R v Novakovic; Director of Public Prosecutions v Novakovic
[2024] ACTSC 219
•10 July 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Novakovic; DPP v Novakovic |
Citation: | [2024] ACTSC 219 |
Hearing Date: | 10 July 2024 |
Decision Date: | 10 July 2024 |
Before: | Christensen AJ |
Decision: | Pursuant to s 112(1)(a) Crimes (Sentencing Administration) Act 2005 (ACT), the good behaviour order issued on 23 October 2023 is amended, by omitting, condition (g) / (7), relating to a curfew. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Good Behaviour Order – s 112 Crimes (Sentence Administration) Act 2005 (ACT) application to amend – where applicant subject to curfew conditions for three years – whether curfew conditions onerous or excessive – whether curfew conditions limit applicant’s rehabilitation and integration – power to amend GBO that has been transferred to another state or territory – application granted |
Legislation Cited: | Community Based Sentences (Interstate Transfer) Act 2020 (QLD) s 18C |
Cases Cited: | Goundar v Goddard [2010] ACTSC 56; 240 FLR 176 |
Parties: | Director of Public Prosecutions ( Respondent) Slobodan Novakovic (Applicant) |
Representation: | Counsel B Chifuntwe ( Respondent) Self-represented ( Applicant) |
| Solicitors ACT Director of Public Prosecutions Self-represented ( Applicant) | |
File Numbers: | SCC 44, 45 of 2022 SCC 140, 141, 218 of 2023 |
CHRISTENSEN AJ:
EX TEMPORE REASONS (REVISED)
Introduction
By way of application in proceeding filed 5 July 2024, Mr Novakovic (the applicant) seeks:
(a)removal of curfew conditions on his good behaviour order; and
(b)to be allowed to travel to run his business.
The grounds for the application are that there was “error”, and the order was “unreasonable”. In support of his application, Mr Novakovic relies on an affidavit he has prepared that sets out the challenges he is experiencing following the imposition of a curfew condition as part of his good behaviour order.
Background
On 23 October 2023, the applicant was sentenced in the Drug and Alcohol Sentencing List for property, drug, and violence offences. A total sentence of four years and two months’ imprisonment was imposed, to commence on 1 May 2022, and end on 30 June 2026: R v Novakovic; DPP v Novakovic (Supreme Court of the Australian Capital Territory, Refshauge AJ, 23 October 2023) (R v Novakovic) 21-23.
The sentence of imprisonment was suspended from 20 December 2023, and Mr Novakovic was required to comply with good behaviour obligations for three years until 19 December 2026: R v Novakovic 29-30.
The conditions of Mr Novakovic’s good behaviour order are:
(a)To comply with the core conditions of an offender’s good behaviour order under s 86 of the Crimes (Sentence Administration) Act 2005 (ACT).
(b)That, until he relocates to Brisbane, Queensland, he reside at [redacted] Holder, ACT.
(c)That he accept the supervision of the Commission of ACT Corrective Services or his delegate and obey all reasonable directions of the person delegated to supervise him for 3 years from 20 December 2023 or for such lesser period as the person supervising him deems appropriate, and to obey all reasonable directions of the person supervising him including as to residence, with whom he associates, attendance at programs for treatment of drug and alcohol dependence, and alcohol and drug testing.
(d)That, with the person supervising him, he arranges as soon as reasonably possible to move to Brisbane, Queensland, to reside in accommodation which has been assessed as suitable by the person supervising him.
(e)That he not consume alcohol, cannabis, illegal drugs or prescription drugs not prescribed to him.
(f)That he not return a positive test sample under alcohol and drug testing.
(g)That he reside at his residence between the hours of 8:00pm each day and 8:00am the next day other than for a medical emergency, and he present himself to the front door of the residence if required by a police officer during those hours, subject to the written approval otherwise of the person supervising him.
(Emphasis added.)
This emphasised portion is relevant as it is of significance to the application Mr Novakovic now makes. What was said at the sentence hand down as to this condition is also relevant.
The transcript reveals the exchange that occurred after the sentence orders were pronounced:
PROSECUTOR: The other matter which I seek to raise is the last condition, whether that is intended, the curfew, to attach or to operate for the entirety of the good behaviour order, or only for the period of time when the defendant resides in the ACT.
HIS HONOUR: I’m open to either.
PROSECUTOR: In my submission, there is significant utility in the curfew, and that will obviously operate as a protective factor, particularly where a number of these offences were committed during the small hours.
HIS HONOUR: Yes.
…
HIS HONOUR: I mean, a good behaviour order can always be amended.
…
HIS HONOUR: [S]o if ether the applicant or the prosecution want to do that – it gets a little bit more complicated when it’s transferred interstate, because then it becomes an order of the interstate court and so the application would have to be made in Queensland… But, I mean, as with the supervision condition, it could give the Corrective Services the right to terminate that if they thought it was appropriate.
…
DEFENCE: One eventuality – I don’t have any instructions at the moment. Three years is a long time and I’m not sure whether Mr Novakovic may wish to take up any residential rehabilitation opportunities in the future. I can’t think of a reason why that can’t be managed in this order, but it could always be amended.
…
HIS HONOUR: Now, what about the curfew? Are you content with a limitation on that, or do you want to leave it to an application? I mean, three years from December is quite a long time.
DEFENCE: Yes.
HIS HONOUR: Given his mobility issues, it’s unlikely that it will cause him distress.
DEFENCE: No.
HIS HONOUR: But it may be that, you know, he wants to vary it because he wants to do things in the evening.
DEFENCE: Your Honour, my version of that condition doesn't make provision for that.
HIS HONOUR: No, it doesn't.
DEFENCE: No.
HIS HONOUR: Do you want me to make provision for that, such as 'subject to approval by the person supervising him'?
DEFENCE: Yes, your Honour, that would be useful.
…
PROSECUTOR: I wouldn't be heard against that.
…
PROSECUTOR: Perhaps if it could be framed as 'subject to written approval'.
HIS HONOUR: 'Written approval by the person supervising him'.
The portion that the curfew was “subject to the written approval or otherwise of the person supervising him” was then confirmed as part of the order as condition (g) (recorded as condition (7) in the court orders).
Plainly, the sentencing Court contemplated that the curfew condition was able to be varied by a Community Corrections supervisor. It is not clear as to whether it was contemplated that the supervisor had scope to vary the curfew condition to such an extent that it was removed. Rather, it appears that the Court contemplated that there would be an ability to apply for this to occur if that became necessary or desirable. It appears that the Court contemplated that a curfew condition for the duration of the good behaviour order was not necessarily unreasonable nor onerous, subject to Mr Novakovic's progress with rehabilitation.
The application
Mr Novakovic disagrees, and his affidavit reveals the concerns and challenges he has had with the curfew condition:
(a)he understood the intention with the curfew was that it would remain in place while he applied for approval to transfer his order to Queensland, as he was relocating there;
(b)he obtained approval from Queensland authorities for them to supervise him with the form of order in Queensland being a probation order; and
(c)because the order did not provide that the curfew condition was temporary, he is “stuck with a three year order with half of it on house arrest”. He believes that he is in the only person in Australia with the condition of house arrest on a community based order.
The applicant affirms that he has done a course, purchased equipment, and started his own business. His business model requires him to travel and work in different locations, which he is unable to do because of the curfew. He has lost opportunities for his business because of the curfew.
The applicant fears being incarcerated if he were to breach the curfew. This is affecting his mental health, and he cannot spend time with his son as he is exposed to curfew checks all through the night at random times. He describes that his mental health is at breaking point, as he has never felt as hopeless as he does now. He cannot socialise or make any plans or commitments after 8:00pm.
In further support of his application, there is a letter from Mr Novakovic's son, and from a community member who knows him well. They both speak of the challenges that the curfew is imposing on the applicant and his business opportunities. They speak of his efforts of rehabilitation, his positive reintegration into the community, and his valued role in the family household.
At the hearing of the application, material was produced by the prosecution that confirms that Mr Novakovic’s community based order was, as at 29 January 2024, registered in Queensland. The applicant explained that in Queensland the terms of his supervision include the curfew requirement, and that he is not able to amend it in that jurisdiction. The prosecution helpfully assisted with the relevant Queensland legislation, and that appears to confirm the applicant's position: s 18C of the Community Based Sentences (Interstate Transfer) Act 2020 (QLD). That is, for the Queensland authorities, Mr Novakovic is to be subject to the orders as imposed by the ACT.
While not expressed in his application, Mr Novakovic is clearly attempting to make an application pursuant to s 112 of the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act) to amend the good behaviour order. The relevant provisions provide:
112 Court powers—amendment or discharge of good behaviour order
(1)A court may, by order—
(a)amend an offender’s good behaviour order; or
(b)discharge an offender’s good behaviour order.
…
(2)The court may act under this part—
(a)on its own initiative; or
(b)on application by an interested person for the good behaviour order.
(3)The amendment of the good behaviour order takes effect as stated in the court order.
(4)This section is subject to section 113.
113 Good behaviour orders—limitations on amendment or discharge
(1)A court must not amend an offender’s good behaviour order—
(a)to increase the number of hours of community service work to be done under the order; or
(b)for an order mentioned in the Crimes (Sentencing) Act 2005, section 17 (7) (Non-conviction orders—general)—to extend the term of the order beyond 3 years.
(2)A court may not amend an offender’s good behaviour order in a way that would be inconsistent with a core condition of the order.
(3)If the Supreme Court made, or amended, an offender’s good behaviour order, the Magistrates Court must not amend the order in a way that would be inconsistent with the order as made, or amended, by the Supreme Court.
(4)However, subsection (3) does not apply to a requirement, incidental to a proceeding before the Magistrates Court, that is not inconsistent with the substance of the good behaviour as made, or amended, by the Supreme Court.
(5)If the Supreme Court made or amended an offender’s good behaviour order, the Magistrates Court must not discharge the order.
The term “amend” in s 112 includes omit: see the note to s 112 of the Sentence Administration Act; Dictionary pt 1 (definition of ‘amend’), ss 7(3), 114 of the Legislation Act 2001 (ACT); R v McGowan [2016] ACTSC 369 at [3].
Consideration
The prosecution appropriately did not oppose the omission of the curfew condition, seemingly recognising the onerous nature of it and the restrictions it places on Mr Novakovic for continuing his rehabilitation and reintegration. However, the prosecution helpfully raised whether this Court has jurisdiction to act pursuant to s 112 of the Sentence Administration Act, given the order has been transferred to another jurisdiction.
I was referred to the decision of Refshauge J in R v Elphick (No 3) [2017] ACTSC 302 (Elphick), which involved a somewhat analogous situation. In Elphick, there had been a transfer of an order to New South Wales, but the issue there was whether the Court could apply the slip rule in those circumstances: r 6906 of the Court Procedures Rules 2006 (ACT) (the Rules).
The circumstance here does not enliven the slip rule, or for that matter, s 61 of the Crimes (Sentencing) Act 2005 (ACT). What Elphick does highlight is the effect of s 284 of the Sentence Administration Act, which provides:
284 Community-based sentence transfer—effect of interstate registration
(1)If the local sentence is registered in the interstate jurisdiction, the following provisions have effect:
(a)the sentence becomes a community-based sentence in force in the interstate jurisdiction, and ceases to be a community-based sentence in force in this jurisdiction;
(b)the offender may be dealt with in the interstate jurisdiction for a breach of the sentence, whether the breach happened before or after the registration of the sentence;
(c)if the sentence is registered in the local register—the sentence ceases to be registered.
(2)If this jurisdiction is the originating jurisdiction for the local sentence, this section does not affect any right of appeal or review (however described) in relation to—
(a)the conviction or finding of guilt on which the sentence was based; or
(b)the imposition of the sentence.
(3)To remove any doubt, this section does not prevent the local sentence from later being registered in this jurisdiction.
As his Honour Refshauge J observed in Elphick at [43]:
It seems clear that, on registration, the sentence becomes a sentence of the appropriate court in [the other jurisdiction] and ceases to have any effect in the Territory. It seems to deprive this Court of any power in respect of the sentence.
Nonetheless, as otherwise observed in Elphick, s 284(2) of the Sentence Administration Act expressly preserves a power for the court to retain jurisdiction where there is a “review (however described) in relation to … the imposition of the sentence”. His Honour further observed that “[i]t is not an entirely easy question as to what meaning to give to the word “review’”, but “it is a word of wide import and has no narrow, technical legal meaning”: Elphick [51], [53]. His Honour concluded that the term “review” encompassed the application of r 6906 of the Rules as it arose there.
Applying the wide meaning prescribed to “review” as occurred in Elphick – which is consistent with the broad legislative description in s 284(2) of a “review (however described)” – I cannot identify any reason why a “review” would not extend to incorporating a s 112 Sentence Administration Act application.
That is, I am satisfied that, even in circumstances of a community based order having been registered in another jurisdiction, the court retains jurisdiction to act pursuant to pt 6.6 of the Sentence Administration Act. The prosecution's submission did not press against such a conclusion.
I am satisfied that the proposed amendment, being an omission, is not inconsistent with a core condition of the order. I am otherwise satisfied, noting that the provision is silent as to the criteria to be applied, that it is appropriate in the circumstances to remove the curfew condition.
In so considering, I am conscious that the grounds of Mr Novakovic's application raise terms more commonly applicable in a circumstance of an appeal. As observed by Refshauge J in Goundar v Goddard [2010] ACTSC 56; 240 FLR 176 (Goundar v Goddard) at [26], the provisions in application here are not intended to “permit an appeal by another route”. That is:
[I]t is not intended to allow a person, in respect of whom a good behaviour order is made, to seek to challenge it by applying for amendment or discharge simply because he or she does not like it or thinks it is manifestly excessive or inadequate or wrong.
Here, while it might be that Mr Novakovic does think the curfew condition is excessive or wrong, or, as he asserted, unreasonable or erroneous, the circumstances as they arise are not reflective of the applicant seeking an appeal by another route. Rather, Mr Novakovic is seeking to give effect to what was contemplated at the time he was sentenced.
That is, that in the event the applicant relocated to Queensland as he intended, and he came to be supervised by Queensland authorities, that it would be a matter for the entity responsible for his supervision in that jurisdiction to give effect to the conditions of supervision. The current circumstances that Mr Novakovic finds himself in are such that he requires clarity as to his good behaviour obligations. As his Honour considered in Goundar v Goddard at [27], the provisions are:
[I]ntended to apply when there is a change in circumstances which makes the order no longer appropriate, or the effluxion of time makes it unnecessary, or the basis on which it was made is subsequently found to be wrong …
Orders
For those reasons, the following order is made:
(1)Pursuant to s 112(1)(a) Crimes (Sentencing Administration) Act 2005 (ACT), the good behaviour order issued on 23 October 2023 is amended, by omitting, condition (g) / (7), relating to a curfew.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Christensen Associate: Date: |
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