Applicant v Respondent

3 I proceed on the basis that I have the power (amongst other things) to imprison, to fine, to order payment of costs, and to order imprisonment in default of payment of either a fine or costs.[2] I also proceed on the basis that I have power to suspend or partially suspend an order for committal to prison;[3] and having regard to the specific matters which the authorities indicate are relevant to punishment for contempt of court.[4]

4 The contempt of which you have been found guilty occurred on 2 June 2010. It occurred towards the end of a very long civil trial in which you were the plaintiff and 23 present or former police officers were the defendants. The trial was before Kyrou J. At the time of the offence your wife was acting as your litigation guardian.

5 The circumstances of the contempt are set out in full in the judgment in which I found the contempt proven. I will not repeat them. In summary, you and your wife alleged before the judge that an attempt had been made to murder you by police officers as you had travelled to Court that morning. Police had attempted to apprehend your vehicle that morning, without success, after you had been detected speeding. I have found that your allegations against a particular police officer of threatening you and your wife with a gun to be baseless. In the course of the hearing at Court that morning:

(a) you were abusive of the presiding judge, abusive of the Court, and disrupted and disturbed the proceeding;

(b) you alleged impropriety, partiality and corruption against the presiding judge;

(c) you alleged impropriety, partiality and corruption against the Court; and

I have found that you acted in that way intentionally and that you intended to interfere with or obstruct the due administration of justice.

6 On 17 January 2012 I heard a plea on your behalf. You filed two affidavits which I accepted as forming part of the evidence on that plea. One was an affidavit sworn by yourself on 17 January 2012 and the other was an affidavit sworn by your wife on 17 January 2012. Your affidavit exhibited certificates recording donations you have made; a medical certificate from Dr Duggal, your general practitioner; an extract of transcript from 22 June 2010 before Kyrou J; and a psychiatric report from Dr Farnbach, a consultant psychiatrist who had given evidence in your trial.

7 You were born in central Europe in 1963 and came to Australia in 1977 at the age of 14. You left school at 16 and began working as a DJ in the nightclub industry. According to your affidavit, you were successful in that field.

8 In 1992 you went to Europe and met your future wife. You married and she came back to Australia with you. The two of you have three children. You remain together as a family. Your oldest child is now 17 and the youngest is 14. Your wife was always in Court to support you, and your children were also in attendance on occasions. You have an elderly mother who lives in Australia. She is not in good health. You assist in caring for her.

9 According to your affidavit, you gave up the nightclub industry in 1997 when you started a business concerning electrical equipment. You also had other businesses.

10 According to your affidavit, in 2006 you stopped working and your businesses were closed. You attribute this, and your own ill health, to what you contend is a sustained campaign conducted against you by members of Victoria Police. The proceeding before Kyrou J concerned the claims which you make in this regard. As I indicated in my earlier judgment, you made a variety of claims in relation to 13 alleged incidents in the proceeding before Kyrou J. All of those claims were dismissed in relation to 12 of the incidents; claims of trespass succeeded in relation to one incident.[5]

11 Your own affidavit and the affidavit of your wife refer extensively to your psychiatric history. There were a number of reports tendered and oral evidence was also given in the course of the trial on this issue. One of the psychiatrists who gave evidence at the trial, Dr Farnbach, has prepared an updated report which is exhibited to your affidavit.

12 On the evidence before me, I conclude that you suffer from a mental disturbance involving, among other things, very significant anxiety. One psychiatrist, Dr Sullivan, considers that you suffer from a delusional disorder; another, Dr Farnbach, is of the opinion that you meet the criteria for post-traumatic stress disorder. Ms Ranaweera, a psychologist, has also diagnosed post-traumatic stress disorder. Both Dr Farnbach and Dr Duggal consider that there will be, or may be, deterioration in your psychiatric condition if you are imprisoned.

13 I am satisfied that at the time of your offence you suffered from a mental disorder or abnormality or impairment of mental function, and that you still do so. It does not matter how that condition is to be categorised. It was a condition which impaired your ability to exercise appropriate judgment.

14 In accordance with applicable authority[6] my conclusion is that your mental condition was such that it reduces your moral culpability, it has a bearing on the kind of sentence to be imposed, it moderates without eliminating the need for general deterrence and specific deterrence, it means that a sentence of imprisonment will weigh more heavily on you than on others, and there is a risk of an adverse effect on your mental health if imprisonment is imposed on you.

15 There are further matters which mitigate your offending. You have a supportive family. Your conduct was not in a criminal proceeding and the authorities suggest such conduct would have been more serious if it had been. In purely practical terms, your outburst disrupted the conduct of the trial for only a short time, less than one day.

16 You have on occasions attempted to apologise. There have been five such occasions.

17 The first was in a series of phone messages left on the answering machine of Kyrou J's associate on 22 June 2010. The only record of those messages put before me is a transcript of what Kyrou J said in open court about them.[7] It seems there was an apology made, amongst allegations of police corruption and assertions as to what Kyrou J should do about it. The second occasion was on 6 August 2010 in Court before Kyrou J. The transcript was tendered on the plea.[8] The apology you made then concerned your conduct throughout the proceeding, with one reference to what had happened on 2 June 2010, and was interwoven with complaints about your treatment by police in New South Wales. The third occasion was in an email of 16 May 2011 sent to the Court by your wife but purportedly written by you.[9] There was an apology in that email but the email was predominantly a justification of your behaviour. It contains an untrue assertion that nothing you had said had been directed at the judge himself. The final two occasions were during the trial before me, once in cross-examination[10] and once in your final address.[11] The apology in cross-examination was qualified ("If I did I'm sorry") and was, in my view, extracted by counsel for the prosecution rather than volunteered. Your apologies at trial must be seen in the light of your conduct of the trial more generally, whereby you made unfounded allegations of a serious kind against Court staff, solicitors, protective services officers and others and, in my view, untruthfully asserted an inability to recall what you had said and done on 2 June 2010 after a certain point.

18 Taken overall, your apologies do not seem to me to reveal genuine acceptance of responsibility for your own actions, or remorse. I am mindful of the fact that your mental condition would inhibit your capacity to accept personal responsibility, as opposed to searching for others to blame. In your affidavit filed on the plea you still blame others for what you did.[12] I am pessimistic as to your prospects of rehabilitation.

19 The passage of time which has elapsed since the incident is a mitigating factor.

20 Your offending was serious. It was a very bad example of verbal abuse in a courtroom of the Court and the judge. Amongst other things, you loudly and aggressively accused the judge of being a party to a conspiracy to have you murdered. You threatened him. You subjected everyone present to a display of aggression and fury.

21 Your behaviour that day was not an isolated incident. You had previously behaved in ways which had resulted in your exclusion from the courtroom, and you had previously asserted in open court that the judge was corrupt.[13]

22 The way in which you conducted your trial before me, after your legal advisers had withdrawn, is also a relevant factor in my view. You made entirely unfounded serious allegations of impropriety against Court staff, solicitors and employees of the Victorian Government Solicitor's Office, and your own counsel after they withdrew. You also made allegations of wrongdoing against a protective services officer and a police officer, which I have rejected.

23 Both general deterrence and specific deterrence in this case are moderated but not eliminated by reason of your psychiatric condition.

24 In particular, in my view specific deterrence is important in your case.

25 General deterrence also remains a relevant matter. It is not uncommon for people with similar mental conditions to yours to be involved in litigation. Unless limits are set, and consequences are imposed for contravention of those limits, the system of justice in particular cases may become unworkable and be open to ridicule. It is also important to bear in mind the position of other parties to such litigation, and the position of Court staff and personnel. They should not be confronted by conduct of this kind in a courtroom.

26 Put simply, your behaviour on 2 June 2010 was outrageous. It must be denounced in strong terms. It must be made clear that there will be serious consequences for such conduct, even where the mitigating factors which exist in your case are present.

27 On your plea the prosecution submitted that there are no relevant antecedents. You do have prior convictions, but I proceed on the basis contended for by the prosecution[14]. I cannot, of course, treat you as a person otherwise of good character, given your criminal history. As counsel for the prosecution submitted, you did not submit that you were in the course of your plea. You were, however, on a suspended sentence when this offence was committed, and, indeed, you still are. You told me that you have an appeal pending in relation to that matter. When considering the possibility of a wholly or partially suspended sentence I cannot ignore that matter.[15]

28 I have taken into account current sentencing practice, mindful of the limited assistance which can be gained from other cases, and have reviewed the examples of other dispositions referred to by the prosecution and in your wife's affidavit.

29 In relation to costs, in my view an order should be made that you pay the costs of the proceeding on an indemnity basis.[16] You indicated to me in the course of the plea that you would be able to meet an order for costs as you, or associates of yours, are realising assets in which you, or members of your family, have an interest. I do intend to impose a term of imprisonment in default of payment.

30 Notwithstanding the factors in mitigation, and in particular your psychiatric condition, this is a case where a term of imprisonment must be imposed. If you did not have the psychiatric condition which you do, in the absence of the mitigating effect of a guilty plea, that term of imprisonment would be substantial.

31 Because of your psychiatric condition and your family support and situation, I am prepared to moderate the term of imprisonment. If you had not already been serving a suspended sentence, I would have considered partially suspending the term. I do not consider that that is appropriate given the suspended sentence you are already serving.

32 The orders that I make in this proceeding are as follows:

(1) I declare that the defendant is guilty of contempt in that during the civil trial in which he was the plaintiff before Kyrou J on 2 June 2010:

(a) he was abusive of the presiding judge, abusive of the Court, and disrupted and disturbed the proceeding;

(b) he alleged impropriety, partiality and corruption against the presiding judge;

(c) he alleged impropriety, partiality and corruption against the Court; and

(2) I order that the defendant pay the costs of this proceeding on an indemnity basis.

(3) I order that those costs be paid within 30 days of the amount being determined in accordance with Order 63 of the Supreme Court (General Civil Procedure) Rules 2005 and that the defendant be imprisoned for a period of one month in default of payment.

(4) I direct that copies of the medical certificate dated 12 January 2012 by Dr Duggal (exhibit "SSL 3" to the affidavit of Lupco Slaveski sworn 17 January 2012) and the report of Dr Farnbach dated 16 January 2012 (exhibit "SSL 5" to the said affidavit) be forwarded to Corrections Victoria.

(5) I order that the defendant be committed to prison for a term of 2 months.

[1] [2011] VSC 643. This sentence should be read with the findings and other matters set out in that judgment.

[2] Pattison v Bell [2007] FCA 137 at [45], and Pico Holdings Inc v Voss [2002] VSC 319 at [93]- [95].

[3] Provisions governing the suspension or partial suspension of terms of imprisonment are contained in Subdivision (3) of Division 2 of Part 3 of the Sentencing Act 1991. The issue of the extent to which the Sentencing Act 1991 provisions apply when punishing for contempt was dealt with by Kyrou J in R v Herald & Weekly Times Pty Ltd [2008] VSC 251, [42]-[51], and in the authorities cited in that judgment. Before me the prosecutor submitted there was a power to suspend and to partially suspend an order for committal to prison, relying on those authorities and upon Rule 75.11(4). No contrary submission was put. I proceed on that basis.

[4] DPP v Johnson & Ors [2002] VSC 583 at [59]; Wood v Staunton (No 5) (1996) 86 A Crim R 183, 185. So far as possible the Court should approach the issue of disposition after a finding of contempt in a way consistent with the approach adopted when dealing with criminal conduct generally: Varnavides v VCAT [2005] VSCA 231; (2005) 12 VR 1, 6.

[5] [2010] VSC 441.

[6] R v Verdins [2007] VSCA 102.

[7] Exhibit "SSL 4" to the affidavit of Lupco Slaveski sworn 17 January 2012.

[9] Exhibit "SJL 3" to the affidavit of Stephen Joseph Lee sworn 2 September 2011.

[13] One of the matters Mr Slaveski relied upon at trial was that he had often been ordered to leave the courtroom and he maintained that he had done so. Mr Slaveski in his evidence in chief referred to other occasions when the judge had ordered him to leave the courtroom at transcript 403-4. He referred to the fact that on such occasions he had asserted that the judge was biased and corrupt. Mr Slaveski put similar matters to a family friend, Mr Tancevski, who had attended the trial before Kyrou J and who Mr Slaveski called as a witness, at transcript 534, 537-8 and 551. Kyrou J had referred to some prior incidents in his judgment ([2010] VSC 441) at [67]-[75] and Mr Slaveski was cross-examined about those matters at transcript 448-459.

[14] The prosecution submitted that only prior convictions for contempt or for very similar conduct were relevant antecedents, relying on ACCC v Levi (No.3) [2008] FCA 1586 at [103]- [110] and the authorities cited therein. I accept those submission.

[15] In my view S.27(1A)(b) & (c) of the Sentencing Act 1991 do apply. But even if they do not, this remains a matter which should be taken into account.

[16] The order commonly made in contempt matters is for costs on a solicitor and client basis: Chan and Ors v Chen and Ors (No 3) [2007] VSC 52 at [33]. In this case the nature of the unfounded allegations made by Mr Slaveski and the time devoted to pursuing them warrants an order on an indemnity basis: see Colgate Palmolive v Cussons [1993] FCA 536; (1993) 46 FCR 225, 233-4.