R v Antonovic (No 2)
[2021] ACTSC 198
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Antonovic (No 2) |
Citation: | [2021] ACTSC 198 |
Hearing Date(s): | 23 April 2021 |
DecisionDate: | 30 April 2021 |
Before: | Refshauge AJ |
Decision: | 1. Zdravko Ako Antonovic be referred to the Director-General of the Justice and Community Safety Directorate for restorative justice in respect of the three offences of burglary, the two offences of theft and the offence of damaging property, all of which he committed on 12 October 2020 and to which he has pleaded guilty. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Restorative Justice |
Legislation Cited: | Crimes (Restorative Justice) Act 2004 (ACT) ss 8, 17-20, 24, 25; table 22, item 3. Crimes (Restorative Justice) Bill 2004 |
Cases Cited: | Director, Office of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2013] FCAFC 34; 209 FCR 297 R v Forrest [2016] ACTSC 321 |
Parties: | The Queen ( Crown) Zdravko Ako Antonovic ( Offender) |
Representation: | Counsel V Conliffe ( Crown) J De Bruin; C Duffy ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender) | |
File Number(s): | SCC 38 of 2021 SCC 39 of 2021 |
REFSHAUGE AJ
In 2004, the Attorney-General presented to the ACT Legislative Assembly the Crimes (Restorative Justice) Bill 2004. That Bill proposed to introduce a regime of restorative justice in the ACT.
In the Explanatory Statement for the Crimes (Restorative Justice) Bill 2004, the Attorney-General explained:
Restorative justice does not have a precise scientific definition. Restorative justice is a methodological tool which aims to address unresolved issues and emotions experienced by victims, offenders and their families which cannot be addressed by the court because of the objective nature of the court's role.
The starting point of the government's Bill is victims of crime. The restorative justice method used in the Bill aims to provide the victim with a means to better understand the crime and the offender's behaviour; to enable the victim to regain confidence (or restore their emotional balance) by experiencing the offender in a context where the offender is unable to hold power over the victim; and to allow the victim to express the effect of the crime in a formal setting.
The restorative justice scheme also aims to have a constructive impact upon the offender. The Bill would require offenders to take responsibility and to engage constructively to make amends for their wrongdoing. It provides offenders with an opportunity to re-engage with the community through redemptive action with the victim, public administration and people closely associated with the victim and the offender.
I have discussed what restorative justice is and its operation in more detail in R v Forrest [2016] ACTSC 321 at [4]-[34] and do not need to repeat that here. I rely on what I there said.
Now appearing before me is Zdravko Ako Antonovic, who has pleaded guilty to three offences of burglary, two offences of theft and one offence of damaging property. I am to sentence him for these offences. I have heard the sentencing proceedings and will impose sentence shortly.
Mr Antonovic has requested that he be permitted to take part in a restorative justice process. The ACT Supreme Court is a referring entity and, where the offender pleads guilty, as has Mr Antonovic, may then make a referral for restorative justice before the end of the proceedings: item 3 of table 22 of the Crimes (Restorative Justice) Act 2004 (ACT).
The ‘end of the proceedings’ is not defined, but, in my view, criminal proceedings end with the imposition of sentence. Sentence is imposed after a finding of guilt and, ordinarily, no proceedings on an indictment can be taken after sentence. Of course, there can be an appeal, but that is a separate proceeding: see Director, Office of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2013] FCAFC 34; 209 FCR 297 at 299; [13].
Under s 61 of the Crimes (Sentencing) Act 2005 (ACT), a sentence after being imposed may be re-opened for error. That does not mean, however, that unless actually re-opened for error, the imposition of the sentence is not the end of the proceedings.
More complicated is the question of whether the fact that the sentence includes a Good Behaviour Order or a Drug and Alcohol Treatment Order, which may require judicial supervision, makes the imposition of the sentence the end of the proceedings. I have not heard submissions on this issue and reserve the question for another day. It cannot affect the outcome in this case.
Accordingly, I am satisfied that, so long as I make the referral before I impose sentence, I can make the referral for restorative justice, if the relevant eligibility criteria are met.
These criteria are set out in ss 8, 17 to 20, 24 and 25 of the Crimes (Restorative Justice) Act. The terms used are defined in that Act and I have explained them in R v Forrest at [9]-[27]. I do not need to repeat what I there said, but I will apply it.
I am satisfied that the Act applies to the offences to which Mr Antonovic has pleaded guilty and that he accepts responsibility for the commission of those offences. I am also satisfied that he was well over 10 years old when he committed the offences.
Mr de Bruin has explained the purpose and nature of restorative justice to Mr Antonovic and he has consented to the referral.
There are victims, being the owners and managers of the businesses, whose premises Mr Antonovic entered as a trespasser, from whom he stole property and whose property he damaged. I have, for this purpose, relied on the fact that they were business owners and operators, hence over the age of 10 years and capable of agreeing to take part in a restorative justice process (see R v Forrest at [15]).
Accordingly, I am satisfied that the s 24 referral conditions, a term defined in s 24 of the Crimes (Restorative Justice) Act, have been met.
Order
As a result, I hereby refer Mr Antonovic to the Director-General of the Justice and Community Safety Directorate for restorative justice in respect of the three offences of burglary, the two offences of theft and the offence of damaging property, all of which he committed on 12 October 2020 and to which he has pleaded guilty.
| I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Refshauge. Associate: A Spencer Date: 3 September 2021 |
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