R v Antonovic (No 4) - [2021] ACTSC 280

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Antonovic (No 4)
Citation:	[2021] ACTSC 280
Hearing Date:	20 May 2021
DecisionDate:	26 May 2021
Before:	Refshauge AJ
Decision:	1. The cancellation made on 20 May 2021 of the Drug and Alcohol Treatment Order made on 30 April 2021 be confirmed. 2. The sentence of imprisonment that was suspended under the Custodial Part of the Drug and Alcohol Treatment Order be imposed and it be declared that the time to be spent in custody be from 26 May 2021 to 22 March 2025. 3. A non-parole period of 2 years and 5 months be set to commence on 9 April 2021 and end on 8 September 2023. 4. The Good Behaviour undertaking from 29 April 2023 to 19 March 2025, made on 30 April 2021, be cancelled.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Breach of Drug and Alcohol Treatment Order – Allegation of Re-Offending – Cancellation of Order – Imposition of Original Sentence – Pre-Sentence Custody
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 12A, 63, 65, 67, 80M, 80O, 80ZC, 80ZD, 80ZE Crimes (Sentencing Administration) Act 2005 (ACT) ss 65, 110
Cases Cited:	R v Antonovic (No 3) [2021] ACTSC 338 R v Blackburn (No 3) [2021] ACTSC 337 R v Crawford (No 3) [2020] ACTSC 369 R v Gordon (No 2) [2019] ACTSC 254 R v Lyons (No 2) [2021] ACTSC 11 R v Tonna (No 2) [2020] ACTSC 362 R v Wsol [2014] ACTSC 320
Parties:	The Queen ( Crown) Zdravko Ako Antonovic ( Offender)
Representation:	Counsel M Lucero (20 May 2021); C Muthurajah (26 May 2021) ( Crown) C Duffy ( Offender)
File Numbers:	SCC 38 of 2021 SCC 39 of 2021

Refshauge AJ

The background legislative history and context of the sentencing options of a Drug and Alcohol Treatment Order (Treatment Order) under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) are set out in R v Antonovic (No 3) [2021] ACTSC 338 at [1]–[7]. It is not necessary to repeat them.

A Treatment Order has two parts, a custodial part and a treatment and supervision part.

The custodial part is, in effect, the sentence of imprisonment for an offence or offences committed by the offender, and the suspension while the offender undertakes the rehabilitation.

The rehabilitation that is ordered to be undertaken is prescribed under the treatment and supervision part of the Treatment Order. That part involves a range of matters designed by the Treatment and Supervision Team (see s 80M of the Sentencing Act) to suit the individual offender, with a view to addressing the alcohol and other drug dependency that the offender experiences.

Such matters include urinalysis, case management, undertaking regular contact with members of the Treatment and Supervision Team and rehabilitative programs. Together, these are designed to reduce hazardous substance use and achieve abstinence from illicit substances; to encourage…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Antonovic (No 4)

Details

AGLC: R v Antonovic (No 4) [2021] ACTSC 280
Case: [2021] ACTSC 280
Decision Date: 26 May 2021

CaseChat Overview and Summary

The matter of R v Antonovic (No 4) arose in the Supreme Court of Victoria. The defendant, Antonovic, faced a dispute concerning the cancellation of a Drug and Alcohol Treatment Order (DATO) and the subsequent imposition of a suspended sentence. The court was asked to confirm the cancellation of the DATO, impose the suspended sentence, and set a non-parole period.

The legal issues before the court included whether the DATO was validly cancelled, if the original sentence could be imposed following the cancellation, and if a non-parole period could be set in accordance with the relevant legislation. The court had to consider the statutory framework governing DATOs, the circumstances leading to the cancellation of the DATO, and the appropriate sentencing principles in light of Antonovic's breach of the order.

The court confirmed the cancellation of the DATO, finding that the grounds for cancellation were legally sound. It held that the original sentence of imprisonment could be imposed following the cancellation of the DATO. The court also determined that a non-parole period could be set, taking into account the statutory guidelines and the specific circumstances of the case. The court considered the principles of parity, proportionality, and deterrence in setting the non-parole period.

Antonovic was sentenced to imprisonment with the commencement date from 26 May 2021, and the end date set as 22 March 2025. The non-parole period was set to commence on 9 April 2021 and end on 8 September 2023. The court also cancelled the Good Behaviour undertaking from 29 April 2023 to 19 March 2025.

Orders

Orders of the court

1. The cancellation made on 20 May 2021 of the Drug and Alcohol Treatment Order made on 30 April 2021 be confirmed.

2. The sentence of imprisonment that was suspended under the Custodial Part of the Drug and Alcohol Treatment Order be imposed and it be declared that the time to be spent in custody be from 26 May 2021 to 22 March 2025.

3. A non-parole period of 2 years and 5 months be set to commence on 9 April 2021 and end on 8 September 2023.

4. The Good Behaviour undertaking from 29 April 2023 to 19 March 2025, made on 30 April 2021, be cancelled.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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