relation to this matter. And that is right in relation here. However what the courts have to try to do is to have the prisoner personally deterred from proceeding in pursuing the conduct which he has been carrying on towards the victim. And indeed, it seems to me, on the evidence, that as soon as he is released he will continue to carry on that way towards the victim. What that means, as I understand it, is that it reaches a stage where a less lenient sentence is not warranted by reason of the applicant’s mental condition. I cannot of course increase any sentence I give him because of that. All I can do is sentence him on that”.

29   His Honour observed that he did not derive a great deal of assistance from previous sentencing decisions or sentencing statistics. His Honour referred to one particular case, which would appear to have been R v Shetefa (unreported Court of Criminal Appeal 9 March 1995). His Honour said in his remarks on sentence:-

“I have not a great deal by way of statistical help of prior matters. I have been referred to one, which is probably the one that appears in the statistics, where there is a sentence of ten years that was imposed and a seven year non-parole period. While the penalty provided is 25 years, one doesn’t suggest that would be appropriate in a case such as this. Although, in my view, the facts disclosed that this present matter is at the top order of matters that come before the courts for this type of offence”.

30 A number of submissions were made by counsel for the applicant about the principal sentence, that is the sentence for the offence under s 33 of the Crimes Act.

31   It was submitted that the sentencing judge had made some specific errors. It was submitted that the sentencing judge had failed to distinguish between the ill effects suffered by Mr Patterson as a result of the actual offence for which the applicant was being sentenced and the ill effects suffered by Mr Patterson as a result of the previous activities of the applicant, for which he was not being sentenced.

32   I would not find that the sentencing judge made this error. The only reference made by the sentencing judge to the effect of the offences on the victim was the remark made by the judge which I have quoted, "You can understand how he feels". In the proceedings on sentence, which immediately preceded the actual sentencing of the applicant, counsel for the applicant had emphasised the need to distinguish between the consequences of the actual offences and the consequences of the previous conduct of the applicant, and I would not infer that his Honour neglected to observe this distinction. Furthermore, the effect of the commission of the offences on the victim could only be properly assessed in the context of the previous conduct of the applicant towards the victim. In the victim's impact statement the psychologist attributed the victim's post-traumatic stress disorder to both the previous conduct of the applicant and the commission of the offences.

33   It was submitted that the sentencing judge erred in saying, "as I understand it, the prisoner will not undertake treatment recommended to him". It was pointed out that Dr Walker’s report showed that, while in custody, the applicant had in fact been treated with various anti-psychotic drugs, with unpleasant side effects and without any noticeable success.

34   However, I consider that his Honour by his remark was intending to convey merely that the applicant was unwilling to undertake treatment and such a finding was supported by the evidence. I have already quoted the passage in Dr Westmore's second report in which he recorded the applicant as saying that, if he was out of prison, the applicant would not take medication, unless he considered that he needed it, and that the applicant did not think he needed medication and that any medication was like poison. Dr Westmore expressed the opinion in his second report that “he… is unlikely to want to take medication”.

35   The report of Dr Walker disclosed that, although anti-psychotic drugs had been administered to the applicant in prison, a regime under which the applicant took the drugs in the form of tablets was replaced by a regime in which the drugs were administered in the form of injections "because of concerns about his compliance with the tablet." In any event, the administration of anti-psychotic drugs to the applicant had ceased, because of the side effects of the drugs on the applicant and because the applicant had not shown any benefit.

36   The principal point which the sentencing judge was seeking to make in his remark was that it was improbable that the applicant's psychiatric state would improve and this was a finding which was well open to his Honour.

37   It was submitted generally on behalf of the applicant that the sentence imposed for the principal offence was manifestly excessive, particularly having regard to the facts that no shot had been fired and that Mr Patterson had not received any injury from a discharge of the weapon; that the sentencing judge had given insufficient weight to the principle that considerations of general deterrence have less importance when an offender is suffering from a mental disability or disorder; that, in regarding the need for personal deterrence as offsetting the discount the applicant would otherwise have received in sentencing by reason of his mental disorder, the sentencing judge had imposed a kind of preventive detention on the applicant, punishing him for what he might do, rather than for what he had actually done.

38   It was further submitted that apart from these offences and his obsession about Mr Patterson, the applicant was a law-abiding citizen.

39 It was submitted that the sentence imposed by his Honour was not supported by allegedly comparable sentences relied on by the Crown and that, while there were very few sentencing decisions for offences under s 33 of the Act, sentencing statistics for offences such as manslaughter and shooting with intent to murder, an offence under s 29 of the Act, showed that the sentence imposed was manifestly excessive.

40   A curious feature of the proceedings has been the references made, or apparently made, to the case of Shetefa. In argument in the proceedings on sentence counsel for the applicant is recorded as saying that the sentence imposed in Shetefa had been a minimum term of five years, with an additional term of one year. In his Honour's remarks on sentence his Honour referred to a case, which was not named but which was presumably Shetefa, in which “a sentence of ten years was imposed and a seven year non-parole period”. Counsel for the applicant in his written submissions on this application asserted that the sentence in Shetefa had been a minimum term of five years nine months with an additional term of two years three months. However, a perusal of the judgment of the Court of Criminal Appeal in Shetefa shows that the sentence in fact imposed was a minimum term of ten years with an additional term of five years.

41 Shetefa had been convicted of an offence under s 33 of the Crimes Act, of maliciously attempting to discharge a loaded revolver with intent to do grievous bodily harm, and the sentence I have referred to was the sentence imposed for this offence. Two police officers had gone to premises where Shetefa was and after they had entered the premises Shetefa had attempted to shoot at one of the officers. The officers gave evidence that they heard a click from the revolver being held by Shetefa but one chamber of the revolver was empty and no projectile was discharged. Shetefa was also sentenced to a fixed term of imprisonment for having an unlicensed pistol and for supplying cocaine, an amount of cocaine having been found on the premises, which was greater than the trafficable quantity.

42   Gleeson CJ delivered the leading judgment in Shetefa. In his judgment his Honour said that counsel for the Crown accepted, and counsel for the applicant did not dispute, that the terms of the sentences imposed by the sentencing judge were appropriate, although alterations of a technical nature had to be made by the Court of Criminal Appeal. Shetefa, accordingly, is a case in which a sentence of fifteen years was imposed for an offence under s 33 of the Crimes Act.

43   In his remarks on sentence in the present case Judge Gibson noted the principle that considerations of general deterrence are of less importance when an offender is suffering from a mental disorder. However, his Honour considered that in the present case there was a need for personal deterrence. His Honour recognised that he should not increase the sentence to be imposed, because of the applicant’s mental state.

44   The determination of a proper sentence to be imposed on the applicant for the principal offence was a difficult task. The grave objective criminality called for the imposition of a severe sentence. However, notwithstanding the grave objective criminality manifested in the offence, notwithstanding the correct statements of principle made by his Honour and notwithstanding the sentence in the case of Shetefa which was not the subject of any real appeal, I have come to the conclusion that the sentence imposed did exceed the upper limit of a proper exercise of his Honour's sentencing discretion.

45 His Honour considered the present case was “at the top order” of matters that came before the Courts for this type of offence. As I have already said, the offence was objectively grave and it is true, as counsel for the Crown submitted, the offence was premeditated and planned and it was committed against a solicitor as a result of a grievance arising out of Family Court proceedings. However, s 33 of the Crimes Act covers a range of conduct, including conduct actually causing grievous bodily harm to the victim and conduct in which a firearm is actually discharged. Neither of these events occurred in the present case.

46   As his Honour expressly recognised, the need for general deterrence in any sentence was much reduced by the serious mental disorder of the applicant. It would seem to me that, contrary to what the sentencing judge said in his remarks on sentence, an element of preventive detention, of imprisoning the applicant so as to prevent him from committing any further offence against Mr Patterson, did intrude into the sentencing process, in the guise of personal deterrence.

47   In Shetefa the applicant did not suffer from any mental disability and the sentence under s 33 which was the principal sentence, would have reflected the applicant’s criminality in the unrelated serious offence of supplying cocaine, for which the sentencing judge set a fixed term of imprisonment of ten years.

48 According to the statistics from the Judicial Commission, no sentence as high as the present sentence has been imposed for an offence under s 29 of the Crimes Act, which is broadly similar to s 33, except that it includes as an element an intent to commit murder and not merely an intent to inflict grievous bodily harm.

49 As I am of the opinion that the sentence imposed was excessive, leave to appeal should be granted and it is necessary for this Court to re-sentence the applicant. He should be re-sentenced in accordance with the Crimes (Sentencing Procedure) Act 1999.

50   I have already set out the objective facts and the subjective features and, although I am of the opinion that the appeal should be allowed, I am of the opinion that a very substantial sentence should still be imposed.

51   In my opinion, the applicant should be sentenced to a term of imprisonment of ten years. The non-parole period should be seven and a half years. The sentence should be taken to have commenced on 25 June 1998 and the earliest day on which the applicant would be eligible to be released on parole would be 24 December 2005.

52   It is necessary to deal with the other two sentences. In my opinion, the sentence imposed for the offence of assault occasioning actual bodily harm was within a proper exercise of his Honour's discretion and I would not interfere with it. I would, however, consider that the sentence imposed for the offence of possessing a firearm in a public place was excessive, particularly having regard to the circumstances that the applicant had had the firearm in his possession for more than twenty years and had not previously committed any offence with it. I would reduce that sentence to a fixed term of imprisonment of three years, also to commence from 25 June 1998.

53   DOWD J: I agree with the proposed orders and the reasons therefor given by the presiding judge.

54 JAMES J: The orders made by the Court will be as follows: Leave to appeal granted, appeal allowed. The sentences imposed for the offences under s 33 and s 93(1)(g) of the Crimes Act are quashed. In lieu thereof, for the offence under s 33 of the Crimes Act a sentence of imprisonment for ten years is imposed, to commence from 25 June 1998, with a non-parole period of seven and a half years. The earliest date on which the applicant would be eligible to be released on parole is 24 December 2005. On the charge under s 93(1)(g) of the Crimes Act the sentence imposed is a fixed term of imprisonment of three years to date from 25 June 1998. The sentence imposed by the sentencing judge for the offence under s 59 of the Crimes Act is confirmed.

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