In the matter of an application for bail by Slobodan Novakovic (a.k.a. Daniel Noland) (No 2)
[2022] ACTSC 73
•1 April 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the matter of an application for bail by Slobodan Novakovic (a.k.a. Daniel Noland) (No 2) |
Citation: | [2022] ACTSC 73 |
Hearing Date: | 1 April 2022 |
DecisionDate: Reason Date: | 1 April 2022 8 April 2022 |
Before: | Refshauge AJ |
Decision: | 1. The bail applied to Slobodan Novakovic (a.k.a. Daniel Noland) on 7 March 2022 is revoked. 2. Slobodan Novakovic (a.k.a. Daniel Noland) is remanded in custody to 8 April 2022 at 2:30pm. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – Application for Bail – Evidence in Bail Applications – Bail Refused |
Legislation Cited: | Bail Act 1992 (ACT), s 19 Crimes (Sentencing) Act 2005 (ACT), s 12A Human Rights Act 2004 (ACT), s 18 |
Cases Cited: | Brown v Australian Capital Territory [2020] ACTSC 70 Director of Public Prosecutions v Kaba [2014] VSC 52; 44 VR 526 Valencic v Jordan [2017] ACTSC 120; 80 MVR 282 |
Parties: | The Queen ( Crown) Slobodan Novakovic (a.k.a. Daniel Noland) ( Offender) |
Representation: | Counsel C Muthurajah ( Crown) C Duffy ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender) | |
File Numbers: | SCC 44 of 2022 SCC 45 of 2022 |
REFSHAUGE AJ:
Introduction
Under s 18 of the Human Rights Act 2004 (ACT), a person has a right to liberty and, in particular, not to be arbitrarily detained, nor deprived of liberty, except on the grounds of, and in accordance with, established legal procedures.
Thus, the right to liberty does not prevent a person from being arrested if the arrest is made in accordance with legally established procedures and the person may then be detained pending trial or sentence if that is decided also in accordance with legally established rules and decided without arbitrariness: see Brown v Australian Capital Territory [2020] ACTSC 70 at [82]-[98]. For a comprehensive consideration of the right to liberty under human rights legislation, see Director of Public Prosecutions v Kaba [2014] VSC 52; 44 VR 526.
The Bail Act 1992 (ACT) establishes the legal procedures and considerations for granting bail and, therefore, for a refusal of bail, which refusal would entail the remand of an accused person in custody until a further appearance in court pending trial or sentence. There must, of course, be credible evidence before the court to justify such a refusal: see Dunstan v Director of Public Prosecutions [1999] FCA 921; 92 FCR 168 at 184; [55].
On 7 March 2022, the Court granted bail to the applicant (whom I shall call by his preferred name, Daniel Noland, as explained in R v Novakovic (a.k.a. Noland) (No 1) [2021] ACTSC 62 at [2]) to attend and participate in the residential drug rehabilitation program conducted by Canberra Recovery Services, a drug and alcohol rehabilitation agency operated by the Salvation Army at Fyshwick, ACT. The program is further described in R v Ngerengere (No 3) [2016] ACTSC 299 at [70].
On 31 March 2022, however, Mr Noland was discharged from the program prior to completing it and the facility advised that he would not be re-admitted to its residential program. This discharge was a breach of the conditions of the bail granted to him. He has now sought a continuation of his bail on different conditions, namely to reside with his mother in the community and to undertake further non-residential rehabilitation programs, particularly the day program at Canberra Recovery Services.
The background
Mr Noland has what the Court described in R v Novakovic (a.k.a. Noland) (No 1) at [36] as “a long and depressing criminal history”. It then consisted of 86 offences, though he was, in those proceedings, then further convicted of and sentenced for an offence of aggravated burglary. Most of the offences were offences of dishonesty, including six of burglary.
It was clear that his criminal offending was contributed to, probably substantially, by his long-standing dependency on illicit drugs, principally methamphetamine. This is described in R v Novakovic (a.k.a. Noland) (No 1) at [27]-[32].
On 2 March 2020, he had entered the underground basement carpark of an apartment building in Phillip, ACT, with a co-offender, and got into a motor vehicle that he did not own. He had no permission to enter the carpark or the motor vehicle. He was later arrested and charged with the offence of aggravated burglary.
He pleaded guilty to this offence and was committed for sentence to the Drug and Alcohol Sentencing List of the ACT Supreme Court, which is the List under which the Court administers the Drug and Alcohol Treatment Orders (Treatment Orders) made under s 12A of the Crimes (Sentencing) Act 2005 (ACT). Mr Noland sought that a Treatment Order be made in sentencing him for the offence.
A Treatment Order was made on 12 January 2021. It required Mr Noland to admit himself to the residential drug rehabilitation program at Canberra Recovery Services for the first part of the Order, to which he was subject until 1 March 2022, and complete that program.
He progressed well in that program and generally received good reports of his participation and his engagement. Unfortunately, however, he did breach the rules of the facility in May 2021 by entering into a personal relationship with another participant in that program and was sanctioned accordingly. He did, nevertheless, graduate successfully from the program on 12 July 2021. He then transitioned into a program in the community undertaking treatment, counselling, case management and urinalysis as directed by the members of the Treatment and Supervision Team from the Alcohol and Drug Services of Canberra Health Services.
Mr Noland found the obligations of the program a challenge, particularly as he thought that his graduation from the Canberra Recovery Services program and his abstinence from drug use for 18 months had meant that he had achieved the appropriate level of rehabilitation and that the ongoing restrictions were unnecessary. By August 2021, he began to resent the obligations and it showed in his attitude towards the requirements and to the staff. Despite progressing to Phase 2 of the Treatment Order program, he became frustrated, expressing the view, for example, that he had achieved abstinence and was crime free and that further programs, case management and urinalysis were unnecessary.
This led to an incident between Mr Noland and the nurses employed to conduct urinalysis testing of participants subject to Treatment Orders. He also complained that, as he was working full-time, he did not have time to comply with all the obligations that he had under the Treatment Order to which he was subject. It is worth noting that employment for participants in the Treatment Order program is promoted; it is an important part of the process to re-integrate into the community, an objective of a Treatment Order, and to give the participants some stability and security so as to minimise the risk of relapse into drug use and crime. Nevertheless, the priority for them, while they remain subject to a Treatment Order, is to comply with the obligations that they have under the Order and employment must take a second priority to that. To be on such an Order is a privilege, for it involves a substantial amount of resources put into their rehabilitation and re‑integration and relieves them of the ordinary consequences of the serious criminal offending that they committed, largely because of their drug use, namely a term of full-time imprisonment for at least one year. The option of a Treatment Order is offered because, as French CJ pointed out in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at 573; [32] that rehabilitation, if it can be achieved, is the surest protection of the community and in the public interest.
Mr Noland expressed on several occasions that he had successfully rehabilitated and that he did not need further treatment. He was asked to provide a reflection on the incident with the nurses and, though it appeared on first hearing to be a good and thoughtful reflection, a more careful consideration showed that it was engaging in some disrespectful behaviour and, though superficially acceptable, disclosed an unhelpful and rather problematic attitude.
He reacted to this assessment by complaining that he was a target of criticism because he was “not stroking egos enough”. He continued to be careless with his obligations, though generally meeting them. For example, he failed to attend a required appointment, saying that he was unwell, but failed then to provide a medical certificate, the minimum requirement for this, which he knew was required.
By October 2021, he was showing signs of some better engagement. While his self‑confidence was laudable and a good attribute to help him progress, especially after completion of the Treatment Order, he became over-confident.
Nevertheless, on 12 November 2021, he graduated to Phase 3 of the program which would permit him to graduate from the Treatment Order when it ended with a successful completion of the program. It would also allow him more easily to continue working full-time.
Unfortunately, however, he was arrested for burglary, minor theft and, significantly, possession of a drug of dependence, namely methylamphetamine, on 6 January 2022. This was an important turning point. He was remanded in custody, but later entered a plea of guilty, an admission of the commission of the offences, and was committed for sentence to this Court, requesting that he be referred to the Drug and Alcohol Sentencing List again, implicitly confessing that he had been using drugs which had substantially contributed to his further offending. This showed that his own assessment of his rehabilitation progress was flawed and that he had relapsed.
He further requested that, prior to sentencing, he be granted bail to proceed through some further rehabilitation to show that he was now ready for it and that it would be appropriate to make a further Treatment Order for the further offending. As noted above (at [4]), he was granted bail with a condition to attend the shorter residential drug rehabilitation program at Canberra Recovery Services, then graduating onto the day program at the facility.
Also unfortunately, he was then discharged from that program after slightly less than a month into it. While he had not been charged with any further offence, he was found with a syringe for injecting drugs in his rubbish bin, a clear breach of the rules. In his evidence in Court, he denied that the syringe was his, though not providing an explanation as to how it may have been deposited there. He did, however, admit that he had, in any event, been injecting non-prescribed Buprenorphine while in the facility, undertaking the program. It is worth noting that, while rarely charged, as in this case, this is an offence itself, though an inevitable consequence often of drug dependency, and possession for personal use and self-administration are themselves actually criminal offences, but less serious offences.
Mr Noland said that his return to custody after his arrest this year had had a severe effect on his mental health and that he was, by using this drug, seeking to self-medicate for his problems. He did not explain, however, why he could not discuss this with his counsellor or case manager at Canberra Recovery Services and thus address the issue without breaching the facility’s rules.
He explained in his oral evidence in support of his bail application that he sought admission into the Canberra Recovery Services day program as part of any further bail conditions and said that he would be able to enter it in the following week. There was no other confirmation of this. He had also made enquiries of other treatment providers; he had arranged a Mental Health Plan through his general practitioner, sought counselling from CatholicCare, which he said was being considered, had contacted Directions Health Services for assistance and had sought and secured an appointment for consultation with a psychiatrist on 6 May 2022. He said that he was in the process of real change. He also said that he was prepared to pay for private urinalysis, since there is limited capacity for the Court to make government provided urinalysis a condition of bail.
Despite being discharged from Canberra Recovery Services on 31 March 2022, he did make contact that day with ACT Corrective Services, a further condition of his then bail obligations and he did present to the Court the following day, knowing that there was a realistic prospect that his bail would be revoked and that he would be returned to custody. This is to his credit.
His mother wrote a letter that was tendered without objection and the contents of which were not challenged. In the letter, his mother stated that she would be happy to have Mr Noland reside with her during the period of bail and would support him by providing a stable environment and assist him to attend any appointments and programs mandated by the Court.
Consideration
The Court revoked Mr Noland’s bail and remanded him in custody, but only for a week so that he could formulate a more comprehensive and acceptable plan of rehabilitation to show his genuine commitment for which further bail pending sentence might be appropriate. These are the reasons for doing so.
It may be accepted, as explained in Saga v Reid [2010] ACTSC 59 at [89], that “it can take a number of failed attempts at rehabilitation [for a drug dependency] before it is successful”. As there pointed out, “past failures do not automatically deny an offender the opportunity for a further attempt. Ordinarily, there would have to be some rational basis for permitting it.”
While, as pointed out in decisions such as Hogan v Hinch, this is important, the context here is also very relevant. Though Mr Noland is showing some insight by seeking further assistance into his ongoing need for further rehabilitation, there are some concerning issues.
His earlier confidence that he did not need the ongoing rehabilitation activities under the Treatment Order was clearly misplaced, given the further offending and failure to address his ongoing post-custodial drug use with the honesty that is fundamental to rehabilitation from drug dependency. These show how at risk he is of relapse.
He was given a chance by the grant of bail after his recent arrest, to show that his commitment was to genuine rehabilitation and its likely success, but has failed to do either. He was, albeit on his own admission, for which he must be given real credit, actually still using illicit drugs, though to address his ongoing mental health issues, while going through the rehabilitation for which he said that he was ready and to which he was committed. The success of that was intended by him to inform the decision as to whether he was suitable for the making of a further Treatment Order so as not to have to serve a further term of imprisonment. He did not succeed. He was, further, unable himself to acknowledge his challenges, share them with his counsellors and confront his weakness.
It is also to his credit that he has made inquiries about and efforts to secure further rehabilitation opportunities to support his bail application. There are, however, two problems about this. In the first place, he has not yet clearly articulated an acceptance of his vulnerability and a commitment to a more humble attitude to reform that he needs to show following a self-examination of how he has failed and what has caused it, rather than simply to look for further programs that he can undertake. Secondly, these are only, with the exception of the psychiatric appointment, possibilities for which arrangements have not yet actually been made. He will, therefore, be in the community with no obligations in place and no means of monitoring his activities and no commitment to begin this rehabilitation at any particular time.
The Court was informed of the investigations by his self report. While there is no basis for rejecting that evidence, it would be desirable for the Court to have some other evidence, such as information from the proposed providers, to be clear about precisely what is to be provided, when and in what circumstances.
Nevertheless, until 2011, the strict rules of evidence did not apply in bail applications and the court could inform itself in any way it saw fit: see Re an Application for Bail by Merritt (No 2) [2010] ACTSC 7 at [6]-[7]. That, however, relied on the position under the Evidence Act 1995 (Cth), which applied in this Territory until the Evidence Act 2011 (ACT) became law. That latter Act expressly applied the provisions of the Act, and thus the strict rules of evidence, to bail applications: s 4 (1). At the same time, s 19 of the Bail Act was amended to repeal s 19 (6) of it on which reliance had been placed in that case.
Those rules were not applied in this case. Indeed, the urgency with which many bail applications are made can make this application of those rules, practically at least, challenging, if not impossible. For example, it is unlikely that a person who has been arrested and who is, therefore, required to be taken before a judge or magistrate as soon as possible, as required under s 18 (4) of the Human Rights Act, would be able to amass in proper admissible form the evidence of the matters on which he or she would wish to rely to show that bail should be granted. Indeed, in this case, Mr Noland appeared the next day after he had been discharged to apply to vary his bail conditions so that he was not in breach of them. He clearly had not had a lot of time to consult a lawyer and collect admissible evidence.
It is highly desirable that the liberty of members of our community should not be nullified by the need to take the necessary time to put in admissible form the facts on which he or she wishes to rely for a grant of bail unless there is a real issue in the way the court can deal with them properly. This is particularly so where, as often happens, the facts are not particularly in issue. That, of course, is often the actual position in respect to bail applications. One might suspect that the work of, for example, a busy court dealing with many bail applications (such as the ACT Magistrates Court on a Monday morning) would be substantially impaired were it otherwise. Even were it simply to require the applicant to enter the witness box and give sworn evidence, the extra time then taken may prove to be a challenge.
Sections 190 and 191 of the ACT Evidence Act give some leeway in permitting an order that the strict application of the rules of evidence in a particular matter not apply, with the consent of the parties, and that evidence need not be adduced of agreed facts. Waiver, however, does also require a specific order and consent of the parties. This may, nevertheless, be implied, though that is not always clear. Where there is a challenge to assertions from the bar table, including those prefaced by “my client instructs me that ”…", then proper evidence may be required. This accords with my practice generally to seek the agreement of the other party in such circumstance, so that if the evidence is at least not challenged its admission then, therefore, is arguably agreed. This allows the other party not to be disadvantaged where there are real issues about such assertions but for bail applications to be conducted, in practice, with a degree of appropriate informality without impairing the rights of either party.
This is similar to the position in sentencing hearings which was described in Talukder v Dunbar [2009] ACTSC 42; 194 A Crim R 545 at 549-550; [19]-[25]. As there described, however, any challenge to that evidence by the other party must then be addressed, such as by more traditional evidence, possibly oral sworn evidence or documentary confirmation.
Further, as the Court cautioned in Valencic v Jordan [2017] ACTSC 120; 80 MVR 282 at [28], though again in relation to a sentencing hearing, but with no reason why it should not also apply to the hearing of applications for bail, the Court is not obliged to give such unchallenged assertions of fact any particular weight.
Mr Noland has now on two occasions shown that he has the capacity to remain committed to his rehabilitation and to remain drug free and crime free. What he wanted to show in the recent period on bail, namely that he is ready for further rehabilitation that, despite his assertions, he had not yet successfully completed, has not been shown. Thus, there would be a greater risk of further offending when he is in the community without the supervision and monitoring of custody, a residential drug rehabilitation program or even an intense period of day or “outpatient” community rehabilitation programs.
While not necessarily a bar to further bail, the apparent anomaly, however, of him failing in a residential programme and then being allowed the greater freedom and lack of supervision in the community needs to be addressed.
Thus, at least greater clarity about the precise programs he is to undertake, when they may commence, how he is to be supervised and his progress and compliance monitored and how breaches such as detected by Canberra Recovery Services would be able to be detected provides a minimum of what must be addressed.
For these reasons, bail was refused. He was, however, given a short period to formulate and establish a regimen that would show that he is ready to make real progress, and it would not only give him chance to show his commitment but would protect the community from the possibility of further offending.
| I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Refshauge. Associate: Date: 8 April 2022 |
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