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Representation: Counsel M Lucero (20 May 2021); C Muthurajah (26 May 2021) (Crown) C Duffy (Offender)

File Numbers: SCC 38 of 2021 SCC 39 of 2021 Refshauge AJ

1. The background legislative history and context of the sentencing options of a Drug and Alcohol Treatment Order (Treatment Order) under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) are set out in R v Antonovic (No 3) [2021] ACTSC 338 at [1]–[7]. It is not necessary to repeat them.

2. A Treatment Order has two parts, a custodial part and a treatment and supervision part.

3. The custodial part is, in effect, the sentence of imprisonment for an offence or offences committed by the offender, and the suspension while the offender undertakes the rehabilitation.

4. The rehabilitation that is ordered to be undertaken is prescribed under the treatment and supervision part of the Treatment Order. That part involves a range of matters designed by the Treatment and Supervision Team (see s 80M of the Sentencing Act) to suit the individual offender, with a view to addressing the alcohol and other drug dependency that the offender experiences.

5. Such matters include urinalysis, case management, undertaking regular contact with members of the Treatment and Supervision Team and rehabilitative programs. Together, these are designed to reduce hazardous substance use and achieve abstinence from illicit substances; to encourage positive lifestyle choices and the development of skills to make those choices; to develop positive social connections, especially with family and the extended community; to support skill development through education and employment readiness; to develop skills for managing the offender's finances; and to assist in re-integrating the offender in a pro-social way into the community. These rehabilitative programs are conducted by a variety of agencies, both government and non-government, and include peer generated programs.

6. The Treatment Order is directed towards behavioural change, especially behaviour that has, often, been longstanding and is so entrenched that it takes much time and effort to change. That effort, while supported by professionals both from the Treatment and Supervision Team and the agencies providing programs, must substantially come from the efforts of the offender.

7. On 30 April 2021, a Treatment Order was made for Zdravko Ako Antonovic. He had committed and pleaded guilty to three offences of burglary, two offences of theft and one offence of damaging property: see R v Antonovic (No 3).

8. The total sentence of four years was suspended and the directions given under the Treatment Order required him to participate in a program at Canberra Recovery Services, a drug rehabilitation agency at Fyshwick, ACT, as well as participating in other programs.

9. Mr Antonovic failed to attend his first appointment at Canberra Recovery Services and his first scheduled urinalysis and, on 4 May 2021, was arrested for further offences of burglary and theft.

10. The Crown has now applied to cancel his Treatment Order. Mr Antonovic does not oppose the application.

Background

11. On 12 October 2020, Mr Antonovic entered the commercial premises of three businesses in Mitchell, ACT, and stole goods from them, leading to the offences mentioned above (at [7]) being preferred against him. The details are set out in R v Antonovic (No 3).

12. He pleaded guilty to the offences. The damage, for which he was also charged and for which he also pleaded guilty, was of an item of property in the premises of one of the businesses. The total value of the property stolen was $5,510. The property damaged was a speaker, which was an item in one of the properties, and was valued at $800.

13. Mr Antonovic pleaded guilty in the ACT Magistrates Court and was committed for sentence to this Court with a view to being considered for a Treatment Order. The required Drug and Alcohol Suitability Assessments (Suitability Assessments) were prepared and recommended him as suitable to serve his sentence by a Treatment Order.

14. As noted above (at [8]), he was sentenced to a total of four years imprisonment and a Treatment Order was made.

15. A Case Plan, prepared for him by Alcohol and Drug Services, required him to undertake the 13 week drug program at Canberra Recovery Services. This required attendances twice a week. He was also to undertake weekly counselling with the agency CatholicCare and be subject to ongoing case management with the Alcohol and Drug Services of Canberra Health Services and ACT Corrective Services. He was required to attend for urinalysis each Monday, Wednesday and Friday. He was required to attend Court on 7 May 2021.

16. The first occasion when Mr Antonovic was required to attend obligations under the Treatment Order was the Monday after it was made, 3 May 2021. He was required to attend for urinalysis and at Canberra Recovery Services to start the program. He did not attend either.

17. On 4 May 2021, he was arrested at about 10:00 pm at the premises of a real estate agency in Braddon. It is alleged that he broke a glass panel in a side door to gain access to the premises and caused damage valued at approximately $2,000, a similar method of access to that he had used in the previous burglaries: see R v Antonovic (No 3) at [18]–[21].

18. Police arrived while he was still on the premises, where it is alleged he had no permission to be. He is further alleged to have had a claw hammer in one hand and a black laptop bag in the other.

19. The police Statement of Facts asserts that on a search of his clothing, police found a small coin tray with $4.80 in coins in his pocket and that the laptop bag contained brochures from the real estate agency and COVID signage. It is asserted Mr Antonovic stated that the items were not his and that he had removed them from inside the premises.

20. Police state that, shortly after his arrest and after being cautioned, Mr Antonovic said words to the effect of, “I did it because I needed money for ice. I have been on ice for the past four days and barely slept”.

21. It was also alleged that Mr Antonovic was in possession of his mother's car, presumably to get to the real estate agency, and that she gave him no permission to drive it.

22. Mr Antonovic was remanded in custody and has remained in custody since 4 May 2021.

The application

23. The Crown has applied for the Court to cancel the Treatment Order and either impose the original sentence, being the custodial part of the Treatment Order that was suspended, or re-sentence Mr Antonovic.

24. The application was supported by an affidavit, filed on 17 May 2021, the admissibility of which was not challenged. The contents of the affidavit were not disputed and the deponent was not cross examined. The affidavit has been read.

25. The grounds of the Application are as follows, namely: (1) that Mr Antonovic will not be able to comply with a condition of the Treatment Order (s 80ZE(1)(b) of the Sentencing Act); (2) Mr Antonovic is unwilling or unlikely to comply with a condition of the Treatment Order (s 80ZE(1)(c) of the Sentencing Act); (3) the continuation of the treatment and supervision part of the Treatment Order will likely not achieve the objects of the Treatment Order (s 80ZE(1)(d) of the Sentencing Act); and (4) Mr Antonovic poses an unacceptable risk to the safety or welfare of a person (s 80ZE(1)(f) of the Sentencing Act).

26. Mr Antonovic does not oppose the application. As noted in R v Lyons (No 2) [2021] ACTSC 11 at [16]–[20], it appears inappropriate for such an order to be made by consent.

27. In this case, however, the Court is satisfied that Mr Antonovic has had time to consider his position and has had access to high quality legal advice.

28. Therefore, so long as the grounds are reasonably made out, the cancellation should be made.

29. The approach to the application has been addressed in R v Tonna (No 2) [2020] ACTSC 362 at [34]–[38]. It is appropriate that what was there said be applied. Consideration

30. The Court received and heard comprehensive, targeted and helpful written and oral submissions from Ms M Lucero, counsel for the Crown in support of the application. Ms C Duffy, counsel for Mr Antonovic, made appropriate and valuable oral submissions. These submissions were of assistance in identifying and addressing the relevant issues.

31. The grounds are to be made out on the balance of probabilities: s 80ZE(1) of the Sentencing Act.

32. Essentially, Mr Antonovic has failed to engage with the program at this stage. It may be accepted that a person with a severe substance use disorder, such as Mr Antonovic, will find it difficult to avoid lapsing into drug use, especially at the beginning of the long and difficult road to rehabilitation. Failed attempts are by no means uncommon. Indeed, it was commented in the Drug and Alcohol Treatment Assessment of ACT Corrective Services prepared for this Court: Mr Antonovic has a significant challenge ahead of him to achieve his goal of sobriety and not to engage in criminal behaviour as he has not experienced this during his entire adult life. He presented as motivated and has supports in place that he can rely on if he chooses to. The intense nature of a DATO [Treatment Order] may be his best opportunity to turn his life around if he remains truly dedicated.

33. Mr Antonovic, however, has not merely made a slip up, which would attract a sanction but not necessarily justify cancellation.

34. In the first place, on his own admission to police under caution, he had been using methamphetamines continuously since the Treatment Order was made. His request to rehabilitate, the stated motivation to which reference was made by ACT Corrective Services, was repeated to the Alcohol and Drug Services and supported by agencies that had previously provided him with assistance. It does not appear, however, to have been translated into action.

35. Secondly, he appears to have committed further offences. These are, at this stage, merely allegations. For these proceedings only, however, it does appear that a finding could be made, on the balance of probabilities (being the relevant standard) and in light of the unchallenged facts asserted before this Court, that Mr Antonovic is sufficiently likely to have commited these offences. Naturally, such a finding does not constitute a finding of guilt, but it does raise a matter of concern that can be considered in the context of this application.

36. Thirdly, Mr Antonovic has failed, even on the first relevant day, to participate in the programs of rehabilitation mandated for him. It is not as if he has not had experience of such engagement in the community. He had been on bail since 5 March 2021, a period of nearly two months, before being sentenced. There were, until the day of sentence, no breaches of that bail: see R v Antonovic (No 3) at [30]. He had also engaged in counselling for some time prior to this. The rehabilitative program requirements were not foreign to him.

37. It can be accepted that a Treatment Order is a commitment for an offender and that the lifestyle they have lived may tend to inhibit their ability to meet the challenges that such commitment poses. It is, however, to be expected that an offender, given a serious sentence — in this case, of four years imprisonment — would show some effort in translating their articulated motivation to rehabilitate into actual rehabilitation, at least in the form of some action at an early stage.

38. It appears, instead, that Mr Antonovic is not yet ready for this, despite the apparent success he has had while on bail. The difference is quite stark. Some hesitancy and initial breaches may be managed, though they cannot be deemed acceptable and may still attract sanctions. That, also, must be evaluated in the context of the capacity of the offender to control their drug-dependent and offending behaviour and their engagement to do so.

39. In this case, Mr Antonovic's recent behaviour while on bail, and that he voluntarily sought and engaged with counselling prior to that, showed that he had the capacity to comply with such requirements, which an offender newly out of custody or without current experience of counselling may struggle to achieve and need time to adjust. This would suggest that these current lapses by Mr Antonovic, to which reference has been made, are not the product of newly found liberty or fear of the unknown, or the like.

40. Having had no explanation from Mr Antonovic, the Court will not speculate on his motivations or on the causes of his subsequent behaviour, save to find that no satisfactory explanation has been offered that would point to anything other than a complete failure to engage with the obligations under a Treatment Order in ways that he has been able to do in the past.

41. Accordingly, the Court finds that Mr Antonovic is unwilling or unlikely to comply with the conditions of the Treatment Order to engage in rehabilitation, as set out in the treatment and supervision part of the Treatment Order.

42. Consequent upon that, the Court is satisfied that the continuation of the treatment and supervision part of the Treatment Order will likely not achieve its objects, in particular to facilitate his rehabilitation and reduce his dependency on illicit drugs: s 80O(a) and (b) of the Sentencing Act.

43. Given his apparent ongoing behaviour in relation to other people's property, for which he has been charged and for which the prosecution evidence is very strong, the Court is satisfied that Mr Antonovic poses an unacceptable risk to people in the community.

44. The Court is not satisfied, however, that Mr Antonovic will not be able to comply with a condition of the Treatment Order. It must be accepted that he presently is in custody on the further charges preferred against him and cannot, therefore, engage with the program of rehabilitation mandated by a Treatment Order. That, however, does not seem to fall within this ground which, as was explained in R v Crawford (No 3) [2020] ACTSC 369 at [35], refers to actual incapacity.

45. Under s 80ZC of the Sentencing Act, where a participant under a Treatment Order is charged with a criminal offence and is in custody awaiting the criminal proceedings to be decided, the Court must provisionally suspend the treatment and supervision part of a Treatment Order, either until the participant is no longer in custody or until the Treatment Order is cancelled.

46. That, inescapably, means that the cancellation of the Treatment Order is not inevitable upon the participant being held in custody awaiting further sentencing proceedings. Just because he or she cannot participate in programs specified in the treatment and supervision part of the Order does not necessarily lead to cancellation in such circumstance.

47. If the period in custody is likely to be very long, for example, that may justify cancellation, though the range of appropriate grounds for that should not be specified at this stage. That may also require a clear indication of the likely delay before the hearing of the other criminal proceedings, or the making of an unsuccessful bail application, or the like.

48. In any event, the grounds which have been made out amply justify cancellation of the Treatment Order. These are the reasons for having done so.

Sentencing

49. The cancellation of the Treatment Order requires the Court to impose the sentence that was suspended under the custodial part of that Order, or to re-sentence Mr Antonovic: s 80ZE(2) of the Sentencing Act.

50. In R v Tonna (No 2) at [78]–[79],the Court discussed which matters would justify re-sentencing. None apply in this case. Although the matters listed there are not exhaustive, no others were suggested in the submissions made to this Court in this case.

51. In R v Blackburn (No 3) [2021] ACTSC 337 at [43]–[45], the Court set out some of the difficulties in construing the provision which requires the imposition of the suspended sentence, especially when some of the sentence has been backdated.

52. It may be that, strictly construed, all that is required is to revoke the suspension of the custodial part and then, perhaps, declare the period of time to be served as fulltime detention. This would also make it easier to take into account other provisions, such as ss 80ZC(3) and 80ZE(3), and the other companion provisions to 80ZD(4) of the Sentencing Act that require “deductions” from the time in custody.

53. Unfortunately, this construction makes the actual administration of the sentence and its proper recording in the Court records quite problematic. Administrative requirements must, of course, be compliant with the legislation, but, on the other hand, there is a need to administer the sentences over time, in this case up to four years, and thorough records are essential for doing that well.

54. To be fair, the legislative terminology used for the response to cancellation of a Good Behaviour Order (s 110(2) of the Crimes (Sentence Administration) Act 2005 (ACT)) is the same. Interestingly, the terminology used for the cancellation of an Intensive Corrections Order (s 65(2) of the Crimes (Sentence Administration) Act) is clearer and apparently simpler (“order that the remainder of the offender’s sentence be served by full‑time detention”), but may raise its own issues.

55. Accordingly, the Court will proceed in the same way as in the matter of R v Blackburn (No 3).

56. Mr Antonovic has been in custody since 4 May 2021 in various forms, which is 23 days.

57. It is a little unclear whether s 65 of the Sentencing Act applies. That is the section which requires the Court to set a non-parole period “if the court sentences the offender to a term of imprisonment of 1 year or longer, or 2 or more terms of imprisonment that total 1 year or longer”, though any part of a sentence that is suspended is to be disregarded for the purpose of that section: s 65(6) of the Sentencing Act. Hence, when imposing a Treatment Order, no non-parole period is to be set.

58. The question arises as to whether imposing the sentence under s 80ZE(2)(a) of the Sentencing Act is the Court sentencing the offender within the meaning of s 65. If not, no non-parole period can be set. That would, of course, be wholly undesirable as parole is, for many good reasons, a very laudable arrangement.

59. As noted above (at [54]), the same provisions apply to the situation in relation to the cancellation of a Good Behaviour Order and, though with slightly different wording, the cancellation of an Intensive Correction Order. The current practice in this Court is that, when such an order is cancelled and the sentence is greater than the 12 months in length, a non-parole period is set: see, for example, R v Gordon (No 2) [2019] ACTSC 254 at [41]–[42]; R v Wsol [2014] ACTSC 320 at [16]–[18]. Neither of these decisions, and none of the other decisions that I have read addressed the issue, but simply set a non-parole period.

60. Of course, many of the cases where a Good Behaviour Order is cancelled are cases where the breach is constituted by further offending, which is a different situation and almost certainly requires re-sentencing.

61. Accordingly, as the sentence imposed will exceed 12 months, the Court should set a non-parole period. There is no reason to decline to do so and the Crown has not submitted otherwise.

62. As noted above (at [56]), Mr Antonovic has been in custody since he was arrested on 4 May 2021. He was remanded in custody by the ACT Magistrates Court. He appeared in this Court and was remanded in custody upon provisional cancellation of the suspension of his original sentence. He has, therefore, spent a number of days in custody, some of which must be dealt with under s 80ZC of the Sentencing Act, and the balance to be dealt with under s 80ZE(3) of the Sentencing Act.

63. Prior to the imposition of the original sentence, Mr Antonovic had spent 41 days in custody. This was, of course, taken into account when imposing the original sentence by the mechanism provided under s 63 of the Sentencing Act, namely, by backdating the start of the sentence. That will also be relevant here. Sentence Imposition

[His Honour then spoke directly to the offender]

64. Mr Antonovic, please stand.

65. The Court orders the following: (1) The cancellation on 20 May 2021 of the Drug and Alcohol Treatment Order made on 30 April 2021 is confirmed. (2) The sentence of imprisonment that was suspended under the Custodial Part of the Drug and Alcohol Treatment Order is imposed and it is declared that the time to be spent in custody is from 26 May 2021 to 22 March 2025.

(3) A non-parole period of two years and five months be set, to commence on 9 April 2021 and end on 8 September 2023. Mr Antonovic requested that the Court not make a recommendation under s 67 of the Sentencing Act to the Sentence Administration Board concerning the conditions of any parole order made by it, and the Court will not do so. (4) The Good Behaviour undertaking from 29 April 2023 to 19 March 2025, made by you on 30 April 2021, be cancelled.

66. You may be seated.

67. One of the big problems is that pre-sentence custody is dealt with by backdating, but then there is the period of imprisonment upon the provisional cancellation of the suspension which has to be dealt with under 80ZE(3), and that can be up to 14 days at a time for each breach of a condition of the Treatment Order. Then, following cancellation, there is further pre-sentence custody.

68. The period of imprisonment for the burglary is reduced by 18 days, because that is the period that includes, first of all, the four days from 4 May to 7 May 2021 on provisional cancellation and then the 14 days following that, from 7 May to 20 May 2021, on which day the Treatment Order was cancelled.

69. The pre-sentence custody is the original 41 days, plus the seven days since the Order was cancelled and, taking that into account, the total sentence starts on 9 April 2021. That is the reason why the non-parole period starts on 9 April 2021.

70. When that calculation is done, the commencement date is 9 April 2021. In total, the sentence is slightly shorter than originally imposed and then the other sentences follow, giving the end date of 22 March 2025 which is for the total sentence.

I certify that the preceding seventy [70] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge

Associate:

Date: 19 December 2022