R v Novakovic (a.k.a. Noland) (No 1)

[2021] ACTSC 62

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Novakovic (a.k.a. Noland) (No 1)
Citation:	[2021] ACTSC 62
Hearing Date:	8 January 2021
Decision Date:	12 January 2021
Before:	Refshauge AJ

Decision:	1.	Slobodan Novakovic (a.k.a. Daniel Noland) be convicted of aggravated burglary on 2 March 2020 and be sentenced to two years imprisonment, to commence on 2 March 2020.
2.	A Drug and Alcohol Treatment Order be made under s 12A of the Crimes (Sentencing) Act 2005 (ACT) for Slobodan Novakovic (a.k.a. Daniel Noland), for the period from today, 12 January 2021, to 1 March 2022, in respect of the offence of aggravated robbery on 2 March 2020, of which he has been convicted and for which he has been sentenced.
3.	The conviction and sentence for the offence of aggravated burglary be hereby incorporated into the Drug and Alcohol Treatment Order as the custodial part of that Order.
4.	That sentence be suspended from today, 12 January 2021, until 1 March 2022, under s 80W of the Crimes (Sentencing) Act 2005 (ACT).
5.	For the treatment and supervision part of the Drug and Alcohol Treatment Order, it be ordered:

a.	that Slobodan Novakovic (a.k.a. Daniel Noland) comply with the core conditions of that Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT);
b.	that Slobodan Novakovic (a.k.a. Daniel Noland) complete the residential drug rehabilitation program conducted by Canberra Recovery Services at Fyshwick, and to that end, he be directed to travel directly from the Court to Canberra Recovery Services, admit himself to that Program, remain in that Program until it is completed, and obey all the rules of the facility and the Program and any directions of the officer in charge of the facility;
c.	that Slobodan Novakovic (a.k.a. Daniel Noland) not leave Canberra Recovery Services before he complete the Program without the approval of the Court, but if he is discharged from the Program or otherwise leave the Program, he present himself to ACT Corrective Services by 4:00 pm on the next business day after he is discharged or leave, with a view to having the Drug and Alcohol Treatment Order reviewed;
d.	that Slobodan Novakovic (a.k.a. Daniel Noland) undergo any program of treatment or counselling and urinalysis and case management, or other program as may be required by any member of the Treatment Order Team or by the Court from time to time; and
e.	that Slobodan Novakovic (a.k.a. Daniel Noland) comply with any directions of the Court from time to time about attendance at Court in person or by electronic means.

6.    Slobodan Novakovic (a.k.a. Daniel Noland) be directed to appear in Court on 22 January 2021 at 12:30 pm by electronic means.

7.    Slobodan Novakovic (a.k.a. Daniel Noland) be directed to attend the Court Registry before leaving the Court today to sign the sealed copy of the Order.

Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – nature and limit of the ACT Sentencing Database – Drug and Alcohol Treatment Order ordered
Legislation Cited:	Crimes Act 1900 (ACT) s 90(1) Criminal Code 2002 (ACT) s 312 Crimes (Sentencing) Act 2005 (ACT) ss 7, 12A, 33(1)(za), 46J, 63(2), 80T, 80W, 80Y; Table 46K Magistrates Court Act 1930 (ACT) s 90B Supreme Court Act 1933 (ACT) Pt 8
Cases Cited:	Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Director of Public Prosecutions (Vic) v Dalgleish (a Pseudonym)
[2017] HCA 41; 262 CLR 428 Fusimalohi v The Queen [2012] ACTCA 49 Hawkins v Hawkins [2009] ACTSC 148; 3 ACTLR 210 Hili v The Queen [2010] HCA 45; 242 CLR 520 Markarian v The Queen [2005] HCA 25; 228 CLR 357 R v Crawford (No 1) [2020] ACTSC 245 R v Duffy [2014] ACTCA 53; 297 FLR 359 R v Forrest (No 2) [2017] ACTSC 83 R v Hawkins [2015] ACTSC 333 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Horne [2017] ACTSC 36 R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327 Simonds v The Queen [2013] ACTCA 13 Smith v O'Dell [2016] ACTSC 176 Wong v The Queen [2001] HCA 64; 207 CLR 584
Parties:	The Queen (Crown)
Slobodan Novakovic (a.k.a. Daniel Noland) (Offender)
Representation:	Counsel
M Dyason (Crown) J Sabharwal (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown) B Shelton (Sharman Robertson Solicitors) (Offender)
File Number:	SCC 135 of 2020
REFSHAUGE AJ:
Introduction

1.       It seems likely that dishonesty offences, such as burglary, are now more motivated by the need to feed an illegal drug use habit than pure greed. In part, the illegality of such drugs creates an unregulated market which can be expensive, where people who have a dependency on the use of drugs are unlikely to have the resources to access the drugs they crave without stealing other people's property.

2.       I have now to sentence Slobodan Novakovic for one offence of aggravated burglary committed on 2 March 2020 and to which he has pleaded guilty. Mr Novakovic has requested that I use a name to which he has not previously legally changed, but by which he wishes to be known, namely Daniel Noland. I will refer to him as such in these reasons.

3.       I have received into evidence the Crown Tender Bundle which, in addition to the Indictment and a Nolle Prosequi for other offences, includes an Agreed Statement of Facts, Mr Noland's Criminal History, and two Drug and Alcohol Treatment Assessments (Suitability Assessments), being those made under s 46J of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), namely a Drug and Alcohol Sentencing List Suitability Assessment from Canberra Health Services dated 18 December 2020, with an attached Case Plan, and a Drug and Alcohol Treatment Assessment from ACT Corrective Services dated 15 December 2020. The tender of this material was not subject to any objection, nor was any challenge made to its contents. Accordingly, I have relied on it, as well as the written and oral submissions of counsel, to make the following findings.

The Facts

4.       Between 1:30 am and 3:00 am on 2 March 2020, Mr Noland approached a block of apartments in Phillip, ACT. He was wearing a hooded jumper with the hood pulled over his face. He then used a screwdriver to prise open the lock box on the wall outside the building's foyer. He took a swipe access fob and a set of keys from inside the lock box. Mr Noland then entered the parking garage and left through the rear door of the garage, getting into a motor vehicle which drove away.

5.       About an hour later, Mr Noland returned to the apartment building in company with another person. Using the swipe access fob, they entered the foyer of the building and proceeded to the underground basement garage. Once there, Mr Noland got into a Toyota motor vehicle that he did not own. Police were called by an occupant of the apartment who had seen what Mr Noland and his co-accused were doing. They arrived shortly after.

6.       Mr Noland and the accused ran away. Police chased them and arrested the co- accused shortly after, but Mr Noland continued to run away along a stormwater drain.

As police approached him, he shouted, ‘I have a gun’, and ‘I will stab you’. He was

carrying a long metal object in his hand which appears to have been later determined to be a screwdriver. Police arrested him shortly afterwards. These facts constitute the offence of aggravated burglary, the circumstance of aggravation being that he was in company.

The Proceedings

7. Mr Noland was arrested on 2 March 2020 and charged with going about equipped for theft as a trespasser. He appeared in the ACT Magistrates Court later that day, was remanded in custody, and has remained in custody since then. A Forensic Mental Health Consumer Assessment was also ordered that day under s 90(1) of the Crimes Act 1900 (ACT).

8.       On 17 March 2020, he was further charged with aggravated burglary, and on 31 March 2020, he entered a plea of not guilty to all charges. The proceedings were adjourned. On 26 May 2020, he was also charged with minor theft.

9. On 24 June 2020, after a number of adjournments, he was committed to this Court for trial on the charges of aggravated burglary and going about equipped for theft. The other charges were transferred to this Court under s 90B of the Magistrates Court Act 1930 (ACT), to be dealt with under Pt 8 of the Supreme Court Act 1933 (ACT).

10.     An indictment was presented on 17 August 2020 and the matter was listed for trial in the week commencing 23 November 2020.

11.    On 16 November 2020, Mr Noland pleaded guilty to one of the counts on the indictment, namely the offence of aggravated burglary, the other count being discontinued. The transferred charges were dismissed.

12. He was found eligible for a Suitability Assessment under s 46J of the Sentencing Act. The matter was then listed for sentence on 8 January 2021 and Suitability Assessments were ordered. He has been in custody for 317 days.

The Offence

13. Aggravated burglary is an offence under s 312 of the Criminal Code 2002 (ACT) and attracts a maximum penalty of 20 years imprisonment or a fine of $320,000, or both. It is thus to be considered a very serious offence. The offence can, of course, be committed in a variety of ways, and the courts have identified factors that constitute matters of aggravation or mitigation.

14.     The New South Wales Court of Criminal Appeal has issued a guideline judgment which conveniently sets out these factors. The decision, R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327, has been used in this Territory as a useful summary of relevant factors: see, for example, Smith v O'Dell [2016] ACTSC 176 at [34]. These factors are not all relevant and there is no need to set them out here.

15.     Those that are relevant are that Mr Noland has been convicted of the offence of burglary before, that the offence was committed at a time when the premises were likely to be occupied, and that some force was used, though not directly to gain entry but to obtain the access swipe fob.

16.     Another factor is whether there had been any premeditation, or planning of the carrying out of the offence: R v Ponfield at 337; [48(ii)]. There seemed to me no evidence of any such premeditation or planning of any significance. I accept that Mr Noland had to obtain a screwdriver to access the locked box, but that is unlikely to have been difficult.

17.     It might be inferred that Mr Noland was reconnoitring the premises on his first arrival and went to get, or encourage, the co-accused to join him. In the absence of further evidence, this is, at best, limited planning.

18.     Finally, he was wearing a hooded jumper drawn over his head. Given the number of people wandering the streets in hooded jumpers, it does not seem to me that this is particular evidence of much planning; indeed, that he pulled the hood over his head hardly constitutes much planning. Nevertheless, it seems a somewhat targeted burglary and certainly not merely opportunistic. This adds to its seriousness.

19.     A factor not mentioned in R v Ponfield, but accepted in this jurisdiction, is that the burglary of residential premises is a more serious offence than a burglary of commercial premises: Simonds v The Queen [2013] ACTCA 13 at [54]. As I explained in R v Horne [2017] ACTSC 36 at [22], the fact that the burglary happened in an underground garage may reduce the seriousness somewhat, though the occupants are still likely to visit the garage from time to time, including during the night.

20.     In any event, as I explained in R v Hawkins [2015] ACTSC 333 at [48]-[51], the offence of burglary is a serious problem for our community, causing inconvenience and the loss of property, some of which may be valuable or have sentimental value, and which is likely to affect all through the increase in insurance premiums.

Subjective Circumstances

21.     Mr Noland is a 48-year-old man. He is the eldest of three children of his parents’ union,

though he has several stepsiblings. His parents separated when he was five years old
and he remained with his mother, but his upbringing was difficult.

22.     He says that his mother had a problem with alcohol and he says that she was abusive, which his mother denies. His mother worked and he had to look after his siblings. He left home at age 16 and lived with his grandmother. She died about 21 years ago and this was very traumatic for him.

23.     Mr Noland has good relations with his sister, but she lives in Brisbane. He now has good relations with his mother and father. He has had a significant relationship with a woman but has since separated. Two sons, now 17 and 18, were born of the relationship. They live with his ex-partner and do not appear to keep in direct touch with Mr Noland, but they do keep in touch with his family through whom he learns of their program and activities.

24.     Mr Noland completed Year 12 but has had limited employment since then. He did, most recently, work as a painter. While in custody, he has been working in the prison kitchen.

25.     He has had some medical challenges. He suffered from glandular fever and a doctor suggested he may have had Chronic Fatigue Syndrome as a child. He had a spinal fusion of his L5-S1 in 2010, and his L2, L3 and L5 discs have collapsed, causing him significant and chronic pain. It is currently treated by medication, but, as this may create problems in rehabilitation, he is seeking to reduce the dosage of his current medication. He suffers also from asthma which he treats with Ventolin.

26.     Mr Noland has no current significant mental health issues, though he does feel some depression, related to his challenging early development. He has previously been prescribed anti-depressant medication, though he reports that he has never had a diagnosis of mental impairment or mental illness.

27.     He first consumed alcohol at age 16, and within a couple of years was binge drinking, which was when his consumption became problematic. He now only drinks socially and in moderation.

28.     Mr Noland has used a great variety of illicit drugs since his late teenage years. He has consumed cocaine since he was 19 but has not used for about 10 months. His main drug of choice is methamphetamine, which he first used when he was 27 years old. He was soon using half a gram daily, in the context of needing to support the substance

use of the mother of his sons, who was a drug user herself, ‘which then led to his own
use’.

29.     He did use MDMA/Ecstasy, first when he was 19 or 20. His use escalated to daily use, but he has now not used it for about 10 months. He has also used LSD, though infrequently, heroin sometimes, but not for about eight months, and GHB, which he tried when he was 25 or 26, but consumed too much of it and had a bad reaction, which has not prevented but inhibited his further use.

30.     Mr Noland is dependent on illicit drugs, especially methamphetamine. He said that he would not have committed the aggravated burglary had he not been affected by the drugs.

31.    Mr Noland has made some attempts at treatment for his drug dependency. He participated in the Drug Rehabilitation Program at Arcadia House about six or eight years ago, but did not complete the program because he was discharged for failing to report a fellow participant's possession of a mobile phone. He has also completed a SMART Recovery program through Directions Health Services about four years ago.

32.     He has managed to achieve abstinence from illicit drugs in the past, the last time being about six years ago when he was on parole for about six months. The longest period of abstinence that he has achieved is approximately 12 months, that six-month period he was on parole and under supervision and the following six months.

33.     He is described as having insight into his use. He is somewhat ambivalent to the proposal that he complete a residential drug rehabilitation program, but his counsel assured me that he is now fully prepared to do so.

34.     He proposes to live with his father if he is released from custody. His father is prepared to support Mr Noland, but he lives in a complex where there are a number of other residents who consume drugs, and it has been assessed by ACT Corrective Services

‘as unsuitable due to the unit being part of a larger complex that is [in] a known high

crime neighbourhood’.

35.     If he enters the Canberra Recovery Services Program, he will be a resident in Canberra for at least the length of the Program, and he can apply for public housing in the meantime. He recognises that he needs stable housing to support his long-term recovery.

36.     Mr Noland has a long and depressing criminal history. He was first convicted by a court in 1999 and since then, has been found guilty of 86 further offences in the ACT and of another 25 in NSW. They are mostly offences of dishonesty, including 14 offences of receiving stolen goods, 6 of burglary, 7 of dishonestly dealing with motor vehicles without the owner's consent, 5 of theft, and 4 of unlawful possession of stolen property.

37.     He has some drug possession offences on his record, and what may be called “ancillary to” dishonesty offences, such as going equipped for theft, providing a false name,

driving a car with false registration plates, and dishonestly dealing in personal financial
information.

38.     He has some limited violence offences on his record, including an offence of common assault and five offences of possessing offensive weapons. There are a number of traffic offences in the record, some of which may be regarded as regulatory, but four offences of dangerous driving and two of drink driving.

39.     Worryingly in the circumstances, Mr Noland has two convictions for failing to comply with the obligations of a bail undertaking, two for escaping from lawful custody and one for resisting arrest. ACT Corrective Services, in their Suitability Assessment, also noted

that ‘his response to supervision is mixed’ and ‘that he [had] successfully completed the Good Behaviour Order in 2011 but the Parole … [O]rder was breached and he was

imprisoned.'

Sentencing Practice

40. Under s 33(1)(za) of the Sentencing Act, the court sentencing an offender must consider current sentencing practice. This statutory directive does not mean that other sentences provide any kind of precedent (Wong v The Queen [2001] HCA 64; 207 CLR

584 at 605; [57]), nor that a court is bound to sentence ‘within a “band” derived from current sentencing practices’: Director of Public Prosecutions (Vic) v Dalgleish (a

Pseudonym) [2017] HCA 41; 262 CLR 428 at 453-4; [82]. Rather, existing practice informs the sentencing task and promotes the important value of consistency.

41.     An important point is that bald statistics are usually of limited value because sentences are arrived at by a process of instinctive synthesis (Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 373; [35]) and therefore involve the sentencing court taking into account a wide variety of factors, not merely the offence itself. Even, as sometimes is available, the fact of a plea of guilty, shown on the Database, will not delimit the material that a sentencing court must consider to arrive at an adequate sentence.

42.     This is why a link on the ACT Sentencing Database to the sentencing remarks is so important, and it is unfortunate that there are not as many such links as are desirable or as many as would appear possible to incorporate. Nevertheless, the sentences, including details of some of the relevant factors, can provide a yardstick against which to examine a proposed sentence: Hili v The Queen [2010] HCA 45; 242 CLR 520 at 537; [54].

43.     Most offences can be carried out in a variety of ways and by a variety of people who have different subjective circumstances. This is true of the offence of aggravated burglary; thus, there will be a range of sentences for the offence: Fusimalohi v The Queen [2012] ACTCA 49 at [15]. Nevertheless, I note that, in this Court, of the 42 offences recorded in the ACT Sentencing Database for this offence committed by males between 31 and 40 years old, all but one were disposed of by a prison sentence, and just over three-quarters by a sentence to be served as fulltime custody. The sentences imposed were from 12 months to 12 years, the majority being between 25 and 26 months: R v Crawford (No 1) [2020] ACTSC 245 at [71].

44.     I was not provided with any comparable decisions. These can be helpful if they are from this jurisdiction: R v Duffy [2014] ACTCA 53; 297 FLR 359 at 373; [92].

Consideration

45. In order to impose an adequate and proper sentence, it is desirable for a court to have a clear view of the purposes for which a sentence is to be imposed. In this Territory, the legislature has prescribed the purposes of sentencing in s 7 of the Sentencing Act. I have regard to them.

46.     Having regard to the nature of the offence of aggravated burglary, punishment is a relevant consideration. The effect of such an offence, particularly in residential-related premises, also calls for a consideration of general deterrence. The level of punishment and general deterrence will go a long way to meeting the need to denounce the offending. In this case, I do not consider that more is required.

47.     Mr Noland's prior criminal history, especially his earlier convictions for burglary, indicate that specific deterrence is a consideration. The protection of the community is also important. In this case, there is no clearly identified victim and so there is no harm to a victim that needs specifically to be addressed.

48.     Mr Noland pleaded guilty to the offence in this Court. It was entered one week before the trial, the date of which had already been set. While clearly it has some utilitarian value, it was of a limited kind. It did avoid the need for witnesses to give evidence and to be cross-examined and avoided the need for the time of the Court and counsel to be taken up with the trial.

49.     Amelioration of the sentence, however, is not available to Mr Noland for any assistance relating to the administration of justice. He declined to participate in an electronically recorded interview with police, which he was, of course, entitled to do, and when he gave evidence at the trial of the person charged as his co-accused, the evidence was described as quite unfavourable to the Crown. Again, Mr Noland is required to give the evidence he understands is the truth and cannot be penalised for not assisting the Crown, but by the same token, he is not entitled to the amelioration of the sentence that would have otherwise been available had he assisted.

50.     Mr Noland had a challenging upbringing. This is relevant, though I do not think that it comes to the level of consideration that enlivens the principles in Bugmy v The Queen [2013] HCA 37; 249 CLR 571. That, however, does not mean that consideration must not be given to the situation of his childhood and the trauma caused by the death of his grandmother, which coincided approximately with the commencement of his criminal history.

51.     That is not to say that this event caused his criminality, especially as this was about the time when he first began to use illicit drugs, though not methamphetamine, which came about 10 years later, and not his daily use of MDMA/Ecstasy, which also came some years later. Causation is a complex issue but there is no doubt in my mind that his drug use has been largely responsible for his offending behaviour.

52.     Mr Noland's drug use is not, however, a matter of mitigation in itself: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at 384-5; [193]-[203], 397-8; [273], 413; [349]. The circumstances of the commencement of drug use may be relevant: see R v Henry at

397–8; [273], R v Forrest (No 2) [2017] ACTSC 83 at [133]. That does not seem the

situation here, so far as the evidence before me is concerned.

53.     I take into account the facts of the offence, its seriousness and Mr Noland’s subjective

circumstances, as well as current sentencing practice. Having regard to all these matters, I am satisfied that no sentence, other than a sentence of imprisonment, is warranted.

54.     I note that Mr Noland has been in custody for 317 days. I shall take this into account as required unless there is good reason not to do so: Hawkins v Hawkins [2009] ACTSC 148; 3 ACTLR 210 at 229; [92]. In my view, the appropriate way to do so is to backdate the sentence under s 63(2) of the Sentencing Act.

Sentence

His Honour then spoke directly to the accused:

55.     Mr Noland, please stand.

56.     I convict you of aggravated burglary on 2 March 2020. I sentence you to two years imprisonment, to commence on 2 March 2020 to take into account your pre-sentence custody. Had you not pleaded guilty, I would have sentenced you to two years and five months imprisonment.

57.     You may be seated.

58.     Mr Noland has been sentenced to a term of imprisonment for two years. I note that he

is not currently subject to any other ‘sentencing order’ within the meaning of s 12A of

the Sentencing Act. I am also satisfied that Mr Noland is likely to be a resident in the
ACT for the next 13 months or so.

59.     I am also satisfied that the nature of and any obligations arising from a Drug and Alcohol Treatment Order (a Treatment Order) have been explained to him and that he has had an opportunity to ask questions about it and have them answered. I am therefore satisfied that he has given informed consent to the making of such an Order.

60.    I am satisfied that Mr Noland is dependent on methamphetamine and that his dependency substantially contributed to the commission of the aggravated burglary offences.

61.     Accordingly, I am satisfied that he is eligible to be subject to a Treatment Order.

62. I have carefully read the Suitability Assessments required under s 80T of the Sentencing Act. They are comprehensive and have been of considerable assistance in the preparation of these remarks and in deciding how to proceed.

63.     I note that both reports have recommended that Mr Noland is suitable for a Treatment Order. Mr Noland shows a willingness to rehabilitate and though initially resistant to a residential drug rehabilitation program, has accepted it as a way forward. I have not identified any indication of unsuitability for a Treatment Order, as set out in Table 46K of the Sentencing Act.

64.     Accordingly, I am satisfied that Mr Noland is suitable for a Treatment Order and that it is appropriate that one be made.

65.     Finally, I note that, although I have commenced the sentence of imprisonment from 2 March 2020, which period, from that date until today, has been served in custody, and that that sentence must now be suspended from today, this does not prevent Mr Noland from being subject to the Treatment Order, for the reasons sets out in R v Crawford (No 1) at [91]-[111].

Drug and Alcohol Treatment Order

His Honour then spoke directly to the accused again:

66.     Mr Noland, please stand again.

67. I make a Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) for you for the period from today to 1 March 2022, in respect of the offence of aggravated robbery on 2 March 2020, of which I have convicted you and for which I have imposed a sentence.

68.     I hereby incorporate the conviction and sentence for the offence of aggravated burglary into the Drug and Alcohol Treatment Order as the custodial part of that Order.

69. I suspend that sentence from today, 12 January 2021, until 1 March 2022, under s 80W of the Crimes (Sentencing) Act 2005 (ACT).

70.     For the treatment and supervision part of the Drug and Alcohol Treatment Order, I order:

(a)	that you comply with the core conditions of that Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT);
(b)	that you complete the residential drug rehabilitation program conducted by Canberra Recovery Services at Fyshwick, and to that end, I direct that you travel directly from the Court to Canberra Recovery Services, admit yourself to that Program, remain in that Program until it is completed, and obey all the rules of the facility and the Program and any directions of the officer in charge of the facility;
(c)	that you not leave Canberra Recovery Services before you complete the Program without the approval of the Court, but if you are discharged from the Program or otherwise leave the Program, you present yourself to ACT Corrective Services by 4:00 pm on the next business day after you are discharged or leave, with a view to having the Drug and Alcohol Treatment Order reviewed;
(d)	that you undergo any program of treatment or counselling and urinalysis and case management, or other program as may be required by any member of the Treatment Order Team or by the Court from time to time; and
(e)	that you comply with any directions of the Court from time to time about attendance at Court in person or by electronic means.

71.     I direct that you appear in Court on 22 January 2021 at 12:30 pm by electronic means.

72.     I direct that you attend the Court Registry before leaving the Court today to sign the sealed copy of the Order.

73.     I have copies of that Order for counsel, so that you can see that I have done it right, and so that your counsel is able to explain it to you.

74.     Mr Noland, you have been around long enough. You probably understood most of what I said, which is legalese, but I now need to explain briefly to you what I have done and make some observations about your future.

75.     Now, I have indicated that given your history, and given the circumstances of the offence, two years is the period of imprisonment that is appropriate for it. You have already served a long part of that from March 2020, and I do not require you to serve any more time in custody, unless you breach the terms of the Treatment Order or commit further offences and so on.

76.     I have accepted that you are willing to reform and rehabilitate yourself and this is about the time when you need to do so. My experience is that most people at about your age who have been drug dependent find that life is not as rosy as they think and realise that the drugs they use lead them to believe incorrectly and that it is about time to change.

77.     If you are committed to rehabilitation, then this is the place to come. This Court will assist you and it is supported by a large team of people, case managers from Canberra Health Services, counsellors, Corrective Services officers, and others who will support you as long as you put the effort in and do the work. Canberra Recovery Services is a respected organisation that deals with drug rehabilitation.

78.     I am not satisfied that anything but residential drug rehabilitation and the Program there, which I think is for about six months, is appropriate. I know you are a bit reluctant about that. The reality is that it is on offer. That is what you have got to do, because it is what the experts say, and what they tell me is what you have got to do it, so do that.

79.     Now, in the meantime, you will see a lot of me. You will see a lot of your counsellors and so on, but you will see a lot of me because you have to come back, at least in the first part of the time, once a week. You will not come back now until 22 January 2020, because we are not sitting on Friday this week, on 15 January 2020, for ordinary work.

80.     But you will come back every week. It will be through audio and/or visual link. That will be an opportunity for me to check how things are going, for you to raise any issues that may be of concern to you, and for us to see how we can try and address them. Despite sitting up here, I am not omnipotent. I do not have all power, but it is amazing what, with a bit of thought and help, can be resolved. And you have got expert people, as I say, who can assist and are very diligent, very effective about doing that, and who can assist you to raise and deal with the issues here before they get out of control.

81.     It is really important that you spend time and effort in doing this, and doing it well, because if you succeed, the rest of your life will be much better and you will be able to function in the community in a sensible way thereafter.

82.     What is really important is it is going to be lengthy and lumpy. You have had a relatively long period of dependency and use, and it will take some time to get your head and your body around not using anymore. There will be challenges, and there will be hiccups along the way. What is really important is to address those, to not run away, to not put your head in the sand, but to raise those issues, to raise them with your counsellors or to raise them with me. I will not be able to solve them all, but I can encourage your counsellors and others to assist you to do so.

83.     Residential rehabilitation is not easy. It can be hard, and sometimes you just cannot hack it anymore. Come and talk to me about it, and we will see what we can do. I cannot guarantee anything, but I cannot do anything if you do not come and talk to me.

84.     If you leave, and I do not think you should leave, but if you do leave, come back, report to ACT Corrective Services by 4:00 pm the next business day at the latest, earlier than that if possible, and we will review the situation. It has been possible in the past to address issues in that way with other participants. It is preferable you do not leave. It

is preferable you come back on a Friday and say, ‘I just can't hack it anymore. What can we do?’ and then we can talk it through and see if we can work it out. If you just

disappear, then almost inevitably I will have to sanction you, and at worst, activate the two-year sentence and you will have to serve the balance of it, subject to any progress you have been making.

85.     One of the most important things in drug rehabilitation is honesty. You cannot really be honest with yourself unless you are honest with others, and honesty with yourself is really, really important. You might believe you are being honest, but it is the craving which demands and puts a fog over what you think and distorts your view.

86.     You must be honest, and that is important. We value honesty, so that if you come and

say, ‘Look, I just really couldn't hack it, I had to have a shot or a snort’, then the sanction

will apply because you have used and that is a breach, but it will be a less severe sanction because you have been honest, and you have admitted to your use, and have been up front about it.

87.     I am not encouraging you to use. One of the most important things is not to use, and that will be tough, but it will be possible. You have done it before. You know how you can do it. And you know it was tough, but you know you can get through it.

88.     Now that you have got considerable support, and not just the equivalent level of support you had for your six months parole, but a greater level of support for the ongoing period from today until March 2022, this Court will support you, and the team will support you if you are committed.

I certify that the preceding 88 [eighty-eight] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge.

Associate: Samuel Xiang

Date: 6 July 2021