R v Antonovic (No 3)
[2021] ACTSC 338
•30 April 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Antonovic (No 3) |
Citation: | [2021] ACTSC 338 |
Hearing Date: | 23 April 2021 |
DecisionDate: | 30 April 2021 |
Before: | Refshauge AJ |
Decision: | 1. Zdravko Ako Antonovic be convicted of burglary and be sentenced to 24 months imprisonment, to commence on 20 March 2021 and expire on 19 March 2023. 2. Zdravko Ako Antonovic be convicted of theft and be sentenced to 15 months imprisonment, to commence on 20 January 2022 and expire on 19 April 2023. 3. Zdravko Ako Antonovic be convicted of burglary and be sentenced to 24 months imprisonment, to commence on 20 April 2022 and expire on 19 April 2024. 4. Zdravko Ako Antonovic be convicted of theft and be sentenced to 12 months imprisonment, to commence on 20 April 2023 and expire on 19 April 2024. 5. Zdravko Ako Antonovic be convicted of burglary and be sentenced to 18 months imprisonment, to commence on 20 July 2023 and expire on 19 January 2025. 6. Zdravko Ako Antonovic be convicted of damaging property and be sentenced to 3 months imprisonment, to commence on 20 December 2024 and expire on 19 March 2025. 7. A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made in respect of Zdravko Ako Antonovic for 24 months for the offence of burglary, the primary offence. 8. The Drug and Alcohol Treatment Order be extended to the associated offences of burglary, theft and damaging property. 9. The convictions for the primary offence and the associated offences and the respective sentences imposed be hereby incorporated as the Custodial Part of the Drug and Alcohol Treatment Order. 10. The total sentence of 48 months imprisonment be suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT), from today, 30 April 2021, until 19 March 2025. 11. Zdravko Ako Antonovic be required to sign an undertaking to comply with the offender’s Good Behaviour Obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT), from 29 April 2023 to 19 March 2025, with a probation condition that he be under the supervision of the Commissioner of the ACT Corrective Services, or his delegate, for that period or any lesser period that the person supervising him considers appropriate and obey all reasonable directions of the person supervising him. 12. For the treatment and supervision part of the Drug and Alcohol Treatment Order: a. The core conditions set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) be hereby imposed and Zdravko Ako Antonovic be required to comply with the terms of the Order for the term of the Order; b. Zdravko Ako Antonovic be directed to complete such case management and programs as may be required by the Treatment Order Team from time to time or by order of the Court, including as to counselling, urinalysis, medical treatment, education or such other treatment or programs as may be required from time to time by any member of the Treatment Order Team or as directed by the Court; and c. Zdravko Ako Antonovic be directed to comply with any directions that the Court may make from time to time about attendance at Court in person or by electronic means. 13. Zdravko Ako Antonovic be directed to attend Court on Friday 7 May 2021 at 11:00 am. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Burglary – Theft – Damage Property – Rehabilitative Sentencing Options – Drug and Alcohol Treatment Order – Rehabilitation |
Legislation Cited: | Crimes (Sentencing Administration) Act 2005 (ACT) s 112 Crimes (Sentencing) Act 2007 (ACT) pt 4.4, ss 6, 7, 10, 12A, 33, 46J, Table 46 K, 80O, 80Y Supreme Court Act 1933 (ACT) pt 8 |
Cases Cited: | BK v Middlemiss [2018] ACTSC 158 Blundell v Sentence Administration Board of the Australian Capital Territory, the Australian Capital Territory and the Chief Executive of the Department of Justice and Community Safety [2010] ACTSC 151 Stewart v Greenup [2017] ACTSC |
Texts Cited: | Don Weatherburn et al., ‘The New South Wales Drug Court: a re-evaluation of its effectiveness’ (2008) 121 Crime and Justice Bulletin 1 Don Weatherburn et al., 'The long-term effect of the New South Wales Drug Court on recidivism' (2020) 232 Crime and Justice Bulletin 1 Steven Belenko and Tamara Dumanovsky, Program Brief: Special Drug Courts (Bureau of Justice Assistance, 1993) |
Parties: | The Queen ( Crown) Zdravko Ako Antonovic ( Offender) |
Representation: | Counsel V Cunliffe ( Crown) J De Bruin (23 April 2021); C Duffy (30 April 2021) ( Offender) Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT (Offender) |
File Numbers: | SCC 38 of 2021 SCC 39 of 2021 |
REFSHAUGE AJ
The judicial supervision of rehabilitation alternatives to prison for serious offenders who have dependency on alcohol or other drugs and whose dependency substantially contributed to their offending behaviour can be traced back to developments in New York in 1970s: see Steven Belenko and Tamara Dumanovsky, Program Brief: Special Drug Courts (Bureau of Justice Assistance, 1993) 3. These were known as special Drug Courts.
The prototype of the current Drug Court model as is now generally known was established in 1989 in Dade County (Miami), Florida, USA. The growth of similar courts was substantial: Belenko and Dumanovsky, p. 4. Soon the model spread, first nationally and then internationally, and in 1999 a Drug Court was established in New South Wales: see Don Weatherburn et al, ‘The New South Wales Drug Court: a re-evaluation of its effectiveness’ (2008) 121 Crime and Justice Bulletin 1.
That evaluation in Weatherburn et al (2008, at p. 12) found “evidence that the Drug Court program is more effective than conventional sanctions in reducing the risk of recidivism among offenders whose crime is drug-related”. They did note some caveats, such as that they have no ability to conduct a randomised trial evaluation, but they had gone “to considerable lengths to reduce the risk of selection bias”' (at p. 13).
In 2020, a similar study was conducted by then Professor Weatherburn and others and found similar results: see Don Weatherburn et al, ‘The long-term effect of the New South Wales Drug Court on recidivism’ (2020) 232 Crime and Justice Bulletin 1.
This is the model on which the Drug and Alcohol Sentencing List (the List) of this Court is based.
As it was pointed out in the Explanatory Statement for the Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2019 (ACT) at p. 2, which introduced the relevant provisions:
[Drug Courts] aim to achieve long-term behavioural change by taking a problem-solving approach to dealing with an offender’s behaviour, and support the development of a pro-social lifestyle. [Drug Courts] provide targeted and structured health and justice interventions while holding the person accountable for their offences.
This is clearly a desirable objective and would be a desirable sentencing outcome that would encourage a court to choose that option wherever possible. As French CJ said, in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32]; 536-7, “rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest”.
The Crime (Sentencing) Act 2005 (ACT) (Sentencing Act) has, under s 12A, established the sentencing option of a Drug and Alcohol Treatment Order (Treatment Order) to permit this Court to undertake that treatment with judicial supervision, which is similarly administered by Drug Courts in other jurisdictions.
There are, however, limits to eligibility of an offender for such an option. In particular, s 12A(1)(b) of the Sentencing Act provides that a Treatment Order can only made where an offender is sentenced to imprisonment for an offence which is for a term of at least one year and not more than four years. It is important to note that the minimum period of one year cannot be met by accumulating the sentences imposed on multiple offences: see R v Massey (No 1) [2020] ACTSC 256 at [48].
10. On the other hand, where there are multiple offences which are sentenced at the same time in the same sentence (as that term is used interchangeably for the aggregate sentence, as well as for each sentence imposed for each of the individual offences), then a Treatment Order may not be made, if the aggregate of the individual sentences is a sentence of more than four years imprisonment: s 12A(3) of the Sentencing Act.
11. This is particularly relevant where there may be multiple serious offences, for s 12A(5) of the Sentencing Act mandates that the Court must not impose a lesser sentence than would otherwise be required in order to make a Treatment Order. As the Court has explained before, this is why it is appropriate to sentence an offender before considering whether to make a Treatment Order: R v Slattery [2021] ACTSC 154 at [3]. This makes clear that the sentence does not offend this requirement.
12. This is important in this case, where the Court must sentence Mr Antonovic for serious offences and who has asked for a Treatment Order to be made. The length of the total sentence to be imposed is an important issue, on which the parties have made opposing submissions. The Court shall proceed, in this way, to impose a just and adequate sentence before considering whether to make a Treatment Order.
13. Mr Antonovic has been charged with three counts of burglary, two counts of theft and one count of damaging property.
14. In these sentencing proceedings, the Crown has tendered, without objection, the Crown Sentencing Tender Bundle. It contains the relevant committal documents and documents relating to the transfer to this Court of the damaging property offence under s 90B of the Magistrates Court Act 1930 (ACT), to be dealt with under pt 8 of the Supreme Court Act 1933 (ACT). It also contains the following evidentiary documents, the contents of which were not subject to any challenge: the Agreed Statement of Facts; Mr Antonovic's Criminal History; relevant parole documentation and reports by Alcohol and Drug Services dated 15 March 2021 and the ACT Corrective Services dated 14 April 2021, both of which were Drug and Alcohol Suitability Assessments (Suitability Assessments), under s 46J of the Sentencing Act. A Case Plan was also included in the Drug and Alcohol Suitability Assessment.
For Mr Antonovic, the following documents were tendered, without objection and without any challenge to their contents: two letters from Riddhi Blackley, social worker at CatholicCare Canberra & Goulbourn dated 18 February 2021 and 13 April 2021; a Pre-Sentence Report dated 26 October 1994; a report from Dr Richard Schlesinger, clinical and forensic psychologist, dated 24 October 1994; two letters from Mr Troy McColl, outreach case worker of Wellways Australia Limited, dated 22 February 2021 and 14 April 2021; an Eligibility Assessment (see R v McHughes [2021] ACTSC 92 at [7]-[8]) of Ms Elayne Cheong of the Alcohol and Drug Services dated 26 February 2021; a written undertaking under the hand of Ms Stephanie Antonovic dated 5 March 2021; and two sections, “family history and relationships” and “circumstances surrounding offences”, of handwritten notes of Ms Jen Stein of Alcohol and Drug Services, undated but apparently made in preparation for the Suitability Assessment of that agency, as referred to above (at [14]).
16. No oral evidence was given, but the Court had the advantage of helpful, comprehensive and thoughtful written submissions from counsel for the parties, which were supplemented by valuable oral submissions, which assisted in focusing the issues in this case.
The facts
17. In the early morning of 12 October 2020, Mr Antonovic drove his mother's motor vehicle to a commercial unit complex in Mitchell, ACT. The units are only accessible through a front glass door or a garage door to each unit. Though some units were jointly owned, each was separately accessed.
18. Mr Antonovic smashed each of the front doors to units 6 and 7, owned by a motor vehicle mechanic and detailing business. He stole a quantity of goods, which he placed in the motor vehicle. The value of the items, except for some business cards which he pocketed, was $5,100. The Court was not told the cost occasioned by the damage to the front doors of the units. Those facts constituted the first offences of burglary and theft.
19. While inside unit 7, Mr Antonovic broke the casing of a Bluetooth speaker, exposing the electronics. The speaker was valued at $800, but the Court was not also told whether the damage made it unserviceable or whether the casing could be replaced. This was the basis for the offence of damaging property.
20. Mr Antonovic also entered units 8 and 9, by again breaking each of the glass front doors. The units were occupied by a printing business. While inside, he took various items, valued at $410, and also placed them in the motor vehicle. There is no evidence as to the cost of repairs to the damage to the glass front doors of the units. Police relied on these events to prefer charges for the second offences of burglary and theft.
21. Finally, Mr Antonovic entered unit 10, occupied by a construction industry contractor, also by breaking the glass front door. While inside, he gathered a number of electronic items, tools and a petty cash coin box and put them in a large plastic container, which he put beside the front door, intending to take them later. The value of these items was regrettably not provided. It appears that, for some reason, he may then have returned to unit 9 before taking the items from unit 10 into the motor vehicle. These were the actions of Mr Antonovic which founded the third offence of burglary.
In any event, his entry into units 8 and 9 had been captured on CCTV and also alerted the owner, who contacted police and then went to the unit. The owner arrived at about 6:10 am, where he saw Mr Antonovic leaving unit 9. He called on him to stop, but Mr Antonovic walked away and was then chased by the owner. Police arrived in time to see the chase and joined in, catching Mr Antonovic and arresting him.
23. When searching him, police located the business cards. They also located all the stolen items in the motor vehicle, which were returned to the owners.
24. At the time of the offending, Mr Antonovic was on parole. He had been convicted in this Court on 8 April 2016 for three burglaries and three theft offences: see R v Antonovic [2016] ACTSC 77. He had then been sentenced to a total period of seven years imprisonment, with a non-parole period of five years and three months.
25. On 22 January 2020, he was granted parole. On 13 October 2020, that Parole Order was cancelled due to breaches of the parole condition that he not use prohibited drugs. It is not clear whether there were one or two breaches on which the cancellation was based, as the Notice of Cancellation does not clarify if there were two reports of the one breach or that each report referred to a different breach. It seemed likely that it was the latter, but, again, it was not clear.
26. The period of cancellation, for which Mr Antonovic was required to serve a further period of imprisonment, was 3 months and 20 days. It was expressed, in the Cancellation Order of the Sentence Administration Board, to be from 13 October 2020 to 1 February 2020, but I assume that this was a typographical error for 1 February 2021, as there was no facility for backdating any such cancellation. Thus, at the date of these offences, the balance of the parole term had been served and thereby, Mr Antonovic is presently in custody solely for these charges.
The proceedings
27. As noted, Mr Antonovic was arrested at the site of the offences committed on the 12 October 2020, just after he had committed them, and he appeared in the ACT Magistrates Court later that day. He was remanded in custody.
28. On the fourth mention, he entered a plea of not guilty to each offence. The prosecution then prepared and delivered the Prosecution Brief of Evidence. After further adjournments, Mr Antonovic pleaded guilty on 19 February 2021, and was, on his application and with the prosecutor's consent, committed for sentence to this Court. It was clear that the intention was that he be referred to the List and the Magistrates Court ordered Eligibility Assessments.
29. In this Court, he applied for bail, which was granted, on 5 March 2021: see R v Antonovic (No 1) [2021] ACTSC 219. Bail conditions required him to be in his nominated residence or otherwise in the company of his mother at all times, amongst other restrictive conditions. On this same date, Suitability Assessments were directed to be prepared and, as noted above (at [14]), have been provided.
30. He did not breach his bail until the day on which the sentencing hearing was to be held, on 23 April 2021. On this occasion, he left his residence without his mother and failed to appear at the time appointed for sentence. To his credit, however, he did attend later that day, though this inconvenienced the Court and counsel. As a result, he was remanded in custody at the conclusion of the hearing until today, when sentence is to be imposed.
31. Thus, Mr Antonovic has been in Pre-Sentence Custody for 41 days. This will be taken into account on sentence.
The offences
32. In order to impose a just and adequate sentence, it is important and, indeed, required by s 33(1)(a) of the Sentencing Act, to consider the nature and circumstances of an offence. This clearly requires consideration of the seriousness of the offence. The starting point for that consideration is the maximum penalty prescribed by the legislature for the offence. The seriousness of an offence is, prima facie, measured by that maximum penalty: Gilson v The Queen [1991] HCA 24; 172 CLR 353 at [22]; 364.
33. Burglary is an offence contrary to s 311 of the Criminal Code 2002 (ACT) and prescribed a maximum penalty of 14 years imprisonment or a fine of $224,000, or both.
34. The maximum penalty itself, however, is prescribed for the worst case of the offence: Ibbs v The Queen [1987] HCA 46; 163 CLR 447 at 451-2; [4]. In order to identify the seriousness of the offence, it is necessary to consider what the courts have identified as relevant factors, that includes setting out aggravating and mitigating factors. This is part of a relevant consideration required by s 33(1)(za) of the Sentencing Act, that is, current sentencing practice. This is especially important with offences such as burglary and theft, which can be committed in a wide variety of circumstances.
35. In R v Hancock [2021] ACTSC 51 at [33], the range of factors that have been identified by the courts have been set out. I have had regard to them, but they do need to be set out as some are not presently relevant.
36. All the premises were commercial premises, which is generally regarded as making it a less serious form of the offence than, for example, a burglary of residential premises. This may be moderated where the commercial premises are integrated in or adjacent to residential premises (see R v Foster [2021] ACTSC 229 at [35]-[38]), but that was not the position here.
37. The offences were committed in the early hours of the morning. It is likely that members of the public would not be present. The Crown submitted that they were more serious because the owner of two units interrupted him. I am not satisfied that this is such an aggravating factor.
38. While the presence of persons on premises subject to the burglaries is ordinarily an aggravating factor, this is significantly because the intrusion is unexpected and can lead to confrontation, which can lead to mental health consequences as well as a possible physical altercation.
39. In this case, the alerting of the owner to Mr Antonovic’s presence by the CCTV footage is obviously unexpected, but he did the sensible thing and contacted police. Although he did also attend the premises, he would have, at least, expected to see the offender there as a likely possibility. Thus, much of the reason for this to be an aggravating factor is not present here.
40. The Crown also submitted that the offences committed were “close to approaching the time when it would be expected that a small business owner might be in attendance of the premises”. I am not satisfied that I can make that assumption, as I would need to take judicial notice of the time small business owners attend their premises. While I can accept that workers in the construction industry do start work earlier than, for example, those in most retail businesses other than, say, 24 hour retail or some convenience stores and newsagency establishments, I am not satisfied that I can say that this was a time when it was likely that they would be present without further evidence.
41. Indeed, as pointed out in R v Antonovic at [24], the absence of people at the premises can make the premises themselves more vulnerable. Though that related to commercial premises it seems likely that it applies to these premises also.
42. It is accepted that the offences were more serious because of the damage done by Mr Antonovic to access the premises. In each case, the glass doors of each of the entered units were smashed. While the evidence did not show what cost this involved, the Court accepts that it would be significant and also cause much inconvenience, especially until repaired.
43. It was further submitted that it was aggravating that, while there was no significant planning or premeditation proved in the evidence, Mr Antonovic had to drive to the premises so he had identified the target of his burglaries and that it was certainly not opportunistic. Those submissions are accepted.
44. There is also no doubt that Mr Antonovic was motivated to commit the offences in order to obtain means to fund his drug habit.
45. It is further correct to note, as in R v White [2014] ACTSC 158 at [30], that the effects of such offences can impact the cost of doing business and, through it, the costs of goods and services and also on insurance premiums.
46. Theft is an offence prohibited by s 308 of the Criminal Code and renders Mr Antonovic liable to a maximum penalty of 10 years imprisonment or a fine of $160,000, or both.
47. It, too, is subject of being committed in a wide manner of circumstances. When it is committed during a burglary, it is usual practice for the sentence for the theft offence to be concurrent with the offence of burglary: see R v McMahon [2014] ACTSC 280 at [94].
48. The principal issue in determining the circumstances of the offence is the value of the property. In all these cases, the value of the property was significant, but by no means the largest seen in this Court. While it was of commercial value, it was neither of particular sentimental or personal value or irreplaceable, which is also a relevant consideration: see R v Hancock at [37].
49. Also relevant is the fact that, in this case, all of the stolen property was recovered, and so the victims suffered no actual loss, nor was there a wider loss, as happens, when the theft results in an insurance claim being made by the victim: see, as an example, what the victim suffered in Sampson v De Haan [2016] ACTSC 327 at [50]. This moderates the harm suffered and reduces the seriousness of the offences.
50. The transferred offence, damaging property, is made an offence by s 116(3) of the Crimes Act 1900 (ACT), which specifies a maximum penalty of 2 years imprisonment or a fine of $8,000, or both. It is, therefore, a significantly less serious offence than the other offences charged.
51. Again, the cost of the damage caused is a critical factor relevant to the seriousness of the actual offence committed. The circumstances in which the damage was caused is also relevant. Here the evidence is a little unclear. If the damage rendered the speakers unserviceable, the cost would be $800. There was no evidence as to what it would cost to replace the casing if it was possible to do so, or to the diminution in value of the speakers if they were still useable, even damaged. Limited evidence was given about the circumstances of the damage. I do not think that I can assume the speakers were deliberately smashed, which would make it a more serious offence. It did occur, however, during the burglary.
Subjective circumstances
52. Mr Antonovic is 48 years old. He was born in Victoria, the middle child of Croatian migrants, with an older brother and a younger sister. He said that he had a relatively happy home life, though there were problems. His parents imposed strict cultural values on the children, quite understandably, but which led to a social isolation and some friction for children brought up in an Australian environment.
53. His father was a chronic gambler and largely absent during Mr Antonovic's childhood. His father was somewhat violent towards his mother, but Mr Antonovic described this as not systematic.
54. Mr Antonovic was also involved in a motor vehicle accident, at age three months, but there is no information of any injuries, other than Dr Schlesenger considering that it may have contributed to his behavioural problems at school. He was, however, bullied in primary school and then in high school, partly because of a stutter as a child, partly for being the child of Eastern European migrants, where he was called a “wog”.
55. He did not like school and this led to him “acting out in serious ways” from when he was about 11 years old and then leaving school and home at 12 years old. He lived on the streets. His older brother also had difficulties [redacted for legal reasons]. His brother became dependent on drugs and, sadly, died from an overdose in 1996.
56. [Redacted].
57. He was considered, by Dr Schlesenger, to be at a cross-road, at age 21. Dr Schlesenger reported his desire to address his dependence on drugs, which had led him into crime. It was not possible to do so without help and this help does not appear to have been offered or available. Dr Schlesenger commented that: “custodial treatment would offer a repetition of his former underachieving in the process of his rehabilitation”.
58. Although Mr Antonovic left school prior to completing Year 8, he showed his academic capacity by later completing Year 10 and Year 11 studies while incarcerated; he passed 13 subjects in Year 11. He completed four months of a six month preparation course for university and, while in prison, ultimately enrolled and completed part of a Bachelor of Arts degree. He also completed a six month woodworking course and has recently enrolled in an information technology certificate course at the Canberra Institute of Technology.
59. He has had no significant employment.
60. Mr Antonovic is single with no children. He and his mother are close and he has lived with her, more recently, when not in custody. His mother is willing and able to accommodate him further and, apart from association with his offending, the premises are not of concern to police or ACT Corrective Services. He is not close to his sister, who is somewhat estranged from the family.
61. Mr Antonovic suffers from Type 2 Diabetes but otherwise has no physical ailments. He has suffered from depression and has been prescribed anti-depressant medication. Recently, in the Alexander Maconochie Centre, he was prescribed anti-psychotic medication for a drug induced psychosis.
62. Mr Antonovic started using alcohol from age 12, starting to drink on a weekly basis, but then gradually increasing to daily consumption of about 8 beers a day, [redacted]. He also tried cannabis once, but as it made him paranoid and he has not used it again.
63. It is reported that from about age 20, [redacted], he started using amphetamines and heroin, initially once or twice a week, but within a month he was using them daily. His use of amphetamines (speed) gave way to methylamphetamine use and this drug was said to take “precedent” over speed and heroin.
64. He has not used other drugs but did, for a while, have a serious gambling habit, but now he only plays online poker and not for money.
65. Mr Antonovic has had some alcohol and other drug treatment. He has remained abstinent for 8 of the last 10 years while incarcerated, where he has also participated twice in the Solaris Therapeutic Community Program at the Alexander Maconochie Centre (as to which program, see R v JM [2014] ACTSC 380 at [26]).
66. He has been prescribed methadone, but ceased using about six months ago and is now receiving Buvidal injections, which he finds very helpful. He is also engaging in counselling at CatholicCare, where he sought assistance in May 2020, on release from custody. He attended five sessions and is reported to have “worked on solidifying his goals for the future”. One of his goals was that he “expressed a strong desire to be substance and crime free”.
67. He left counselling there to enter residential drug rehabilitation in June 2020 at Lyndon House, Orange, New South Wales, where he had previously spent three months in 2005. He left in 2020, soon after he arrived, however, in circumstances set out in R v Antonovic(No 1) at [16]. To his credit, he re-engaged with CatholicCare and met regularly with a social worker, until late October 2020, when he was returned to custody on the cancellation of his parole. During the periods of counselling, however, he maintained his drug and crime free goals.
68. When released on bail on 5 March 2021 (as to which see R v Antonovic (No 1)) he re-engaged again with his counsellor at CatholicCare. His counsellor did report on his two meetings since then as follows:
On both occasions, I was stuck by the change in Mr Antonovic. His presentation and demeanour have remarkably improved and he expressed a renewed confidence and hope that he can remain substance and crime free. Mr Antonovic is no longer saddled with a prospective cancer diagnosis and is excited about his future. He has intentions to study at CIT and hopes to be a mentor for young people at risk.
69. In addition to the short periods at Lyndon House, Mr Antonovic spent four to five months at the Canberra Recovery Services, in Fyshwick, in 1994, as well as, as noted before (at [65]), time in the Solaris Therapeutic Community.
70. Since January 2020, he has also engaged with the Detention Exit Community Outreach program (DECO). This involved weekly attendance at which he was very reliable. He was open and honest in his engagement with his caseworker. His caseworker confirmed that his mother considers that prison is not working as a deterrent and would like to see a different approach taken.
71. Since his release from custody, his caseworker has been meeting numerous times a week with Mr Antonovic, transporting him to and from appointments with the Alcohol and Drug Services, where that agency confirms that he is, “polite, interested and engaged”.
72. He is also reported as having encountered his drug dealer and being able to reject the dealer’s advances.
73. Mr Antonovic has also reported as taking steps to reintegrate into a pro-social lifestyle. He has obtained a Learner's Permit for driving and has also made inquiries about a significant community service. He is reported as having improved mental health with his engagement. He also has an “outstanding level of support” from his mother to ensure his recovery.
74. He has co-operated with arrangements for the Suitability Assessment and confirmed to the Court, through his counsel, his strong desire to rehabilitate.
75. This, however, is against a background of a very serious and depressing criminal history. [Redacted for legal reasons]. Of the 270 offences Mr Antonovic has committed, 121 were for burglary or similar offences, 58 were for theft or minor theft and 39 were for dishonestly taking motor vehicle without the owner's consent.
76. In addition, he had 57 further offences taken into account in sentencing for an offence not punishable by imprisonment for life, under the provisions of s 448 of the Crimes Act as then in force. This provision permitted offences to be taken into account when an offender has committed another offence (not punishable for life imprisonment), when sentencing for that offence where the offender has admitted guilt for the additional offence or offences. When this occurs, the offender cannot be thereafter prosecuted for the offences taken into account, nor can they be treated as a conviction for those offences, but reference to them can be made later and taken into account. This is a similar process to that now available under pt 4.4 of the Sentencing Act.
77. Of the 57 offences taken into account, 21 were for burglary, 14 were for minor theft and 11 were for dishonestly driving a motor vehicle without the owner’s consent. Of the other offences, 10 were for escaping or attempting to escape from lawful custody and 11 were for damaging property.
78. Mr Antonovic was also dealt with for six offences of driving without a proper driving licence, in its various forms of offence.
79. He has committed offences in New South Wales, Queensland and Western Australia, as well as in the ACT.
80. This is a very serious record and clearly dates from the start of when he left home and started living on the streets and, later, started drinking heavily and then taking drugs. No incarceration has deterred him from further offending.
Sentencing practice
81. As noted above (at [34]), s 31(1)(za) of the Sentencing Act requires the Sentencing Court to have regard to sentencing practice. R v Mathews [2020] ACTSC 364 at [44]-[49] set out how this task is to be approached and this shall be applied here.
82. In addition to what has been already addressed earlier (at [34]-[51]), the experience of sentencing judges and Courts of Appeal are important for the way that the identified factors sound in sentences. Thus, while caution must be exercised, statistics, such as the ACT Sentencing Database, can be useful information but, importantly, they do not provide a mandatory range or set boundaries beyond which, more or less seriously, a sentence in any particular case may be imposed.
83. Thus, it was noted in R v Elphick [2021] ACTSC 9 at [154] that:
The limitations of sentencing statistics are well-known. However, for what it is worth, sentencing statistics show that, in relation to sentences imposed by the Supreme Court, when the penalty that is imposed is imprisonment:
…
(b) the offence of burglary usually results in a sentence of between 12 months’ and three years and six months' imprisonment;
84. A more detailed analysis shows that, of the sentences of full time imprisonment, 56% were terms of 7 months to 18 months, 14% of 19 months to 2 years, and 21% of 25 months to 3 years.
Mr J De Bruin, counsel for Mr Antonovic, helpfully referred to generalisations from these statistics, which were accepted by the Crown. They were as follows, omitting footnotes which referred to specific decisions:
By way of reference to the ACT Sentencing Database, the [Supreme C]ourt over times has [imposed the following sentences]:
(a) For burglary offences, sentences were typically between one and three years imprisonment (often 18 months to two years imprisonment);
(b) For offence of theft, sentences were typically six to 18 months imprisonment (often 12 months imprisonment);
(c) Commonly, where an offender is sentenced for a theft associated with the burglary, the sentence for theft is made concurrent with that for the burglary.
86. Further, as was said by the majority in Fusimalohi v The Queen [2012] ACTCA 49 at [15], there is no correct sentence for the offence of burglary or aggravated burglary.
87. Theft is too diverse an offence for statistics to be particularly meaningful, especially as the statistics do not show the value of the property stolen, but 72% of sentences were for terms of between 1 month and 12 months imprisonment in the Supreme Court, and a further 16% from there up were to 18 months imprisonment.
88. Somewhat more helpful can be other decisions of the Court, which might be said to be comparable. Of course, circumstances vary widely, but if the sentencing remarks are considered, they can be of value in identifying current sentencing practice.
89. Mr Antonovic's counsel also referred me to five such cases.
90. The first was the earlier decision concerning Mr Antonovic: R v Antonovic [2016]. The offences were similar, three burglaries and associated thefts. Two of the burglaries were at commercial premises but one was at residential premises, where Mr Antonovic stole property valued at $10,277. It included jewellery which likely also had sentimental value. The sentences were of 4 years and 6 months for the burglary of the commercial premises and 5 years and 10 months for the burglary of the residential premise. Concurrency led to a total sentence of seven years imprisonment, with a non-parole period of five years and three months.
91. In sentencing, Burns J considered that Mr Antonovic had, “limited prospects for rehabilitation”, and that “a strong requirement for personal deterrence”, was required and that he was, “a confirmed criminal” (at [29]-[30]). These seemed to be the primary specific considerations that led to the particular sentences.
92. The matter of Mr Lee Bennett (R v Bennett; R v Simonds [2020] ACTSC 221) involved a number of offences, including a burglary of commercial premises. Mr Bennett caused significant property damage on entry and inside the building in which he trespassed: see R v Bennett at [10]. He also took a motor vehicle. He was 38 years old at the time of the offence and had a long list of prior dishonesty offences, including burglary: see [48]-[49]. He had suffered personal tragic events and dealt with it by increasing his reliance on substance abuse: see [54]-[56]. The Court considered (at [67]) that he had prospects of rehabilitation, had been crime free for nine months and had good employment. He was sentenced to 19 months imprisonment.
93. R v McCurley [2016] ACTSC 219 involved Mr Matthew McCurley, who had committed an aggravated burglary, a burglary and associated thefts. The burglary was at commercial premises and not much money, $1,380 in total, was stolen. Mr McCurley was 43 years at the time and on bail for the offence of aggravated burglary. He was sentenced to 18 months imprisonment for the burglary and eight months for the theft.
94. In an appeal, Stewart v Greenup [2017] ACTSC 345, against the decision of a Magistrate to impose a sentence of 15 months imprisonment for a burglary of retail premises, where the total value taken was $26,822, the decision was not disturbed. Mr Stewart had a “significant criminal history for offences of dishonesty, a history of non-compliance with supervision, and a dysfunctional upbringing”: see Stewart v Greenup at [3]. He had established positive relations with his mother, partner and a young child and had a history of some employment.
95. In R v Roux (No 2) [2015] ACTSC 361, Mr Sabian Roux committed a burglary of a local bar, which was discovered by an employee at the premises. Mr Roux was 37 years old with a minor criminal record. He was sentenced to 12 months imprisonment.
96. While none of these decisions are directly relevant, even the earlier decision of R v Antonovic [2016] because of changed circumstances, they are helpful to show the current views of sentencing judges and how the factors inform the ultimate sentence.
Sentencing matters
97. There are a number of matters that need brief attention as importantly relevant here.
Course of conduct
98. The offences here can properly be described as a course of conduct. The offences were committed at adjacent business premises, at the one time, where Mr Antonovic appeared to go from one premises to the next. The courts have considered how a course of conduct is relevant to sentence.
99. In R v Di Bitonto [2016] ACTSC 280 at [93]-[94], the Court said:
93. I accept that the offence encompassed a course of conduct. That is a characteristic that points in various directions. For example, where a number of offences are charged but which are really aspects of the one course of conduct, ordinarily this requires a high degree of concurrency between the sentences imposed for each offence. See Singh v The Queen [2015] ACTCA 65 at [141]-[142], Kennewell v Rand [2005] ACTSC 89 at [67], Amos v The Queen (Unreported, Full Court of the Federal Court of Australia, Bowen CJ, Fox and Blackburn JJ, 6 February 1985) at 8.
94. On the other hand, that an offence is part of a course of conduct makes it more serious than were it a single transaction. See, for example, R v Honeyman [2016] ACTSC 2 at [34], R v M T [2014] ACTSC 162 at [80]. This makes the offending more serious: R v Lanham [2014] ACTSC 128 at [71]. It may require more emphasis in sentencing on specific deterrence. See Mattas v Hawke [2013] ACTSC 90 at [19], R v Campbell at [47].
In this case, a degree of concurrency is required but, clearly, that should not imply that multiple offences can be committed with impunity. The Court shall proceed accordingly.
Conditional liberty
Mr Antonovic was on parole at the time he committed these offences. That is an aggravating factor; though it does not increase the seriousness of the offence: see Boney v The Queen [2015] NSWCCA 291 at [18]-[19].
In R v Mathews at [37]-[38], it was explained how this factor is to be taken into account where it was said:
37. As to the first matter, it is clear that committing an offence while on conditional liberty is an aggravating feature, and it is relevant to the sentence to be imposed for the offence. It is, however, not a matter that is relevant to the objective seriousness of the offence (see R v Forrest (No 2) [2017] ACTSC 83, Sampson v De Haan [2016] ACTSC 327 and Beniamini v Craig [2017] ACTSC 30). It is important, however, that any part of the sentence that is required because of this aggravating factor does not result in double punishment for the original offence (see Kelly v Ashby [2015] ACTSC 346).
38. Such a breach is in the nature of a betrayal of the privilege granted to an offender to be in the community and not in custody, often for rehabilitation or retaining employment which is relevant also to rehabilitation, for their reintegration into the community, or for other matters (see R v Tran [1999] NSWCCA 109 that has been accepted and applied in this jurisdiction in R v BC [2019] ACTSC 233). I am not aware in this case of any particular matters of this kind that was part of the basis on which the sentence of imprisonment was suspended.
This does not mean that a sterner sentence is ordinarily required. That is accepted, and the Court will proceed accordingly in this case.
Rolled up charged
The two burglaries and thefts where Mr Antonovic entered two adjacent units, owned by the same owner, constituted two burglaries and theft offences charged in the one count, each of burglary and theft. These are known as rolled up charged. The Court discussed such charges and the approach to them in R v Forest (No 2) [2017] ACTSC 83 at [161]-[164]. The Court further summarised, in R v John [2017] ACTSC 144 at [107], the principles of R v Forest (No 2) to be applied as follows:
The approach may be summarised as follows:
· for sentencing purposes, the rolled up count is one charge and the sentence may not exceed the maximum penalty for the offence charged;
· nevertheless, the criminality encompassed within the count is greater than were the count to be constituted by only one offence;
· the sentence is not necessarily, and perhaps not usually, the sum of the sentences that would be imposed for the offences comprising the count, though in an appropriate case it may be; and
· the fact that the count is a rolled up count may have a bearing on the application of the relevant principles as to accumulation or concurrency.
That is the approach to be applied here to the sentencing for the relevant charges.
Rehabilitation
Mr Antonovic has expressed a wish to engage in rehabilitation and a desire to be drug and crime free. He has taken steps before but, perhaps, not of the kind or commitment that he has now shown, as evidenced by the reports from CatholicCare and from the DECO program.
Further, he is now at an age where the burden of a drug affected lifestyle can be problematic. As was said in R v Crawford (No 1) [2020] ACTSC 245 at [82]:
Anecdotal experience suggests that drug addicts do grow up to an age in their late 30s and early 40s where their lifestyle becomes so burdensome that they seek a way out. This has been suggested to be a crossroads: see R v Osenkowski (1982) 5 A Crim R 394. In R v Henry at [273], it was accepted that this can justify some special consideration.
That Mr Antonovic has had attempts at rehabilitation before does not necessarily mean that further opportunities cannot or should not be given. Indeed, as said in Saga v Reid and Collett [2010] ACTSC 59 at [89]:
In my view, it can be accepted that drug addiction is such that it can take a number of failed attempts at rehabilitation before it is successful. It is hard work and there is no short cut or quick fix. It can take some time, and some failures, before an offender addict manages to break through the barriers to achieve a more effective rehabilitation. The courts cannot, of course, sit back and allow attempts to be made without end. By the same token, 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. That may be merely the nature of the offence. For example, sentencing on a drug offence may allow further attempts to be made, whereas, in the absence of some other factors, continuing burglaries or robberies would make a sentencing court much more hesitant about further attempts after multiple failures.
While Mr Antonovic's recent offending is problematic, the prior sentence did not involve much by way of rehabilitation opportunities. For example, the Parole Order made when he was released, on 14 January 2020, did contain a condition that he “undertake any treatment, rehabilitation, counselling or program in relation to alcohol and drug abuse, as directed”. There is, however, no evidence of any such direction.
While Mr Antonovic has undertaken some residential drug rehabilitation, it has mostly been of a very short duration and failure so far cannot be regarded as showing that a sustained effort would have the same outcome.
To be returned to the community with little or no support, with a history of about 28 years of drug use and few pro-social associates and skills that might have been expected to provide employment, is not a good indication of the likely success of sustained rehabilitation.
In this case, he has engaged - and, importantly, re-engaged - with counselling and support. He also appears, so far as the evidence shows, to have been abstinent, even when the fear that the sentencing brought upon him may lead to a breach of bail.
The counsellors with whom he has engaged have expressed strong support for him and made the helpful point that the prison has neither rehabilitated nor deterred him from further offending. There seems to be no challenge that his repeated offending and subsequent incarceration is drug driven. As was said in R v Slattery at [107], rehabilitation that has been commenced, prior to sentencing, can be given weight in the sentence.
Rehabilitation is an important consideration in this case and the circumstances seem more propitious than previously.
Consideration
In deciding on a just and adequate sentence to impose, it is important to have regard to, and understand, the purposes for which sentence is to be imposed. The legislative purposes are set out in s 7 of the Sentencing Act and a sentencing court must have regard to them: R v Sharma [2016] ACTSC 180 at [31].
It is also relevant to have regard to the objects of the Sentencing Act, set out in s 6. While respect for the law and maintenance of a just and safe society will inform the sentence, so too is it important to note the object of maximising the opportunity of imposing sentences that are constructively adapted to the individual offenders.
Of the purposes of the sentence that must be imposed on Mr Antonovic, adequate punishment that is just and appropriate is important, as these offences are serious, provide a threat to a civilised and secure community and adversely affect victims and others more widely. Thus, an element of general deterrence is also important.
While specific deterrence is important, this cannot be said to have been successful, at least in the most recent sentencing of Mr Antonovic. One is tempted to have regard to what is often attributed to Albert Einstein (though it seems more likely that, rather aptly, it was said first by a participant in Alcoholics Anonymous in America): “the definition of insanity is doing the same thing over and over again but expecting different results”. Thus, a more individualised sentence which addresses Mr Antonovic's criminality would be preferable to continuing to impose sentences increasing in severity, expecting him to be deterred.
That is not to say that a significant element of severity is not necessary to make it clear that the crimes are unacceptable and he is to be held accountable – so that a significant sentence is still required.
The victims, too, have an important place in the Court’s consideration of the sentences to be imposed. The harm done to them must be recognised, as must the harm done to the wider community.
Account will, also, be taken of the nature and circumstances of the offences as already set out above: the recitation of the facts (at [17]-[26]), a description of the offences (at [32]-[51]), that the conduct constituted a course of conduct (see [98]-[99]), Mr Antonovic's personal circumstances as already described (at [52]-[68]), and the harm done and the effects on the victims, as known.
In the latter regard, no Victim Impact Statements have been provided and the cost caused by Mr Antonovic smashing the entry doors was not the subject of any evidence. The Court can, however, accept the significant inconvenience likely caused by the broken door, the cost and the trouble to address insurance issues, including possible premium increases, and a feeling of intrusion and possibly violation, though perhaps not as personally threatening as the violation from a burglary of residential premises.
Rehabilitation is a consideration that has not featured in prior sentencing for Mr Antonovic and will do so in this case. In the first place, it may be the approach determined by the object of individualised justice and the alternative to previous sentencing. Secondly, it is accepted that Mr Antonovic is genuine in his desire for rehabilitation. He has taken steps towards that, referred to above (at [65]-[74]).
He has also expressed some remorse. He said as much to the author of one of the helpful Suitability Assessment where, in her preparatory note, she wrote that he told her “glad you [Mr Antonovic] got caught as it would have escalated. Feel guilty as hell – ashamed. Restorative Justice”.
This is reinforced by his pleas of guilty, which can be taken as some evidence of remorse: Fusimalohi v The Queen [27]-[44]. It may not completely amount to a clear expression of acceptance of the harm done to the victims, but it is relevant. The pleas of guilty were entered at a later time than the earliest opportunity and, indeed, after pleas of not guilty, but they were still entered in the Magistrates Court before committal to this Court. The Prosecution Brief, however, had been prepared, thus reducing, to some extent, the utilitarian value of the plea.
The Crown case was a strong one: Mr Antonovic was found on the premises with the stolen goods found in the car he was driving; the business cards from unit 6 and 7 were found on his person; he was seen in units 8 and 9 on the CCTV footage which was said to have been an of excellent quality; and a water bottle inside unit 7 was examined and showed a DNA profile which appeared to be the profile of Mr Antonovic. The strength of the case reduces the value of the plea to some extent, but it still has a significant utilitarian value.
Difficulties at home have, it is accepted, led to him leaving home and to the use of alcohol and drugs, for which he developed a dependency. The cause of his offending also was the need to fund his dependency on illicit drugs, in part, necessitated by his unemployment, which has been exacerbated, if not caused, by that dependency.
Account is taken that he was on conditional liberty at the time of the offending, though he has since been returned to prison for a breach of the Parole Order, albeit not because he committed these offences but, rather, for using the drugs which, nevertheless, led to the offending.
The Court is satisfied that, as a result of this consideration, no other punishment than a term of imprisonment is appropriate and just for the offences committed and the circumstances of their commission: s 10 of the Sentencing Act.
There are multiple offences for which he is to be sentenced. The courts have identified certain principles that must be applied in those circumstances: see O'Brien vThe Queen [2015] ACTCA 47 at [26]. Thus, each sentence has been carefully considered to ensure that it is just and appropriate for the criminality that it represents.
Then, it must be considered whether the sentence should be wholly or partly concurrent because, for example, they contain common elements and so avoid Mr Antonovic from being punished twice, or because they are part of the same course of conduct. That is particularly relevant of the burglary and thefts. In this case, also, it applies as the offences are part of the same course of conduct.
The length of the total term of imprisonment arrived at has then been reviewed to ensure that the principle of totality is respected and that the total sentence is adequate to reflect the criminality of the offences committed, but not more than that and that the total sentence is not excessive but will leave open the realistic prospect of reform and hope for Mr Antonovic to achieve his goals when he returns to the community.
In order to do that, some of the sentences will be made concurrent, but being careful to ensure that the total sentence does not encourage the perception that there is no difference between a person who commits one offence and a person who commits, say, six offences, or that there is a discount for multiple offences. Where the sentence for one offence cannot comprehend and reflect the criminality of another, they must be, at least partly, cumulative.
This may result in a sentence that is seen as lenient, but it is important to have regard not merely to Mr Antonovic's total culpability but other factors, such as his personal circumstances, the situation in which he gained his dependence on drugs, his commitment to rehabilitation and his initial, but very limited, participation in and commitment to that rehabilitation.
Sentence
[His Honour then spoke directly to the offender]
Mr Antonovic, please stand.
The Court orders the following:
1)On the first charge of burglary of unit 6 and 7 on 12 October 2020, you are convicted and sentenced to 24 months imprisonment, commencing on 20 March 2021. Had you not pleaded guilty, you would have been sentenced to 30 months imprisonment.
2)On the first charge of theft from units 6 and 7, you are convicted and sentenced to 15 months imprisonment, commencing on 20 January 2022. That is to be cumulative as to one month on the sentence for burglary. Had you not pleaded guilty, you would have been sentenced to 18 months imprisonment.
3)On the second charge of burglary of units 8 and 9, you are convicted and sentenced to 24 months imprisonment, commencing on 20 April 2022. That is to be cumulative as to 12 months on the sentence for theft. Had you not pleaded guilty, you would have been sentenced to 30 months imprisonment.
4)On the second charge of theft from units 8 and 9, you are convicted and sentenced to 12 months imprisonment, commencing on 20 April 2023. That is to be wholly concurrent on the offence of burglary from those units. Had you not pleaded guilty, you would have been sentenced to 15 months imprisonment.
5)On the third charge of burglary from unit 10, you are convicted and sentenced to 18 months imprisonment, commencing on 20 July 2023. That is to be cumulative as to 9 months on the sentence for theft from units 8 and 9. Had you not pleaded guilty, you would have been sentenced to 23 months imprisonment.
6)For the final charge, damaging property in unit 6 and 7, you are convicted and sentenced to 3 months imprisonment, commencing on 20 December 2024. That is to be cumulative as to two months on the sentence for burglary from unit 10. Had you not pleaded guilty, you would have been sentenced to four months imprisonment.
You may be seated.
Drug and Alcohol Treatment Order application
Having set out the term of imprisonment that is appropriate to the offences committed, in the circumstances as found and in the personal circumstances of Mr Antonovic, it is appropriate to consider how best to address the need for rehabilitation and his desired wish for it.
There are three possibilities for the Court to promote rehabilitation: setting a non-parole period; suspending all or part of the sentence and making a Good Behaviour Order with appropriate conditions, including a rehabilitation condition; or making a Treatment Order. All of these are designed to provide opportunities for rehabilitation in somewhat different ways.
Parole is the more traditional form of conditional release of sentenced prisoners, though it did really start only when Alexander Maconochie, after whom our own gaol is named, was appointed to conduct the Norfolk Island penal colony in the 1840s, as a form of ticket of leave: see Joan Petersilia, When prisoners came home: Parole and prisoner reentry (Oxford University Press, 2003). In particular, Parole Orders now permit a review of the sentence, sometime in the future, to decide whether an offender is fit and ready to be released: R v Shrestha [1991] HCA 26; 173 CLR 48 at 67-8.
While rehabilitation is the primary aim of release on parole (Okwechime v Sindel [2009] ACTSC 162 at [26]-[29]), it allows for a decision to be made about an offender’s readiness for this at the time of possible release and assessment of the likelihood of reoffending, after behaviour in a more confined situation can be considered: Blundell v Sentence Administration Board of the Australian Capital Territory, the Australian Capital Territory and the Chief Executive of the Department of Justice and Community Safety [2010] ACTSC 151 at [52]-[54].
Thus, as described by Lord Bingham of Cornhill in R (West) v Parole Board; R (Smith) v Parole Board (No 2) [2005] UKHL 1; 1 All ER 755 at 765; [25], it is a recognition that a process of transition from prison to the community should be professionally supervised to maximise the successful reintegration into the community and minimise the cases of relapse into criminal activity. Such supervision is under the control of the Sentence Administration Board, which sets the conditions of release and manages the supervision directly performed by officers of ACT Corrective Services.
Release on a Good Behaviour Order usually has similar purposes and has much to offer the community and the offender, though some of these can also be drawbacks: see R v BB [2015] ACTSC 304 at [1]-[2]. It has been described as a matter of control of an offender's behaviour when not in custody: BK v Middlemiss [2018] ACTSC 158 at [10]. It can be made to release the offender on the date of sentencing or after a period of imprisonment has been served. It directs the release of an offender at a time that is certain and cannot be extended, as the release on parole can be delayed.
The conditions are also set by the Sentencing Court and not by the Sentence Administration Board. Supervision, again, would ordinarily still be provided by officers of ACT Corrective Services.
The Court can impose rehabilitation conditions, but only for a program prescribed by regulation. Certain programs have been prescribed (see s 2(1)(e) of the Crimes (Sentencing) Regulation 2006 (ACT), although it is not easy to identify them. The Court can also order the person to perform community service work. The Court may also make a condition that the person return to Court, periodically, for review and to amend the order, from time to time: s 112 of the Crimes (Sentencing Administration) Act 2005 (ACT).
While a Parole Order or a Good Behaviour Order would provide some of the conditions that may lead to Mr Antonovic's rehabilitation, it is unlikely that, in this case, either would provide the sufficient supervision and level of rehabilitation that is required. They are not, therefore, the preferable option.
Mr Antonovic requires structured and intensive supervision in a way that requires much more involvement at a professional level than would be available under a Parole Order or a Good Behaviour Order. His deeply entrenched dependency on drugs will take time and detailed professional assistance to address, in a way that cannot be provided under either of those options. In addition, the Court considers that judicial supervision would provide an added motivation for him to succeed.
Accordingly, the Court shall consider whether a Treatment Order should be made and, if not, will then consider whether either of the other alternatives should be chosen.
It is noted that Mr Antonovic has been sentenced to imprisonment for 24 months for the offence of burglary, with a total sentence of four years. It is also noted that he pleaded guilty to the offence of burglary and that he is not subject to any other sentencing order, within the meaning of s 12A of the Sentencing Act.
The Court is satisfied that Mr Antonovic is likely to be resident in the ACT for at least the next two years. The evidence shows that he is dependent on illicit drugs, namely, methamphetamine and heroin, and that this dependency substantially contributed to the commission of the offence of burglary.
There is no information provided to the Court that suggests any victim has expressed concern about their safety or welfare and the Court will have regard to the matters set out in s 80O of the Sentencing Act.
Mr Antonovic has given consent to the making of a Treatment Order and it has been satisfied that this was an informed consent, after the Treatment Order was explained to him and he had an opportunity to ask any questions about such an Order, and those questions have been answered.
Accordingly, Mr Antonovic is eligible to be subject to a Treatment Order.
I have carefully read the professionally and skilfully prepared Suitability Assessments described above (at [14] and [29]). They have been helpful in assessing whether Mr Antonovic is suitable to a Treatment Order, whether he is ready to proceed to such intensive rehabilitation and what program is available and appropriate. It is notable that both recommend that he is suitable for the making of a Treatment Order.
No indicators of unsuitability for a Treatment Order, as set out in Table 46K of the Sentencing Act, have been identified.
A comprehensive Case Plan has been prepared by Canberra Health Services, and which appears suitable for Mr Antonovic.
Accordingly, the Court can be satisfied that Mr Antonovic would be suitable for a Treatment Order and that it is appropriate that one be made.
Further, although the sentence of imprisonment has commenced from 20 March 2021, which period from that date today has been served, the sentence of imprisonment will have to now be suspended, meaning that the sentence is partially suspended. That does not prevent Mr Antonovic for being subject to a Treatment Order, for the reasons set out in R v Crawford (No 1) at [91]-[111].
Drug and Alcohol Treatment Order
[His Honour then spoke directly to the offender again]
Mr Antonovic, please stand.
The Court makes the following further orders:
7)A Drug and Alcohol Treatment Order is made under s 12A of the Crimes (Sentencing) Act 2005 (ACT) for you for 24 months for the offence of burglary on 12 October 2020, the primary offence.
8)That Order be extended to the two further offences of burglary, the two offences of theft and the offence of damaging property, all also on 12 October 2020, all of which are associated offences of the primary offence.
9)The convictions for the primary offences and the associated offences that have been entered and sentences imposed for each of them be hereby incorporated into the Drug and Alcohol Treatment Order and constitute the Custodial Part of the Order.
10)For the Custodial Part of the Drug and Alcohol Treatment Order, the total sentence of 48 months, being the sentences for the primary offence and the associated offences, be suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 30 April 2021, until 19 March 2025.
11)You are required to sign an undertaking to comply with the offender’s good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from 29 April 2023 to 19 March 2025, with a probation condition that you be under the supervision of the Commissioner of ACT Corrective Services, or his delegate, for that period or any lessor period that the person supervising you considers appropriate and obey all reasonable directions of the person supervising you.
12)For the Treatment and Supervision Part of the Drug and Alcohol Treatment Order, the core conditions set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) are hereby incorporated into that order and you are required to comply with the terms of the Order, for the term of the Order, and complete such case management and programs as may be required including as to counselling, urinalysis, medical treatment, education, or such other treatment or programs as may be required, from time to time, by any member of the Treatment Order Team or as directed by the Court.
13)You are directed to comply with any directions that the Court may make, from time to time, about attendance at Court in person, or by electronic means.
14)You are directed to attend this Court on Friday 7 May 2021 at 11:00 am.
Mr Antonovic, those are a lot of words today and you are probably sick of hearing my voice, but I am obliged to explain what I have done.
What I have done is that I have said these are very serious offences, which justify a sentence of four years imprisonment. Notwithstanding that, I accept that now is an opportunity for you to show that really you have finished with the lifestyle in which you have been involved and you are ready now to actually be a sensible, pro-social member of our community and get on with your family; be a son to your mother for a change, instead of causing her grief all the time; become part of the community and do the education that you clearly can do. You will find that it is personally satisfying, the community will be protected and you might actually be able to do something useful in the community.
This is a risk. Your history would give many people no confidence in your ability to do this, but you have had great support from CatholicCare and, in particular, DECO and Mr Troy McColl, who has stood by you amazingly. You owe it to him, apart from anyone else, as well as your mother, of course, to show that you are now ready to take a sensible path that will be appropriate for the community.
You have come to the right place to achieve this change, this Court will support you. If you go wrong, then I will have no hesitation in sending you back to gaol. But, if you go well and if you try, genuinely, and you try hard, the Court will support you through this and the bumps on the road in front of you.
You will see a lot of me. You will come every week for a while, and you will have to do urinalysis, see your case managers, see counsellors, be involved in programs - these will be opportunities for you to take those small steps that lead to a big change. It will not be easy, it is no walk in the park. It will be challenging, but you have already had an experience; you saw your drug dealer and you said no. That strengthens you, that commits you, that is the way it has got to be.
It is really important to note a couple of things.
The first is, you must be honest. You have got to tell people what is going on in your world. You have got to tell people how you are feeling; about your struggles; when you fall down and do not do the right thing. You will be sanctioned for that, you may be sent back to prison for a short period or, if it all fails, for a longer period, all or most of the four years. But, being honest is important. It is a way to help you stand up after a fall, and a way to achieve the rehabilitation objective that you tell me you want.
The second thing is, do not run away. I have had bad experiences in this program of people to whom I give an opportunity; I sense that they are right for this, and sometimes I am wrong. I hope, in your case, I am not wrong and that you will commit yourself. If it all fails, come back, talk to us, there may be some way that we can resolve it. I cannot guarantee this, judges have a lot of power but we are not omnipotent, I cannot change the world and it may be that you have got to go back to a cycle of prison, but I can use the powers I have to help. Come back and talk to us about it, talk to your case workers and we will see what can be done.
You will be required to sign the Order before you leave. You have got to speak to your case managers and make sure that you understand your obligations. You have got to keep in communication. Do not miss telephone calls, make telephone calls. If you cannot come to an appointment, tell someone about it, explain why, make another appointment, sort it out. Do those things. This will be explained to you. If you do not understand something, ask someone.
Ms Duffy here will be your lawyer from here on in. Mr McColl has indicated that he is with you for that long journey. He can help you. They can seek out advice if they do not know the answer, and I can probably help each Friday, when you come back to see me.
These are opportunities. You have had a shocking record. You have been an absolute pest in the community, a cancer on the community. Now is your opportunity to actually show that you are a good man, as you can be, and that you can participate in the community property, without the scourge of drug dependency and without needing to prey on other people and put other people in harms way.
| I certify that the preceding one hundred and seventy-one [171] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge. Associate: L Ireland Date: 3 June 2022 |
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