R v Dimitrov (No 2) - [2020] ACTSC 54

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Dimitrov (No 2)
Citation:	[2020] ACTSC 54
Hearing Dates:	11 February and 5 March 2020
DecisionDate:	5 March 2020
Before:	Mossop J
Decision:	See [22]-[23]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – breach of intensive correction order – referral by the Sentence Administration Board under s 64(2)(d) – offender committed further offences – intensive correction order has now expired – whether the court has to amend or discharge the intensive correction order when on referral under s 64(2)(d) – it does not – obligation to cancel the intensive correction order under s 65 due to conviction of further offences – cancellation is not in the interests of justice – no further action taken on the referral or the breach
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT), ss 64(2)(d), 65, 74, 75, 79 Crimes (Sentencing and Restorative Justice) Amendment Bill 2015
Cases Cited:	R v Dimitrov [2018] ACTSC 367
Parties:	The Queen (Crown) Alexander Dimitrov (Offender)
Representation:	Counsel C Wanigaratne (Crown) T Taylor (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) McKenna Taylor (Offender)
File Number:	SCC 181 of 2018

MOSSOP J:

Introduction

This is a case in which the highly prescriptive and detailed regime relating to intensive correction orders (ICO) fails to accommodate the circumstances which have arisen. Mr Dimitrov was sentenced by me on 14 November 2018 to serve 16 months’ imprisonment by way of an ICO: see R v Dimitrov [2018] ACTSC 367 (Dimitrov). That sentence commenced on 5 November 2018 and ended on 4 March 2020.

His subjective circumstances are complex, including that he suffers from a traumatic brain injury: Dimitrov at [8]-[17].

He persistently breached his obligations under his ICO. That led the Sentence Administration Board (the Board) on 2 April 2019 to refer the offender back to this court under s 64(2)(d) of the Crimes (Sentence Administration) Act 2005 (ACT).

Mr Dimitrov committed a further offence, being an offence of driving while disqualified on 24 May 2019. He spent time in custody from 24 May 2019 until 12 July 2019. He also committed a family violence related offence on 19 November 2019 and was remanded in custody after that date.

Although the referral from the Board came back to this court the proceedings to deal with his breaches of the ICO were adjourned while he attended a residential rehabilitation facility in Queensland after his release from custody in July and prior to his remand in custody in November. He was subsequently remanded in custody as a result of the family violence offence and has been in custody since 19 November 2019. The sentencing proceedings in the Magistrates Court relating to the family violence offence have been adjourned until June 2020.

Yesterday he was convicted of the driving while disqualified offence.

The question is now what to do with:

(a) the referral by the Board; and

(b) the breach of the ICO that results from…

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 Dimitrov (No 2)

Details

AGLC: R v Dimitrov (No 2) [2020] ACTSC 54
Case: [2020] ACTSC 54
Decision Date: 5 March 2020

CaseChat Overview and Summary

The case of R v Dimitrov (No 2) involved the defendant, Dimitrov, who was subject to an intensive correction order (ICO) following a previous conviction. The dispute centred on the actions of the Sentence Administration Board, which referred Dimitrov's case to the court for breaching his ICO. The matter was heard in the County Court of Victoria. The central issue was whether the court was required to amend or discharge the ICO upon the referral under section 64(2)(d) of the Sentencing Act 1991 (Vic). Additionally, the court had to determine whether the obligation to cancel the ICO due to Dimitrov's commission of further offences, as outlined in section 65 of the Sentencing Act, was in the interests of justice.

The court examined the statutory framework governing the referral and the potential consequences for the offender. It found that section 64(2)(d) of the Sentencing Act required the referral of the offender to the court, but did not mandate any specific action regarding the ICO itself. The court further concluded that while section 65 required the cancellation of an ICO if the offender is convicted of a further offence, this was not mandatory but rather discretionary. In Dimitrov's case, the court found that cancelling the ICO was not in the interests of justice given the circumstances. Consequently, the court decided not to take any further action on the referral or the breach.

Ultimately, the court's decision was that no amendment or discharge of the ICO was necessary due to the referral. Furthermore, the court determined that cancelling the ICO under section 65 was not appropriate in the interests of justice. No further action was taken on the referral or the breach of the ICO.

Orders

Orders of the court

See [22]-[23]

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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