The Queen v Miroslav Jovanovic
[2014] ACTSC 157
•12 May 2014
THE QUEEN v MIROSLAV JOVANOVIC
[2014] ACTSC 157 (12 May 2014)
CRIMINAL LAW – Judgment and Punishment – Sentencing – Intentionally inflicting grievous bodily harm
CRIMINAL LAW – Judgment and Punishment – Sentencing – Imprisonment – Increase in maximum penalty – Effect on sentencing practice
CRIMINAL LAW – Judgment and Punishment – Sentencing – Relevance of prior offending – Whether leniency available
Crimes Act 1900 (ACT), s 19
Crimes (Sentencing) Act 2005 (ACT), ss 7, 33
Ashdown v The Queen (2011) 219 A Crim R 454
Cheung v the Queen (2001) 209 CLR 1
Islam v The Queen [2013] ACTCA 10
Liu v Western Australia [2012] WASCA 218
Muldrock v The Queen (2011) 244 CLR 120
Munro v The Queen [2014] ACTCA 11
R v Johnson [2004] NSWCCA 76
R v Kekalainen [2014] ACTSC 132
R v Rivkin (2003) 45 ACSR 366
Veen v The Queen (No 2) (1988) 164 CLR 465
EX TEMPORE JUDGMENT
No. SCC 90 of 2013
Judge: Refshauge J
Supreme Court of the ACT
Date: 12 May 2014
IN THE SUPREME COURT OF THE )
) No. SCC 90 of 2013
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
v
MIROSLAV JOVANOVIC
ORDER
Judge: Refshauge J
Date: 12 May 2014
Place: Canberra
THE COURT ORDERS THAT:
Miroslav Jovanovic be convicted of inflicting grievous bodily harm on Peter Manna on 7 April 2013.
Miroslav Jovanovic be sentenced to ten years and nine months’ imprisonment, to commence on 7 April 2013 and end on 6 January 2024.
A non-parole period of five years and six months be set, to commence on 7 April 2013, and end on 6 October 2018.
On 7 April 2013, Miroslav Jovanovic was involved in an altercation with Peter Manna at the Belconnen Bus Interchange where Mr Manna was stabbed repeatedly. As a result, Mr Jovanovic was charged with intentionally inflicting grievous bodily harm, intentionally wounding Mr Manna and intentionally using an offensive weapon against Mr Manna that was likely to cause a person grievous bodily harm.
On 4 July 2013 he was committed to this court for trial.
On 21 August 2013, an indictment containing one count of intentionally inflicting grievous bodily harm on Mr Manna was presented and the trial on that indictment commenced on 26 February 2014 before a jury.
On 28 February 2014, the jury found Mr Jovanovic guilty of the count on the indictment. It now falls to me to sentence him.
Intentionally inflicting grievous bodily harm is an offence against s 19 of the Crimes Act 1900 (ACT), which provides for a maximum penalty of imprisonment for twenty years. It is, thus, to be regarded as a very serious offence. See Muldrock v The Queen (2011) 244 CLR 120 at 133; [31].
The maximum penalty was increased from fifteen years’ imprisonment to the present twenty years’ imprisonment on 24 November 2011. I shall refer to this below.
The facts
The circumstances of the offence are that Mr Manna and Mr Jovanovic’s son had been in prison together and had been in a physical altercation where Mr Jovanovic believed that Mr Manna had assaulted his son. He described Mr Manna as “belting” him, breaking his nose. He admitted to being unhappy with what Mr Manna had done, although he did not embrace the suggestion that he had a grudge against him.
At an earlier time, Mr Jovanovic had met Mr Manna’s partner at a shopping centre and told her that, although he was upset with Mr Manna, he promised her that he would not hurt Mr Manna. She said that he did not seem angry.
On 7 April 2013, Mr Manna and his partner were standing at the bus interchange when Mr Jovanovic ran up to him and struck him on the back of the head. As Mr Manna stood up, Mr Jovanovic grabbed him in a “choke hold” and then, as can be seen in the CCTV footage, stabbed him several times. A number of bystanders also saw this. The attack was of a relatively short duration and, at the end, Mr Jovanovic was seen speaking to Mr Manna and neither seemed to realise how seriously Mr Manna had been hurt. No blood was found on Mr Jovanovic’s clothing.
As a result, Mr Manna suffered a punctured lung and a severed intercostal artery. These were life-threatening injuries which, without medical intervention, would have caused his death.
Mr Jovanovic immediately left the scene and walked away with his partner. He was later stopped by police and arrested.
Despite some investigation by police, the knife was not found at the crime scene or on either of Mr Manna or Mr Jovanovic or on either of their partners.
The real issue at trial was whether Mr Jovanovic acted in self-defence or not. This was based on a claim that Mr Manna in fact produced the knife and it was in the course of the struggle that Mr Jovanovic wrested it from him and stabbed him in order to prevent himself being seriously injured.
The jury’s verdict means that this was not accepted. It could, however, be consistent either with Mr Jovanovic having the knife and producing it, or even if he wrested it from Mr Manna, using it in circumstances that were disproportionate to a reasonable need to protect himself from harm. I must, of course, find the facts consistently with the jury's verdict, though, as Callinan J said in Cheung v the Queen (2001) 209 CLR 1 at 53; [165], there is no principle that I must come to a view most favourable to Mr Jovanavic. I can only resolve a reasonable doubt in favour of Mr Jovanavic.
Having carefully scrutinised the evidence, and in particular the CCTV footage, which shows a good deal of the actual incident, I am satisfied beyond reasonable doubt that Mr Jovanovic had the knife and proceeded to stab Mr Manna, though he did not use it initially, but simply hit him forcefully on the back of the head.
Subjective Circumstances
Mr Jovanovic is fifty-six years old. He left school when he was fifteen and started full-time employment and, it appears, continued in employment until about 2004. Since then he has been unemployed. Mr Jovanovic is the father of three sons, two being adults who were born to his first wife. He remarried in 2008 and he and his second wife have a son, now aged seven. His son is, however, in kinship care in New South Wales following the making of a Care Order by the Family Court.
The second marriage was clearly unstable for a number of years but appears now to have ended. Mr Jovanovic then entered another relationship with the woman who accompanied him at the time of the offence. That relationship had existed for about two years. That relationship has now ended and the woman has re-partnered. There was some dispute as to how it ended, but I do not have to decide that issue. I have to say Mr Jovanovic’s explanation seemed more likely to be accurate.
Mr Jovanovic has regular contact with his children.
Mr Jovanovic has been living in accommodation provided by ACT Housing. The helpful Pre-Sentence Report stated that he expected to lose occupancy “as ACT Housing had advised of their intention to terminate this tenancy due to the property being vacant for over 12 months” because he has been in custody. A hearing for tenancy termination is to be heard later this month.
He is currently receiving Centrelink benefits due to health issues.
Mr Jovanavic started using heroin when he was fourteen. He has continued to use it off and on since then, only stopping when he has been in custody.
Mr Jovanovic has attempted to engage with drug rehabilitation for some time. He has attended a number of different residential rehabilitation centres for various periods of time but failed to complete any of them until 2009 when he attended at Wayback Ltd, a charitable drug and alcohol rehabilitation service in Sydney, whose nine month programme he completed.
He moved to Western Australia to engage in Naltrexone treatment and, while this was effective for his heroin use, he started to use ice (methamphetamines) instead and this does not appear to have abated.
He says, however, he has not used any illicit drugs since February 2013, some months before he was taken into custody. He says he has no current drug addiction problems. He has completed some drug programmes whilst in custody. He has been prescribed methadone, but reduced the dosage while in custody following the revocation of bail upon the jury’s verdict, and has now ceased taking it. Due to the pain associated with his osteoarthritis, he has now resumed at a low dose of methadone for pain relief.
Mr Jovanovic has a number of health issues requiring medication. He is awaiting surgery on both his knees and on his shoulder. He has also sleep apnoea, which will require an operation to his nose.
Mr Jovanovic has a long criminal history. His most recent offences, however, were committed in late 2008, over five years ago. Nevertheless, prior to that, he had a quite disturbing, indeed shocking, record. He has, so far as I can tell, convictions for more than one hundred offences. A substantial number of those are dishonesty offences (thirty-four) but with many traffic offences (thirty-three) and many drug offences. He also has a number of convictions for violence, including an offence in 1984 of maliciously inflicting grievous bodily harm, for which he was sentenced to three and a half years’ imprisonment.
A number of the drug offences are very serious offences of trafficking for which, again, he received a lengthy gaol sentence. The traffic offences include serious offences of driving in a manner dangerous and culpable driving.
While his record shows a continuing disobedience to the law, it is fair to say that more recently he has not come to the attention of the police until this incident for, as I indicated above, some five years. Further, at that time, the offences were less serious than many of those for which he had previously been convicted.
It is often said that where an offender has a criminal record, he is denied any leniency. That is not a principle established in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477, though obviously an offender with a criminal record will not receive the leniency available to a first offender. A criminal record must be considered more astutely. For example, a gap in convictions may suggest that a return to crime is less likely. See R v Johnson [2004] NSWCCA 76 at [28].
That this is the first offence of violence since 1991 shows that Mr Jovanovic may well have some prospects of rehabilitation in that the specific deterrence in the penalties imposed in the past may have had the relevant effect.
Further, the fact that this is an offence with a familial motivation is relevant, given that his last serious offence was committed in 1997, and that the subsequent offences have been much less serious. The motivation for offending is highly relevant to the likelihood of recidivism.
Mr Jovanovic’s record does him no favours, but it is not one that demonstrates that there are no prospects of rehabilitation. It has to be acknowledged that there was a significant de-escalation in the seriousness of his offending until this offence and a long gap without him being convicted of offences of violence.
The offence
The offence of intentionally inflicting grievous bodily harm is, however, a very serious offence. The use of a knife makes it more serious. As the Victorian Court of Appeal said in Ashdown v The Queen (2011) 219 A Crim R 454 at 464; [20], the community abhors the use of knives. As noted by the Western Australian Court of Appeal in Liu v Western Australia [2012] WASCA 218 at [86], the use of knives in such circumstances requires a sentencer to have regard to the need for general deterrence.
There can be no doubt that the seriousness of the injuries sustained is a very relevant factor in such sentencing. Here, of course, the injuries were life threatening and had medical intervention not been secured, Mr Manna may well have died and Mr Jovanovic would be facing a much more serious offence still.
Mr Jovanovic continues to deny his responsibility for the offence, but in his evidence to me, acknowledged the harm or injuries to Mr Manna and expressed regret for them. Nevertheless, he still seems to portray himself as the victim. The author of the Pre-Sentence Report expressed the following opinion:
Mr Jovanovic continued to claim he did nothing more than act in self defence and he intended to appeal against his sentence.
Mr Jovanovic has struggled with Heroin use in the past and has failed to complete programs available through residential rehabilitation centres. He has availed himself of the many pharmacotherapy treatment options available, however has recently ceased one such treatment option.
It is of concern that Mr Jovanovic continues to profess his innocence. He has displayed little concern for the victim and not accepted any responsibility for his actions. Mr Jovanovic’s assessed moderate to high risk will remain unless he addresses his offending behaviour.
As I have noted, the maximum penalty for the offence has been increased. In R v Kekalainen [2014] ACTSC 132 at [26], I said of this factor:
There is no doubt that sentencing courts must be mindful of such statutory increase as reminded by the Court of Appeal in Lawrence v The Queen (2007) 1 ACTLR 158 at 161; [9]. Thus, the penalty to be imposed must be greater than those previously likely to be imposed. Indeed, given the substantial increase in the maximum sentence, such sentences are to move “in a sharply upward manner” (R v Slattery at 524). Authorities such as R v Donaldson [1968] 1 NSWR 642 at 644, Steff v The Queen (1997) 96 A Crim R 1 at 5 and R v Thach (2010) 203 A Crim R 510 at 517-8; [22] do not require, however, that the increase be in the same proportion as the maximum has been increased. Apart from other considerations, that would fail to recognise that the severity of a sentence does not increase linearly as explained by Malcolm CJ in Clinch v The Queen (1994) 72 A Crim R 301 at 306, a decision followed in a number of other jurisdictions (see R v MAK (2006) 167 A Crim R 159 at 164; [16]; Lu v The Queen (2008) 190 A Crim R 109 at 122; [59]; R v Hopkins (2008) 22 NTLR 125 at 130; [16]; and Azzopardi v The Queen (2011) 35 VR 43 at 61; [62]).
Attitude towards Mr Manna
While the expressions of concern for the injuries inflicted on Mr Manna are of quite limited evidence of any remorse, there is a relevant issue that has arisen which I must also take into account.
Mr Manna has, in circumstances about which I have not been informed, been taken into custody. Mr Jovanovic says that he has not attempted to have anything to do with him.
Having given evidence against Mr Jovanovic, however, Mr Manna is likely to be the target of other detainees who will consider him as a kind of informer. Indeed, Mr Jovanovic says he has been told by other detainees that they intend to assault Mr Manna because of this. Nevertheless, Mr Jovanovic says he has encouraged other detainees not to do so. He has expressed his concerns to ACT Corrective Services officers. He named the officers: one did not recall such a conversation, though I was not told whether he denied that it could have occurred; another was on leave; and the third recalled a conversation with Mr Jovanovic about Mr Manna which sounded like the one to which Mr Jovanovic referred.
I am prepared to find Mr Jovanovic has sought to exercise some influence, both with detainees and by bringing the issue to the attention of the relevant authorities, to try and prevent any injury to Mr Manna while he is in custody. While it might not be an expression of remorse as it is usually understood, it is so akin to it that it is relevant and significant in reducing the sentence to be imposed.
Current sentencing practice
My attention was drawn to two decisions of the Court of Appeal in respect of the offence of intentionally inflicting grievous bodily harm. In Islam v The Queen [2013] ACTCA 10, Mr Islam attacked the victim in a shop with a knife and stabbed him a number of times, and also smashed his head into the floor several times. One of the knife wounds penetrated the spinal cord of the victim, who has become a tetraplegic. This continuing consequence makes the offence a very serious one. There was also some gratuitous violence. Mr Islam, however, ceased his attack and provided assistance to the victim and waited until police arrived.
The Court there accepted that there was no pre-meditation in the commission of the offence and Mr Islam had a relatively limited criminal record of mainly traffic and dishonesty offences, with one prior offence of violence three months earlier. He had never been in prison before.
The learned sentencing judge found that Mr Islam suffered from a paranoid personality disorder but that there was some genuine basis for his belief that some of his property had been vandalised which caused his animosity to the victim. Mr Islam was found to have expressed genuine remorse.
The attack occurred in a public place where there were a number of witnesses.
At the time of the offence, the maximum penalty was fifteen years’ imprisonment. Mr Islam was sentenced to nine years’ imprisonment with a non-parole period of four years and six months.
In Munro v The Queen [2014] ACTCA 11, Mr Munro and another man committed an aggravated robbery of an armoured van collecting cash from a social club. In the course of the robbery, but after taking the bags of money held by the guards from the van, Mr Munro, who was carrying a shotgun, pointed it at one of the guards, who was behind a metal guard surrounding a small tree, and fired. Pellets entered the guard’s eyelid, arm, hand and thumb and across his chest and abdomen and one perforated his bowel. The guard had to undergo surgery to his left hand and to his bowel and has had to have physiotherapy to his hand. He wears the scars on his body and has been treated for depression and anxiety. He also had to leave his residence.
The offence was pre-meditated and, although committed in conjunction with the aggravated robbery, the Court of Appeal, which re-sentenced Mr Munro, was careful to separate the elements of the offences so as not to impose a sentence that involved double punishment.
Mr Munro showed no remorse and the court was unable to say whether he had any prospects of rehabilitation. He had been dealt with for one hundred and thirty-four criminal offences. Regrettably, there was no further information about the type of offences. The Court of Appeal re-sentenced Mr Munro to nine years’ imprisonment. Because he was sentenced for the offence of aggravated robbery at the same time, it is not helpful to refer to the non-parole period. Again, at the time of the offending the maximum penalty for the offence of intentionally inflicting grievous bodily harm was fifteen years’ imprisonment.
It is not appropriate to make a generalised analysis of these decisions as compared to the position of Mr Jovanovic. It is clear to me that the injuries caused were not as serious as those caused by Mr Islam, but more serious, as life-threatening, than those caused by Mr Munro. Like Mr Islam, but unlike Mr Munro, Mr Jovanovic did not commit an offence that was pre-meditated. Indeed, while he had a knife, his first attack was clearly with his fists. Mr Jovanovic had a much more serious criminal history than did Mr Islam, but it is difficult to compare the criminal records so far as Mr Munro is concerned, save to say that the latter had more offences on his record.
Mr Islam showed considerable remorse, making the victim comfortable and waiting for police. Mr Munro showed none. I am prepared to find that Mr Jovanovic showed some limited remorse, though he left the scene and pleaded not guilty.
Unlike both Mr Munro and Mr Jovanovic, Mr Islam had a mental impairment, which is always a matter to be considered in sentencing.
Victim Impact Statement
I had a Victim Impact Statement from Mr Manna. He has suffered some ongoing medical and psychological problems. The puncturing of his lung resulted in him becoming breathless and has ended his employment as a fitness trainer. He feels pain in his rib cage. He has scars, which cause him embarrassment. He has seen a psychologist about eight times. He does not sleep and suffers flashbacks and nightmares.
The relationship with his partner has suffered and he feels unsafe in public, becoming unreasonably suspicious and anxious when people walk behind him. He is presently prescribed anti-anxiety medication to help with panic attacks.
Consideration
I have regard to the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT). In this case, general deterrence, denunciation and accountability seem to me to be particularly relevant. I also have regard to the matters set out in s 33(1) of that Act so far as I am aware of them.
I take into account Mr Jovanovic’s subjective circumstances as I have described them above. His prior record denies him much leniency, though I must not punish him again for the offences for which he has already been sentenced.
I take into account that he has shown limited remorse for the offending. Though he has expressed some insight into the injuries he caused Mr Manna, he continues to deny his responsibility; that cannot aggravate the sentence I must impose, but denies him leniency that he might otherwise receive.
I take into account the seriousness of the offence, as I have described it above. It does not seem to me to be in the worst category of the offence, but it is very serious. Though the injuries inflicted on Mr Manna were life-threatening and have had ongoing consequences, his ongoing disabilities are not of the same seriousness.
The attack occurred in public with a number of witnesses to it. This is an aggravating feature.
There must, of course, be significant punishment for the offending. I am, however, satisfied that the genesis of the offending, namely Mr Jovanovic’s resentment of Mr Manna’s assault on his son, means that it is in a different category than offences of other kinds where repetition is more likely because of the motivation.
I am also satisfied that there is some prospect of rehabilitation.
Disposition
Neither counsel dissented from the obvious result, which I am satisfied is correct, namely that no other sentence than a sentence of imprisonment to be served significantly by full-time custody is required, and that no other sentence would be appropriate.
Mr Jovanavic has been assessed as unsuitable for a community service work condition, to a good behaviour order, and to serve a term of imprisonment by periodic detention because of his disabilities.
I was informed by Mr J Lawton, who appeared for Mr Jovanovic, that there are, in fact, light duties, such as Mr Jovanovic is now performing in the Alexander Maconochie Centre, available for detainees who are required to undertake periodic detention, so that I could set a period during which the imprisonment should be served by periodic detention. He submitted that I should, therefore, impose a combination sentence which, after a period of full time custody, is succeeded by a period of periodic detention, and then a suspended sentence.
I have given that option careful thought. In the first place, although there is not a very clear jurisprudence as to when it is appropriate for imprisonment to be served by periodic detention, I consider the following applies. Whealy J pointed out in R v Rivkin (2003) 45 ACSR 366 at 381; [64] that an offender’s physical or mental health may indicate that it is an appropriate option. In addition, it is clearly appropriate for an offender with a steady job or a stable family life, who is unlikely to be a serious danger during periods of liberty, as noted by the Advisory Council on the Penal System, Non-Custodial and Semi-Custodial Penalties (1970, London: HMSO) at [159].
These do not apply to Mr Jovanovic. They are, of course, not the only reasons for imposing a sentence of periodic detention. For example, it may be appropriate where general deterrence is significant but specific deterrence not of significance, and for other reasons.
A difficulty here is that any release of Mr Jovanovic into the community will be of some years; hence it is very difficult to assess the suitability of that at this time, before circumstances have, changed, as they inevitably will change over that time. It is, therefore, generally preferable for release well into the future to be decided through the Sentence Administration Board and not by the court, so distant from when the decision must be made. I have given that matter careful thought, and do not think I can proceed in the manner suggested.
Mr Jovanovic, please stand:
1. I convict you of intentionally inflicting grievous bodily harm on Peter Manna on 7 April 2013.
2. I sentence you to ten years and nine months’ imprisonment, to commence on 7 April 2013 and end on 6 January 2024.
3. I set a non-parole period of five years and six months, to commence on 7 April 2013, and end on 6 October 2018.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 21 August 2014
Counsel for the Crown: Mr J Hiscox
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the defendant: Mr J Lawton
Solicitor for the defendant: Rachel Bird & Co
Date of hearing: 7, 8 May 2014
Date of judgment: 12 May 2014
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