R v Sladic - [2014] ACTSC 56

That Ms Sladic breached the good behaviour order made on 14 December 2012.

AND THE COURT ORDERS THAT:

Ms Sladic not be re-sentenced at this time.

CADAS Reports be prepared for 12 August 2014 and 6 February 2015.

Ms Sladic be released on bail on the following conditions:

a) That she appear for sentence on 6 February 2015 at 9:30 am;

b) that she accept supervision by the Director-General or the Director-General’s delegate and obey all reasonable directions of the person delegated to supervise her;

c) that she be released into the company of her father, Joseph Sladic, and reside, from 13 February 2014, at 29 Braine Street, Page, and not leave those premises except in accordance with these bail conditions;

d) that she travel, on 14 February 2014, to Surfers Paradise in the company of the Reverend Bob Prior and admit herself to Surfcity Transformations at 2 Monaco Street, Surfers Paradise;

e) that, if for any reason, she is not admitted to Surfcity Transformations, she must report within two working days to the Registrar of the Supreme Court for reconsideration of the bail;

f) that she remain in the program, save for the requirement to attend court, and obey all reasonable directions in respect of the program and not terminate or absent herself from the program without prior permission from the Supreme Court;

g) That she appear on 12 August 2014 at 9:30 am for bail review.

In Saga v Reid [2010] ACTSC 59 at [89], I said:
... In my view, it can be accepted that drug addiction is such that it can take a number of failed attempts at rehabilitation before it is successful. It is hard work and no short cut or quick fix. It can take some time, and some failures, before an offender addict manages to break through the barriers to achieve a more effective rehabilitation. The courts cannot, of course, sit back and allow attempts to be made without end. By the same token, past failures do not automatically deny an offender the opportunity for a further attempt. Ordinarily there would have to be some rational basis for permitting it.
Janna Maree Sladic appears before me, admitting that she had breached a good behaviour order that I made on 14 December 2012, when I suspended a sentence of three years’ imprisonment for an aggravated robbery committed on 13 November 2011. I made a good behaviour order for two years from that date.

Ms Sladic has, however, now committed further offences, including burglary, escape from arrest, driving while her licence was suspended, unlawful possession of stolen property and trespass on premises.

I have set out in the remarks I made on sentence, R v Sladic (Unreported, Australian Capital Territory Supreme Court, Refshauge J, 14 December 2012), the facts of the original offence. I do not need to repeat them but, in summary, she and a male co-accused went to a fast food store in Hawker. Ms Sladic had a knife with her, as did her co-accused. They both entered the store and met an employee from whom they demanded money. They stole about $300.

It is clear that Ms Sladic was an active heroin user in part as a result of the consequences of a motor vehicle accident in 2005, which brought an end to a professional basketball career. She became involved with a heroin user with an extensive criminal record and soon became dependent.

A proposal was put to me that she move to Melbourne, which would remove her from her associates and enable her to live with her sister, who could provide support, assist with gaining employment and help her to continue with her drug rehabilitation. Unfortunately, this did not happen and relatively soon after Ms Sladic returned to drug use and got into problems. None of the offences, however, were as serious as those for which I originally sentenced her.

On 20 July 2013, she went into premises in Watson through a side courtyard, accessible from a gate located opposite the front door. She had no permission to do so and was charged with trespass.

Trespass is an offence under s 11 of the Public Order (Protection of Persons and Property) Act 1971 (Cth), and attracts a maximum penalty of 10 penalty units, that is, a fine of $1,700.

This offence, however, did not breach the good behaviour order. Under s 86 of the Crimes (Sentence Administration) Act 2005 (ACT), the relevant obligation is not to commit an offence punishable by imprisonment.

On 24 July 2013, Ms Sladic was interviewed by police when she was seated in the driver’s seat of a motor vehicle. The registration plates on the vehicle were not those for which the vehicle was registered and, in fact, came from another vehicle. The plates had, in fact, been recently stolen. In addition, Ms Sladic had driven the motor vehicle to the place where police spoke to her, but her driver’s licence had been suspended due to non-payment of fines. These events led to her being charged with two offences. She was charged with driving while her licence was suspended by law, an offence against s 32(2)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT), which provides for a maximum penalty for a first offender of fifty penalty units (that is, a fine of $5,500), or imprisonment for six months, or both.

She was also charged with being in unlawful possession of stolen property, an offence against s 324(1) of the Criminal Code 2002 (ACT) (the Criminal Code), for which the maximum penalty is fifty penalty units (that is, a fine of $5,500), or imprisonment for six months, or both. These offences, attracting a term of imprisonment, both breached the good behaviour order I made.

Finally, on 11 August 2013, Ms Sladic entered a house in Hawker. When police arrived, having been alerted by a passer-by, Ms Sladic hid from them in the laundry, but was discovered. She said that she was hiding in the house because someone was chasing her. She was arrested by police, but suddenly pushed past the police and ran off.

As a result, Ms Sladic was charged with burglary, an offence contrary to s 311 of the Criminal Code, for which the maximum penalty is 1,400 penalty units (that is, is a fine of $154,000), or imprisonment for fourteen years, or both. She was also charged with escaping from arrest or custody, an offence under s 160 of the Crimes Act 1900 (ACT) (the Crimes Act), the maximum penalty of which is one hundred penalty units (that is, a fine of $11,000), or imprisonment for five years, or both. Both of these offences also breached the good behaviour order. Although convicted of these offences, Ms Sladic has not been sentenced for them, as the Magistrates Court is awaiting my decision on the breach of the good behaviour order.

Subjective circumstances

I have set out the personal circumstances of Ms Sladic in my remarks on sentence, R v Sladic, and do not need to repeat them. I take them into account.

I had, however, the Pre-Sentence Report for her appearance in the Magistrates Court. It was tendered to me. It did not, however, add a lot to what I had already known.

The Report was somewhat mixed. In reporting on her attitude to the offences, the author stated

Ms Sladic accepted responsibility for the offences, however minimised her knowledge and intent. She expressed that her substance abuse and anti social companions were contributing factors in the offending. The offender expressed regret for the offending however her reasoning was mainly self referential with little awareness of the victims.

Ms Sladic has also been subject to supervision by ACT Corrective Services before. The author of the Report commented

Ms Sladic’s past compliance with supervision has been poor. This Service’s records indicate she frequently rescheduled or failed to attend appointments, and her ongoing substance abuse adversely affected her compliance with supervision.

A Deferred Sentence Order was regarded as possibly offering her an opportunity “to demonstrate her claimed motivation to undertake residential rehabilitation”. She was, because of her unaddressed alcohol and drug issues, assessed as unsuitable for a community service condition to a good behaviour order or for a term of imprisonment to be served by periodic detention.

The Reverend Bob Prior, Chaplain to the New South Wales South-East Racing District and President of SportzCare ACT, wrote a detailed letter of reference. It was very helpful. He had known Ms Sladic for ten years from when Ms Sladic was in the ACT Academy of Sport women’s basketball squad. He lost contact for a time, but made contact again when she was in custody at the Alexander Maconochie Centre (AMC) in 2012. He provided her with religious support, and found that she was receptive and began to read the Bible and engage with him.

He recounted that while wanting to go to Melbourne in accordance with the arrangements I had put in place

she again came under the influence of her old drug using ‘mates’ and was not strong enough on her own to stay clean and sadly became controlled by the drugs again.

Since her arrest in 2013, he has been visiting her every week and expressed the opinion that

She seems to finally realise that she is not and never will be strong enough in her own strength to overcome her drug addiction.

He recommended an agency where she might receive appropriate treatment. He considered that her stronger belief in God would help her to start afresh.

I was also informed that Ms Sladic was on the waiting list for a bed at Karralika Programs Inc, whose Therapeutic Community Adult Program offer residential rehabilitation care for adults with alcohol and other drug dependencies, using the therapeutic community approach to treatment. She has been in regular contact with that agency to ensure her placement in due course.

She also investigated other residential rehabilitation facilities where she might engage in drug rehabilitation in a residential setting. She has now been offered a place at residential rehabilitation agencies known as Transformations. It has locations in various parts of Queensland and, in particular, Surfers Paradise. I had a brochure from that organisation and, like Karralika, it operates on the therapeutic community model. The program is for approximately twelve months and has a range of stages, from the admission stage, where for two weeks she is assessed and becomes familiar with the environment, through to a graduation, which is, “A celebration of her success of completing the program, however, it is also a step towards and continuation of living in a supportive environment and maintaining a clean and sober life, a positive influential life in the community, positive relationships and healthy boundaries, a spiritual foundation through prayer, the Bible and networking with like-minded people”.

Ms Sladic acknowledged that she had had opportunities in the past and had, in many cases, failed to take advantage of them. She felt, however, that she was clearer now and that she needed to take responsibility for herself and accept that she was unable to achieve management of her addiction without some external help.

She is currently, as a remandee, unable to access the few programs that are available to women in the AMC.

Consideration

The breach of the good behaviour order is a serious matter, especially as it came a little over six months into the period of the order. As noted in cases such as R v Marston (1993) 60 SASR 320, ordinarily a breach of a suspended sentence, which effectively is what the breach of the good behaviour order under the order the Crimes (Sentence Administration) Act is, should result in the imposition of the sentence that has been suspended.

There are, however, other considerations. For example, as French CJ remarked in Hogan v Hinch (2011) 243 CLR 506 at 537; [32]:

Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.

Accordingly, both counsel submitted that the opportunity for a chance to participate in rehabilitation would be desirable. I have set out, in R v Calvert [2014] ACTSC 41, some of the considerations that a court would take into account when deciding how to respond to the breach of a good behaviour order made on the suspension of a sentence of imprisonment.

It was accepted that Ms Sladic appeared genuine in her desire to take a more serious approach to rehabilitation and to seek to address the factors that clearly have contributed to, if not caused, her offending behaviour.

Accordingly, I am prepared to consider a Deferred Sentence Order for the purpose of Ms Sladic attending at a residential rehabilitation facility and, in particular, Transformations. Both counsel submitted that that would be an appropriate approach for the current process of sentencing her. I am satisfied that releasing Ms Sladic on bail to attend such a facility would allow her to address her criminal behaviour and the drug addiction that has contributed to it. I am also satisfied that, if she is successful in completing such a course, I am able to impose a less severe sentence than I would otherwise be required to do.

I have, accordingly, carefully considered the Pre-Sentence Report, even though it was prepared for the breaching by other offences. I have considered the information from the Reverend Bob Prior and the evidence given by Ms Sladic. I note that the Pre-Sentence Report, while not in terms recommending a Deferred Sentence Order, is apparently supportive of the option. I am also required, under s 118 of the Crimes (Sentencing) Act 2005 (ACT), to set out the penalties that Ms Sladic might receive if she complies with the order and any bail conditions and the penalties she might receive were she not to comply.

In my view, if Ms Sladic does not comply with the order and the bail conditions, I consider she should serve the full balance of the sentence that was suspended, that is, one year and eleven months, to be served by full-time custody. A non-parole period would have to be set. If Ms Sladic does comply with the order, I would impose a sentence of that length, but with no part of it to be served by full-time custody, though part may be served by periodic detention or a good behaviour order with a community service work condition.

I note that, of course, compliance is not a clear cut option. Often, especially for drug addicted offenders, whose lives are often chaotic, compliance is partial or patchy. The options I have outlined are not the only possible results, but they constitute the two ends of the spectrum from non-compliance to any appreciable degree and full compliance.

Mr T Crispin, who appeared for Ms Sladic, submitted that I should moderate the period of imprisonment because of some elements of duress in the commission of the original offence.

He referred to what I apprehend was R v Hathaway (Unreported, ACT Supreme Court, 11 December 2006), where he submitted, duress became relevant to sentence and had the effect of moderating it. See also s 33(1)(q) of the Crimes (Sentencing) Act. A more appropriate decision on which to base the submission may be Tiknius v R (2011) 221 A Crim R 365. I do not think the principle unsound, but I consider that a substantial element of leniency was able to be given in the sentence I originally pronounced. I do not consider that further leniency is warranted in the circumstances.

I consider, therefore, that I should make a Deferred Sentence Order, and I will. I will make that for a period of twelve months, which is the period of the program for Transformations, but I will also list the matter for a review in August, so that the matter can be considered. While it would be desirable for Ms Sladic to attend on that occasion, if it is inappropriate from the success of her conduct of the residential program, then I would relieve her from that obligation.

Ms Sladic, please stand:

1. I am satisfied that you have breached the good behaviour order that I made on 14 December 2012, when I suspended a sentence of imprisonment of three years for the offence of aggravated robbery. I consider that I should re-sentence you for that offence. I have decided not to sentence you at this time. I note that you are not serving nor liable to serve a term of imprisonment for an offence other than the offence for which I am re-sentencing you.

2. I have considered the Pre-Sentence Report about you and the other evidence that I have heard on sentence. I consider that you should be given an opportunity to address your criminal behaviour and the drug addiction which has contributed, if not caused, that behaviour before I re-sentence you.

3. I am satisfied that I am going to release you on bail under the Bail Act 1992 (ACT). Accordingly, I order that you appear before me at 9:30 am on 6 February 2015 to be sentenced for the offence of aggravated robbery.

4. I order that you appear before me at 9:30 am on 6 February 2015 to be sentenced for the offence of aggravated robbery. I release you on bail to appear on that date, and I set the following conditions:

(a) that you accept supervision by the Director-General or the Director-General’s delegate and obey all reasonable directions of the person delegated to supervise you;

(b) You will be released into the company of your father, Joseph Sladic, and reside, from 13 February 2014, at 29 Braine Street, Page, and not leave those premises except in accordance with these bail conditions;

(c) That you travel, on 14 February 2014, to Surfers Paradise in the company of the Reverend Bob Prior and admit yourself to Surfcity Transformations at 2 Monaco Street, Surfers Paradise;

(d) That, if for any reason you are not admitted to Surfcity Transformations, you must report within two working days to the Registrar of the Supreme Court for reconsideration of the bail;

(e) That, you remain in the program, save for the requirement to attend court, and obey all reasonable directions in respect of the program and not terminate or absent yourself from the program without prior permission from the Supreme Court;

(f) That, if you are discharged from the program for any reason, you must report within two working days to the Registrar of the Supreme Court for reconsideration of your bail; and

(g) That you appear on 12 August 2014 at 9:30 am for bail review.

5. I indicate that if you do not comply with this order and the bail conditions I consider that you should be sentenced to three years’ imprisonment, or to serve the balance of that term that was earlier imposed, namely, approximately one year and eleven months.

6. I indicate that if you do comply with the order and the bail conditions I consider that you should be sentenced to imprisonment for a similar period to be served either by way of periodic detention or wholly suspended with a good behaviour order, possibly including a community service condition.

[His Honour then spoke directly to Ms Sladic]

I explain to you the following. If you breach the conditions of the bail or the order you are liable to be arrested and brought before the court, I may review the deferred sentence order at any time. In addition to me reviewing the deferred sentence order on my own initiative, the Director-General, the Director of Public Prosecutions or you may apply to the court to have the order reviewed.

On a review of the Deferred Sentence Order I may take no action, warn you about the need to comply with the conditions of the deferred sentence order and your bail, amend the conditions of the deferred sentence order or cancel the order, which would include re-sentencing you, which would include the possibility of sentencing you to a period of gaol. If your bail is revoked, the deferred sentence order is automatically cancelled.

I think you probably understand that. You said to me that the stupidest thing you did was not coming back to Court when things were not going well. Well, that is not quite right. That is a pretty stupid thing, but the stupidest thing you did is not go to Melbourne and actually get yourself sorted out. This is your opportunity. I will not say it is your last opportunity, because we never know what happens in life, but you must take this seriously.

You cannot expect leniency forever, and this is a genuine opportunity if you are committed to it and take it with both hands. If something goes wrong, do come back and see me, because there are other agencies, there are other options that can be tried, as long as I am satisfied that you are genuinely making an effort to address your drug addiction. As I said in my remarks, I understand that it is tough, but I also expect you to put some effort into it. You were an elite athlete. That requires commitment, and that requires focus of mind, and so you have got the talent and the capacity to do that. But it is a tough road to hoe, and you need to put your energy and your conscientious commitment into that, and the court will support you if you do that. But if you do not, then the realistic option, and you have seen at the AMC, that people just get into the revolving door. They are in and out and in and out, and that is where you will be, and if that is the life you want, well, the court will have no hesitation in doing that if you keep preying on the community and committing offences that are unacceptable in our society.

I hope this works. I have certainly put some effort into it. I hope you do the courtesy to me of doing likewise, and if you do, I will support you in that to the extent that the law allows me to do so.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 23 June 2014

Counsel for the Crown:  Ms M Hunter
Solicitor for the Crown:  ACT Director of Public Prosecutions
Counsel for the defendant:  Mr T Crispin
Solicitor for the defendant:  S & T Lawyers
Date of hearing:  17, 29 January 2014
Date of judgment:  13 February 2014

Citations

R v Sladic [2014] ACTSC 56

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