R v Novakovic (a.k.a. Noland)
[2022] ACTSC 199
•7 March 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Novakovic (a.k.a. Noland) |
Citation: | [2022] ACTSC 199 |
Hearing Date: | 7 March 2022 |
DecisionDate: | 7 March 2022 |
Before: | Refshauge AJ |
Decision: | 1. Slobodan Novakovic (a.k.a. Daniel Noland) be granted bail to appear in Court on 18 March 2022 on the following conditions that: a. He be released directly into the company of employees of Canberra Recovery Services and accompany them directly from this Court today to Canberra Recovery Services, Fyshwick, and admit himself to the residential drug rehabilitation program at that facility by 1:00pm today, 7 March 2022; b. He be directed to engage in the residential drug rehabilitation program at Canberra Recovery Services, not to leave the facility until he has completed the course and to comply with all the directions of the person in charge of the program and all the rules of the program and the facility; c. Should he leave or be discharged from the program during the bail period, he report to ACT Corrective Services by 4:00pm on the next business day with a view to having his bail conditions reviewed; d. He not consume alcohol, cannabis or any illicit drugs; 2. Slobodan Novakovic (a.k.a. Daniel Noland) be directed to appear in Court on 18 March 2022 at 12:30pm by electronic means. |
Catchwords: | CRIMINAL LAW – BAIL – Application for Bail – Drug and Alcohol Treatment Order – Further Offending – Rehabilitation – Bail Granted |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 12A, 27, 46J, 80ZC, 80ZD, 80ZE |
Cases Cited: | R v Novakovic a.k.a. Noland (No 1) [2021] ACTSC 62 R v McHughes [2021] ACTSC 92 |
Texts Cited: | ACT Supreme Court, Notice to Practitioners: Drug and Alcohol Sentencing List (19 December 2019) |
Parties: | The Queen ( Crown) Slobodan Novakovic a.k.a. Daniel Noland ( Offender) |
Representation: | Counsel C Muthurajah ( Crown) C Duffy ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) ACT Legal Aid ( Offender) | |
File Numbers: | SCC 44 of 2022 SCC 45 of 2022 |
REFSHAUGE AJ:
Background
Slobodan Novakovic, also known as Daniel Noland, has been committed to this Court on a charge of burglary, committed on 6 January 2022. Charges of minor theft and possessing a drug of dependence have also been transferred to this Court.
The accused shall be referred to as Daniel Noland and the Court directs that his name in the title to the proceedings be amended to “Slobodan Novakovic a.k.a Daniel Noland”: see R v Novakovic a.k.a. Noland (No 1) [2021] ACTSC 62 at [2].
Before being sentenced for these offences, Mr Noland has sought an opportunity to complete a residential drug rehabilitation course at Canberra Recovery Services, Fyshwick, for a period of four weeks. Clearly, given his history (see R v Novakovic a.k.a. Noland (No 1) at [21]-[39], especially [27]-[32]), that would be an appropriate way to proceed.
On sentencing, he will be seeking a Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). A Treatment Order was made on 12 January 2021 for an offence of aggravated burglary committed in March 2020: see R v Novakovic aka Noland (No 1). That Order ended on 1 March 2022.
While provisions in the Sentencing Act prohibit the Court from making a further Treatment Order (see ss 80ZD(2)(d)(ii) and 80ZE(2)(b)), that is concerned with the re-sentencing for the same offence after having cancelled the Treatment Order made for them because of commission of a further offence or an unsatisfactory circumstance. There is no reason why an offender is ineligible for a further Treatment Order when sentenced for different offences, though there may be some discretionary reason for not doing so, which can be agitated at the final hearing on sentence.
Mr Noland's conduct under the Treatment Order made in 2021 was unsatisfactory. He incurred sanctions for various failures to comply with the Order, in respect of directions given under it, counselling and other matters. Ultimately, however, he did graduate through the first two phases of the treatment path of the Treatment Order, but did not complete phase 3 and so did not graduate from the regime of the Treatment Order.
On 6 January 2022, he was arrested for the further offences referred to earlier (at [1]) and remanded in custody. This resulted in the provisional suspension of the Treatment and Supervision Part of the Treatment Order when that Order came before the Court for a regular review: s 80ZC(2) of the Sentencing Act. As a result, he did not graduate at the end of the Order, as he could not complete the requirements of the final phase of the program. Thus, Mr Noland must now be sentenced for the fresh offences.
His counsel, Ms C Duffy, has submitted that Mr Noland has come to the realisation that he really does need further rehabilitation. She informed the Court that her instructions were that Mr Noland had a problem under the Treatment Order: he felt that what he was required to do under the Order was somewhat unnecessary, because he felt he knew it all and had been able to manage his dependency. He believed he was abstinent. This was clearly overly optimistic, perhaps a little arrogant. Ms Duffy informed the Court that Mr Noland now understands that he was too confident and that he still had much to do to address the pernicious effect of his drug dependency.
The application
Mr Noland has been offered a place at Canberra Recovery Services, which is one of the respected drug rehabilitation agencies in the Australian Capital Territory. It conducts both residential and non-residential programs. The residential program uses the therapeutic community model, requires abstinence and is based on the well-known 12-Steps Program for recovery. It has stringent admission requirements and comprehensive admission screening. It regularly conducts drug testing. Each participant has an individualised treatment plan developed for him or her. At the end of the program, it provides for aftercare and an exit strategy.
10.Mr Noland seeks to complete a program of four weeks to show that he has learned from his experience of relapse, has realigned his thinking and is now prepared much better to engage properly with a drug rehabilitation regime under a Treatment Order.
11.On the application, an email from Canberra Recovery Services was tendered without objection and admitted, confirming that he has been accepted into the facility for a program of one month. Also tendered without objection and admitted was a letter from his mother supporting her son and confirming that, when his period of incarceration and rehabilitation ends, he can reside with her. She will provide him with the stability and quiet, calm home life that she says he needs to move forward with his life.
12.The Court admitted into evidence, too, a detailed letter of reflection from Mr Noland written while he was in custody and in which he conceded that he had thought that he had beaten his dependency on drugs, but that a period of lack of support over the Christmas period had led him to feeling “an overwhelming sense of anxiety” and worrying about his future. He accepts now that he does need to apply a different mindset to the rehabilitation he acknowledges that he needs.
13.His use of drugs after leaving the rehabilitation facility was, he said, like a loss of control of his life and, as he described it, “a drug-induced insanity”. It led him to committing crime and his inevitable incarceration. He now accepts that he cannot take drugs again. He finds his offending incomprehensible and expressed considerable empathy for the victim. He came to the realisation that his inevitable incarceration was then a clear sign that he could so easily lose all that he had worked for over the period during which he was under a Treatment Order and prior.
14.Clearly, this requires Mr Noland to be released on bail to attend the program. The Court can simply adjourn the sentence and release him on bail until he has completed the program.
15.Alternatively, the Court can make a Deferred Sentence Order under s 27 of the Sentencing Act. Usually, Deferred Sentence Orders are for a lengthy period of time. Here, only one month is sought. Section 27(1)(d) of the Sentencing Act identifies one of the criteria for a Deferred Sentence Order in that “the court considers the offender should be given an opportunity to address his or her criminal behaviour, and anything that has contributed to the behaviour, before the court sentences the offender”.
16.Here, Mr Noland is not really ready to address what has contributed to his behaviour, but rather to show that should a particular sentencing alternative be adopted, namely the making of a Treatment Order, then he is ready and able to participate fully and effectively in it. While it would be too rigid a construction of the Sentencing Act to say that the proposal could not be managed under a Deferred Sentence Order, it does seem that an ordinary adjournment is probably more suited to the proposal.
17.The Crown did not oppose the bail application.
18.In the end, and not without some hesitation, the Court is prepared to permit Mr Noland to proceed in this way. It will also provide the opportunity for the Drug and Alcohol Suitability Assessments to be prepared under s 46J of the Sentencing Act.
19.Ordinarily, an initial Eligibility Assessment is conducted before requiring Suitability Assessments to be prepared, provided for under paragraph 6(c) of the ACT Supreme Court, Notice to Practitioners: Drug and Alcohol Sentencing List (19 December 2019) rather than the Sentencing Act and described in R v McHughes [2021] ACTSC 92 at [7]. In these circumstances, where Mr Noland has been subject to a Treatment Order and nearly completed it, though with some challenges – which is noted to not be unusual in the experience of participants in a Treatment Order regime – and has relapsed, it is not considered necessary for Mr Noland to undergo that initial Assessment and may, subject to the requirements of the Canberra Recovery Services program, be the subject of Suitability Assessments.
20.Noting that Mr Noland has further offended while subject to a Treatment Order, he has also been in custody now for two months. It would appear that it is appropriate to grant him bail on strict conditions for the purpose of engaging in the initial residential drug rehabilitation treatment, in order to test his suitability for a Treatment Order.
21.Accordingly, bail will be granted at this stage for just less than two weeks, so that we can be clear on that occasion how the final end of the residential drug rehabilitation program is to be handled and to consider then whether it is appropriate to make an order directing that the Suitability Assessments be prepared and a date for sentence be set.
Decision
22.The Orders of the court, therefore, are as follows:
(1)Slobodan Novakovic (a.k.a. Daniel Noland) be granted bail to appear in Court on 18 March 2022 on the following conditions that:
a. He be released directly into the company of employees of Canberra Recovery Services and accompany them directly from this Court today to Canberra Recovery Services, Fyshwick, and admit himself to the residential drug rehabilitation program at that facility by 1:00pm today, 7 March 2022;
b. He be directed to engage in the residential drug rehabilitation program at Canberra Recovery Services, not to leave the facility until he has completed the course and to comply with all the directions of the person in charge of the program and all the rules of the program and the facility;
c. Should he leave or be discharged from the program during the bail period, he report to ACT Corrective Services by 4:00pm on the next business day with a view to having his bail conditions reviewed;
d. He not consume alcohol, cannabis or any illicit drugs;
(2)Slobodan Novakovic (a.k.a. Daniel Noland) be directed to appear in Court on 18 March 2022 at 12:30pm by electronic means.
23.Mr Noland, second chances are possible in this Court, but you have really got to make this work. Hopefully, what you wrote in the letter to the Court is what you really think and what you can put into action. It was clear to many of us that you were skating while under the old Treatment Order and you now know that that is what you are doing. It is very good to be confident in yourself, but it is easy for that confidence to be arrogance.
24.One of the things I have probably told you, as I tell all the participants, is that honesty is so important. This means you need to be honest to yourself and evaluate yourself. You are no worse as a person because you do bad things. What you need to do is commit yourself to understanding the bad things you are doing, to stop doing them, to learn the skills that allow you to do that and not presume that you have done it all before and, therefore, you know that you can cope with it.
25.You can do it. You did it effectively for a long time, but when it came to the crunch you were too weak and you gave in and you have got to learn to be strong. Being arrogant does not give you strength.
26.Hopefully, this will work and when you are back we will set a course for the future, if it is going all right at that stage. Put some effort into it, make sure it works this time and good luck.
27.The gratitude I want is for you to succeed. That is what makes our work worthwhile. I appreciated your letter, it was helpful, but, at the end of the day, we need you to translate that into action.
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Refshauge Associate: Date: 8 August 2022 |