R v Antonovic
[2016] ACTSC 77
•8 April 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Antonovic |
Citation: | [2016] ACTSC 77 |
Hearing Date: | 24 March 2016 |
DecisionDate: | 8 April 2016 |
Before: | Burns J |
Decision: | See [32]-[38] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – property offences – burglary – theft – significant criminal history – mental health issues – history of polysubstance abuse – disadvantaged childhood – need for personal deterrence – prior non compliance with community based orders – poor prospects of rehabilitation – terms of imprisonment imposed. |
Cases Cited: | Fusimalohi v The Queen [2012] ACTCA 49 Tate v The Queen [2012] ACTCA 50 |
Parties: | The Queen (Crown) Zdravko Antonovic (Offender) |
Representation: | Counsel Mr D Sahu Khan (Crown) Mr J Sabharwal (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 156A of 2014; SCC 156C of 2014; SCC 165 of 2014 |
BURNS J:
Zdravko Antonovic, you appear before me today to be sentenced with respect to two offences of burglary and two associated offences of theft which occurred on 28 January 2014. The first offence of burglary occurred at the “Mint@Forrest Café” and the offence of theft relates to the theft of the property inside those premises. The second offence of burglary occurred at “Architectural Reflections” in Wollongong Street, Fyshwick and the offence of theft relates to theft of the property from those premises. You also appear before me for sentence with respect to another offence of burglary, which occurred on 2 February 2014 at residential premises in Forrest.
The offences
With respect to the offences of 28 January 2014, at about 1.30 am on that day you attended the Minter Ellison Building at 25 National Circuit, Forrest in the Australian Capital Territory where you forced entry into the “Mint@Forrest Café” by pulling open the rear double glass doors on the ground floor. Whilst inside the premises you stole cash in the amount of $2,250.
Later that same morning you attended at premises in Wollongong Street in Fyshwick where you forced entry into the business premises of “Architectural Reflections” by breaking a front window. Whilst inside the premises you stole a number of items before departing.
You were linked to the burglary at the “Mint@Forrest Café” by DNA evidence which was found at the scene. You were also linked to burglary at “Architectural Reflections” by DNA evidence which was located at the scene.
With respect to the burglary on 2 February 2014 at the premises in Forrest, those premises were a ground floor two bedroom apartment with a courtyard surrounded by a low perimeter wall. The courtyard faces onto Fitzroy Street and can be accessed by a gate. From inside the courtyard access into the unit can be gained through glass doors. At approximately 3.40 pm on 2 February 2014 one of the occupants left the unit. Before leaving she ensured that the unit was securely locked. At about 4.30 pm that day you drove a green Mercedes sedan along Fitzroy Street and parked outside the apartment complex on Fitzroy Street. You entered the courtyard of the unit. Whilst in the courtyard you were observed by a neighbour attempting to force open a set of glass doors leading into the unit. That neighbour called the police.
You forced open the glass doors causing damage to the door's locking mechanism and entered the unit. Inside you ransacked the bedrooms, living room and kitchen area and took a quantity of property valued at $10,277. I note that you have asked that I take into account when sentencing you with respect to this offence of burglary, an additional offence of theft, relating to the theft of that property. You were subsequently apprehended by police. You were linked to that offence by the discovery of property which was the subject of that burglary and offence of theft.
I note that the maximum penalty for the offence of burglary is 14 years imprisonment, a fine of $196,000 or both. The maximum penalty for the offence of theft is 10 years imprisonment, a fine of $140,000 or both.
You were originally charged in the Magistrates Court with respect to the burglary offence at the “Mint@Forrest Café” on 17 February 2014. You were charged with the burglary offence relating to “Architectural Reflections” on 19 March 2014. You originally pleaded not guilty to those charges, but on 28 July 2015, you entered pleas of guilty to those charges after you were committed for trial and following negotiations between yourself and the Crown.
You were originally charged with the offence of burglary on the premises at Forrest in the Magistrates Court on 3 February 2014. On 14 September 2015, you pleaded guilty to that charge of burglary and you consented to the charge of theft being taken into account as an additional offence. You had originally pleaded not guilty to those charges.
Subjective Features
You have an extensive criminal history. I have not, myself, undertaken the calculations but the Crown Prosecutor told me, without any objection by your counsel at the sentence hearing, that you have 195 prior convictions in the Australian Capital Territory of which 118 are for burglary or theft. In Queensland you have 34 convictions, 25 of which are for offences of burglary or theft. In New South Wales you have 16 convictions, six of which are for offences of burglary or theft. This record speaks of a continuing attitude of disobedience to the law, the need for personal deterrence and the need to protect the community.
A Pre-Sentence Report was prepared for the sentence hearing. You are 42 years old and you have spent the majority of your adult life in prison. You have a history of breaching parole, and I will mention some aspects of that. On 30 June 2009, you were released on parole and you remained in the community for four days before being remanded in custody on fresh charges. On 25 January 2011, you were released on parole and remained in the community for 24 days before being remanded in custody on fresh charges. On 24 January 2012, you were released on parole and remained in the community for 19 days before being remanded in custody on fresh charges.
You then, as I understand it, served the remainder of your then sentence before being released on 8 January 2014 at the expiration of those sentences. The present offences were committed within the next three weeks of you being released at that time.
Since being remanded in custody on these charges you have been subject to disciplinary action for contravening directions, threatening other detainees and assaults on staff and detainees at the Alexander Maconochie Centre (AMC).
You were born in Melbourne into a family that emigrated from Croatia in the early 1970s. You had an unstable family environment and you ran away from home when you were aged 12. You apparently spent your formative years in foster homes, refuges and juvenile detention centres. Your older brother died of a drug overdose when you were 24 years old and you told the author of the Report that you found it difficult to cope with that.
You reported no significant relationships and no children. You now have good relationships with your parents and your sister. You completed your education to year 8 and left during year 9. You have been unemployed most of your adult life, although I do note that you have been working in the laundry at the AMC since October 2015.
Unsurprisingly, you have a long history of alcohol and drug abuse commencing at an early age. You abused amphetamines, benzodiazepines and heroin when in the community. You have attempted pharmacotherapy in the past but with no lasting success. You completed the Solaris Therapeutic Community Program in the AMC in 2010 and 2011 and you were described as an active participant, but you relapsed into drug abuse soon after your release from the AMC. You have not, during your present period in custody, undertaken programs at the AMC, but you are reported as being stable on pharmacotherapy.
You have a history of mental health issues, as is documented in the Pre-Sentence Report. In 2011 you were diagnosed with social phobia and it was suggested that you undertake cognitive behavioural therapy. A psychiatrist that assessed you also provided a treatment plan that would assist and support you upon your release to the community.
There has apparently been some compliance with mental health treatment when you were in custody in the past but little in recent times. You told the author of the Report that you admitted committing the present offences but you attempted to minimise your personal responsibility. You said that you were affected by methylamphetamine at the time that you committed these offences and that you committed them in order to fund your drug abuse. You declined to comment on the impact upon your victims of your offending, beyond saying that you knew that what you were doing was wrong at the time. You were considered as unsuitable for a community service order, although such a sentencing disposition is not realistic with respect to the present offences.
A Psychological Assessment Report by a psychologist, Ms Fleur Taylor, dated 9 March 2016, was also placed before me. You were interviewed by her for approximately 30 minutes on 1 March this year at the AMC. She reported that when you entered the interview environment you presented as agitated and with a heightened level of anxiety which was exhibited by constant moving in your seat, wringing your hands, biting your nails, difficulty responding to questions and rocking in your seat. You presented with a heightened level of paranoia related to the interview process.
Despite providing consistent answers, you remained anxious in relation to the purpose of the interview. You also presented as suspicious of the process and ostensibly unable to effectively self-regulate. In addition, you presented with signs of psychosis, including auditory hallucinations. You also displayed symptoms of formal thought disorder, including alogia or poverty of speech, blocking and derailment. You also presented with frequent episodes of dissociation during the interview.
Despite what Ms Taylor considered to be your obvious disturbances of your mental health and cognition you attempted to answer questions posed, however, your responses were often fragmented or unrelated to the questions at hand. You discussed having an extensive history of polysubstance abuse, however, you had difficulty providing a coherent account of this.
After approximately 30 minutes of the interview you abruptly put your hands up and said that you were cancelling the interview. You indicated that you were finding the process distressing and said that there were also reasons that you were not allowed to elaborate on regarding your need to suspend the interview. As such, Ms Taylor said a comprehensive assessment could not be undertaken on that occasion. Ms Taylor recommended that you be referred to a custodial centre psychiatrist to engage with you for the purpose of further assessment, diagnosis and medication intervention if deemed appropriate.
Consideration
I take into account your pleas of guilty with respect to these offences. They were not early pleas but they did have a certain utilitarian value. It is difficult to estimate whether they also reflect any real contrition on your part. I do, however, take into account that the prosecution case, with respect to each of these offences, was particularly strong. I will, nevertheless, reduce by approximately 10 per cent the sentences that I would otherwise have imposed.
With respect to the offences of 28 January 2014, these offences were committed at commercial premises in the early hours of the morning. In each case entry in to the premises was forced. Such premises are vulnerable because they are unlikely to be occupied at night and are usually situated in places not frequented after business hours. The property stolen was not of high value but that is simply a function of the property that was available to be stolen in those particular premises.
With respect to the offences of 2 February 2014, that offence occurred at residential premises during daylight hours. You forced entry into the premises and also the premises were ransacked. Property of some significant value, including jewellery which is likely to have sentimental value, was taken.
I note that you indicated to the author of the Pre-Sentence Report that you committed these offences whilst under the influence of drugs and in order to feed your drug addiction. Ordinarily such circumstances do not significantly mitigate offences such as these. However, I note that you commenced upon drug use at a particularly early age, such that you are not now to be held as responsible for the consequences of your drug addiction, as you would be, if you had commenced the use of drugs at an age when you would have understood the likely consequences of the commencement of use and probable addiction.
I also take into account the fact that you had a disadvantaged childhood. Whilst, of course, you are now 42 years of age, I have no doubt that the effects of the disadvantage of your early years continues to affect you.
The maximum penalty prescribed for the offence of burglary is 14 years imprisonment. This demonstrates how serious the legislature considers such offences to be. Such offences tend to be somewhat generic. However, the fact that entry was forced in each case, the offences of 28 January 2014 occurred at vulnerable premises and the offence of 2 February 2014 involved ransacking of the premises, leads me to conclude that the present offences fall within the mid-range of such offences.
In my opinion, in sentencing you with respect to these offences, I must take into account what is clearly a strong requirement for personal deterrence with respect to these matters. Your criminal history and your history of non-compliance with community based orders makes it very clear that personal deterrence is a very significant sentencing consideration. I must also sentence in such a way as to give other people who may be minded to offend in a similar manner, a clear indication that such offences will be dealt with seriously by these Courts.
Based upon the material before me, I am satisfied that you have limited prospects for rehabilitation. You are, unfortunately, a confirmed criminal. I was not referred to any previous sentences imposed for such offences but I have taken into account the Court of Appeal decisions in Tate v The Queen [2012] ACTCA 50 and Fusimalohi v The Queen [2012] ACTCA 49 and the cases cited therein. These cases do not reveal any consistent pattern of sentencing for such offences but demonstrate that there is no single correct sentence for offences of burglary.
I take into account the evidence which has been given concerning your present mental health. There is no evidence before me that you were suffering from any mental illness at the time that you committed these offences. Similarly, there is no evidence that any mental illness that you now suffer from will make imprisonment more onerous for you or cannot be adequately treated within the AMC. I will simply take into account that evidence as part of your subjective features in sentencing.
Sentence
With respect to the burglaries that occurred on 28 January 2014, I record convictions and you are sentenced to four years and six months imprisonment on each of those charges. These sentences have been reduced from five years imprisonment in order to reflect your plea of guilty. With respect to the associated offences of theft which occurred on 28 January 2014, on each matter I record a conviction and you are sentenced to 10 months imprisonment.
With respect to the offences at the “Mint@Forrest Café”, the sentence which has been imposed on the burglary committed at those premises is to commence on 2 February 2014, the day you were taken into custody, and will expire on 1 August 2018. The associated offence of theft from the “Mint@Forrest Café is to be concurrent with the sentence for burglary at those premises.
With respect to the offences at “Architectural Reflections” at Fyshwick, the sentence which has been imposed on the burglary committed at those premises is to commence on 2 February 2015 and expire on 1 August 2019. The associated offence of theft from the premises of “Architectural Reflections” is to be concurrent with the sentence for the offence of burglary at those same premises.
With respect to the burglary on 2 February 2014 at Forrest, taking into account the offence of theft, which is the additional offence, you are convicted and sentenced to five years and 10 months imprisonment. I have reduced this sentence from six years and six months in order to reflect your plea of guilty. This sentence will commence on 2 April 2015 and expire on 1 February 2021.
There is, therefore, an aggregate sentence of seven years imprisonment commencing on 2 February 2014 and expiring on 1 February 2021.
Bearing in mind your extensive criminal history, your poor prospects for rehabilitation and your performance during your present period in custody, I set a non-parole period of five years and three months commencing on 2 February 2014 and expiring on 1 May 2019.
| I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: D Scuteri Date: 20 April 2016 |
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