Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Vulovic v R [2013] NSWCCA 340 Hearing dates: 31 October 2013 Decision date: 20 December 2013 Before: Simpson J; RA Hulme J; Barr AJ Decision: Leave to appeal against sentence granted. Appeal dismissed. Catchwords: APPEAL - CRIMINAL LAW - sentence appeal - directions and findings as to provocation - whether error in finding the provocative conduct did not constitute a high degree of provocation - whether error in finding no casual nexus between crime and mental illness - whether error in finding custodial sentence would not be more onerous by reason of mental illness. Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 R v Isaacs (1997) 41 NSWLR 374 R v Hemsley [2004] NSWSC 228 Category: Principal judgment Parties: Milija Vulovic (Applicant) Regina (Respondent) Representation: Counsel: G Brady, H Chiu (Applicant) H Wilson SC (Respondent) Solicitors: Nyman Gibson Stewart (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 09/250160 Publication restriction: None Decision under appeal Citation: R v Vulovic (No 4) [2012] NSWSC 212 Date of Decision: 2012-03-15 00:00:00 Before: Johnson J File Number(s): 09/250160 Judgment 1THE COURT: This is an application for leave to appeal against a sentence imposed on the applicant by Johnson J following his conviction by a jury. The applicant pleaded not guilty when arraigned on a charge of murdering Tony Darkovski at Canley Heights on 12 November 2009. The jury found him not guilty of murder but guilty of manslaughter. His Honour sentenced the applicant to imprisonment for nine years and set a non-parole period of six years. The Facts 2The applicant boarded at a house in Canley Heights owned by Ilija Plavsic. They had known each other for about 15 years through their work as cement renderers. By November 2009 the applicant had ceased working in that industry, having received a work injury, and was in receipt of an invalid pension. He was 53 years old. 3The deceased, Tony Darkovski, was friends with Mr. Plavsic and worked with him. He was a big man, 32 years old. Mr. Plavsic and Mr. Darkovski worked together on 12 November 2009. During that day the applicant spent a number of hours at a local café. He had beer to drink there. Mr. Plavsic and Mr. Darkovski returned to the house during the afternoon after they had finished work. They had a conversation about money that Mr. Plavsic owed Mr. Darkovski. Mr. Darkovski went out, bought a five litre cask of wine and brought it to the house. He and Mr. Plavsic began to drink. 4Later on the same afternoon the applicant returned home, bringing with him beer he had bought. 5An argument started between the applicant and Mr. Darkovski. Things became violent. A window was broken, a table damaged and an ironing board knocked over. At one stage Mr. Darkovski took the applicant by the throat. 6The applicant went to his room and returned, holding chained fighting sticks called nunchaku. Mr. Darkovski disarmed him. The applicant returned to his room and then went to the kitchen, where he picked up a kitchen knife. He stabbed Mr. Darkovski. There were two wounds to the chest, either of which alone would have been fatal. There were wounds to the left upper arm, the left lower abdomen and the left side of the neck. None of them would have been fatal by itself. There was no evidence how long the attack lasted. The only weapon used was the knife. Bloodstains indicated that the attack had occurred at 3 separate places in the one room. 7Immediately after the stabbing, and before Mr. Plavsic could telephone for an ambulance, the applicant asked him to telephone a friend of his, Ms Olga Savic. He did so and the applicant told Ms Savic: The Macedonian has attacked me. There's blood everywhere. Come down. Call Borsa. 8Borsa was the applicant's sister. 9Immediately afterwards Mr. Plavsic telephoned the emergency services. They attended, but unfortunately Mr. Darkovski was unable to be revived. 10Only two witnesses gave direct evidence of the event, Mr. Plavsic and the applicant. The Crown read a transcript of an interview the applicant had given to the investigating police officers on 12 November 2009, immediately after his arrest. Things said by the applicant in his interview and in evidence were capable of proving provocation by Mr. Darkovski. They included offensive and insulting remarks about the applicant and Ms Savic, threats to the applicant with the assertion that Mr. Darkovski had "bashed three guys", demands on the applicant for money and a physical attack on the applicant by Mr. Darkovski's grabbing him by the hair and hooking a finger in his mouth. 11The Crown contended that the applicant was not provoked but acted out of anger. The defence case was that the applicant should be acquitted because there was a reasonable possibility that Mr. Plavsic was the killer. Understandably, therefore, defence counsel did not mention provocation in his closing speech to the jury. 12In leaving provocation to the jury his Honour said this about the evidence: I will explain to you what it is that raises provocation in this case as an issue for your consideration. In effect, it emerges entirely from the evidence of the accused or his interview with the police given on 12 November 2009. The matters which are pointed to in the evidence are evidence of the accused asserting that Mr. Darkovski grabbed him by the neck, knocking him to the ground, evidence that the deceased was said to be out of control, evidence that the deceased was said to have started a fight against the accused, evidence of the insult which the deceased is said to have made about Olga. You will perhaps remember that, that is part of the accused's evidence. The suggestion from the accused that Mr. Plavsic had made a crude joke about the use of nunchakus, the evidence of the accused that there were demands for money from him by Mr. Darkovski and Mr. Plavsic and that he felt this was intolerable and his suggestion that Mr. Darkovski had been "like a terror" for him in the past asking him for money both at home and in the street. ... I emphasise, ladies and gentlemen, I am pointing to this because it was part of the evidence before you. What you make of that evidence of the accused is a matter for you as a part of your fact-finding function, but the fact that there are things asserted of this type mean that I need to raise with you the issue of provocation. So it is matters of that type which explain why I am giving you this direction. ... You may wonder - why is the judge giving us this very complicated formula in this rather straightforward case? The accused of course is not saying that he did stab Mr. Darkovski. But if you find that he did stab Mr. Darkovski and killed him, then these issues arise because of other parts of the evidence of the accused which say that he was being stirred up, there were insults about Olga, there was aggressive conduct towards him and matters of that sort. So, if you are satisfied beyond reasonable doubt that he did kill Mr. Darkovski, then one gets to this point and because there is some evidence raising the question of provocation, you need to consider these questions if you get to this point. ... The starting point then are the sort of matters that I have raised, what are said to be insults, threats, and aggressive conduct. 13It was only by finding provocation that the jury could properly have returned a verdict of not guilty of murder but guilty of manslaughter. 14The first ground of appeal asserts that his Honour made findings of fact in relation to provocation that were inconsistent with the verdict. His Honour's findings of fact on sentence included these: Consistent with the verdict of the jury, I am satisfied that at least some of the provocative conduct [and His Honour referred to the evidence he had summarised, which is included in the extract at para [12] above] took place. I am satisfied that much of it occurred in the period when the offender and the deceased were alone, and Mr. Plavsic was in his room. The fact that Mr. Plavsic did not agree that the provocative events had occurred in his presence may be explained largely in this way. By the time Mr. Plavsic emerged from his room, there was a substantial and heated argument under way between the offender and the deceased. Mr. Plavsic observed events, including physical interaction between the two men. He was affected by alcohol so that, as I have said, his recall of secondary details of the argument was not clear. ... I am satisfied, as in my view was the jury, that the Offender obtained a knife from the kitchen, after significant acts of provocation had occurred, and that he then used that knife to stab the deceased on some five occasions. The medical evidence of Dr Van Vuuren at trial described five stab wounds to the deceased. Two stab wounds were to the side of the chest. One was to the left upper arm. A further stab wound was in the area of the left lower abdomen and the fifth was to the left side of the neck to the deceased. ... In my view, the jury had particular regard to aspects of the Offender's ERISP made on the evening of 12 November 2009, in which he said that he had been provoked by the deceased, who had used abusive and intemperate language towards him and had been aggressive towards him. ... It is clear from the interview that the Offender was well aware, soon after the fatal attack, that he had been abused and manhandled in a way that made him angry and, in his words, "provoked" him. The jury's verdict is entirely understandable. The fact that the Offender used this word repeatedly at that time would not have been lost on the jury given that, by the time the jury watched the interview again in the jury room during their deliberations, the concept of provocation had been explained in the summing up. ... In my view, the evidence does not permit a finding as to which of the Offender and the deceased instigated the argument, and associated aggressive conduct. It is clear that a verbal argument commenced which included insults from the deceased concerning the Offender and Ms Savic, which were directed to the Offender, leading to a physical altercation between two men. I consider that this aspect of the Offender's account given in his ERISP on the evening of the incident formed the real foundation for provocation in this case. I am satisfied that the Offender and the deceased did not particularly like each other, and that not a great deal was required to lead to friction between the two men. I do not accept the defence submission that the aggressive conduct and words emanated, in a type of one-sided fashion, from the deceased to the Offender. ... I accept that there was some physical contact whereby the deceased held the Offender around the neck in a strangling-type action. This served further to provoke the Offender. However, I do not accept that the offender lost consciousness for a period of time. Rather, I am satisfied that the offender became free of the deceased and then entered the kitchen in an angry state where he obtained the knife which was used to stab the deceased. 15Mr. Brady, counsel for the applicant, submitted that the following findings were inconsistent with the verdict, namely: (i)only some of the acts that might have been provocative took place; (ii)the evidence did not permit a finding as to who started the fight; (iii)that in the verbal argument that led to the fight Mr. Darkovski's insults about the applicant and Ms Savic were the real foundation for the finding of provocation; and (iv)the applicant entered the kitchen in an angry state and obtained the knife with which he stabbed Mr. Darkovski. 16As to (i) above, Mr. Brady submitted that provocation as left to the jury was not so limited, that the jury were not directed that comments about Ms Savic alone would be sufficient to raise a reasonable possibility of provocation, that there was no evidence that "these comments " (meaning Mr. Darkovski's insults about the applicant and Ms Savic) led to the fight in which the deceased was stabbed. 17As to (ii) above, Mr. Brady submitted that his Honour did not direct the jury that they could find that the applicant started the fight and find also that he acted under provocation. He submitted that provocation was left to the jury "very much on the basis of the (deceased's) aggression", including that Mr. Darkovski grabbed him by the neck, knocking him to the ground, Mr. Darkovski was out of control, he started the fight, there were demands for money, there were threats against the applicant and Mr. Darkovski had been "like a terror" (the applicant's description of Mr. Darkovski's behaviour in continually asking to borrow money). For these reasons, the absence of a finding about who was the initial aggressor was "inconsistent with the considerations left to the jury in determining provocation". Finally, Mr. Brady submitted that "it is difficult to envisage that the jury would have concluded that there was a reasonable possibility that the applicant was acting under provocation without concluding that there was a reasonable possibility that the deceased was the aggressor". 18As to (iii) above, Mr. Brady submitted that provocation as left to the jury was not so limited and that his Honour did not direct the jury that Mr. Darkovski's comments about Ms Savic alone would suffice to raise a reasonable possibility of provocation. Finally, Mr. Brady submitted that there was no evidence that the comments led to the "physical altercation". 19 As to (iv) above, Mr. Brady submitted that his Honour's finding that the applicant was angry when he entered the kitchen was not consistent with a finding of provocation since his Honour had told the jury that: Provocation is concerned with a loss of self-control by the accused at the time of the act causing death, that is acting under a temporary loss of reason and not simply in anger or in revenge. 20It was submitted generally that when identifying the evidence relevant to provocation "the matters were put to them effectively as a combination of factors", and while the jury were directed that they could accept part and reject part of the evidence of a witness, the direction "was not linked to the issue of provocation". 21In summary these long and detailed submissions proposed that the effect of his Honour's directions was that the jury could find provocation only if satisfied about all the evidence left to them as relevant to provocation. Since the jury did find provocation, they must have accepted all the relevant evidence. Therefore his Honour, to be consistent with the findings of the jury, had to be satisfied about all of it. To the extent that he did not, his findings were inconsistent with the verdict. In written submissions Mr. Brady identified a number of additional facts that he submitted were relevant to the question of provocation and which the judge ought to have taken into account. They were: - * That Mr. Darkovski grabbed the applicant by the neck and knocked him to the ground; * That Mr. Darkovski was out of control; * That Mr. Darkovski started the fight; * That Mr. Darkovski made demands for money from the applicant; * That Mr. Darkovski threatened the applicant; and * That Mr. Darkovski had been "like a terror". 22There are two reasons why we do not accept the submission. First, we do not accept that his Honour told the jury that they could find provocation only on an acceptance of all the factors identified. This was a trial in which the only evidence challenged was that of the two opposing witnesses. In instructing the jury about fact finding His Honour said at SU [48] - [49]: When you come to consider the questions of credibility and reliability, you should bear in mind you do not have to accept everything a witness has said, nor do you have to reject everything a witness has said. It is a matter for you to make you own assessment as to what evidence you accept as truthful and reliable. It is important that you approach the consideration of a witness whose evidence is under challenge in this way, conscious of the fact that you can accept some part of what the witness says and not other parts. It is a matter for you, as I have said, in the same way as you approach the acceptance of the truthfulness or reliability of things that you are told in your own day-to-day lives. Counsel addressed you on that point. Your experience of life and your common sense in assessing whether you are being told the truth, or whether what you are being told is reliable or accurate are valuable tools for you in exercising your functions as jurors. In determining what parts of the evidence of witnesses you accept or reject, you are required of course to use your common sense and understanding of human beings, how human beings act and what they do in given situations. You make your assessment taking into account the various mechanisms that you use in your everyday lives to determine whether someone is telling you the truth, or whether someone is giving you an accurate history of events. That will include, as I have already mentioned, what you make of the behaviour or body language in the witness box, the demeanour of the witness. You will take into account of course any inconsistencies in the account given to you by the witness and any account the witness may have given on other occasions, and it is necessary for you of course to determine how important you consider any such inconsistency is to the reliability or honesty of the witness's evidence in this trial. 23It is correct to say that his Honour made no reference in those passages to any particular issue of fact raised at the trial, and while it is also correct to say that when directing the jury about provocation his Honour did not refer to the direction he had given about fact-finding, it must have been obvious to the jury that the Crown's major criticism of the evidence of the applicant was that not everything he said was true. The Crown had already addressed the jury and had submitted that the applicant was not telling the truth, but that attack was not made on everything the applicant said. For example, the Crown did not challenge the applicant's evidence that Mr. Darkovski had seized him by the throat. It was common ground, because Mr. Plavsic said that that happened. 24By the time the jury received his Honour's charge about accepting some parts of a witness's evidence and rejecting others, these issues on the evidence of the applicant were in their minds. In our opinion, his Honour's directions correctly permitted the jury to differentiate between the several factors left to them as relevant to provocation, and to come to such a conclusion, if the evidence justified it, on all or fewer than all of those factors. 25A second reason for concluding that this ground of appeal has not been made good is that the submissions confuse the roles of the jury and the sentencing Judge in the finding of facts. The verdict of the jury implies findings only of facts the jury were bound to find in order properly to come to its verdict. That, as we have said, might have been achieved by reliance on all or fewer than all of the factors identified by his Honour. The verdict was silent on the question of which factor or factors led to the jury's conclusion. Which of those factors were relevant for sentencing, however, was a matter exclusively for his Honour and in making his findings his Honour was bound to apply his own assessment of the evidence. That assessment was bound to depend on his Honour's impression of the applicant's reliability. Having identified the relevant factors his Honour had to weigh and apply them. 26In Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 the majority of the Justices of the High Court of Australia, Gleeson CJ, Gummow and Hayne JJ said at [6]: - The appellant was charged with being knowingly concerned in a large importation of heroin. Obviously, there were others involved as well. The nature and extent of the appellant's involvement, including the period of his participation in the enterprise, his relationship with the other participants, his contribution to the success of the scheme, the financial reward he might have expected, and the reasons for his involvement, were all matters which, if capable of being ascertained, were of possible relevance to an assessment of his culpability. The jury heard evidence bearing upon some or all of those matters. Such evidence might or might not have been of significance to some or all of the jurors, in the process by which they reasoned as to the guilt of the appellant. But they were not matters on which issue was joined, and which the jury, by verdict, decided. That does not mean that the jury's verdict was "ambiguous". It simply means that, on those subjects, the jury's verdict was silent. What the jury had to decide was whether, between two specified dates, the appellant was knowingly concerned in the importation of heroin that occurred on 9 May 1989. A variety of questions of potential relevance to the duration and extent of his involvement were raised by the evidence; but some of them, although potentially significant for sentencing purposes, were not questions which the jury had to decide in order to reach a conclusion that the appellant was guilty of the offence charged. They were questions which, if capable of resolution at all, were to be resolved by the sentencing judge. 27At [14] their Honours referred thus to the judgment of this court in R v Isaacs (1997) 41 NSWLR 374 per Gleeson GJ, Mason P, Hunt CJ at CL and Simpson and Hidden JJ at 377-378: - In Isaacs the Court of Criminal Appeal summarized certain well-established principles concerning the law and practice of sentencing in New South Wales as follows (omitting references to authority): "1. Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury ... 2. Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings. ... 3. The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury. ... 4. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt. 5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender. ... However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender. ... " 28In our opinion his Honour was entitled to conclude that only the two factors identified, namely Mr. Darkovski's offensive remarks and his seizing the applicant by the neck, were relevant to provocation. 29The second ground of Appeal asserts that his Honour erred in finding that the provocative conduct did not constitute a high degree of provocation. The ground depends on the success of the first. As we have said, his Honour was not bound to find that all the features that might have been provocative in fact provoked the applicant. 30His Honour's assessment of the degree of provocation as relevant to the seriousness of the offence was limited to the two factors he identified. In our opinion the assessment was open to His Honour. 31The third ground of Appeal is as follows: - Ground 3 The Learned Sentencing Judge erred in his findings in relation to the applicant's mental conditions in the following ways: a. That there was no causal nexus between the crime and the applicant's mental conditions; b. That the applicant's mental conditions did not reduce the weight to be given to general deterrence; and c. The fact that custody was more onerous on the applicant was taken into account on sentence. 32On sentence two reports of Dr Nielssen, psychiatrist, were received into evidence. Dr Nielssen did not give oral evidence. He had not previously seen the applicant. In his first report, written on 1 June 2010, Dr Nielssen said that he had been able to interview the applicant without the assistance of an interpreter. He said that the applicant spoke in heavily accented English and did not understand a number of questions put to him until they were restated in clearer terms. However, he considered the applicant's English adequate for the purposes of their interviews. There were two interviews, the first on 17 November 2009 and the second, by audio visual link, on 9 March 2010. 33Dr Nielssen wrote: - Psychiatric History Mr. Vulovic said that he was not aware of any family history of any kind of psychiatric disorder or treatment. He said that he had not had any contact with mental health services during his upbringing and prior to coming to Australia. Mr. Vulovic said that he had previously seen a Serbian speaking psychiatrist, Dr Kecmanovic, located in Newtown, who he said prescribed an antidepressant medication doxepin (Endep) that he was unable to continue because of side effects. He said that he was also prescribed an antidepressant during admission to Corella House drug detoxification centre in early 2009 and had also been prescribed sertraline (Zoloft) and escitalopram (Lexapro) by his general practitioner, however, he said that he did not persist with any of the medications for long. He said that he found the sessions with Dr Tomic, a psychiatrist who spoke his language to be of considerable assistance in managing anxiety symptoms. He said that he had tried to follow Dr Tomic's advice to withdraw from alprazolam, and had been able to get through some days without any alprazolam, including the three days just before his arrest. He said that his general practitioner referred him to a specialist in substance use but he had not been able to keep the appointment because he was arrested. Mr. Vulovic said that he had been very depressed since his arrest. He said that he had experienced several panic attacks after being locked in his cell and said that he had "buzzed up" and sought urgent medical review. He said that his blood pressure was found to be high, but he had been referred for a number of cardiac investigations, which showed no abnormalities. He denied planning to kill himself. He said that he had seen a female psychologist but was yet to see a psychiatrist and had not been prescribed an antidepressant medication. He said that the previous treatment with medication had not helped, but he had been affected by other problems in his life at that time. In response to questions about the presence of symptoms of psychotic illness, Mr. Vulovic denied ever experiencing hallucinations of voices or ever holding any of the common persecutory beliefs, for example, that he had been under surveillance, that he was the victim of any kind of conspiracy or that his health had been tampered with in any way. He denied believing that he was in any kind of danger from Mr. Darkovski. 34Dr Nielssen did not see any report from Dr Kecmanovic or Dr Tomic, though he did see a referral to Dr Tomic by Dr Srinavasan and assorted specialist referrals from a General Practice called Medoptix. Dr Nielssen noted diagnoses of anxiety and depression. He saw a written statement from Ms Savic and a statement of the applicant's sister confirming the history of anxiety and depression. There was a history of difficulty with alcohol and other drugs for which the applicant had received assistance in hospital. 35Dr Nielssen took a history from the applicant as follows: - Mr. Vulovic said that he came to Australia from Serbia in 1992 and did not speak any English prior to his arrival. He spoke in heavily accented English and did not understand a number of questions put to him until they were restated in clearer terms. However, his English was considered to be adequate for the purpose of the interviews. Mr. Vulovic confirmed that he had been charged with murder of an acquittance and former work mate of Macedonian origin, Tony Darkovski. He said that his memory of the events was not complete. He said that he had not entered a plea to the charge, but hoped to raise the effect of provocation by Mr. Darkovski, his own fear of being attacked and his psychological problems in his defence. When asked to explain what happened in his own words he said "there is a big story behind this". He said that it stemmed from problems with Mr. Darkovski, who he said was a "big drinker" and always short of money. He said that Mr. Darkovski was a cement renderer of large build and often boasted about his strength. Mr. Vulovic said that he was always careful not to make him angry, and said that he also spoke to him in a kind way because he was young. Mr. Vulovic said that the offence occurred at a house where he rented a room from a friend, a fellow cement renderer named Ilija Pavlic. He said that Mr. Pavlic was an occasional drinking partner of Mr. Darkovski, but also resented him coming around to his house asking for money. Mr. Vulovic said that Mr. Pavlic had previously told him that if Mr. Darkovski knocked on the door he was not to let him in. Mr. Vulovic said that at the time of the offence he was unable to work because of injuries sustained in a fall at work and was living on reduced workers compensation payments. He said that he sustained injuries to his back, elbow and a blow to the head in the fall, as well as a fractured toe that did not heal and for which he needed an operation to unite the fracture. He said that while he was prescribed medications for pain relief and to control anxiety symptoms, and had become dependent on the anxiety relieving sedative alprazolam (Xanax). He said that his use of alprazolam had contributed to a previous incident in which he had come to the attention of the police in early 2009 after he kicked a poker machine at a hotel whilst affected by the medication. He said that he was directed to attend drug detoxification at Corella House, a drug rehabilitation unit attached to Fairfield Hospital. He said that he completed the withdrawal with the assistance of a longer acting benzodiazepine medication, diazepam (known by the brand names Valium and Ducene) and was able to go without the medication for several months. However, he said that he continued to experience anxiety symptoms that were not controlled by diazepam and he returned to taking alprazolam. Mr. Vulovic said that in the months before the offence he was referred to a Serbian speaking psychologist, Dr Tomic, who conducted several questionnaires and told him that he was taking too many alprazolam tablets. Mr. Vulovic said that he attempted to take Dr Tomic's advice by cutting down on tablets and for three days prior to the offence he has no tablets at all. He said that after stopping the medication he experienced intense anxiety symptoms, including panic attacks that came without warning or any apparent trigger and which he attempted to control using the breathing technique taught to him by Dr Tomic. Mr. Vulovic said that on the day of the offence he remembered feeling in a good mood when he woke up. He said that he made a healthy breakfast and did some shopping for fruit and then practiced on the keyboard, as he was due to perform at a club in Bonnyrigg the following week. He said that later in the morning he went to a coffee shop frequented by Serbian speaking people and had a coffee. However, he said that at the coffee shop he had a panic attack and felt very uncomfortable. He said that he kept an alprazolam tablet in his wallet in case of an unexpected panic attack when out of the house and took the tablet. However, he said that when his anxiety state did not settle quickly he went to the bottle shop next door and bought a six pack of 375ml bottles of Tooheys Extra Dry beer, before returning home. He said that when he arrived home he had two of the beers and may have had taken several more tablets of alprazolam, but he did not remember exactly how many he took. He said that the anxiety symptoms abated after a while and he spent some of the afternoon practicing on the keyboard. He said that Mr. Palvic came home with Mr. Darkovski after working together that day. He said that they drank beer in the sitting room but he stayed in his bedroom at first. He said that when he came out, Mr. Darkovski made a rude remark to him saying that he "lived like a king" which he said he took as a negative comment about his situation, receiving worker's compensation insurance payments and having money for a television, a keyboard and other comforts while Mr. Darkovski was always short of money and constantly asking to borrow money. He said that Mr. Darkovski also made an insulting remark about his girlfriend Olga, but said that he did not react to the remark and said that the events that followed were not a reaction to insulting remarks. Mr. Vulovic said that at one stage Mr. Palvic challenged him to an arm wrestle, but he said that he was not able to match him because he was much bigger and stronger and also because his injured elbow gave him pain. He said that Mr. Darkovski joined in the test of strength in a threatening way by demonstrating how he could immobilise an opponent by putting his finger inside his cheek and then pushed him to the ground and compressing his airway. During the initial interview Mr. Vulovic showed me fingerprint shaped bruises under both arms that he said were sustained in the struggle with Mr. Darkovski. He said that when Mr. Darkovski had his hand on his throat he felt as though he was going to pass out. Mr. Vulovic said that after breaking free from Mr. Darkovski's demonstration he was knocked to the ground and hit his head, and had no further memory or what took place. Mr. Vulovic said that his next memory was a vague memory of being handcuffed by the police at the scene. He said that he had no memory of ringing his sister or his girlfriend Olga. He said that he did not remember stabbing Mr. Darkovski, or where the knife came from, although he assumes it was the small kitchen knife used to cut fruit and vegetables. Mr. Vulovic said that he had no particular grievance towards Mr. Darkovski, other than resentment at his frequent requests to borrow money and said that there had been no previous altercations or disputes. He said that he was not especially offended by the remarks and his perception of the events was that Mr. Darkovski attacked him and that he had been forced to defend himself. When interviewed again on 9.3.10, Mr. Vulovic said that he had thought about what happened over and over but could not remember picking up the knife, He said that since his arrest he had experienced recurrent dreams of the deceased. He said that he was afraid to go to sleep. He said that he shared a cell with a person who thought he was crazy for screaming out at night. He said that his dreams did not always include events surrounding the actual offence, but were always violent and involved killing. When asked about symptoms of depression in the period before his arrest, Mr. Vulovic said that he felt he was very depressed at that time. He said that he had stopped going out regularly and felt too depressed to visit his sister or girlfriend. He said that he did not sleep well, had no concentration, little energy and motivation and was aware of feeling very anxious. He said that he had felt very depressed since his arrest, and said "my life is broken because of what I have done" and "these two friends broke my life". However, he denied contemplating suicide. 36Dr Nielssen diagnosed the applicant as suffering from panic disorder, benzodiazepine dependence syndrome in remission and depressive illness. He wrote: - Opinion The diagnosis of panic disorder is made on the basis of Mr. Vulovic's account of typical symptoms of panic disorder accompanied by avoidance of feared situations and abuse of anti-anxiety medication to alleviate symptoms. The history of panic attacks is documented by his general practitioners and in admissions to Liverpool Hospital. The diagnosis of dependence on benzodiazepine (anxiety relieving sedative) medication is based on the account of use of more than prescribed doses of alprazolam and the history of withdrawal symptoms and panic attacks in the course of attempting to withdraw from the medication. There was a record of long term use of alprazolam, an admission for detoxification and referral for treatment. Mr. Vulovic looked to be experiencing symptoms of benzodiazepine withdrawal at the time of the initial interview conducted soon after his arrest. The diagnosis of depressive illness is made on the basis of Mr. Vulovic's account of symptoms of depression prior to his arrest, including disturbed sleep, withdrawal from company, lack of energy and anxiety symptoms, and the account of symptoms and Mr. Vulovic's presentation at the interviews. The history is supported by the medical records and the statements of his sister and girlfriend. Mr. Vulovic has a complicated series of conditions that contributed to his mental state at the time of the stabbing of Mr. Darkovski, including the effects of a longstanding anxiety disorder, his depressed mood, the recent attempt to withdraw from benzodiazepine medication and the effect of alprazolam tablets and alcohol taken in response to a panic attack earlier on the day of the offence. Mr. Vulovic's anxiety disorder and depressive illness are underlying conditions within the meaning of Section 23A of the Crimes Act that gave rise to an abnormal state of mind at the time of the offence. He was also affected by benzodiazepine medication and alcohol, however, I would not consider this to be voluntary intoxication, as he took the tablets and consumed the alcohol in response to anxiety symptoms brought about by his attempts to withdraw from benzodiazepine medication in the days before the offence. Moreover, from Mr. Vulovic's account of the events, it seems that he was subjected to threats and provocation by the deceased and in his anxious state of mind is likely to have interpreted the behaviour of the deceased as being more threatening than he might have if he were not affected by an anxiety disorder. He was not thought to have a defect of reason in the form of a delusional belief regarding the deceased that might leave open the defence of mental illness. Mr. Vulovic was assessed to be fit to enter a plea and to be fit for trial. 37Dr Nielssen saw the applicant on 15 February 2012 after his conviction. He wrote a report on 16 February 2012, diagnosing anxiety disorder in partial remission, depressive illness in remission and substance dependence and abuse disorder in remission. 38Counsel filed written submissions on sentence, including these: - Psychological Condition i. The offender was suffering, at the time of the offence, from a long standing depressive illness and anxiety disorder. ii. The disorders from which he suffered were significant and there was a real casual (scil. causal) connection between those disorders and his offending behaviour. iii. In particular, the fact that he suffered from those disorders led to him interpreting the threats and provocation of the deceased as more significant than a person unaffected by those disorders. iv. That is, the disorders led to a defect in reasoning, making the offender less able to make reasoned judgements and control his actions. 39In oral submissions his Honour asked counsel what link there was between the applicant's psychological conditions and the offence. Counsel referred his Honour to a paragraph in Dr Nielssen's first report, extracted in the passages above, dealing with s23A Crimes Act. His Honour observed that s23A, which is concerned with substantial impairment by abnormality of mind, had not been relevant at the trial. His Honour asked counsel how that evidence established the necessary link. The debate continued: - BRADY: What you are meant to do with that is to see there was a psychiatric condition affecting the offender at the time, and it is not to be put forward, obviously it is a different basis for the verdict, but it is to be taken into account in determining his moral culpability. HIS HONOUR: But what is the psychiatric condition? He was able to get around, he came home, various events occurred, there are different descriptions between Mr. Plavsic and him, and on the jury verdict events occurred that gave rise to provocation and he stabbed Mr. Darkovski. What does his mental condition have by way of any causal link to that? BRADY: What your Honour can see in the second last paragraph of page 8 in the report from Dr Nielssen indicates "Moreover Mr. Vulovic's account of events seem to suggest provocation by the deceased". HIS HONOUR: That's basically what the jury found in the evidence, although it wasn't the accused's case at the trial. BRADY: It wasn't, but the accused gave evidence that's what happened, and his record of interview indicated that's what happened. So that's clearly something that has been proved, or alternatively, I should say, something the jury obviously found that the Crown could not exclude, and your Honour would need to deal with it on that basis that effectively that is the case. And in my submission, anxious state of mind is likely to have interpreted the behaviour of the deceased being more threatening than he might have been if he had not been affected by the anxiety disorder. He goes on to talk about there was no defect reasoning from the delusional beliefs. There's no doubt, and your Honour will see at page 7 under Psychiatric Diagnosis, panic disorder, benzodiazepine tendency (sic. Dependency), and depressive illness as being the three psychiatric diagnoses set out by Dr Nielssen, and there is in my submission, on Dr Nielssen's report, clear evidence that his anxiety disorder led him interpreting things perhaps even differently than a person without that disorder would interpret them, which in my submission leads to a reduction in moral culpability. ... Mr. Vulovic in fact suffered from a disorder that led him to have less capability than a reasonable person to discern provocation threats, so that his disorder has actually reduced the moral culpability of what otherwise would have been a crime. HIS HONOUR: He was more anxious than the average citizen. BRADY: He was more anxious. HIS HONOUR: Is he? BRADY: Absolutely. When you are talking about a diagnosis of panic disorder and depressive illness, this is not someone who is a bit more anxious, and your Honour will appreciate this is a man who has been hospitalised, has had overdoses, a man who clearly had ambulance records confirming a history of transfer to hospital following anxiety attack, this is not a bit more anxious than a normal person. HIS HONOUR: I understand that, that's part of his subjective circumstances. The question is whether these matters have a causal nexus to the crime of manslaughter. BRADY: Absolutely. In my submission, he does, from what Dr Nielssen set out. And what Dr Nielssen is saying has to be borne in mind, that he is talking about anxiety disorder. He is not talking about he is a bit more anxious, and he makes it perfectly clear in that second last paragraph, in my submission, if read in conjunction with what sort of anxiety disorder one is talking about. 40Counsel referred to case law and continued: - In my submission, bearing in mind what is set out in the report of Dr Nielssen, what your Honour has heard in fact in the record of interview from Mr. Vulovic, this is not a moderately severe condition and is in fact psychiatric diagnosis is one of panic disorder. 41In sentencing the applicant his Honour dealt with the asserted link thus: - The Offender's Mental State at the Time of the Offence Mr. Brady tendered, at the sentencing hearing, reports of Dr Olav Nielssen, psychiatrist, dated 1 June 2010 (Sentence Exhibit 1) and 16 February 2012 (Sentence Exhibit 2). Upon the basis of these reports, coupled with some limited evidence given at the trial and a number of documents perused by Dr Nielssen, it was submitted that the Offender suffered from certain disorders as at 12 November 2009 in the form of panic disorder, benzodiazepine dependent syndrome and depressive illness. It was submitted that there was a real causal connection between one or more of those disorders and his offering behaviour, so as to attract the principles in authorities such as R v Hemsley [2004] NSWCCA 228. The onus lies on the Offender to establish, on the balance of probabilities, that he suffered from a disorder which had a causal connection to his offending behaviour. My Brady submitted that the first report of Dr Nielssen (Exhibit 1, page 8) supported the conclusion that the Offender's panic disorder (in particular) placed him in a state of mind where, when subject to threats and provocation by the deceased, he interpreted the behaviour of the deceased as being more threatening than he might have if he were not affected by an anxiety disorder. Mr. Brady sought as well to rely on parts of Dr Nielssen's report which referred to substantial impairment under s.23A Crimes Act 1900. No substantial impairment issue was raised at the trial in reliance upon s.23A, nor was any medical evidence adduced before the jury. The first report of Dr Nielssen was of a type sometimes seen in murder cases where an assessment is made concerning fitness to be tried, and any possible defence by way of mental illness or substantial impairment. The reference to s.23A was brief and, in any event, was not litigated at trial. That part of the report does not assist the Offender. I note that Dr Nielssen in his reports states that there is no psychotic condition or mental illness affecting the Offender. I accept that the Offender has a history of conditions referred to by Dr Nielssen. However, I am not satisfied that there was a causal connection, in the sense recognised by law, between any of those conditions and the Offender's crime. I am not persuaded that any condition from which he suffered had the relevant causal nexus to the crime committed by the Offender on 12 November 2009. The existence of those conditions is relevant to the Offender's subjective circumstances, but I do not think that they operate to reduce his moral culpability or the objective gravity of the offence, nor do they reduce the weight which should be given to general deterrence on sentence. 42It was submitted in this Court that the evidence of Dr Nielssen clearly established the causal connection and that the evidence was clear that the applicant was likely to interpret the threats of the deceased as more significant than would a person unaffected by the disorders that affected him. Those disorders, it was submitted, led to a defect of reasoning. Counsel referred to his Honour's remarks that substantial impairment was not relied on at trial and submitted that that appeared to be the only express reason for rejecting the defence submission about a causal link. It was submitted that that fact did not lead to the conclusion that there was no causal nexus. 43The burden of proving the causal connection contended for lay on the applicant. Apart from such evidence of the applicant as his Honour was prepared to accept, the only evidence was the report of Dr Nielssen. Although Dr Nielssen had seen the applicant since the verdict, he had not seen any further documents. Dr Nielssen knew that the verdict of manslaughter was by provocation and was aware that he had expressed the opinion in his first report about anxiety disorder and depressive illness as underlying conditions within the meaning of s23A of the Crimes Act. He said nothing about those conditions as they might have related to provocation. Of course, Dr Nielssen could not have known what his Honour would find about what had provoked the applicant, but he could have been told what evidence had been left to the jury as possibly provocative and he could have been asked to offer an opinion, however tentative, about any increased susceptibility of the applicant to provocation on account of his mental state. 44Remarkably, no evidence of the kind was offered. Instead, Counsel invited his Honour to infer from what Dr Nielssen had said about substantial impairment by abnormality of mind that in accordance with what Dr Nielssen had said in the first report the applicant must, because of his anxious state of mind, have interpreted Mr. Darkovski's behaviour as more threatening than he might have if not so affected. 45Dr Nielssen's principal consideration was whether the applicant had a verdict of manslaughter available by way of substantial impairment by abnormality of mind. His reference to threats and provocation was a secondary consideration. Moreover, the threats, evidence of which was put before Dr Nielssen in stark terms, turned out not to be provocative at all. They were not even left to the jury as possibly provocative. In dealing with provocative acts Dr Nielssen assumed, perforce, that all the acts of Mr. Darkovski described by the applicant were provocative. That turned out not to be the case either, but it was on that assumption that Dr Nielssen expressed the view that the applicant was "likely to have interpreted the behaviour of the deceased as being more threatening than he might have if he were not affected by an anxiety disorder". 46Accordingly, there was available to the applicant no considered opinion of the probable effect on the applicant, given his psychological state at the time, of the acts of Mr. Darkovski that were found to be provocative. 47In our opinion his Honour was entitled to find on the evidence that the link had not been established. 48We are also of the opinion that it was open to his Honour to find that the applicant's mental condition was not such as to warrant a reduction in the weight that should be given to general deterrence. The mental condition of the applicant was not such as to render him an inappropriate medium to make an example of to others. 49The final aspect of this ground claims that his Honour erred in not finding that the applicant's custody would be more onerous by reason of his mental condition. It was submitted in this Court that although a submission to that effect was made on sentence, his Honour did not refer to the matter in imposing sentence. It was submitted that in view of the importance of the matter it should not be assumed that his Honour had the submission in mind when sentencing. 50According to Dr Nielssen's revised diagnosis, the Applicant's anxiety disorder was in partial remission. His other two disorders, including depressive illness, were in remission. On the other hand, the author of the pre-sentence report said this: It appears that Mr. Vulovic has been experiencing significant depression for some time and he admitted that at times he feels suicidal. This premise is confirmed by case notes documented by custodial staff after he was taken into custody, and it is noted that in November 2010 he was placed on suicide watch. Mr. Vulovic is currently taking antidepressant medication, although he said he continues to feel depressed. It is noted that Mr. Vulovic has been alcohol free for the last two years, but his depression remains a significant issue for him. 51In his second report Dr Nielssen said: Mr. Vulovic said that he had continued to experience anxiety symptoms although he said they were not as severe as they had been because of the medication he was taking. He said that when anxiety symptoms were present he was reluctant to leave his cell, and he had not sought employment within the prison because of the effect of anxiety symptoms. ... Mr. Vulovic's anxiety disorder is described as being in partial remission, as he is aware of continuing symptoms of anxiety, especially in groups or away from the perceived safety of his cell. 52Dr Nielssen also observed that the Applicant had greatly benefited from a stress management course he had undertaken and from instruction he had received in stress management techniques. 53His Honour was not bound to assume that the applicant would not continue to be observed and assisted by those having the care of him, particularly where need had been established. His Honour was not bound to assume that further courses of instruction and advice would not be offered. One of the conclusions of the author of the pre-sentence report was this: Taking into account all of the above information and incorporating a standardised risk/needs assessment process, Mr. Vulovic is suitable for a medium to high level of intervention by this Service, commensurate with the assessed risk. The case plan would include primary strategies regarding his assessment for eligibility/entry into the Department's violent offenders therapeutic program. 54In our opinion the applicant's treatable anxiety did not have the significance contended for on sentence. We do not regard his Honour's not mentioning the matter as indicating that he overlooked it. 55In any event, his Honour took into account the applicant's mental condition in assessing his prospects of rehabilitation and in deciding to extend the available period of parole. At RS [88]-[89] His Honour said this: The Offender's subjective circumstances are reasonably favourable. Against the background of an external period free of alcohol and with a stable medication regime, his prospects of rehabilitation are reasonable, in particular with an extended period of parole supervision. Mr. Brady submitted that the Court should find special circumstances given the Offender's age, the fact that this is his first sentence of imprisonment and the advantages which will flow from an extended period of supervision in the community as an aid to his rehabilitation and the protection of the community. I am satisfied that special circumstances have been demonstrated in this case, so as to warrant a variation in the ratio of the non-parole period to the head sentence for the purpose of s.44 Crimes (Sentencing Procedure) Act 1999. 56This aspect of the third ground of appeal has not been made good. 57A ground asserting manifest excess was appropriately abandoned. 58We make the following orders: (1)Grant leave to appeal. (2)Dismiss the appeal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 February 2014