R v Subasic (No 2)
[2023] ACTSC 79
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Subasic (No 2) |
Citation: | [2023] ACTSC 79 |
Hearing Date: | 27 January 2023 |
Decision Date: | 27 January 2023 |
Reasons Date: | 14 April 2023 |
Before: | Refshauge AJ |
Decision: | 1. Jeremy William Subasic be granted bail on the following conditions: a. That he reside at [redacted for legal reasons] during the bail period. b. That he be at his place of residence between the hours of 9pm each day and 6am the next day and present himself to the front door of the residence if requested to do so by a member of the Australian Federal Police during those hours. c. That he accept the supervision of the Commissioner of ACT Corrective Services or his delegate (referred to in these conditions as “the person supervising him”) and obey all reasonable directions of the person supervising him. d. That he not consume alcohol, cannabis, illegal drugs, or any prescription drugs not prescribed to him. e. That he not have in his possession any firearm or ammunition for any firearm. f. That he submit to urinalysis, drug testing and breath analysis if directed by the person supervising him. g. That he report to Belconnen Police Station every Monday and Friday between the hours of 8am and 8pm. h. That he admit himself to the Matrix program conducted by Karralika Programs Inc. as soon as a place is available and advise the person supervising him that he has been advised of his admission to the program and of the date of admission within 24 hours of him being advised of this. i. That he advise the staff at Karralika Programs Inc. that he consents to them providing to the person supervising him, on request by that person, any information about his progress under the Matrix program. j. That he not drive a motor vehicle, be in the driver’s seat of a motor vehicle, or have in his possession the keys to a motor vehicle. k. That he not leave his place of residence between 6am and 9pm each day, except in the company of [redacted for legal reasons] and remain in their company until he returns to his place of residence. l. That, despite the requirement that Jeremy William Subasic not leave his place of residence, he be permitted to do so in case of an emergency, as directed by the person supervising him, or to attend Club Lime Gymnasium at Westfield Shopping Town, Belconnen, for exercise, in which case he is to travel directly to such appointments from his place of residence and return directly to his place of residence after the conclusion of such attendance. 2. The proceedings be adjourned until 10 February 2023 at 2:15pm for sentence. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – Application for bail pending re-sentence –Offender seeking to attend rehabilitation – Awaiting assessment for rehabilitation day program – History of breaching bail – What constitutes “past behaviour” – Completed rehabilitation program in custody – Family as a protective factor – Risk able to be managed with strict conditions – Curfew – Bail granted |
Legislation Cited: | Bail Act 1992 (ACT) s 49 Crimes (Sentencing) Act 2005 (ACT) ss 12A, 80ZE Magistrates Court Act 1930 (ACT) ss 30, 42, 64, 89 |
Cases Cited: | R v Antonovic (No 3) [2021] ACTSC 338 R v Connors [2012] ACTSC 80 R v Ferguson [2016] ACTSC 255 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v JM [2014] ACTSC 380 R v Johnson [2018] ACTSC 137 R v Marschall [2002] NSWCCA 197; 129 A Crim R 381 R v McGrail [2016] ACTSC 142 R v NF (No 1) [2016] ACTSC 216 R v Nona [2015] ACTSC 136 R v Pikula [2015] ACTSC 380 R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 R v Reid (No 1) [2021] ACTSC 334 R v Sladic [2014] ACTSC 56 R v Subasic [2022] ACTSC 380 R v Tonna (No 2) [2020] ACTSC 362 R v Webb [2004] NSWCCA 330; 149 A Crim R 167 R v Welch [2009] ACTSC 35; 166 ACTR 32 Saga v Reid and Collett [2010] ACTSC 59 State of Western Australia v O’Brien [2007] WASC 292 |
Texts Cited: | Lintzeris, N, Dunlop, A and Masters, D, Clinical Guidelines for use of depot buprenorphine (Buvidal and Sublocade) in the treatment of opioid dependence, (NSW Ministry of Health; August 2019) Payne, Jason and Gaffney, Antoinette, How much crime is drug or alcohol related? Self-reported attributions of police detainees (Australian Institute of Criminology, Trends and issues in crime and criminal justice, No 439, 24 May 2012) |
Parties: | ACT Director of Public Prosecutions ( DPP) Jeremy William Subasic ( Offender) |
Representation: | Counsel K Stitt ( DPP) C Duffy ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offender) | |
File Numbers: | SCC 261 of 2020 SCC 262 of 2020 SCC 186 of 2021 SCC 193 of 2021 SCC 195 of 2021 SCC 196 of 2021 SCC 299 of 2021 SCC 300 of 2021 |
REFSHAUGE AJ
Introduction
The link between crime and drug dependence and use is well-established. See, for example, Jason Payne and Antoinette Gaffney, How much crime is drug or alcohol related? Self-reported attributions of police detainees (Australian Institute of Criminology, Trends and issues in crime and criminal justice, No 439, 24 May 2012). As the authors note “The Australian criminological literature is replete with evidence of associations between illicit drugs and crime.”
Of course, the courts have long recognised this. See, for example, R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at 387; [216]; State of Western Australia v O’Brien [2007] WASC 292 at [60].
Thus, it seems obvious that, if drug dependent persons can become abstinent, or even if they can manage their use of alcohol or other drugs in a socially acceptable way, crime will be reduced and the community will become safer.
It is well-known, however, that drug dependence is a pernicious habit which is, like all habits, really difficult to control, much less eradicate. Nevertheless, like many issues that beset this society, this is no reason why evidence-based attempts, which have shown success, should not be made. Indeed, the establishment of Drug Courts and the success that they have shown is a rational basis for making such attempts. See, for example, R v Antonovic (No 3) [2021] ACTSC 338 at [3].
Nevertheless, the challenges persist and success in drug rehabilitation can be difficult. As the Court said in Saga v Reid and Collett [2010] ACTSC 59 at [89]:
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 there is 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. That may be merely the nature of the offence. For example, sentencing on a drug offence may allow further attempts to be made, whereas, in the absence of some other factors, continuing burglaries or robberies would make a sentencing court much more hesitant about further attempts after multiple failures.
This is relevant to an application for bail that was made by Jeremy William Subasic. Mr Subasic was convicted on his plea of guilty to 16 offences, mainly traffic related offences, though including more serious of such offences, including dishonestly driving a motor vehicle without the owner’s consent, but also dishonesty and drug offences. Worryingly, in this context, two of the offences of which Mr Subasic was convicted were for failing to appear in Court in compliance with a bail undertaking into which he had entered.
He had a long history of drug dependence and of criminal activity. He was sentenced to a total of 3 years and 11 months imprisonment. He sought, however, that the sentence be served by a Drug and Alcohol Treatment Order (Treatment Order) under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) and that was done. The Treatment and Supervision part of the Treatment Order was for 2 years. See R v Subasic [2022] ACTSC 380.
Mr Subasic, however, struggled with his obligations under the Treatment Order. Unsurprisingly, he found it difficult to remain abstinent and returned a positive result for drugs on urinalysis on four occasions, though he said that the first occasion was a result of drug use while in custody before the Treatment Order was made. He also tried to avoid some of his obligations by claiming that he had been required to isolate as he had been infected by the COVID-19 virus. Indeed, he created a false certificate to that effect. He also failed to attend for urinalysis on some occasions. Such failure raises suspicion of drug use, but no final conclusions can be drawn about that without further evidence.
On an occasion, he failed to appear in the Court for the regular review of his progress under the Treatment Order. A warrant was issued for his arrest. When he was arrested, the suspension of the Custodial Part of the Treatment Order was provisionally cancelled and he was remanded in custody for 14 days. This then occurred again, resulting in a further period of 14 days in custody.
10. Finally, on 24 June 2022, the Treatment Order was cancelled and Mr Subasic was remanded in custody. At the end of the hearing, Ms C Duffy, who appeared for Mr Subasic and was a very effective advocate for him, advised the Court that she wished to explore options for other rehabilitation for Mr Subasic and, instead of proceeding either to impose the sentence that had been suspended or to re-sentence Mr Subasic, sought an opportunity to explore those rehabilitation options, specifically at Karralika Programs Inc (Karralika), a drug rehabilitation agency described in R v Sladic [2014] ACTSC 56 at [23]. The Court adjourned the proceedings for this to be done.
11. There were further adjournments and, on 29 July 2022, the parties were requested to provide any further material for sentence so that the proceedings could be finalised on 8 August 2022.
12. The sentencing hearing did proceed on that day and the Crown submitted that the original sentence should be imposed. The proceedings were then adjourned with a view to finalising the proceedings on 17 August 2022.
13. On that day, however, Ms Duffy advised the Court that Mr Subasic had been accepted into the Solaris Therapeutic Community program within the Alexander Maconochie Centre. That program is described in R v JM [2014] ACTSC 380 at [26], noting that the operator of the program there, described as the Alcohol and Drug Foundation of the ACT, has changed its name to Karralika Therapeutic Programs Inc.
14. Ms Duffy sought an adjournment so that Mr Subasic could complete the program and show what rehabilitation he was capable of achieving, as this would be relevant to the sentence to be imposed. He has now completed the program. He has, however, sought a further adjournment prior to sentence so that he can attend the Matrix Program (Program), which is effectively the next stage of rehabilitation from such residential programs as the Solaris Therapeutic Community.
15. In order to be admitted to the Program and then complete it, Mr Subasic must be in the community and not in custody. Hence the application for bail. The application made by Mr Subasic was supported by an affidavit made by Ms Duffy. It annexed a number of documents. Ms Duffy was not cross-examined on the affidavit and the contents of the annexed documents were not subject to any challenge. The affidavit was read by the Court.
16. The evidence, principally from the documents annexed to Ms Duffy’s affidavit, is as follows.
17. Mr Subasic completed the Solaris Therapeutic Community program on 16 December 2022 and received a Certificate of Completion, which was one of the annexed documents to Ms Duffy’s affidavit, and which showed the various modules of the program that Mr Subasic had completed.
18. A number of letters from Karralika were also among the annexed documents. They show that Mr Subasic was “engaged in the Therapeutic Community as a peer and role model and continued to work on his recovery skills”, that he “has remained as a prosocial peer and role model”, that he “demonstrated a commitment to develop both his intrapersonal and interpersonal skills”, that “he has displayed a high level of insight around patterns of thoughts and behaviour and has engaged in challenging these to further develop his skills” and that he has advanced to the level of “enhanced” in the Community, the highest level achievable.
19. He has prepared a Relapse Prevention Plan, which was also in evidence, annexed to the affidavit. It identified his goals, how he was going to achieve them and what he needed to do to reach them, what were the early warning signs of relapse and what he would do in response as well as what triggered his relapse, including localities and behaviours, which he could identify and how he would respond. It was a clear, comprehensive and thoughtful document which appeared to be well-reasoned and, if implemented, likely to be successful. It was a really good step not only towards his rehabilitation, but his ability to maintain it. Again, of course, it was words and would only achieve these aims if implemented, but it did require him to confront the listed matters, identify the triggers and the persons on whom he could call for support and be ready for the issues.
20. Mr Subasic’s father wrote a letter to the Court, also annexed to Ms Duffy’s affidavit. It confirmed that Mr Subasic could reside with him and that he was prepared to provide him with work, importantly, “when Jeremy is not busy at the rehab program”.
21. Finally, a letter from his Case Manager at Karralika included in the annexures confirmed that she had met regularly with Mr Subasic since she first had contact with him on 6 January 2023. She wrote that she had worked with him in preparation for his release and would work with him “towards his relapse prevention skills, pro-social behaviours, and his reintegration back into the community”.
22. In addition, Ms Duffy tendered without objection a letter from the Preschool where Mr Subasic’s elder son was to start attending on Monday 30 January 2023, with details of the arrangements.
23. The Crown tendered, without objection, an updated Criminal Record for Mr Subasic, but, in comparison to the record as tendered at sentencing, it only had, in addition, the offences for which he had been sentenced on 2 March 2022, confirming that he is not alleged to have committed any further offences since then. There was no challenge to the content of that document.
24. Ms Duffy submitted that the following conditions would justify the grant of bail:
a)That he reside at the residence of his father;
b)That he accept the supervision of the Commissioner of ACT Corrective Services or his delegate and obey all reasonable directions of the person supervising him;
c)That he not consume alcohol, cannabis, illegal drugs or any prescription drugs not prescribed for him; and
d)That he submit to urinalysis, drug testing and breath analysis if directed by the Commissioner of ACT Corrective Services or his delegate.
25. The evidence showed the following information about the Matrix Program:
The Matrix Program is an evidence-based, validated day program for people wanting achieve recovery from alcohol and other drug use. The Matrix program provides a structured group-based treatment experience for participants and their family members/significant others. Participants receive information, assistance in structuring a substance-free lifestyle, and support to achieve and maintain recovery [from the use of] alcohol and other drugs.
26. The Matrix Program provides, according to the evidence, a structured program of 20 weeks duration for participants who have had drug and alcohol treatment. It requires the participant to engage in regular individual counselling, weekly or fortnightly, and weekly group sessions in Early Recovery Skills, Relapse Prevention, Social Support and Family Education of at least 8 sessions, though, comfortingly, 32 sessions for Relapse Prevention. Participants are also expected to attend groups three days each week and also self-help meetings of Narcotics Anonymous/Alcoholics Anonymous and SMART recovery groups (as to which, see R v McGrail [2016] ACTSC 142 at [78]–[80] and R v Pikula [2015] ACTSC 380 at [39]).
27. Mr Subasic is on the wait list for the Matrix Program, but he must be in the community to enter the Program. While on the wait list, Karralika will offer him counselling and he can engage with his Case Manager. The likely waiting time is possibly four weeks or more.
28. Hence the bail application so that Mr Subasic can progress his rehabilitation to the next stage, he having successfully completed the residential drug rehabilitation through the Solaris Therapeutic Community program.
Consideration
29. Mr Subasic is facing the consequences of the cancellation of the Treatment Order by which he was serving the sentence of imprisonment imposed upon him. Once a Treatment Order is cancelled, the original sentence must be imposed or the offender may be resentenced: s 80ZE of the Sentencing Act.
30. A number of considerations justify the Court taking the approach of resentencing a participant whose Treatment Order has been cancelled. Some have been set out in R v Tonna (No 2) [2020] ACTSC 362 at [78]–[79]. The principal one there mentioned was that “an offender has made substantial efforts at rehabilitation and achieved progress”. That seems to apply here, considering the success that Mr Subasic has had in completing the Solaris Therapeutic Community program.
31. Another consideration is mentioned in R v Marschall [2002] NSWCCA 197; 129 A Crim R 381, where the NSW Court of Criminal Appeal held (at 385; [30]) that time spent in residential drug rehabilitation facilities is “quasi custody” which is “a curtailment of liberty and the exacting nature of [such courses] … with the participants being unable to leave the centres except with consent and in limited circumstances” (at 385; [29]). The Court held that such periods should be recognised in any sentencing following the cancellation of an order made by the Drug Court of New South Wales, whether the participant has been successful in the program or not.
32. It is clearly preferable if a substantial effort at rehabilitation is able to be made so that there is a greater likelihood that the rehabilitation will be durable beyond the reach of any sentence. This is, in effect, the opportunity that Mr Subasic seeks.
33. The Crown, ably and professionally represented by Ms K Stitt, did not oppose the application, but did not support it. Ms Stitt submitted that there were issues that pointed both in support of the application and that there were good reasons for concern and possible refusal. Ms Stitt, in her thoughtful and helpful submissions, carefully drew the Court’s attention to these matters, which required consideration.
34. Mr Subasic had, in the past, failed to comply with bail conditions to appear in Court consequent upon his undertaking to do so when granted bail on both 9 March 2021 and 8 April 2021. These offences, to which he pleaded guilty, were included in the offences for which he was sentenced and for which a sentence of imprisonment was imposed to be served by the Treatment Order, the cancellation of which has led to him seeking the bail prior to the imposition of the sentence or resentencing. Clearly a past history of such breaches of bail is relevant on a further application for bail. It is also to be noted, however, that he had not, in his criminal history, [redacted for legal reasons], any other conviction or finding of guilt for such a breach of bail.
35. Ms Stitt, however, noted that he has four entries on his criminal record for also being the subject of an executed first instance warrant. These have been described as “an arrest warrant obtained ex parte from an issuing officer”: R v Welch [2009] ACTSC 35; 166 ACTR 32 at 40; [62]. As there noted, “first instance” has no special meaning.
36. The meaning may be ascertained a little more clearly by the examination of ss 30, 42 and 64 of the Magistrates Court Act 1930 (ACT), which make it clear that such a warrant is one of the methods of bringing a person before a court, either to commence criminal proceedings in that court or to participate in some other way (as a witness, for example) in preference to any other method, such as a summons (to commence such proceedings) or a subpoena (to appear as a witness).
37. That is to say, the warrant is issued “in the first instance” rather than when the summons or subpoena has failed to effect the attendance of the witness and is to be distinguished from a “bench warrant” which is issued by a judge or magistrate where a person has not appeared in Court as required (whether as a witness, party or juror), an example of which is the warrant that may be issued under s 49 of the Bail Act 1992 (ACT) for a person who has not answered his or her bail or s 89(3) of the Magistrates Court Act for not appearing when summonsed.
38. The reference in this case to the execution of these four warrants does not, in reality, add more to the concern that arises from the two breaches of bail undertakings to which Mr Subasic has pleaded guilty. Part of this is because there is no information about the circumstances of the issuing of the warrants. A Court may issue such a warrant as for the commencement of criminal proceedings, instead of a summons. In that case, there has been no breach of bail and Mr Subasic may not have known that the proceedings were to be commenced. That is, there may be no failure of Mr Subasic to appear when he had been required to appear.
39. Neither of the dates of the alleged offences in respect of which the warrants were issued match any date for other offences on Mr Subasic’s criminal record. They may have been issued and the proceedings for the offences not prosecuted. The evidence before the Court is insufficient to make any finding, and certainly not sufficient to find that Mr Subasic has a longer history of failing to appear in Court when required.
40. It was submitted that the breaches of bail were committed while Mr Subasic was awaiting sentence, the same situation as here, where he is awaiting sentence. On the other hand, the bail here is sought to enable Mr Subasic to engage in further rehabilitation which, if successful, is highly likely to moderate any time that he may then have to spend in prison.
41. Thus, while the breaches are relevant, they do not, of themselves require the application for bail to be refused. Indeed, they serve to act as a reminder that his failures led to further offences being laid, offences for breaching his bail undertaking, for which he received sentences of imprisonment. That is, further breaches of bail will not avoid sentence, but will increase its length.
42. The history of Mr Subasic not appearing to answer his bail undertaking is only of recent history and he has been punished for this. Some of his conduct while subject to the Treatment Order, which is separately considered next, is somewhat similar in some respects, but, subject to any consideration of the terms and conditions of any of the grants of bail, does also not necessarily prevent him from being granted bail.
43. Mr Subasic’s conduct while subject to the Treatment Orders was very unsatisfactory in many respects. He was subject to the Order for just under 4 months only. In that time, he was sanctioned for breaches of the Behaviour Protocol on six occasions, from a formal warning to two periods of custody for 14 days each. He returned a positive result from urinalysis on four occasions.
44. He did, however, fail to attend for urinalysis on a number of occasions, particularly when he falsely claimed that he had been infected by the COVID-19 virus, which meant that he did not attend for 2 weeks. It cannot be said that he would have returned a positive urinalysis during that time, but there then must be a reasonable suspicion that he used drugs during that period. He further failed to attend Court on two occasions and, on the second occasion, a warrant was issued for his arrest. He also failed to attend programs, which were required of him as part of the treatment from time to time.
45. The Crown further noted that when he was in the community during this time, he had the same support of his father as is now proposed. That, it was pointed out, did not prevent him from behaving inappropriately. The terms of any bail, however, can be more stringent than the conditions under the Treatment Order, which may address some of these matters.
46. This is not a promising record. An offender’s prior record is a very important part of the consideration of bail, but must be considered rationally. Thus, as was said in R v Reid (No 1) [2021] ACTSC 334 at [4];
while the past behaviour of an offender is generally regarded as the best predictor of future conduct, evidence suggests that there are limitations on this general principle, including that it is a best predictor but specifically in short intervals and where the circumstances are identical both in the past and the future.
47. Further, of course, there is the question about what relevantly past behaviour is. Thus, in R v Nona [2015] ACTSC 136 at [44], the Court held that, in the case before it, the recent behaviour was not what should establish that earlier substantial good behaviour would not prevail over it as the basis for prediction. Here, similarly, Mr Subasic’s absence of any earlier breaches of bail undertakings may be more relevant for predicting future behaviour than the recent breaches.
48. Further, there are real differences now. The first is that Mr Subasic has completed the Solaris Therapeutic Community program and has been very successful in doing so, reaching a high level of attainment. Secondly, his poor conduct while subject to the Treatment Order was also uncharacteristic of his earlier behaviour. Thirdly, the poor behaviour while subject to the Treatment Order occurred while he was facing the challenge of being abstinent after many years of drug dependence and of completing the required rehabilitation regime, which is accepted as being challenging. Fourthly, he has been punished, both for his breaches of bail and for his conduct while subject to the Treatment Order as he has now been in custody for approximately 8 months, part of which would include the sentence for the breaches of bail undertaking offences.
49. While Mr Subasic’s past behaviour, both specifically in breaching his bail undertakings, but also his criminal conduct as shown on his criminal record, is clearly of concern and must be carefully considered, there are now changed circumstances and it must also be considered whether, with appropriate bail conditions to ameliorate any risk, his history does not necessarily prevent a further grant of bail.
50. Next, it is relevant that, even though Mr Subasic’s conduct while subject to the Treatment Order was not good, indeed it was very bad at times, he did not commit any further offences, save any offences committed arising directly from his use of drugs, even when he absconded, requiring his arrest.
51. Finally, Mr Subasic wrote to the Court a letter, annexed to Ms Duffy’s affidavit, noted above (at [15]), in which he explained this position and committed to change. No challenge was made to the contents of that letter, nor was it sought that he be cross-examined on it (see R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 at 377; [58]–[59]). The letter was an impressive one and it was not suggested that it had been written by someone else, though no doubt he may have been assisted in the task, but not such that the Court could not place some reliance on it, unless the Court assessed it as not reliable, which is not the position here.
52. The letter explained, apparently very honesty and with insight, how Mr Subasic was feeling in the time leading up to the cancellation of the Treatment Order — he had “slipped into a lapse [sic] which turned into me relapsing completely” — and, he said, “it was just too much to handle”. He pointed out that he had now been in custody for 8 months, “a long time … away from society and loved ones”. He took the opportunity in that time, however, to reach out to supports, which helped. He made the most of it, engaging with, and complying with his obligations under, the rehabilitation.
53. He had, he reported, committed himself to the Solaris Therapeutic Community program. He said that he had been “attending every morning group as asked and writing in my daily reflection books also”. In addition, he had “attended all group sessions”. He identified much of what he had learnt “about urges and what they are and coping strategies, recognising what triggers are and how to manage them”. He also addressed “strong memories or emotions and communication and healthy emotional regulation”.
54. Initially, Mr Subasic explained, he wanted to live in a house provided by the Nexus Program of Karralika, a residential program which provides for case management support, education and counselling for men in preparation for return to the community. Many of them attend the Matrix program. As he has completed the Solaris Therapeutic Community program, Mr Subasic would be eligible for the program.
55. Mr Subasic said that, unfortunately, it was difficult to access a Nexus House, because of demand, but he had been told that he was still eligible to engage in the Matrix program were he to have stable accommodation. His father could provide that, as his father’s letter confirmed.
56. Mr Subasic has also commenced on a program of opioid maintenance therapy with regular Buvidal injections. Buvidal is the proprietary name of buprenorphine, which is a maintenance treatment for opioid dependence and is a safe and effective treatment. This has been established by clinical trials. See Lintzeris, N, Dunlop, A and Masters, D, Clinical Guidelines for use of depot buprenorphine (Buvidal and Sublocade) in the treatment of opioid dependence, (NSW Ministry of Health; August 2019) at p 11. It should be used with psychosocial interventions which, amongst other things, the Matrix Program can provide.
57. He noted how much of his children’s experiences, birthdays and Christmases he had missed and said “[m]y children are everything to me and I think that they will keep me from going off track and abandoning them and the rest of my family again”. Family can, of course, be a significantly strong motivator for rehabilitation.
58. In his letter, Mr Subasic also indicated that he wished to stay healthy and attend a local gym to continue the training that he had started in custody. He explained that he had “every intention of continuing in my recovery and giving it everything”.
59. Some of this is rather reminiscent of a letter that he had sent to the Court in April 2022, when he was facing a period of custody of 14 days for breaches of his Treatment Order and the Behaviour Protocol. There, he had said that he “slipped up” and expressed remorse: “I felt ashamed of myself. I also felt I had let the court down, my family down, and most of all, let myself down”. He wrote that he had learnt that “recovery will not be an easy road” and that he “will not choose drugs”.
60. Despite this, it was reported to the Court that he had failed to attend a rehabilitation program shortly after his release from custody and had failed to maintain contact with his case manager, had missed urinalysis and had produced a positive result on urinalysis, admitting that he had used drugs.
61. Thus, his current letter is just words, good words with good intentions expressed and, no doubt, sincerely and genuinely felt. The challenge is to translate them into actions. That did not happen with the good intentions expressed in the April letter.
62. As is clear, the more recent letter included similar comments, but it had a quite different focus. In it, Mr Subasic described what he had actually done to progress his rehabilitation and showed significant insight into his situation. Unlike the April letter, it gave a clear pathway for further rehabilitation and the way he was going to achieve it. It was still words, but backed by some evidence that he had achieved much of what he was describing, giving a basis for finding that there was a real chance of success and that the words were more likely to be translated into action.
63. It is important to note that, on the Monday following the hearing of the bail application, Mr Subasic’s elder son would start at pre-school. To permit him to be there with his son would provide him with the experience of what he had missed out from his criminality and what he would feel like to be a father again. This would be unavailable were he to be in prison. It would also, hopefully, confirm his motivation and encourage him not to forfeit the opportunity of experiencing such important events.
Disposition
64. Taking all these matters into account, Mr Subasic had made out a case for the grant of bail, but to attend the Matrix Program, and only if proper protection for the community could be offered with strict bail conditions. Bail was accordingly granted with reasons to be published later. These are those reasons.
65. The conditions proposed by him addressed a number of issues, but additional and stricter conditions were also appropriate, both for the protection of the community and also to help him focus on his rehabilitation and minimise the risks of relapse, especially as newly released from custody.
66. A curfew was an appropriate condition. It is usually imposed to inhibit further offending: R v Connors [2012] ACTSC 80 at [21]. This is especially so if offending has previously occurred during these hours, which are also risky times for the consumption of alcohol: R v McGrail at [115]. It can also reduce the risk of antisocial associations: R v Johnson [2018] ACTSC 137 at [32]. It can, however, be considered as increasing the severity of the restrictions and, thus, has been used to increase the penal effect of a non-custodial sentence like an Intensive Corrections Order, thus justifying its imposition: R v Ferguson [2016] ACTSC 255 at [14]. Similarly, the imposition of such strict conditions on bail would be relevant to any subsequent sentencing: R v Webb [2004] NSWCCA 330; 149 A Crim R 167 at 170; [18]; R v NF (No 1) [2016] ACTSC 216 at [79].
67. As a broad generalisation, the capacity of Mr Subasic to behave inappropriately is greater at night and in the early hours of the morning. In any event, a number of his offences were committed during these hours.
68. Supporting that were strict requirements about remaining in his place of residence. The Territory has abolished home detention as a sentencing option, but elements of it can be imposed when the liberty of an offender is conditional, such as with the imposition of conditions on a grant of bail. Thus, Mr Subasic will be prohibited from leaving his residence in the hours not subject to a curfew, except in the company of an adult member of his family and he must stay in their company while he is not in his residence.
69. It has been the practice in the Drug and Alcohol Sentencing List to require the person in whose company the offender must stay to give an undertaking to the Court that they will report to the police or ACT Corrective Services immediately the offender leaves that person’s company. Given the number of adult members of Mr Subasic’s family named in the condition, that was not practical and the likelihood that he will be working with his father much of the time meant that the absence of this requirement did not seem to pose too great a risk in this case. Further, Mr Subasic knew that a lot was at stake for his future and the expressed aims he has for his rehabilitation and the future of his family relations.
70. This was also to be reinforced by a requirement for him to report to Belconnen Police Station each Monday and Friday. As well as a prohibiting condition on the consumption of alcohol, cannabis, illegal drugs and prescription drugs not prescribed for Mr Subasic, a prohibiting condition on possession of firearms or ammunition or driving, including having the keys of a motor vehicle or being in the driver’s seat, was appropriate given his history.
71. Bail conditions would also require Mr Subasic to admit himself to the Matrix Program as soon as he is granted access, to report that to the person supervising him and to consent to Karralika informing the person supervising him on his progress under the Matrix program.
Accordingly, Jeremy William Subasic was granted bail on the following conditions:
a. That he reside at [redacted for legal reasons] during the bail period.
b. That he be at his place of residence between the hours of 9pm each day and 6am the next day and present himself to the front door of the residence if requested to do so by a member of the Australian Federal Police during those hours.
c. That he accept the supervision of the Commissioner of ACT Corrective Services or his delegate (referred to in these conditions as “the person supervising him”) and obey all reasonable directions of the person supervising him.
d. That he not consume alcohol, cannabis, illegal drugs, or any prescription drugs not prescribed to him.
e. That he not have in his possession any firearm or ammunition for any firearm.
f. That he submit to urinalysis, drug testing and breath analysis if directed by the person supervising him.
g. That he report to Belconnen Police Station every Monday and Friday between the hours of 8am and 8pm.
h. That he admit himself to the Matrix program conducted by Karralika Programs Inc. as soon as a place is available and advise the person supervising him that he has been advised of his admission to the program and of the date of admission within 24 hours of him being advised of this.
i. That he advise the staff at Karralika Programs Inc. that he consents to them providing to the person supervising him, on request by that person, any information about his progress under the Matrix program.
j. That he not drive a motor vehicle, be in the driver’s seat of a motor vehicle, or have in his possession the keys to a motor vehicle.
k. That he not leave his place of residence between 6am and 9pm each day, except in the company of [redacted for legal reasons] and remain in their company until he returns to his place of residence.
l. That, despite the requirement that Jeremy William Subasic not leave his place of residence, he be permitted to do so in case of an emergency, as directed by the person supervising him, or to attend Club Lime Gymnasium at Westfield Shopping Town, Belconnen, for exercise, in which case he is to travel directly to such appointments from his place of residence and return directly to his place of residence after the conclusion of such attendance.
73. On agreeing to these conditions, Mr Subasic was granted bail and released upon him signing the required undertaking. The Court proposed to monitor his progress and he was required to return to the Court on 10 February 2023 for that purpose. These are the reasons for that grant of bail.
| I certify that the preceding seventy-three [73] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Refshauge Associate: Date: 14 April 2023 |
6
5
0