R v Antonovic (No 1)
[2021] ACTSC 219
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Antonovic (No 1) |
Citation: | [2021] ACTSC 219 |
Hearing Date(s): | 3 March 2021 |
DecisionDate: | 5 March 2021 |
Before: | Refshauge AJ |
Decision: | 1. Zdravko Ako Antonovic be granted bail to appear at 2:30pm on 23 April 2021 on the following conditions: (a) That he not consume alcohol or illicit drugs; (b) That he reside at 45 Daintree Crescent, Kaleen; (c) That he not absent himself from his residence except in the company of his mother Stephanie Antonovic or Troy McColl except while actually attending counselling and complying with the requirements under condition (f); (d) That he report to the Officer-in-Charge of Belconnen Police Station every Tuesday and Friday between the hours of 9:00am and 5:00pm; (e) That he accept the supervision of the Commissioner of ACT Corrective Services or his delegate and obey all reasonable directions of the person supervising him; (f) That he comply with all reasonable directions of the Treatment Order Team in the preparation of the Drug and Alcohol Treatment Assessment; (g) That he submit to urinalysis and breath analysis when directed by the person supervising him. 2. That the Orders 3, 4, 5, 6, 7, 8 made on 26 February 2021 be vacated. 3. The Director-General of the Health Directorate, through Alcohol and Drug Services and Forensic Mental Health, and the Director-General of Justice and Community Safety, through ACT Corrective Services, prepare a drug and alcohol treatment assessment and submit it to the Court on or before 15 April 2021. 4. The proceedings be adjourned to 23 April 2021 at 2:30pm for sentence and that the sentence listing for 16 April 2021 be vacated. 5. The Crown be directed to file and serve its Sentencing Tender Bundle on or before 16 April 2021. 6. The accused be directed to file and serve a copy of any documents on which he proposes to rely, on or before 10:00am on 21 April 2021. 7. The Crown be directed to file and serve any written submissions on sentence on or before 21 April 2021. 8. The accused be directed to file and serve any written submissions on sentence on or before 1:00pm on 22 April 2021. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Drug and Alcohol Treatment Order – Suitability Assessment – Bail Application Pending Sentence – Bail granted – Bail conditions |
Legislation Cited: | Bail Act 1991 (ACT) s 22 Crimes (Sentencing) Act 2005 (ACT) ss 12A, 27, 146J |
Cases Cited: | R v Antonovic (Unreported, Supreme Court of the Australian Capital Territory, Gallop J, 1 December 1994) R v Antonovic [2016] ACTSC 774 Simonds v The Queen [2013] ACTCA 13 |
Parties: | The Queen ( Crown) Zdravko Ako Antonovic ( Offender) |
Representation: | Counsel M Dyason ( Crown) J De Bruin ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ( Offender) | |
File Number(s): | SCC 38 of 2021 SCC 39 of 2021 |
REFSHAUGE AJ
Introduction
On 12 October 2020, Zdravko Ako Antonovic entered some commercial buildings in Mitchell, ACT, and stole goods worth over $5,500. In doing so, he damaged certain property.
He has now been charged with three counts of burglary, two counts of theft and one count of damaging property. He has pleaded guilty to each of these charges. He has been referred to the Drug and Alcohol Sentencing List of this Court, with an aim of seeking to have a Drug and Alcohol Treatment Order (a Treatment Order) under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) made in respect of him.
Assessment of his eligibility to be assessed for a Drug and Alcohol Treatment Assessment (Suitability Assessment), under s 46J of the Sentencing Act, showed him as likely to have a severe drug use disorder, but without any acute or pervasive symptoms of a major mental illness, and recommended him as eligible for a Suitability Assessment. Accordingly, I have ordered Suitability Assessments be prepared and listed the matter for sentence on 16 April 2021.
Mr Antonovic has now sought bail, pending sentence. Unsurprisingly, in the circumstances, the Crown has opposed the application. The two specific grounds for opposition are that Mr Antonovic is likely to commit further offences while on bail, (s22(1)(b)(i) of the Bail Act 1991 (ACT)), and that he is likely to be given a sentence of imprisonment, (s 22(2) of the Bail Act)
The Facts
The facts of the burglary offences are in relatively short compass and are relatively unremarkable versions of what are, nevertheless, serious offences. The thefts, too, given the value of the property stolen, are serious offences. It is a matter of commendation to the investigators and the Crown that the value of the property has been stated. The properties entered during the burglaries were part of a commercial complex divided into various units. Mr Antonovic entered into units 6, 8, 9 and 10. He was confronted by the owner of two of the units and started to leave the area, but the owner then chased Mr Antonovic until police arrived and arrested him.
While the burglaries are less serious than burglaries committed at residential premises, Simonds v The Queen [2013] ACTCA 13 at [54], they are still serious offences attracting severe maximum penalties. Mr Antonovic has had a difficult childhood and adolescence. In sentencing him in 1994, Gallop J, in R v Antonovic (Unreported, Supreme Court of the Australian Capital Territory, Gallop J, 1 December 1994, SCC 74 of 1994; at p 9), described it as follows:
The accused is 21 years of age and has a long history of involvement with the ACT Welfare & Corrections system. He was born in Melbourne. His parents migrated to Australia from the former Yugoslavia in 1971. After the accused was born in 1973, the family relocated in the ACT and has been here since then. It is not necessary to detail the turbulent household in which the accused grew up. His father left the family and the mother had the onerous responsibility for the emotional, financial and physical aspects of family life.
The accused and his elder brother acted out a pattern of attention seeking offending behaviour during their teenage years. The accused was committed to an institution as a juvenile on several occasions and was the subject of intensive rehabilitative input by the welfare and justice systems. He alternatively resided at home, Quamby Youth Training Centre, youth refuges and with foster parents. He was sentenced to imprisonment for two years in 1991.
He left school at the age of 12. Since the age of 11 he has had 49 court appearances and has accumulated to date 190 convictions for property offences, including several charges of burglary. Because of his offending, he has only had minimal work experience. He was unemployed when he committed these offences. He claims that the offences were drug related.
I had the Pre-Sentence Report on which Gallop J relied and this explains the turbulent childhood more clearly, describing the family as “in a constant state of emotional crisis for much of the time during the childhood and adolescence” of Mr Antonovic and his two siblings. His parents imposed unreasonable restrictions on the children through their cultural values, which socially isolated the family.
Since 1994, Mr Antonovic has continued to offend. Indeed, he has, to date, over 300 offences on his criminal history. Most worryingly, more than 125 of those offences are burglary or similar offences, and over 110 are theft offences. Relevantly, he has also on his history 12 offences of escaping lawful custody, breaching bail and disobeying court orders, which is troubling in the context of a bail application. In fairness, most of these occurred some time ago and there is only one recent such offence. He has, however, a history of breaching parole. He has some offences of violence (four in total) all of which were committed some years ago.
[Redacted for legal reasons] he has been in a prison for much of his adult life. This was explained by Burns J in R v Antonovic [2016] ACTSC 774 at [11] as follows:
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 25 January 2012, you were released on parole and remained in the community for 19 days before being remanded in custody on fresh charges.
This is not a propitious record or background for a bail application. Indeed, those statistics would, of themselves, justify a court in refusing bail on the ground of the likelihood of reoffending almost out-of-hand.
Nevertheless, Mr J De Bruin, Mr Antonovic’s counsel, pointed to some significant matters which were said to be particularly relevant. In the first place, he noted that Mr Antonovic had been released on parole on 22 January 2020. He had not offended until 12 October 2020, approximately some 10 months later. This was the longest period he had been in the community for at least a decade.
I accept that, but I pointed out that he had, nevertheless, reoffended and with some serious offences.
The background was important, Mr De Bruin submitted. The context was that Mr Antonovic was, at the time, wishing to rehabilitate and manage his addiction. Indeed, he had sought assistance from the Detention Exit Community Outreach (DECO) conducted by Wellspring Australia Limited.
I had a letter, tendered without objection, from a Case Worker at that agency, Mr Troy McColl. Mr McColl said that Mr Antonovic had engaged with him on a weekly basis and had been “very reliable when it came to communicating his circumstances. He has always been open and honest with DECO staff and shows a high level of respect and gratitude for the support he receives”. Honesty is, of course, fundamental to drug rehabilitation.
Subsequently, he also accessed support from CatholicCare of the Roman Catholic Archdiocese of Canberra and Goulbourn, to whom he was referred by Throughfare in May 2020. His counsellor met with him five times until he went into rehabilitation, as noted below, but he recommenced counselling when he sought, out of his own account, to reconnect with CatholicCare in August 2020. He spoke of his desire to cease using substances and to gain employment.
I pointed out, however, that this engagement had not prevented Mr Antonovic from reoffending and, indeed, while continuing to engage with these agencies. Mr De Bruin submitted that, without minimising the seriousness of that consideration, there were important contextual circumstances that needed to be taken into account. They were set out in the letter from Mr McColl as follows:
COVID-19 made 2020 a stressful year for everyone and Mr Antonovic was no different, he also had to deal with the prospect of a cancer diagnosis. Mr Antonovic has been undergoing testing for cancer since July 2020. For a period of months Mr Antonovic was unsure if he would receive the grim news and was understandably distressed. The testing continues, but so far so good. I should also point out that Mr Antonovic successfully admitted himself to Lyndon Community (Drug & Alcohol Rehabilitation Program), in Orange NSW in late June 2020. He was quickly discharged by Linden Community staff upon hearing the news of the suspected cancer diagnosis stating that they could not facilitate transport to and from appointments/testing.
I note that it has since been confirmed that Mr Antonovic does not suffer from terminal cancer.
These significant challenges - the difficulties of COVID-19 and the government's pandemic restrictions, a provisional cancer diagnosis and the rejection by Lyndon House, where he had gone to progress his drug rehabilitation - have, as Mr De Bruin fairly conceded, driven Mr Antonovic back into drug use.
As noted in the Pre-Sentence Report referred to above (at [7]), Mr Antonovic started to use drugs in his late teens when he commenced consuming heroin, on which, the ACT Alcohol and Drug Services noted, he soon after became dependent. They also noted that he will turn 48 in 13 days; that is a long and extended period of drug dependence.
Mr De Bruin pointed out further that Mr Antonovic had never really gained the skillsets to set him up for an appropriate life in the community. He left school at age 12, having had his education “handicapped by a continual pattern of disruptive behaviour linked directly to the turmoil of his family experience”, in the words of the Pre-Sentence Report.
That is not to say that he does not have the capacity, in the right circumstances, to succeed. In 1991 he demonstrated that by completing his Year 11 studies, by correspondence, while in custody.
His employment has been limited. The Pre-Sentence Report, admittedly now nearly 25 years old, reported that he had had only two jobs: one as a roof tiler and one as a chocolate packer, for three months each.
Mr Antonovic is currently receiving Suboxone injections. Suboxone is the brand name of the medication buprenorphine/naloxone, which is used to treat opioid dependence. As it is not habit-forming, it has become preferred to methadone as such a treatment. It is, of course, desirable that it not be the sole treatment option, but that it be combined with counselling and therapy.
Mr De Bruin submitted that Mr Antonovic still had the support of his mother, who was willing to have him reside with her while he was on bail. The Crown pointed out, however, that Mr Antonovic was actually driving his mother's car when he offended on this occasion.
In addition, the Crown acknowledged that Mr Antonovic’s provisional diagnosis for cancer was a significant incident, but submitted that I should be concerned that this shows that, when life gets tough, Mr Antonovic reverts to drug use and to offending of the serious kind that he has committed many, many times before.
A complication is that the Bail Act requires me to consider the likelihood of a sentence of imprisonment being imposed, as noted above (at [4]). This is set out in s 22(2) of that Act, which is in the following terms:
Also, if the person is convicted of an indictable offence, or the elements of an indictable offence are proven in relation to the person, but the person has not been sentenced, a court must consider the likelihood of the person being given a sentence of imprisonment.
Because Mr Antonovic has pleaded guilty, a pre-condition to his participation in the Drug and Alcohol Sentencing List (s 12A(1)(a) of the Sentencing Act), the elements of the indictable offences, which burglary and theft are, have been proven. I am required to consider the likelihood of Mr Antonovic being given a sentence of imprisonment. This is, in many ways, an enactment of the common law which recognises that the likelihood of a severe sentence is relevant to a consideration of bail (see R v Fraser & Jacob (1892) 13 LR (NSW) 150, at 153).
The complexity arises because an offender is only eligible for a Treatment Order if he or she is subject to a sentence of imprisonment for at least one year: s 12A(1)(b) of the Sentencing Act.
If s 22(2) of the Bail Act were read as requiring refusal of bail then no person seeking a Treatment Order would be able to secure bail.
There is little jurisprudence on the sub-section. What there is suggests that it is only a consideration to be taken into account and not a prohibition on the grant of bail. See, for example, R v Kristiansen [2008] ACTSC 83; 221 FLR 127 at 133; [46]; R v Laipato (No.2) [2014] ACTSC 363 at [47].
In addition, the structure of a Deferred Sentence Order under s 27 of the Sentencing Act, for sentences punishable by imprisonment, reinforces this construction, for the offenders likely to seek a Deferred Sentence Order are those who are highly likely to be sentenced to imprisonment and wish to mitigate that by engaging in prior rehabilitation. For such an Order to be made, it is a requirement that the person be granted bail: s 27(3) of the Sentencing Act.
I shall, accordingly, proceed on the basis that s 22(2) of the Bail Act does not prohibit the grant of bail for a person eligible for a Treatment Order.
Consideration
I have considerable hesitation in granting Mr Antonovic bail. His record gives real cause for concern.
On the other hand, his recent history, despite the commission of the current offences, does suggest that he is making significant and partially successful efforts to reform and to create for his future a satisfying and prosocial life.
There are, too, benefits in Mr Antonovic being in the community. I frequently receive Suitability Assessments which are conducted while offenders are on remand and they record a qualification that the offender has not been assessed in the community, which limits a full and comprehensive assessment.
The question, then, is whether there are conditions of bail that could adequately minimise the risk of re-offending.
Mr Antonovic can live with this mother. She is willing to have him in her company when he leaves his residence.
While Mr Antonovic did use her car while committing the current offences, there is no evidence, nor, indeed, to the credit of the fairness of the Crown, any suggestion that she was aware that he was committing such offences. There is no evidence before me to suggest that she is anything other than a law-abiding citizen.
Mr McColl, who has been involved with Mr Antonovic's rehabilitation while at Wellspring Australia Ltd, has also agreed to have Mr Antonovic in his company at times when he is not at his residence. He has also indicated that the agency will be “available for transporting Mr Antonovic to scheduled appointments and will meet him on a weekly basis”.
In addition, Mr McColl reports:
I have been in regular contact with Mr Antonovic's mother Stephanie Antonovic, she has been concerned about the negative effect prison is having on her son. She believes that prison has not worked as a deterrent and would like to see a different approach taken. The Drug and Alcohol Sentencing List will give Mr Antonovic a chance to prove he is serious about changing his behaviour and hopefully a chance to beat his addiction.
It is clear that prison has not been a deterrent; one only has to look at his criminal history and the massive number of offences he has committed to see that. Sometimes there is no alternative. Now, with the Treatment Order regime, there is an alternative.
It is also true, although probably based on anecdotal evidence, that, at some point, a person grows out of the excitement of a drug dependency lifestyle and Mr Antonovic is about the age when this often happens.
The period of bail is not long; it is not as if it were for months. There is a risk, but I consider that the risks can be satisfactorily minimised by suitably strict bail conditions. I will require an undertaking from Mr Antonovic's mother and, if he is willing to give it, from Mr McColl that, were Mr Antonovic to leave their company while he is outside the residence, they notify ACT Policing forthwith.
I believe that the benefits of granting bail to the relevant Suitability Assessments and the opportunity to place Mr Antonovic in as good a position as possible to benefit from a Treatment Order outweigh those risks that cannot be minimised.
In addition, of course, Mr Antonovic understands, and I will emphasise to him also, that his future is very much in his hands. The likelihood of him being made subject to a Treatment Order will be infinitesimal, if not nil, were he to abuse the privilege of his being in the community that a grant of bail affords him.
Accordingly, I will grant him bail.
Grant of Bail
The orders of the Court are that Zdravko Ako Antonovic be granted bail to appear at 2:30pm on 23 April 2021 on the following conditions:
(a)That he not consume alcohol or illicit drugs;
(b)That he reside at 45 Daintree Crescent, Kaleen;
(c)That he not absent himself from his residence except in the company of his mother Stephanie Antonovic or Troy McColl except while actually attending counselling and complying with the requirements under condition (f);
(d)That he report to the Officer-in-Charge of Belconnen Police Station every Tuesday and Friday between the hours of 9:00am and 5:00pm;
(e)That he accept the supervision of the Commissioner of ACT Corrective Services or his delegate and obey all reasonable directions of the person supervising him;
(f)That he comply with all reasonable directions of the Treatment Order Team in the preparation of the Drug and Alcohol Treatment Assessment;
(g)That he submit to urinalysis and breath analysis when directed by the person supervising him.
That the Orders 3, 4, 5, 6, 7, 8 made on 26 February 2021 be vacated.
The Director-General of the Health Directorate, through Alcohol and Drug Services and Forensic Mental Health, and the Director-General of Justice and Community Safety, through ACT Corrective Services, prepare a drug and alcohol treatment assessment and submit it to the Court on or before 15 April 2021.
The proceedings be adjourned to 23 April 2021 at 2:30pm for sentence and that the sentence listing for 16 April 2021 be vacated.
The Crown be directed to file and serve its Sentencing Tender Bundle on or before 16 April 2021.
The accused be directed to file and serve a copy of any documents on which he proposes to rely, on or before 10:00am on 21 April 2021.
The Crown be directed to file and serve any written submissions on sentence on or before 21 April 2021.
The accused be directed to file and serve any written submissions on sentence on or before 1:00pm on 22 April 2021.
Notes (other than Orders)
A signed undertaking of Mrs Stephanie Antonovic was provided to the Court on Friday 5 March 2021. The undertaking is in the following terms:
I, Stephanie Antonovic, undertake that until 16 April 2021, should Zdravko Ako Antonotiv leave 45 Daintree Crescent, Kaleen, while not in my presence or leaves my presence while outside the premises, I will notify ACT Policing as soon as possible.
Mr Troy McColl completed an undertaking in Court on Friday 5 March 2021 in the following terms:
I, Troy McColl, undertake that, until 23 April 2021, should Zdravko Ako Antonovic leave his residence at 45 Daintree Crescent, Kaleen in my presence and then leave my presence while outside the premises, I will notify ACT Policing as soon as possible.
| I certify that the preceding fifty-six [56] numbered paragraphs are a true copy of the Reasons for the Judgment of his Honour Acting Justice Refshauge. Associate: A Spencer Date: 7 December 2021 |
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