R v Subasic - [2022] ACTSC 380

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Subasic
Citation:	[2022] ACTSC 380
Hearing Date:	4 February 2022
Decision Date:	2 March 2022
Before:	Refshauge AJ
Decision:	1. Jeremy Subasic be convicted of obtaining property by deception and be sentenced to 2 months imprisonment commencing from 23 February 2022 and expiring on 22 April 2022. 2. Jeremy Subasic be convicted of dishonestly driving a motor vehicle without consent and be sentenced to 6 months imprisonment commencing from 23 March 2022 and expiring on 22 September 2022. 3. Jeremy Subasic be convicted of dishonestly driving a motor vehicle without consent and be sentenced to 6 months imprisonment commencing from 23 September 2022 and expiring on 22 March 2023. 4. Jeremy Subasic be convicted of dishonestly driving a motor vehicle without consent and be sentenced to 12 months imprisonment commencing from 23 March 2023 and expiring on 22 March 2024. 5. Jeremy Subasic be convicted of minor theft and be sentenced to 1 month imprisonment commencing from 23 March 2024 and expiring on 22 April 2024. 6. Jeremy Subasic be convicted of possessing a declared substance and be sentenced to 4 months imprisonment commencing from 23 March 2024 and expiring on 22 July 2024. 7. Jeremy Subasic be convicted of unlawful possession of stolen property and be sentenced to 3 months imprisonment commencing from 23 June 2024 and expiring on 22 September 2024. 8. Jeremy Subasic be convicted of unlawful possession of stolen property and be sentenced to 4 months imprisonment commencing from 23 July 2024 and expiring on 22 November 2024. 9. Jeremy Subasic be convicted of unlawful possession of stolen property and be sentenced to 4 months imprisonment commencing from 23 September 2024 and expiring on 22 January 2025. 10. Jeremy Subasic be convicted of possessing a prohibited drug for supply and be sentenced to 6 months imprisonment commencing from 23 November 2024 and expiring on 22 May 2025. 11. Jeremy Subasic be convicted of driving while disqualified and be sentenced to 3 months imprisonment commencing from 23 April 2025 and expiring on 22 July 2025. It be noted that this carries an automatic 12 month disqualification, and this commence today, 2 March 2022, to be concurrent with Jeremy Subasic’s current driving suspension. 12. Jeremy Subasic be convicted of failing to stop for police as a repeat offender and be sentenced to 6 months imprisonment commencing from 23 May 2025 and expiring on 22 November 2025. It be noted this carries an automatic 12 month disqualification, directed to be served concurrently with the disqualification in Order 11. 13. Jeremy Subasic be convicted of possessing a drug of dependence and be sentenced to 3 months imprisonment commencing from 23 October 2025 and expiring on 22 January 2026. 14. Jeremy Subasic be convicted of driving while unlicensed and be required to sign an undertaking to comply with the offender’s Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) for 6 months from today, 2 March 2022. 15. A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Jeremy Subasic for 2 years from today, commencing on 2 March 2022 and ending on 1 March 2024, in respect of the primary offence of dishonestly driving a motor vehicle without consent, of which he has been convicted and for which he has been sentenced to 12 months imprisonment. 16. That Order be extended to one offence of obtaining property be deception, two offences of dishonestly driving a motor vehicle without consent, one offence of minor theft, one offence of possessing a declared substance, three offences of unlawful possession of stolen property, one offence of possession of a prohibited drug for supply, one offence of driving while disqualified, one offence of failing to stop as a repeat offender and one offence of possession of a drug of dependence of which Jeremy Subasic has been convicted and for which he has been sentenced, and which are associated offences of the primary offence. 17. It be noted that convictions for the primary offence and the associated offences have been recorded and that sentences have been imposed for each of them, which convictions and sentences be hereby incorporated into the Drug and Alcohol Treatment Order in the custodial part of the Order. 18. The custodial part of the Drug and Alcohol Treatment Order for the primary and associated offences be hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 2 March 2022, until 22 January 2026. 19. Under s 80ZA of the Crimes (Sentencing) Act 2005 (ACT), Jeremy Subasic be required to sign an undertaking to comply with the offender’s Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Drug and Alcohol Treatment Order, 2 March 2024, until the end of the total sentence, 22 January 2026, with a probation condition that he accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him including as to urinalysis, counselling and treatment. 20. For the treatment and supervision part of the Drug and Alcohol Treatment Order: a. The core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) be hereby imposed; b. Jeremy Subasic undertake any program, treatment or counselling, urinalysis or case management that may be required by any member of the Treatment and Supervision Team or the Court and obey all reasonable directions of any member of that Team about where he resides, with whom he associates and his attendance from time to time; and c. Jeremy Subasic comply with any directions of the Court from time to time about attendance at Court, in person or by electronic means. 21. Jeremy Subasic be directed to appear in person in Court on Friday 4 March 2022 at 11:30 am for DASL Review. 22. Jeremy Subasic be directed to attend the Court Registry before he leaves the Court precincts to sign a sealed copy of this Order and an undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that this Order is in force.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Obtaining Property by Deception – Driving a Motor Vehicle without Consent – Minor Theft – Possessing a Declared Substance – Unlawful Possession of Stolen Property – Possessing a Prohibited Drug for Supply – Driving Whilst Disqualified – Failing to Stop for Police – Driving Whilst Unlicensed – Possessing a Drug of Dependence – Repeat Offending – Subjective Circumstances – Drug Dependence – Sentence of Imprisonment – Drug and Alcohol Treatment Order Application – Application Successful
Legislation Cited:	Bail Act 1992 (ACT) s 49 Crimes (Sentence Administration) Act 2005 (ACT) s 85 Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 12A, 33, 46J, 46K, 63, 80W, 80Y, 80ZA, 80ZD Criminal Code 2002 (ACT) ss 318, 321, 324, 326 Drugs of Dependence Act 1989 (ACT) ss 164, 169 Legislation Act 2001 (ACT) s 190 Magistrates Court Act 1930 (ACT) ss 90A, 90B Medicines, Poisons and Therapeutic Goods Act 2008 (ACT) ss 17, 36 Road Transport (Driver Licensing) Act 1999 (ACT) s 31 Road Transport (General) Act 1999 (ACT) ss 63, 69, 72 Road Transport (Safety and Traffic Management) Act 1999 (ACT) ss 5AB, 5C, 7A, 10AA Standard for the Uniform Scheduling of Medicines and Poisons No. 39 sch 4
Cases Cited:	Adams v The Queen [2008] HCA 15; 234 CLR 143 Amos v McCarron (No 2) [2017] ACTSC 46 Auld v The Queen [2013] ACTCA 21 Barker v The Queen (1983) 153 CLR 338 Bui v The Queen [2015] ACTCA 5 Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 Grey v Pearson (1857) 6 HLC 61; 10 ER 1216 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Nchouki v The Queen [2018] ACTCA 28 Phillips v Lynch (1907) 5 CLR 12 PR v The Queen [2014] ACTCA 40 R v Adams (1935) 53 CLR 563 R v Blanco (1999) 106 A Crim R 303 R v Blundell [2022] ACTSC 379 R v Carney [2013] ACTSC 266 R v Connors [2022] ACTSC 374 R v Crawford (No 1) [2020] ACTSC 245 R v Dowling (No 2) [2021] ACTSC 200 R v Elphick [2021] ACTSC 9 R v Green [2021] ACTSC 356 R v Guy [2018] ACTSC 270 R v Hill (No 2) [2010] ACTSC 24 R v Loulanting [2015] ACTSC 172 R v Massey (No 1) [2020] ACTSC 256 R v Mathews [2020] ACTSC 364 R v McKenna [2022] ACTSC 346 R v McMahon (No 2) [2017] ACTSC 299 R v Norton [2019] ACTSC 111; 88 MVR 240 R v Reid [2016] ACTSC 24 R v Roux (No 2) [2015] ACTSC 361 R v Winters [2019] ACTSC 289 R v Young (2016) 126 SASR 41 Taumoefolau v The Queen [2015] VSCA 221; 253 A Crim R 508 Townsend v Witteveen [2020] ACTSC 306 Trajkovski v The Queen [2011] VSCA 170; 32 VR 587 Ursino v Read [2005] ACTSC 106
Parties:	ACT Director of Public Prosecutions (Crown) Jeremy Subasic (Offender)
Representation:	Counsel C Muthurajah (Crown) P Bevan (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Bevan & Co Lawyers & Conveyance (Offender)
File Numbers:	SCC 261 of 2020 SCC 262 of 2020 SCC 186 of 2021 SCC 193 of 2021 SCC 194 of 2021 SCC 195 of 2021 SCC 196 of 2021 SCC 299 of 2021 SCC 300 of 2021

REFSHAUGE AJ

Introduction

Between 6 September 2019 and 15 July 2021, Jeremy William Subasic committed 26 offences, an unrestrained bout of criminality. It is now nearly two years and six months since the first of the offences were committed.
As was said in Amos v McCarron (No 2) [2017] ACTSC 46 at [1]:
Delay ordinarily dilutes or may even destroy justice, especially criminal justice, but sometimes delay can achieve the objective of the criminal law by protecting the community where an offender, who might otherwise prey upon society, may be reformed over time so that the community is protected from any future crimes that he or she might otherwise have committed.
Of the 24 offences, it is fair to note that eight were committed in 2019. Ten were dealt with to finality in the Magistrates Court and two others were subsequently dealt with there, also to finality, in circumstances referred to below. The remaining 14 are to be dealt with in this Court.
The offences to be dealt with here consisted of eight offences of dishonesty, two of drug possession and the balance of traffic offences, some more serious, but many of a regulatory kind.
Mr Subasic has now pleaded guilty to each of the 14 offences to be dealt with in this Court. He must now be sentenced. He has asked that a Drug and Alcohol Treatment Order (Treatment Order), under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) be made.
At the sentencing hearing, the Crown tendered, without objection, the Crown Tender Bundle. This included the required cover sheet, the indictment that had been presented on 19 January 2021, the committal documents under s 90A of the Magistrates Court Act 1930 (ACT) and the transfer documents under s 90B of that Act. It also included the Agreed Statement of Facts, Mr Subasic's Criminal History, three certificates of drug analysis from the ACT Government Analytical Laboratory (ACTGAL), a certificate under s 72 of the Road Transport (General) Act 1999 (ACT) certifying Mr Subasic's licence position, and a Pre-Sentence Report.
Finally, it contained the Drug and Alcohol Treatment Assessments (Suitability Assessments) under s 46J of the Sentencing Act that the Court had directed to be prepared. These were the Drug and Alcohol Sentencing List Suitability Assessment of the Alcohol and Drug Services of Canberra Health Services dated 19 October 2021 and the Drug and Alcohol Treatment Assessment of ACT Corrective Services dated 31 January 2022.
Mr P Bevan, counsel for Mr Subasic, tendered, without objection, a psychological report prepared by Ms Jenna Bollinger on 22 February 2021. It assessed Mr Subasic as likely suffering from a Post-Traumatic Stress Disorder, a Major Depressive Disorder and Stimulant Use Disorder. He was also assessed as having an intermediate level of difficulty with drugs. She recommended some level of intensive treatment, but consistent with that proposed in the Suitability Assessments.
None of the contents of any of these documents admitted into evidence were challenged.
Mr Subasic gave oral evidence and was cross examined on it.
The Court also received helpful and insightful written submissions of Ms C Muthurajah, counsel for the Crown. Both Crown counsel and Mr P Bevan made oral submissions that gave considerable assistance to the Court.
From this material, the Court makes the following findings.

The facts

Mr Subasic's criminality was committed over six occasions. It is convenient to describe the six in chronological order.
Sometime between 6 and 9 September 2019, Mr Subasic stole three fire extinguishers from a construction site in Weston, ACT. He took them home and they were subsequently located there by the police, when they executed a search warrant referred to below. The extinguishers had a replacement value of $250 all together. Mr Subasic admitted that he had stolen them. Accordingly, Mr Subasic was charged with stealing them as an offence of minor theft.
On 22 October 2019, Mr Subasic purported to sell for $700 an Onga tank water switch which he had advertised for sale through Facebook Messenger. He told the prospective purchaser that he could not provide proof of purchase as it was a payment in kind for construction work that he had done.
The switch later came to the attention of police and, with the assistance of the foreman of the residential construction worksite in Rivett, ACT, on 23 October 2019, they were able to have it identified by the owner as stolen. The sale was, therefore, deceptive, as Mr Subasic had no entitlement to transfer ownership of the switch. These were the facts for the offence of obtaining property by deception.
It is not clear, from the evidence, the basis for it, but the police then obtained a search warrant for Mr Subasic's premises, which they executed on 25 October 2019. They found other items, also stolen from the worksite. Initially, Mr Subasic said that he had found the items in the backyard of the residence, in which he was living, the prior weekend. He could not say who owned the items of property or how they got there.
These facts founded the first charge of unlawful possession of stolen property.
Police also located a Yamaha motorcycle with an ACT registration. It had been stolen on about 21 September 2019. Police noted that the ignition barrel had been removed with a black switch on the left side of the fairing substituted, which allowed the motorcycle to be started without a key. Again, Mr Subasic initially told police that he did not know who owned it or who brought it to the house. He added that he moved it from the rear yard to prevent it being stolen.
That was the basis for the second charge of unlawful possession of stolen property.
Police further found a gold and black Kawasaki motorcycle under a gazebo in the front courtyard. Police inquiries showed that it had been stolen on 11 March 2019. Again, the ignition barrel showed that someone had tampered with it and the side mirrors were removed. Again, Mr Subasic said that he did not know who owned it or who had brought it to the residence.
This was the factual basis for the third charge of unlawful possession of stolen property.
Finally, in the search, police located a clip-seal bag containing 10 orange capsules, which bag was in a Gucci satchel bag. This time, Mr Subasic told police, that the bag was his and he had found the capsules, which he wanted for his own personal use.
The capsules were found by the ACTGAL to weigh 4.990 grams and contained Gabapentin, an anti-convulsant drug used for the treatment of epilepsy. It can also be used to treat neuropathic pain, but it is only authorised for this in Australia if other treatments are not effective. It is a drug listed on Schedule 4, only available on prescription, and is sold under the name Nupentin (among others). Mr Subasic, again, said that he did not know who owned the capsules and he did not have a prescription for the drug, which is required by virtue of schedule 4 of the Standard for the Uniform Scheduling of Medicines and Poisons No. 39, made applicable to the Australian Capital Territory by the Medicines, Poisons and Therapeutic Goods Act 2008 (ACT) s 17.
These facts led to the police laying the charge of possessing a declared prescription-only medicine.
Early in the morning of 25 August 2020, a resident noticed Mr Subasic parked in a Holden Commodore motor vehicle in a street in Giralang, ACT. He had left a motor vehicle engine running and had fallen asleep.
The resident called the police, who arrived and woke Mr Subasic. The vehicle had, however, registration plates for another vehicle and it was, in fact, a vehicle that had been stolen on or about 21 August 2020.
Police turned the ignition off and Mr Subasic got out of the car. He told police that he did know who owned the car, but that he had bought it two days ago, though he could not produce any evidence of the purchase.
These facts led to police charging him with dishonestly driving in a motor vehicle without the owner's consent.
Inquiries showed that Mr Subasic had a Provisional Driver Licence, but he had been disqualified from holding or obtaining a driver licence for two years from 17 October 2018, meaning that at the time he was a disqualified driver. Thus, police also charged him with the offence of driving whilst disqualified.
Mr Subasic was later taken to the Canberra Watchhouse, presumably under arrest, and, when his property was searched, police located two Clipseal bags containing a crystalline white substance. The ACTGAL analysed the contents of the first bag to be 0.035 grams of methylamphetamine and the contents of the second bag to be 8.614 grams of 3,4-methylenedioxymethamphetamine, commonly known as MDMA. The MDMA had a purity of 55%.
These findings were the basis for Mr Subasic being charged with the offences of possessing for supply a drug of dependence, namely methamphetamine, and possessing for supply a prohibited substance, namely MDMA.
On 29 May 2021, Mr Subasic drove a Ford Mustang motor vehicle in Florey, ACT, when police noticed the vehicle, which had been stolen from a residence in Kingston, ACT on 20 April 2021 and recognised Mr Subasic as they had made themselves familiar with him, since he was suspected of being involved with the stolen vehicle. They also noticed a female passenger in the vehicle.
Police followed the vehicle and, as it came within 50 metres of an intersection in Belconnen, the signal lights turned from green to red, but Mr Subasic drove straight through them. There was moderate traffic on the road and at least one vehicle stationary at the intersection.
As Mr Subasic continued to drive the car, the following police activated the emergency lights and siren on the police vehicle, thus indicating for Mr Subasic to stop: R v Guy [2018] ACTSC 270 at [7]. He did not do so, but he accelerated the vehicle away and the police shortly thereafter terminated their pursuit.
Police later saw Mr Subasic driving the Ford Mustang vehicle in Harrison, ACT, and attempted to intercept it with a tyre deflation device, which was successful, but he drove away and police lost sight of the vehicle. It was later recovered, abandoned, on the Federal Highway north of Eaglehawk, New South Wales. The driver side tyres of the vehicle were completely destroyed. Mr Subasic's fingerprints were found in the vehicle and a bank card in his name was found in the centre console.
Later, police interviewed Mr Subasic about unrelated matters. When they seized his phone there were messages in which he directly refers to driving or using the Ford Mustang.

On 29 May 2021, Mr Subasic's driver licence was “inactive”, so he was, at the date of his driving, not licensed to drive.
On 15 July 2021, Mr Subasic drove a Subaru Forrester into the underground car park of a hotel in Forrest, ACT, and checked in to a room in the hotel. The vehicle had been stolen between 19 and 20 June 2021 from a residence in Dickson, ACT.
Police attended the hotel and identified the motor vehicle as that stolen in June. They then found Mr Subasic in the room he had booked in the hotel and arrested him. He was in the company of his then partner and she confirmed that Mr Subasic had driven the Subaru Forrester into the car park.
These facts constituted the basis for charging Mr Subasic with dishonestly driving a motor vehicle without the owner's consent, failing to stop and driving whilst unlicensed. The facts were used as the basis for charging Mr Subasic in July 2021 with dishonestly driving a motor vehicle without the owner's consent.

The proceedings

Mr Subasic first relevantly appeared in Court on 19 March 2020, when he was charged with the offences committed on 6 to 9 September, 22 October and 25 October 2019. He was granted bail.
He did fail to appear on one subsequent occasion when a warrant was issued and he was arrested, but the proceedings continued with him on bail until 25 August 2020. On that date, he had, as noted above (at [31]), been apparently arrested early in the morning and he appeared in Court later that day, charged also with the offences of dishonestly driving a motor vehicle without the owner's consent and driving whilst disqualified as a repeat offender. He was then remanded in custody.
He pleaded not guilty to all these offences on 7 September 2020, except the charges of dishonestly obtaining property by deception and possessing a declared substance, to both of which he pleaded guilty.
The proceedings were further adjourned.
On 17 November 2020, however, he was also charged with possessing a drug of dependence on 25 August 2020, to which he pleaded guilty. He was then committed to this Court for trial on the charge of dishonestly driving a motor vehicle without consent on 25 August 2020 and the charges of possessing a drug of dependence and driving whilst disqualified as a repeat offender were transferred as related charges. He remained in custody on these and other offences. The other charges were then adjourned.
On 11 December 2020, Mr Subasic was charged with the possession of a prohibited substance on 25 August 2020. He was remanded in custody and the proceedings adjourned to 14 December 2020, when some of the other charges not committed or transferred to this Court had also been adjourned.
In early 2021 there appeared to be difficulties with Mr Subasic's legal representation and his lawyers withdrew with leave on 24 February 2021. Following that, Mr Subasic failed to appear in Court on three occasions, which he said was related to him needing money and legal representation and after that, in what appears to be a false start, Mr Bevan appeared for him on 12 April 2021, when he was granted leave to withdraw, but then appeared for Mr Subasic again much later.
In the meantime, on 16 July 2021, Mr Subasic appeared in Court following his arrest for dishonestly driving a motor vehicle without consent the previous day. He was also charged with two counts of failing to appear after giving a bail undertaking. These proceedings were added to the other proceedings. Mr Subasic remained in custody, although he had been on bail in late 2020.
On 27 August 2021, Mr Subasic pleaded guilty to all of the abovementioned offences that had remained before the Magistrates Court and was committed for sentence to this Court and the summary offences were transferred here also.
On 2 December 2021, however, the offences committed on 29 May 2021, namely of dishonestly driving a motor vehicle without consent, failing to stop when requested by police and being an unlicensed driver, were before the Magistrates Court on the return of the summonses served on him.
The proceedings were adjourned once and Mr Subasic did not appear, but on 17 December 2021 he did appear, he was charged with and pleaded guilty to all the further offences then laid and he was committed to this Court for sentence and the summary offences were transferred. As he had already appeared in the Drug and Alcohol Sentencing List, he was referred to this List for the charges to be added to the other matters for sentence.
Initially, these proceedings were listed for sentence on 12 November 2021, but by then it was known that there were further charges to be laid. The proceedings were adjourned to 4 February 2022 when sentence was heard.
Before the sentencing could be completed, however, an issue arose about two of the charges said to be before the Court. These were the charges of failing to appear in Court in accordance with his bail undertaking.
These offences, under s 49 of the Bail Act 1992 (ACT), are summary offences. The maximum penalty for such offences is two years imprisonment or a fine of $32,000 or both. This makes them summary offences and not indictable offences: s 190 of the Legislation Act 2001 (ACT).
Ordinarily, the Supreme Court has no jurisdiction over summary offences. See the discussion in R v Hill (No 2) [2010] ACTSC 24 at [4]–[7].
The position has changed a little since then, in that s 90B of the Magistrates Court Act was inserted in 2014 to permit the Magistrates Court to transfer to the Supreme Court summary offences that are a “back-up” or “related offence”.
As explained in R v Loulanting [2015] ACTSC 172 at [15]–[23], a breach of bail constituted by a failure to appear in a court in accordance with the bail undertaking is not a backup offence or a related offence. See also R v McMahon (No 2) [2017] ACTSC 299 at [13]–[25]. The plea for legislative reform there made has, it appears, fallen on deaf ears.
Thus, the two offences cannot be dealt with in this Court. That does not mean that they cannot simply be dealt with later, after Mr Subasic has been sentenced by this Court. The problem is that if, as requested, this Court made a Treatment Order and later Mr Subasic was sentenced to a term of imprisonment, which is certainly likely given the view the courts take of such offences (Ursino v Read [2005] ACTSC 106 at [12]), then any such imprisonment would require the Court to cancel the Treatment Order: s 80ZD(3) of the Sentencing Act.
It is possible that that section only applies to offences committed after the Treatment Order has been made, but that is by no means clear and the policy justification for either position is finely balanced.
A person subject to a Treatment Order and sentenced to imprisonment would have been ineligible to have such an order made: s 12A(1)(c) of the Sentencing Act. Further, a Treatment Order could not be suspended for the period of the sentence: cf s 80ZD of the Sentencing Act. It can only be suspended for the period that a person is on remand.
Thus, it was considered appropriate to request that the parties have the matters dealt with in the Magistrates Court before Mr Subasic was sentenced.
Despite what was said in R v Loulanting and R v McMahon (No 2), it seems that, as there was no power in the Magistrates Court to have transferred the matters to this Court, the transfer was a nullity and there was nothing to remit, even if the Court had such a power. There is no power in s 90B, such as is set out in s 90A(9) of the Magistrates Court Act, to remit matters to be continued in the Magistrates Court. Where the offences in respect of which committal has been properly made are remitted under s 90A(9), there may be, in those particular circumstances, an implied power to transfer back to the Magistrates Court any transferred charges.
In any event, the matters were re-listed in the Magistrates Court to be dealt with and Mr Subasic was later convicted of them and sentenced to two months imprisonment and a fine with no time to pay. The term of imprisonment commenced on 24 December 2021 and ended on 23 February 2022.
Thus, Mr Subasic has been in custody for these offences and not serving any other sentence of imprisonment from 24 February 2022 to today, that is a total of seven days. These days should be taken into account, preferably by backdating the sentence: s 63 of the Sentencing Act.

The offences

While Mr Subasic is to be sentenced for 14 offences, some of them are simply the same crime also committed on a different occasion.
There are, in fact, 14 offences, but nine crimes. For example, he dishonestly drove a motor vehicle without the owner's consent on three occasions.
In order to impose a sentence, it is important to identify the seriousness of the crime, but also the seriousness of the actual offence committed, for there are many different ways in which the same crime can be committed.
To do this, a court sentencing an offender must have regard to the maximum penalty that the legislature has prescribed for the offence: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 372; [30]–[31]. Respect is thereby given to the legislative mandate, but this also invites attention to a comparison between the case for sentence and the worst category of case and provides a yardstick, together with all the other relevant factors, to be taken into account on sentencing.
In addition and also mandated by s 33(1)(za) of the Sentencing Act is current sentencing practice, also to assist with that comparison by identifying the factors that the courts sentencing an offender or determining appeals from other sentences have identified as aggravating or mitigating factors.
The most serious crime before the Court for sentence on this occasion is obtaining property by deception, which is made a crime by s 326 of the Criminal Code 2002 (ACT) which prescribes a maximum penalty of 10 years imprisonment or a fine of $160,000 or both. It is a serious crime, but about the middle of the criminal calendar.
The amount of money involved is relevant (R v Reid [2016] ACTSC 24 at [40]), as are the circumstances of the offence. For example, there is some need for deterrence when the improper use of a credit card is involved as these cards are, these days, quite vulnerable to misuse, but this is not the position here.
The amount of property involved was $700, not as small as often seen in these offences, but not a particularly large amount. While there was clear dishonesty involved, it was not of a high order and it was not a particularly sophisticated offence. It may be, however, that with the growth of opportunities online for the sale of items by individuals, the prospect of that being used for disposing of stolen goods is increased, making theft of property more profitable. Thus, these factors all affect the seriousness of the offence.
The offence of dishonestly driving in a motor vehicle without the owner's consent is a crime under s 318(2) of the Criminal Code and attracts a maximum penalty of five years imprisonment or a fine of $80,000 or both.
The Court has, after consideration of the authorities, identified the relevant factors for the offence in R v Connors [2022] ACTSC 374 at [62]–[63]. It is not necessary to set out the factors that were there identified, but reference will be made to the relevant ones.
There were three such offences committed on 25 August 2020, 29 May 2021 and 15 July 2021. Brief reference shall be made to each. On the whole, they were, apart from the last, unremarkable versions of the crime and it is relevant to note that there is no evidence to show that Mr Subasic had stolen the vehicles.
In the first two cases, it was unclear how far Mr Subasic had driven the vehicles or for how long the motor vehicles had been under his control. In each of the offences, too, the vehicles were recovered and there was no evidence that either had suffered any damage. In these offences there was no evidence of the value of the vehicles, but they were not particularly luxury vehicles, though there was no evidence of the age of them.
In these two offences there was no particular manner of driving that was relevant, nor were they used to commit other offences, other than, of course, that during the second offence where he was driving whilst disqualified. In that case he also had possession of drugs, though there was no evidence to suggest that he was using the vehicle for the supply of the drugs. Some of the circumstances may have given rise to some suspicion, but it rose no higher than that and that is not sufficient for establishing an aggravating factor: R v Carney [2013] ACTSC 266 at [149](9).
The third offence was more serious, however, for it was likely a more valuable vehicle and it was used in a dangerous way, being chased by police and failing to stop when requested and driving through a red light. He was also an unlicensed driver during the third offence. The tyres were ultimately seriously damaged and there was a passenger in the vehicle. Again, there was no evidence of how long Mr Subasic was driving it or how far, though the evidence shows that police first saw it about 10:35 pm and later saw it at 11:04 pm and it was abandoned seven minutes later.
The crime is a serious one, because not only of the deprivation that it causes the owner of what may have been a significant asset, often the largest purchased after a house, but also the inconvenience it causes, often to work but also to much of daily life, especially in a city like Canberra which is still heavily dependent on the car.
The possession of a prohibited substance for sale or supply is prohibited by s 164(3)(c) of the Drugs of Dependence Act 1989 (ACT), which provides for a maximum penalty of five years imprisonment or a fine of $80,000 or both.
In this case the drug was MDMA. While the variety of drug has some relevance (R v Young (2016) 126 SASR 41 at 94; [216]), there is no clear hierarchy of drugs based on the difficult problem of assessing, for example, their relative harmfulness. See Adams v The Queen [2008] HCA 15; 234 CLR 143 at 147–8; [6]–[9].
Nevertheless, the purity of the drug is relevant: Trajkovski v The Queen [2011] VSCA 170; 32 VR 587 at 611; [125]–[127]. In that case, the Court found that a purity of 49% was relevant. The approach was approved in Taumoefolau v The Queen [2015] VSCA 221; 253 A Crim R 508 at 516; [26]. Here, the purity was 55%, not dissimilar, though it was the principle to which the Court there referred and not the numbers. Similarly, the quantity is relevant. Here it was 8.614 grams, which was less than the trafficable quantity of the drugs. It is not a large quantity: R v Green [2021] ACTSC 356 at [27]–[28]. The other factor (see Nchouki v The Queen [2018] ACTCA 28 at [57]) was the value of the drug, but there was no evidence of this. The only other evidence was that Mr Subasic had $935 on his person in Australian banknotes of various denominations.
Clearly, the trafficking of drugs is a serious matter. The harm that drugs bring is well known and to spread drugs is to cause harm to both the user/purchaser as well as to the community. See R v McKenna [2022] ACTSC 346 at [1]–[4]. The Court is, however, satisfied on the evidence that Mr Subasic is a street level dealer and dealing simply to feed his own dependency.
Section 36 of the Medicines, Poisons and Therapeutic Goods Act 2008 (ACT) makes the possession of a declared substance a crime and legislates for a maximum penalty of two years imprisonment or a fine of $32,000 or both.
The substance was a prescription-only medication for which Mr Subasic had no prescription. The requirement that certain drugs must be prescribed is, in part, a recognition that improper use uninformed by medical advice or without medical supervision has avoidable and sometimes serious, or even lethal, consequences. The crime is intended to ensure the security of the protection that the regime of medical prescribing implements.
Failing to stop a motor vehicle for police is a crime under s 5C of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) and that section specifies, for a repeat offender, a maximum penalty of three years imprisonment or a fine of $48,000 or both. Conviction also attracts an automatic disqualification from holding or obtaining a driver licence for 12 months, or such longer period that a court may order: s 63 of the Road Transport (General) Act.
That disqualification is automatically cumulative on any other disqualification to which an offender is subject, but it can be directed by the court to be concurrent or partially concurrent with any such disqualification: s 69 of the Road Transport (General) Act.
The Crown submitted that Mr Subasic was a repeat offender because he was, on 28 October 2021, convicted of the same offence committed on 18 May 2020 (first offence), that is, before he committed this offence (second offence) on 29 May 2021.
Mr Bevan, however, submitted that he was not a repeat offender despite this because, he said, the definition of “repeat offender” in s 5AB of the Road Transport (Safety and Traffic Management) Act requires him to have been convicted of the first offence before he committed the second offence. A conviction was entered on 28 October 2021, which was after he had committed the second offence.
The relevant provision is as follows:
5AB Meaning of first offender and repeat offender
[…]
(2) A person who is convicted or found guilty of a failing to stop offence (the relevant offence) is a repeat offender in relation to the offence if—
(a) the person has been convicted or found guilty of a failing to stop offence at any time before the relevant offence was committed (whether or not the person has been convicted or found guilty of the failing to stop offence when the person committed the relevant offence); or
(b) the person is convicted or found guilty of 1 or more failing to stop offences concurrently with being convicted of the relevant offence, and 1 or more of the failing to stop offences were committed before the relevant offence. [emphasis in original]
Paragraph (2)(b) does not apply in the current situation, but may have some relevance as noted below.
Mr Bevan pointed out, correctly, that the words in brackets are completely and directly inconsistent with the words before them. His submission was, in summary, that the “conflict of interpretation” requires that “any doubt should be exercised in favour of the defendant” and so Mr Subasic should be sentenced as a first offender. See, for example, Barker v The Queen (1983) 153 CLR 338 at 355.
The application of that approach to construction must be applied, however, after the application of the ordinary rules of construction. See R v Adams (1935) 53 CLR 563 at 567–8. One of those rules of construction is to try and give meaning to all of the words of the legislation and try to avoid absurdity by carrying out the real intention of the statute: Phillips v Lynch (1907) 5 CLR 12 at 20.
It is clear that there is an apparent direct inconsistency. To approach the matter as Mr Bevan suggests would mean that the words in brackets would be given no weight and are entirely surplusage. It does not seem that this is the way that the matter should be approached in order to avoid an absurdity: Grey v Pearson (1857) 6 HLC 61; 10 ER 1216.
Paragraph (b) assists. It makes it clear that, in those circumstances there described, it makes no difference if the conviction for the earlier offence has been entered prior to the commission of the later offence. In fact, that could not occur in those circumstances. That appears to be the purpose of what is said by the words within the brackets in paragraph (a).
If one reads the words of paragraph (a) as if the words “that was committed” were inserted after the words “the person has been convicted or found guilty of a failing to stop offence”, that would give consistency with both the words within the brackets as well as the words at paragraph (b). It is also consistent with ss 7A(4) and 10AA(2) of the same Act, both of which are made actually and virtually the same as paragraph (a), except that they have the words similar to those here suggested actually included in the subsections.

While it could be argued that the words were, therefore, deliberately omitted, that seems unlikely; an error, which should, of course, be rectified as soon as possible, seems more likely.
The policy is not entirely without rationale and does make sense. The driver will know that he or she has failed to stop when requested by police. To do this again is more serious. A conviction may, for all sorts of reasons, not be entered before the commission of the second offence and this should not prevent the appropriately more severe response for those who serially offend.
Mr Subasic is, therefore, a repeat offender and the Court will proceed accordingly.
Possessing a drug of dependence is criminalised by s 169(1) of the Drugs of Dependence Act, which sets a maximum penalty of two years imprisonment or a fine of $8,000 or both. The drug possessed was methylamphetamine, which is his drug of choice. The amount was relatively small, but no purity was provided.
Minor theft is made a crime by s 321 of the Criminal Code and attracts a maximum penalty of six months imprisonment or a fine of $8,000 or both. Such an offence is serious as it deprives people of their property, which they have often expended funds to obtain. Here, it was taken from a construction site and the three fire extinguishers taken were presumably owned by the builder. The value of the property was given and that is, of course, a relevant consideration as to the seriousness of the offence. The property was, because the statutory crime is so limited, worth less than $2,000. It is, otherwise, an unremarkable version of the offence, though the absence of the extinguishers from a building site will have safety implications for that site.
Unlawful possession of stolen property is proscribed by s 324 of the Criminal Code and a maximum penalty of six months imprisonment or a fine of $8,000 or both is specified.
Again, the value of the property is a highly relevant factor. These are, of course, a form of the more serious offence of receiving stolen property: R v Roux (No 2) [2015] ACTSC 361 at [79]. As is said, if there were no receivers there would be no, or perhaps at least fewer, thieves.
It is, however, not the same as stealing: see Townsend v Witteveen [2020] ACTSC 306 at [28]. An important factor is whether it is a sophisticated or professionally organised offence: R v Dowling (No 2) [2021] ACTSC 200 at [50].
In this case, two of the items stolen were motorcycles which, though evidence was not given of their value, would likely to be of some significant value — more than many other items the subject of this crime or in other cases. The absence of them would likely cause inconvenience to the owners.
The other items were taken from the building site, which was the source of the switch which Mr Subasic had tried to sell later. They were itemised. They included two plumbing taps and a vanity basin, a cooktop, lights, door and other handles, a ladder and other items. Although no value was given of them, they do appear to have a reasonably significant monetary value and, of course, would have been of inconvenience to the builder who was, no doubt, going to install them on the property being built.
While they do not show any sophistication in committing the offences, and are more likely to be opportunistic, they were reasonably serious offences.
The next offence is driving whilst disqualified as a first offender, which is contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) and attracts a maximum penalty of six months imprisonment or a fine of $8,000 or both.
The crime has been considered in some detail in Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299, especially at 306–9; [33]–[43]. What was there said may be accepted, without needing to repeat it.
Mr Subasic has shown a significant disregard for the requirement to respect the need for a licence when driving on the roads. Thus, he has four offences of driving whilst disqualified on his record, but also four offences of driving while his licence is suspended and one of driving with an expired licence. This does show a level of contumacious behaviour.
The relevant disqualification was imposed on 21 February 2018, but commenced on 17 October 2018 because of a prior disqualification, to which it was cumulative and which had been imposed on 18 September 2017. Thus, Mr Subasic was well through the period of the disqualification; indeed, there were less than two months to go before the expiry. That does not justify the offence, but it does somewhat reduce its seriousness.
There was, of course, no reason for the driving; it was not necessary for any identified purpose.
Finally, Mr Subasic pleaded guilty to an offence of driving without a driver licence, a crime against s 31(1) of the Road Transport (Driver Licensing) Act, which sets a maximum penalty of a fine of $3,200.
While this is the least serious offence of them all, it is not trivial as it is an important part of securing the integrity of the regulation of driving on Territory roads which, of course, has much to do with safety in this activity.

Subjective circumstances

Of course, one of the other factors which is very important for the task of arriving at a just and adequate sentence is the personal situation of the offender.
Mr Subasic was born nearly 27 years ago, the eldest of three children of his parents. He has one half-brother. He had a good upbringing and a supportive relationship with his parents.
Unfortunately, his parents separated, amicably, when he was 16 years old and this was somewhat traumatic to him, but he remained on good terms with both his mother and his father. He has continued with that and he also has good relationships with his siblings and his aunt.
[Redacted for legal reasons].
He went to Canberra government primary and high schools. He was of average ability but, especially in the later years, engaged in truancy and used alcohol and cannabis, which led to an unsatisfactory situation. He left school aged 15 after completing his Year 10 Certificate.
He obtained employment as a painter with his father, though he had no certificates for this work. He worked for other employers and has been mostly employed, though, by about 2013, when he became involved with substances and the criminal justice system, he gradually ceased working and he recently became dependent on Centrelink benefits.
He has serious debts of about $40,000 for car loans and about $2,000 for drugs purchased on credit. He has also had a gambling problem, though he has more recently been able to moderate that as he simply could not afford to gamble and buy drugs, on which he was dependent.
He had a major relationship which produced two sons, a three year old and 12 month old, but his ex-partner is now in custody. His mother has kinship custody for his eldest son and his aunt has kinship custody for the younger. He formed a new relationship, which he described as supportive and positive, but his mother described in completely the opposite way and that it was drug-fuelled. In late 2021, that relationship ended.
Mr Subasic has indicated that he wishes to regain at least contact and preferably custody of his sons.
Mr Subasic has been diagnosed with rheumatoid arthritis, but recent tests in the Alexander Maconochie Centre throw doubt on that. He is currently prescribed medication for asthma and depression with which he has been diagnosed, as noted earlier (at [8]).
In 2021, as also noted earlier, he was described by a psychologist as meeting the criteria for Post-Traumatic Stress Disorder, which may be related to his experiences of abuse, and he has self-medicated with drugs.
He started using alcohol at about aged 15 and would drink about six to 12 cans of alcohol each weekend. He reduced his consumption significantly when he turned 18 years old and has no current alcohol problems, rarely drinking now. This was confirmed in the psychologist's report.
His use of cannabis started somewhat earlier, at 14 years of age, and he would use up to 3 grams daily. He ceased smoking when he became about 18 years of age, probably because he started to use methamphetamine.
He used MDMA as a teenager, mostly at weekends as a party drug, but appears not to use much, if any, currently.
He currently smokes about 20 cigarettes a day and has a high nicotine dependence. He is not interested in quitting.
Mr Subasic first smoked methamphetamine when he was 18, probably replacing his use of alcohol and cannabis. He soon became a regular user, though he reduced and ceased use when his then partner became pregnant with their first child, remaining abstinent for about 11 months, though he reports that period differently to different reporters. Stress led him to resume usage and he quickly returned to daily use.
He has recently, just prior to his most recent incarceration, begun to use heroin, but only for about two months, though using half a gram each second day when he did so.
He also dabbled with GHB two or three times a week leading up to his arrest, using 10 millilitres at a time, a significant amount. Indeed, he was sent to The Canberra Hospital from the Alexander Maconochie Centre to manage the withdrawal, but declined admission and was able to manage it in custody.
Mr Subasic has had limited treatment for alcohol and other drug use. He was bailed to a facility in Wagga Wagga last year, but left after two days as he was paired with a resident who reminded him of his childhood abuser. He has completed some Self-Management And Recovery Training (SMART) programs and was briefly involved with the Pathways to Recovery program at Directions Health Services, ceasing involvement in January last year.
He has a criminal record. [Redacted for legal reasons]. He has 28 offences on his record [redacted for legal reasons]. The majority of offences are traffic offences, many are regulatory or sometimes called “technical driving offences”: see R v Norton [2019] ACTSC 111; 88 MVR 240 at 241; [6]. These were offences of driving unregistered and uninsured vehicles, failing to surrender his licence or advise of a change of address.
He shows great disregard for the need to be licensed in order to drive, with many prior convictions for the various relevant offences, as noted above (at [112]).
There are drug possession offences, including sale, and, relevantly to these proceedings, one prior offence of dishonestly driving a motor vehicle without consent as well as an offence of failing to stop when requested by police. Only one prior offence is a dishonesty offence, having goods in custody, which is similar to the current unlawful possession offences.
His first custodial offence was a one month sentence imposed in February 2018 for the fourth offence of driving whilst his licence was suspended. He has not further committed that offence, but has committed several offences of driving whilst disqualified since then.
He was in custody from 25 August 2020 to 14 December 2020 and then released on bail. He failed to appear in Court and was arrested on 15 July 2021 and has been in custody since then. He says that he has not used drugs since being in custody. There is some confirmation of that. On 8 January 2022 he was subject to urinalysis, which proved negative for all substances. He had, however, been subject to 28 days loss of privileges when, on 1 December 2021, he was found with “jail brew”, a prohibited item, in his cell.
Nevertheless, while sentenced, he has been in custody for almost a year since 25 August 2020, with almost exactly seven months in the community during that time.
Discussing the offences, Mr Subasic told the author of the Pre-Sentence Report that he accepted responsibility for his actions and acknowledged the effect it had on himself and the risk he presented to the community. It was his evidence to the Court that he had committed the offence while under the influence of drugs, to obtain funds for drugs to meet his dependency. This was not challenged in cross-examination.
Mr Subasic said that he wanted to manage his drug addiction and attend rehabilitation. He admitted that he had tried it before without success, though he explained some of the reasons for that, including those mentioned above (at [135]). He accepted that, despite these efforts, he had then committed further offences, but he understood now the need to engage with counselling and so would engage in the future. He acknowledged his poor decision making and the poor choices he had made in committing the offences.
Mr Subasic says that he can live with his mother if he is released, but that is unacceptable to Child and Youth Protection Services because of his mother's custody relationship with his son. He is, however, able to live with his father and that accommodation has been assessed by ACT Corrective Services as suitable. Both of his parents were in Court during the sentencing hearing.

Current sentencing practice

Section 33(1) of the Sentencing Act sets out various factors that a court sentencing an offender is required to take into account, so far as it knows them. These relate, consistently with the common law, to the nature and circumstances of the offence (s 33(1)(a)), which has been considered above in setting out the facts and the description of the offences, as well as the detail of the actual offences and Mr Subasic's personal situation (s 33(1)(m)–(p)). It refers also, as an addition to the common law requirements, to the impact on victims (s 33(1)(d)–(gb)) but, while the Court can appreciate the harm in general terms, it is very helpful if victims are able to prepare and make Victim Impact Statements, none of which were available to the Court on sentencing in this case.
This also requires the Court to take into account current sentencing practice: s 33(1)(za) of the Sentencing Act. This can be done in various ways. A very valuable and effective way is to consider comparable cases. The number of offences Mr Subasic has committed makes this complicated and neither counsel, understandably, referred the Court to any. Of course, this Court has sentenced many offenders who have committed the offences for which Mr Subasic must now be sentenced and regard is had to those.
For example, the offence of dishonestly driving a motor vehicle without consent is discussed in R v Massey (No 1) [2020] ACTSC 256 at [76]–[79] and that has been taken into account. The observable trend in the length of sentences being somewhat reduced for that offence was remarked on more recently in R v Winters [2019] ACTSC 289, followed, because of parity, in R v Blundell [2022] ACTSC 379, namely a sentence of three months imprisonment for the offence.
The other manner of addressing this issue is to have regard to the statistics in the ACT Sentencing Database. This has limitations, but it is accepted it does provide some information to a court sentencing an offender. See R v Mathews [2020] ACTSC 364 at [44]–[45] and R v Elphick [2021] ACTSC 9 at [154].
Nevertheless, the Sentencing Database does show the following matters. Almost all of the offenders committing the offence of obtaining property by deception were sentenced to prison, but just less than half were sentenced to full-time custody. The terms of imprisonment were low, usually between 14 days and 12 months; about half of those for six months or less.
For the offence of dishonestly driving a motor vehicle without consent, very few cases are recorded for the Supreme Court, but the penalties range from fines (one third) to suspended periods of imprisonment (one third) with none recorded for full-time imprisonment, though that is, in fact, common: see R v Massey (No 1).
In the Magistrates Court, which deals with most of these offences, the statistics are a little unclear, but for the slightly more serious offence of dishonestly taking a motor vehicle without consent (R v Connors at [63]), about a third are sentenced to various terms of suspended sentences of imprisonment and about a quarter to non-custodial sentences. The terms of imprisonment vary widely for those sentenced to full-time imprisonment, from 24 months (a tiny proportion), but about half were sentenced to six months imprisonment or less.

Consideration

The difficult task of sentencing an offender requires the balancing of many factors. They often point in different directions, but the instinctive synthesis which is the sentence must balance all of these.
In order to do so, it is important to identify what is the purpose or purposes to be achieved. These are helpfully set out in this Territory in s 7 of the Sentencing Act. The Court will have regard to them.
The offences committed by Mr Subasic are serious, for the effect on victims and on society, though by no means the most serious. Nevertheless, punishment is required to reinforce that the breach of the norms expected in a civilised community are not to be tolerated. This also requires that others who may be tempted to commit such offences be deterred, so a sentence that does this is also required.
Mr Subasic himself must be deterred from continuing to prey on the community by such offending. That he has repeatedly done so, including by continually flouting the requirements imposed on drivers, has two aspects. There is a need for deterrence to deter him from recidivism, but also considerations of reform are significant, for this continued punishment is clearly not working and reform will be the surest form of protection for the community, if achieved: Hogan v Hinch [2011] HCA 4; 243 CLR 506 at 538–9; [32].
All these are directed to the protection of the community and, in addition, the sentence must acknowledge the harm that has been done to the victims. That will be done.
Mr Subasic was on conditional liberty, in this case bail, when he committed offences on 25 August 2020, 29 May 2021 and 15 July 2021. That requires a more severe sentence for his breach of the trust imposed on him by the grant of bail which, amongst other things, was granted so long as he not commit further offences. See Auld v The Queen [2013] ACTCA 21.
Mr Subasic pleaded guilty to many of the offences in the Magistrates Court, before the prosecution was required to provide its Brief of Evidence. That gives the pleas significant utilitarian value to the criminal justice system. For the offences, being the first offence of dishonestly driving a motor vehicle without the owner's consent and driving whilst disqualified, he maintained his plea of not guilty until he had been committed for trial to this Court, but did plead guilty before the listing of the matter for trial or the holding of a Criminal Case Conference. These all require a discount on the sentence to be imposed because of the utilitarian value they provide, but not as significant as for the other offences and the Court will do that in these cases.
While Mr Subasic did have a supportive home life and his parents, though separated, did continue to be good parents and, indeed, continue to support him in a number of ways, he did suffer abuse which, no doubt, led to some of the school disruption he also experienced. While this does not rise to the level of severe childhood disadvantage which justifies significant reduction in his moral culpability, it is a matter that needs to be taken into account.
Similarly, the introduction of drugs that he experienced at a relatively early age is relevant, not to provide a mitigation of the offences, but to reduce his moral culpability for offences that were caused or substantially contributed to by his drug dependency. This was commenced by that introduction to drug use at a stage where he could not make an informed decision about it.
Nevertheless, he continued offending even after being arrested and him repeatedly committing the same offence is of concern. It reduces significantly any leniency that can otherwise be afforded to him.
The delay in at least finalisation of the earlier offences is also relevant, though the offences cannot really be regarded as stale. Nevertheless, as explained by Wood CJ at CL, with whom Bell J and Smart AJ agreed, in R v Blanco (1999) 106 A Crim R 303 at 306; [16] said:
The reason why delay is to be taken into account when sentencing an offender relates first to the fact of the uncertain suspense in which a person may be left; secondly to any demonstrated progress of the offender towards rehabilitation during the intervening period; and thirdly, to the fact that a sentence for a stale crime does call for a measure of understanding and flexibility of approach: see, in addition to Todd and Mill, the decisions in Harrison (1990) 48 A Crim R 197 at 198-199 and King (1998) 99 A Crim R 288.

Wood CJ at CL then identified relevant issues in that case, a number of which are not applicable here. His Honour continued (at 306; [17]):
The present was not a case where the applicant had been arrested and had spent a long time awaiting sentence, or in a state of suspense as to whether he might be charged; nor is it a case where he had shown any commitment towards rehabilitation after having realised the error of his ways. However, it remains the fact that it is highly desirable that the prosecuting authorities act promptly where they have evidence of serious criminality. If they fail to do so, then they must expect that circumstance to be taken into account on sentencing. It is in the public interest that those who are suspected of serious criminality be brought to justice and be brought to justice quickly, particularly where there is a strong case available against them.
These comments are only relevant in the sense that Mr Subasic has spent a considerable time in custody awaiting sentence and has, although only more recently, shown some inclination to genuine rehabilitation. It has to be said that no complaint or blame can be sheeted home to the prosecuting authorities in this case, in that the matters were complicated and they were matters of some difficulty, not least because Mr Subasic continued to reoffend. See also PR v The Queen [2014] ACTCA 40.
While Mr Subasic has made very limited efforts at rehabilitation to date and, indeed, did not fully take up all opportunities, there is some reasonable explanation for some of that and he does appear to have taken some steps while in custody that give a glimmer of hope for his reform. He has some insight into his offending behaviour and accepted responsibility for it.
The nature and circumstances of the offences committed by Mr Subasic will be taken into account as they have been described above, while setting out the facts and describing the offences. Account will also be taken of his personal circumstances as they have been described. Account will be taken of the harm done to the victims as it can be assessed, though the evidence is quite limited, as well as the losses that they have suffered, especially of a non-monetary kind. The matters to which reference has been made above, including Mr Subasic’s insight into his offending and wish to reform, are accepted.
Nevertheless, after considering all reasonable alternatives, it is clear that no sentence but a sentence of imprisonment is required: s 10 of the Sentencing Act.
There are, of course, 14 offences for which Mr Subasic has to be sentenced and a just and adequate sentence must be imposed on each. The length of each sentence has been carefully considered to ensure that happens and also to ensure that Mr Subasic is not punished twice for the same culpabilities.
The Court must also consider whether the sentences should be partly or wholly concurrent because, for example, they are part of the same course of conduct or contain common elements. That is relevant here, for many of the offences had precisely that character of being committed in the same course of conduct.
The length of the total term of the sentence arrived at has then been considered to ensure that the principle of totality is respected and that the total sentence adequately reflects the criminality of the offences committed, but no more than that, and that the total sentence is not excessive, but will leave open the realistic prospect of reform and maintain the hope required for Mr Subasic to take an effective part in the community and realise his aims when he is released.
This may result in what is seen by some as leniency, in that some sentences are made concurrent, but, while the total criminality of Mr Subasic is an important factor and he must be left in no doubt that multiple offending does not lead to a reduction in his sentence other than in accordance with these principles, his growing awareness of the need for rehabilitation is also important, as is the circumstances of his early introduction to drug use. Thus, it requires a sentence proportionate to his culpability for the crimes, the effect on the community, but also Mr Subasic's subjective circumstances and the value of his reform to both the community and to himself.

Sentence

[His Honour then spoke directly to the offender]

Mr Subasic, please stand.
1.You are convicted of obtaining property by deception and sentenced to two months imprisonment, to commence on 23 February 2022 and expire on 22 April 2022. That is to take into account presentence custody. Had you not pleaded guilty, you would have been sentenced to three months imprisonment.
2.You are convicted of dishonestly driving a motor vehicle without consent on the first occasion and sentenced to six months imprisonment, to commence on 23 March 2022 and expire on 22 September 2022. That is to be cumulative as to five months on the offence of obtaining property by deception. Had you not pleaded guilty, you would have been sentenced to eight months imprisonment.
3.You are convicted of dishonestly driving a motor vehicle without consent on the second occasion and sentenced to six months imprisonment, to commence on 23 September 2022 and expire on 22 March 2023. That is to be wholly cumulative on the earlier sentence for dishonestly driving a motor vehicle without consent. Had you not pleaded guilty, you would have been sentenced to eight months imprisonment.
4.You are convicted of the third offence of dishonestly driving a motor vehicle without consent and sentenced to 12 months imprisonment, to commence on 23 March 2023 and expire on 22 March 2024. That is to be wholly cumulative on the sentence for the second offence of dishonestly driving a motor vehicle without consent. Had you not pleaded guilty, you would have been sentenced to 16 months imprisonment.
5.You are convicted of minor theft and sentenced to one month imprisonment, to commence on 23 March 2024 and expire on 22 April 2024. That is to be wholly cumulative on the sentence for the third offence of dishonestly driving a motor vehicle without consent. Had you not pleaded guilty, you would have been sentenced to six weeks imprisonment.
6.You are convicted of possessing a declared substance and sentenced to four months imprisonment, to commence on 23 March 2024 and expire on 22 July 2024. That is to be cumulative as to three months on the sentence for minor theft. Had you not pleaded guilty, you would have been sentenced to five months imprisonment.
7.You are convicted of the first offence of unlawful possession, which is of the items stolen from the building site, and sentenced to three months imprisonment, to commence on 23 June 2024 and expire on 22 September 2024. That is to be cumulative as to two months on the sentence for possessing a declared substance. Had you not pleaded guilty, you would have been sentenced to four months imprisonment.
8.You are convicted of the second offence of unlawful possession, that is the first motorcycle, and sentenced to four months imprisonment, to commence on 23 July 2024 and expire on 22 November 2024. That is to be cumulative as to two months on the first sentence for unlawful possession. Had you not pleaded guilty, you would have been sentenced to five months imprisonment.
9.You are convicted of the third offence of unlawful possession, that is the second motorcycle, and sentenced to four months imprisonment, to commence on 23 September 2024 and expire on 22 January 2025. That is to be cumulative as to two months on the sentence for the second offence of unlawful possession. Had you not pleaded guilty, you would have been sentenced to five months imprisonment.
10.You are convicted of possessing a prohibited drug for supply and sentenced to six months imprisonment, to commence on 23 November 2024 and expire on 22 May 2025. That is to be cumulative as to four months on the sentence for the third offence of unlawful possession. Had you not pleaded guilty, you would have been sentenced to eight months imprisonment.
11.You are convicted of driving whilst disqualified and sentenced to three months imprisonment, to commence on 23 April 2025 and expire on 22 July 2025. That is to be cumulative as to two months on the sentence for possessing a prohibited drug for supply. Had you not pleaded guilty, you would have been sentenced to four months imprisonment. It be noted that there is an automatic 12-month disqualification for the offence of driving while disqualified and the Court directs that it commence today, which is concurrent with part of the disqualification that you are already serving.
12.You are convicted of failing to stop for police as a repeat offender and sentenced to six months imprisonment, to commence on 23 May 2025 and expire on 22 November 2025. That is to be cumulative as to four months on the offence of driving whilst disqualified. Had you not pleaded guilty, you would have been sentenced to eight months imprisonment. It be noted that there is also an automatic 12-month disqualification for the offence of failing to stop for police, that disqualification is not increased and the Court directs that it commence today and be served concurrently with the current disqualification.
13.You are convicted of possessing a drug of dependence and sentenced to three months imprisonment, to commence on 23 October 2025 and expire on 22 January 2026. That is to be cumulative as to two months on the sentence for failing to stop. Had you not pleaded guilty, you would have been sentenced to four months imprisonment.
14.You are convicted of driving whilst unlicensed and required to sign an undertaking to comply with the obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a Good Behaviour Order for a period of six months from today, 2 March 2022.
That is a total sentence of three years and 11 months.
You may be seated.

Drug and Alcohol Treatment Order application

Mr Subasic has requested that the Court make a Treatment Order. This request must, then, be considered as that will enable him to address the issues that have facilitated his offending, especially his longstanding drug use.
Thus, the Court must consider whether a Treatment Order should be made. In the first place, the Court must consider whether he is eligible for such an Order. That requires consideration of the requirements set out in s 12A of the Sentencing Act.
On his plea of guilty, Mr Subasic has been sentenced to 12 months imprisonment for the offence of dishonestly driving a motor vehicle without the owner's consent. For all the offences for which he has been sentenced to imprisonment, he has been sentenced to a total term of three years and 11 months imprisonment.
These terms meet the first requirement for eligibility, being a term for the primary offence, the offence of dishonestly driving a motor vehicle without the owner's consent, of 12 months imprisonment and a total term, including all the other sentences for which imprisonment has been imposed, of less than four years. The offences for which he is being sentenced are eligible offences, except for the offence of driving whilst unlicensed, which is now not relevant to the Court’s consideration of a Treatment Order.
Mr Subasic is now not subject to any other sentencing order within the meaning of s 12A of the Sentencing Act.
The unchallenged Suitability Assessments describe his long and serious drug dependency. In 2021, he was assessed as meeting the criteria for a Stimulant Use Disorder. He has been dependent on methamphetamine and was under its influence at the time of his offending. He was compliant and engaged when being assessed for the Suitability Assessments and he reported that his use caused his offending, especially when giving evidence to the Court. This is consistent with those Suitability Assessments. None were challenged, from which the Court is more readily able to find that he is dependent on illicit drugs, especially methamphetamine, which contributed substantially to his offending.
Mr Subasic has now lived in Canberra all his life and he has support from his parents. It is his father's residence where he proposes to live and it has been assessed as suitable for one subject to a Treatment Order. The Court is satisfied that he will remain in Canberra for the next four years at least.
The Court is also satisfied that Mr Subasic has given informed consent for the making of a Treatment Order. He signed the relevant consent form, which shows that he has had such an Order explained to him in clear terms and that he has had a chance to make a balanced judgment about whether he consented. That was also explained to him when being assessed for a Suitability Assessment. Further, the Court is satisfied that he has had the opportunity to ask any questions about the Order and his obligations under it and had any such questions answered.
Mr Subasic is, accordingly, eligible for a Treatment Order to be made. The next question is whether he is suitable for such an order.
For that purpose, the comprehensive and expertly prepared Suitability Assessments have been carefully read. Both of them recommend that he is suitable and set out in detail the facts on which this recommendation is based. It appears that a Case Plan has been prepared, although it has not been tendered to the Court at this stage. If it is, as can be assumed, consistent with what is said in the Suitability Assessments as to the proposed treatment regime, then it is clearly appropriate for him if he were to be subject to a Treatment Order. There are arrangements for its implementation.
Neither counsel opposed the making of the Order. Further, the Court is not aware of any indications of unsuitability, as set out in Table 46K of the Sentencing Act, that the Court needs to address.
Careful consideration has been given to whether he is suitable and whether the program flagged in the Suitability Assessments is appropriate. It is consistent with both those Suitability Assessments and the psychology assessment and the Court is therefore satisfied that it is appropriate and adequate and that that means that Mr Subasic is suitable for a Treatment Order.
The sentence commenced seven days ago and any sentence of imprisonment must be fully suspended for a Treatment Order, but that suspension can only commence from today. For the reasons set out in R v Crawford (No 1) [2020] ACTSC 245 at [91]–[111], that does not prevent the Court making a Treatment Order. Accordingly, a Treatment Order will be made.

Drug and Alcohol Treatment Order

[His Honour again spoke directly to the offender]

Mr Subasic, please stand.
15.A Drug and Alcohol Treatment Order be made under s 12A of the Crimes (Sentencing) Act 2005 (ACT) for you for two years from today, commencing on 2 March 2022 and ending on 1 March 2024 in respect of the primary offence of dishonestly driving a motor vehicle without the owner’s consent, of which you have been convicted and for which you have been sentenced to 12 months imprisonment.
16.That Order is extended to one offence of obtaining property be deception, two offences of dishonestly driving a motor vehicle without consent, one offence of minor theft, one offence of possessing a declared substance, three offences of unlawful possession of stolen property, one offence of possession of a prohibited drug for supply, one offence of driving while disqualified, one offence of failing to stop as a repeat offender and one offence of possession of a drug of dependence, for which you have today been convicted and sentenced to imprisonment and all of which are associated offences of the primary offence.
17.It be noted that the convictions for the primary offence and the associated offences have been recorded and that sentences have been imposed for each of them, which convictions and sentences are hereby incorporated in the Drug and Alcohol Treatment Order in the custodial part of that Order.
18.The custodial part of the Drug and Alcohol Treatment Order for the primary and associated offences is hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 2 March 2022, until 22 January 2026.
19.Under s 80ZA of the Crimes (Sentencing) Act 2005 (ACT), you are required to sign an undertaking to comply with the offender's good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Drug and Alcohol Treatment Order, 2 March 2024, until the end of the total sentence, 22 January 2026, with a probation condition that you accept the supervision of the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising you considers appropriate, and obey all reasonable directions of the person supervising you including as to urinalysis, counselling and treatment.
20.For the treatment and supervision part of the Drug and Alcohol Treatment Order:
a. The core conditions of the order set out in s 80Y of the Crimes (Sentencing) Act2005 (ACT) are hereby imposed;
b. You are required to undertake any program, treatment or counselling, urinalysis or case management that may be required by any member of the treatment and supervision team or the Court and obey all reasonable directions of the Court or any member of the of that Team about where you reside, with whom you associate and your attendance from time to time; and
c. You are directed to comply with any directions of the Court from time to time about attendance in Court in person or by electronic means.
21.You are required to appear in Court this Friday on 4 March 2022 at 11:30 am for DASL Review.
22.You are directed to attend the Court Registry before you leave the Court precincts to sign a sealed copy of this Order and an undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act2005 (ACT) for the period that this Order is in force.
Mr Subasic, there are a lot of words there. Many of them are formal legal words to make sure that the sentence accords with the law and is appropriate for the sentence to be made for you.
Nevertheless, the bottom line is this was an unrestrained bout of criminality. It went on and on and that is entirely unacceptable in the community. It does not do you any good, because you end up in gaol. One Judge said perhaps the way you are heading you should change your address to the Alexander Maconochie Centre, because that is where you would have been living for a long time hereafter.
As you know, you get arrested. Very few people do not get arrested, ultimately, and even if they run away after being arrested, they are usually found, years later if necessary. There is a notorious case in this Court where a man who wanted to avoid sentence took off on bail; 10 years later he was found. The judge had retired, came back from retirement and sentenced him and the offender went to gaol, so there is no value in that.
Hopefully you have that insight and now what you want to do is reform. If so, you are in the right Court. This Court and the very expert and empathic team members who support it will give you every support. That does not mean they are going to be lovey-dovey, but they will give you support and help to direct you as to how you can actually reform.
At the end of the day, only you can do it. You have got to do it and, given how long you have been dependent on drugs, it is not going to be easy. It will be tough, but each time you take a step, and hopefully because you have been in custody you have not been using, it will be easier out in the community not to use.
There will be enticements, particularly if you start knocking around with your old drug-using associates. You want to put them behind you and change your phone number. Walk away. You can do that politely, you do not have to be rude, but do not associate with them.

When there is a temptation, when things get tough, when you think, “I'm bored. I'll just have a quick hit”, be strong. Do not do it, because the first hit leads to the second and to the third and so on. We will help you to address those feelings, so talk to people, talk to your counsellors, come and talk to the Court.
You will see me every week for some months and then for the whole of the Order you will see me from time to time. You can raise these, and any, issues with me. I can help you to facilitate where you might go to get assistance or to amend the Order if it is necessary for that assistance.
Basically, what you have got to do is not use drugs, not commit crime and engage with counsellors and programs, some of them will be online, some of them will be person to person. That will help you to put your drug dependency on hold, because it only ever will be on hold, and be able to be strong in avoiding temptation and avoiding relapse and those are important things. As time goes on, we can assist you and encourage you to get work again, but first of all, work on your rehabilitation.
There are a few things that are really important. One thing that is really important is being honest. Be honest about what you are doing. If you do use and relapse, let us know, be honest about it so we can sort it out. I do not say we will not sanction you, you might have to go back into jail for a few days, but being honest about it will mean that you can deal with it and it will become easier later not to use. If you are dishonest about it, penalties will be greater.
Secondly, do not give up. If it is all getting too tough, talk to people. You will have case managers who will understand and be available to you and you can talk to them about that. They are very experienced people who will be able to assist you to work out how you are going to manage this.
Enjoy living with your father, enjoy contact with your family and no doubt they will support you, but do not run away. You are in the community, you are not in custody, you are not in a residential rehabilitation agency, but do not run away. If it gets too tough, come back. If you have failed to attend for appointments and counselling, come back. I might have to sanction you, that might involve going to jail for a short period, but at least we can put you back on track, whereas if you do not, at the end of the day I will have to cancel the Order and you have got most of three years and 11 months yet to serve.
That is not a threat, I hate to cancel Orders because I like people to work and to show how productive they can be. You have got great motivation in that you have the opportunity to reconnect with your sons and perhaps even to take custody of them, to be the father that you experienced and you can hang onto your kids and perhaps create a further family.
You obviously were pretty good at painting, because without a certificate you kept the job. You can be useful. It is a good thing for things to be painted in the way you do. That preserves them, it makes them look good, people like it, it makes the community better. You can be productive and useful in the community, so here is your opportunity.
Your offences were terrible. Not as bad as some, not the worst, but on and on it went. Put that behind you, look forward, look to committing yourself to managing a drug and crime free lifestyle. You will find that fulfilling, you will be able to be effective in the community and you can then stand up proudly before your sons and your parents and say, “I am a good citizen” and you cannot say that now.
It will be a bit messy on Friday, but I will see you then. Make sure you come at 11:30 am. You will have to do urinalysis before then. You will also have to do it this Friday and then thereafter three times a week.
You will be contacted and given a Case Plan; in fact, that can be given to you immediately. Read that and make sure you understand it. If you do not understand it, then it has got some contact details on it. You can make contact and it will be explained to you.
One thing that will change that is Mr Bevan, who has so expertly and carefully acted for you to date, will not be acting for you anymore. You will have a Legal Aid solicitor who will act for you. You have had Legal Aid solicitors before, so you know about them and how to contact them. You will have one who will act for you while you are under the Treatment Order.
I will see you on Friday. I genuinely wish you good luck. I hope this works, but it will only work if you put effort into it, are committed to it for the long term, are honest and keep in contact with your Team and the Court.

I certify that the preceding two hundred and six [206] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge

Associate:

Date: 14 March 2023