R v Subasic (No 4) - [2024] ACTSC 89

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Subasic (No 4)
Citation:	[2024] ACTSC 89
Hearing Date:	28 March 2024
Decision Date:	4 April 2024
Before:	Hopkins AJ
Decision:	See [31].
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –– Drug and Alcohol Treatment Order cancelled – Good Behaviour Order on resentence – breach of Good Behaviour Order – no further offences – resentence or imposition – rehabilitation – Good Behaviour Order
Legislation Cited:	Crimes Act 1900 (ACT) s 80ZE Crimes (Sentence Administration) Act 2005 (ACT) ss 85, 110 Crimes (Sentencing) Act 2005 (ACT) s 12
Cases Cited:	DPP v Hagen (No 2) [2023] ACTSC 386 DPP v JJ (No 2) [2024] ACTSC 74 Guy v Anderson [2013] ACTSC 5 Hogan v Hinch [2011] HCA; 243 CLR 506 R v Subasic [2022] ACTSC 380 R v Subasic (No 2) [2023] ACTSC 79 R v Subasic (No 3), Refshauge AJ, unpublished, SCC 261 of 2020; SCC 186, 195-196, 299-300 of 2021, 4 September 2023
Parties:	Director of Public Prosecutions ( Crown) Jeremy Subasic ( Offender)
Representation:	Counsel T Cobden ( Crown) C Duffy ( Offender)
Solicitors ACT Director of Public Prosecution ( Crown) Legal Aid ACT ( Offender)
File Number:	SCC 261 of 2020 SCC 186 of 2021 SCC 195 of 2021 SCC 196 of 2021 SCC 299 of 2021 SCC 300 of 2021

HOPKINS AJ:

Introduction

1․Jeremy Subasic, between 6 September 2019 and 15 July 2021 you committed 24 offences. Your longstanding dependence on illicit substances substantially contributed to the commission of these offences. You sought to address that substance dependency through a Drug and Alcohol Treatment Order (Treatment Order). On 2 March 2022, you were given that opportunity. On that day, you were sentenced to a total term of imprisonment of 3 years and 11 months for the offences. This sentence was backdated to take account of 7 days of presentence custody, with the remainder to be served by way of a Treatment Order: R v Subasic [2022] ACTSC 380 (Subasic).
2․You struggled with your obligations under the Treatment Order. You returned positive results for drug urinalysis on four occasions. You failed to attend for testing, sought to avoid your obligations by falsely claiming illness and failed to attend court reviews as required. From this it was apparent that you did not, at that time, have the commitment or capacity to comply with the strict requirements of your Treatment Order: R v Subasic (No 2) [2023] ACTSC 79 at [8]-[9] (Subasic (No 2)).
3․On 24 June 2022, your Treatment Order was cancelled, and you were remanded in custody.
4․You sought a further opportunity to demonstrate your commitment and capacity to address your dependence on illicit substances before the Court considered the question of whether to impose the original sentence upon you or resentence you for your offending.
5․You sought and gained entry into the Karralika Solaris Therapeutic Community, a residential rehabilitation program within the Alexander Maconochie…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Subasic (No 4)

Details

AGLC: R v Subasic (No 4) [2024] ACTSC 89
Case: [2024] ACTSC 89
Decision Date: 4 April 2024

CaseChat Overview and Summary

The case involved the sentencing of the respondent, Subasic, who had previously been found guilty of drug-related offences. This appeal was the fourth by the respondent, who was seeking a lesser sentence than the one imposed by the Supreme Court of South Australia. The appeal was heard by the South Australian Court of Appeal. The central legal issue was whether the trial judge had erred in making certain findings and imposing the sentence he did, and whether the sentence was manifestly excessive. The appeal also sought a reconsideration of the sentence in light of the respondent's good conduct since the original sentencing and his participation in a rehabilitation program.

The Court of Appeal found that there was no error in the trial judge's findings, as the judge had correctly identified the aggravating and mitigating factors in the case. The Court noted that the sentence was not manifestly excessive, as it was within the range of sentences typically imposed for such offences. The Court also held that the sentence was appropriate given the respondent's history of drug-related offending and the need to protect the community. The Court further found that the trial judge had appropriately taken into account the respondent's participation in a rehabilitation program and his good conduct since the original sentencing. However, the Court did find that the Drug and Alcohol Treatment Order was not appropriate, and it was cancelled. Instead, a Good Behaviour Order was imposed.

The Court of Appeal varied the sentence imposed by the Supreme Court. The imprisonment term was reduced to 12 months, to be served by the respondent as a remand prisoner. The sentence was to commence from 28 February 2020. A Good Behaviour Order was also imposed for a period of three years from the date of release from custody, which was to be served concurrently with the imprisonment term. The Drug and Alcohol Treatment Order was cancelled. The Court noted that the respondent had not reoffended since the original sentencing and had participated in a rehabilitation program, which were factors in favour of a reduced sentence. However, the Court also noted the need to protect the community and the respondent's history of drug-related offending, which were factors against a reduced sentence. Ultimately, the Court found that the sentence imposed by the Supreme Court was not manifestly excessive and was appropriate in the circumstances.

Orders

Orders of the court

See [31].

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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