R v Novakovic
[2018] ACTSC 331
•30 November 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Novakovic |
Citation: | [2018] ACTSC 331 |
Hearing Date: | 30 November 2018 |
DecisionDate: | 30 November 2018 |
Before: | Elkaim J |
Decision: | See [19] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – burglary – theft – drive motor vehicle without consent – trespass – resist a public official in the exercise of their functions – provide a false name to police – unlawful possession of stolen property |
Legislation Cited: | Crimes Act 1900 (ACT) s 211(2)(e) Criminal Code 2002 (ACT) ss 44, 308, 311, 318(2), 324(1), 361(1) |
Parties: | The Queen (Crown) Mr Slobodan Novakovic (Offender) |
Representation: | Counsel Ms K McCann (Crown) Mr R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 1 of 2018; SCC 2 of 2018; SCC 129 of 2018; SCC 131 of 2018 |
ELKAIM J:
On 5 October 2018, the offender pleaded guilty to five counts in an indictment dated 4 October 2018. In addition, he pleaded guilty to four summary charges.
Although two of the pleas of guilty were entered at an early stage, most of them where entered four days before his trial was due to commence. There is some utilitarian value in the pleas. He is entitled to a discount of about 15%.
The counts in the indictment, and their maximum penalties are as follows:
(a)Count 1: burglary (CC 2017/9103), contrary to s 311 of the Criminal Code 2002 (ACT). The maximum penalty is 14 years’ imprisonment and/or a fine of $210,000.
(b)Counts 2 and 4: theft (CC 2017/9104; CC 2017/9740), contrary to s 308 of the Criminal Code 2002 (ACT). The maximum penalty is 10 years’ imprisonment and/or a fine of $150,000.
(c)Count 3: drive motor vehicle without consent (CC 2017/9105), contrary to s 318(2) of the Criminal Code 2002 (ACT). The maximum penalty is 5 years’ imprisonment and/or a fine of $75,000.
(d)Count 5: attempt to drive motor vehicle without consent (CC 2017/9744), contrary to 318(2) by virtue of s 44 of the Criminal Code 2002 (ACT). The maximum penalty is 5 years’ imprisonment and/or a fine of $75,000.
The summary charges, and their respective maximum penalties are:
(a)Unlawful possession of stolen property (CC 2017/9743), contrary to s 324(1) of the Criminal Code 2002 (ACT). The maximum penalty is imprisonment for 6 months and/or a fine of $7,500.
(b)Trespass (CC 2017/7587), contrary to s 11(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth). The maximum penalty is fine of $1,500.
(c)Provide a false name to police (CC 2017/7585), contrary to s 211(2)(e) of the Crimes Act 1900 (ACT). The maximum penalty is a fine of $500.
(d)Resist a territory official in the exercise of their functions (CC 2017/7584), contrary to s 361(1) of the Criminal Code 2002 (ACT). The maximum penalty is 2 years’ imprisonment and/or a fine of $30,000.
The offences occurred between May and July 2017. The offender broke into underground secured car parks associated with blocks of units. He then stole property from motor vehicles and storage cages located in the car parks. On one occasion he drove off in an Audi that was garaged in the car park. On another occasion he attempted to leave the garage in a Honda. This was when he was confronted by the police and arrested.
Count 1 relates to the offender’s entry into a unit complex in Forrest on 14 or 15 May 2017. The offender broke into a storage unit within the car park. He stole two bicycles (Count 2). He also stole the key is to an Audi TTS motor vehicle and drove off in this vehicle (Count 3).
On 4 or 5 July 2017 the offender entered a different unit block in Forrest. He gained access to a Toyota and stole a number of items (Count 4). The police were called while he was still in the garage. They found him inside a Honda Accord. He tried to drive away in this vehicle but failed (Count 5). He was apprehended.
The offender blames his criminal behaviour on his drug use. He seems to understand that there were victims of his crimes although he does not, according to the Pre-Sentence Report, have much insight into the impact of his behaviour.
The offender was born in 1980. He is of Serbian heritage but has anglicised his name in order to feel more Australian. He had a difficult childhood. He feels that his mother’s care was lacking because of her alcohol issues. She had been violent and abusive towards him. He left home when he was 16 years of age. He maintains a good relationship with his father.
The offender has two teenage children from a relationship which began when he was 21 years of age. The relationship ended after five years. It is unclear what level of schooling the offender attained. He may have completed year 12 or he may have simply reached year 12. He has worked in unskilled employments, usually as a painter.
Exhibit 1 is a letter from the offender’s brother. He traces the offender’s problems back to the separation from his partner which was unpleasant and resulted in a custody battle over their two children.
His brother also sensibly suggests that the offender requires rehabilitation and needs to leave the Australian Capital Territory to distance himself from unseemly associates. The offender is now 38 years of age and really needs to address his addiction if he is not to become a long-term and institutionalised prisoner.
The offender has a bad back and underwent surgery in 2010.
The offender has had real problems with the use of illegal drugs. Attempts to cure his addiction while in the prison system have failed. One of the problems with rehabilitation seems to be that he cannot begin any programs because he is currently prescribed Tramadol, which is an opiate based painkiller, for his back pain. He previously took Lyrica, which calms the nervous system, but apparently the prison authorities have refused to let him use this medication instead of the Tramadol.
If the refusal is in fact a bar to him commencing rehabilitation, one would hope that the issue could be addressed. I note that his solicitor has written to the prison authorities to this effect.
The offender has a significant criminal history in both the Australian Capital Territory and in New South Wales. The range of offences he has committed is wide and they include both driving offences and property offences.
Sentencing always involves consideration of ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT). Section 10 does not apply because it was accepted on behalf of the offender that a prison sentence was an inevitable result.
As long as the offender remains addicted to illicit drugs, any element of personal deterrence is unlikely to be meaningful. However, general deterrence is important because burglary is such a prevalent offence and persons who think it might be a good idea to commit the offence should know that they will inevitably be imprisoned.
I agree with the offender’s counsel that the May offences should be treated concurrently, as should the July offences. However, there should be a degree of accumulation between the two sets of offences.
I make the following orders:
(a)In relation to Count 1, burglary (CC 2017/9103), the offender is sentenced to 20 months’ imprisonment (reduced from 24 months) commencing on 11 December 2017 and ending on 10 August 2019.
(b)In relation to Count 2, theft (CC 2017/9104), the offender is sentenced to 8 months’ imprisonment (reduced from 9 months) commencing on 11 December 2017 and ending on 10 August 2018.
(c)In relation to Count 3, drive motor vehicle (CC 2017/9105), the offender is sentenced to 6 months’ imprisonment (reduced from 7 months) commencing on 11 December 2017 and ending on 10 June 2018.
(d)In relation to Count 4, theft (CC 2017/9740), the offender is sentenced to 8 months’ imprisonment (reduced from 9 months) commencing on 11 May 2019 and ending on 10 January 2020.
(e)In relation to Count 5, attempt drive motor vehicle (CC 2017/9744), the offender is sentenced to 6 months’ imprisonment (reduced from 7 months) commencing on 11 May 2019 and ending on 10 November 2019.
(f)In relation to the offence of unlawful possession of stolen property (CC 2017/9743), the offender is sentenced to 3 months’ imprisonment (reduced from 4 months) commencing on 11 May 2019 and ending on 10 August 2019.
(g)In relation to the offence of trespass (CC 2017/7587), the offender is fined $300 payable forthwith.
(h)In relation to the offence of provide false name to police (CC 2017/7585), the offender is fined $250.00 payable forthwith.
(i)In relation to the offence of resists a territory official in the exercise of their functions (CC 2017/7584), the offender is sentenced to 6 months’ imprisonment (reduced from 7 months) commencing on 11 May 2019 and ending on 10 November 2019.
(j)The total sentence is 2 years and 1 month commencing on 11 December 2017 and ending on 10 January 2020.
(k)I set a non-parole period of 20 months expiring on 10 August 2019.
| I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: |
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