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R v Subasic (No 3), Refshauge AJ, unpublished, SCC 261 of 2020; SCC 186, 195-196, 299-300 of 2021, 4 September 2023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 Centre (AMC). On 16 December 2022, you completed the full 20-week program. Your progress and achievement in that program was described by Refshauge AJ in Subasic (No 2) at [18]. It was impressive. The material before the Court at that time established that you had “engaged in the Therapeutic Community as a peer and role model”; that you had “demonstrated a commitment to develop both [your] intrapersonal and interpersonal skills”; that you “displayed a high level of insight around patterns of thoughts and behaviour and … engaged in challenging these to further develop [your] skills” and that you had “advanced to the level of ‘enhanced’ in the Community, the highest level achievable”.

6․ On 27 January 2023, you were granted bail to permit you to attend the Matrix Program, which is a community-based rehabilitation program run by Karralika. You experienced some difficulty reintegrating back into the community. For this reason, you entered the Canberra Recovery Hub day program on 6 March 2023, successfully completing the full program on 3 August 2023.

7․ On 4 September 2023, Refshauge AJ decided to resentence you rather than impose the outstanding period of imprisonment, pursuant to s 80ZE(2) of Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) (R v Subasic (No 3), Refshauge AJ, unpublished, SCC 261 of 2020; SCC 186, 195-196, 299-300 of 2021, 4 September 2023). This was because of the significant progress you had made with your rehabilitation since the cancellation of your Treatment Order, along with the fact that you had not committed any further offences.

8․ You were resentenced to the same total period of imprisonment, being 3 years and 11 months, backdated to take account of a total of 253 days you had spent in custody on remand and during the period whilst your Treatment Order was in force.

9․ That sentence was suspended from 4 September 2023 until 24 November 2026 on condition that you comply with your obligations under a good behaviour order (GBO) until 24 November 2026, which included requirements that you accept the supervision of ACT Corrective Services and not consume cannabis, illegal drugs, or prescription drugs not prescribed for you.

10․       Unfortunately, you quickly breached the supervision condition of your GBO by failing to report for and respond to supervision. You also changed address without advising ACT Corrective Services.

11․       On 14 December 2023, you attended court and admitted the breach. You were given an opportunity to demonstrate your capacity for compliance in the community prior to finalisation of breach proceedings. You then attended court on 19 December 2023, 19 January 2024, 16 February 2024 and then finally on 28 March 2024. Supervision progress reports were provided by ACT Corrective Services prior to that final three attendances.

12․       During the period between 14 December 2023 and 28 March 2024, your compliance with supervision improved. There were, however, some failures to report, which is concerning. On a positive note, you sought a referral for counselling with Catholic Care, requesting a counsellor with whom you had already developed a therapeutic relationship. On 18 March 2024, confirmation was provided that you had been assigned to the counsellor you had requested.

13․       On 28 March 2024, you attended court for a hearing to determine whether, upon cancellation of your good behaviour order, the court should impose the suspended sentence or resentence you for the offences: s 110 of Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act).

14․ Your lawyer conceded the ongoing problems with your engagement with supervision but asked that you be resentenced and given a further opportunity to demonstrate compliance and continue to progress your rehabilitation in the community. She pointed to this progress, as well as your employment, your positive relationships with your children and your partner. Critically, she pointed to the fact that you have not committed any further offences since July 2021, including during the period that you were on bail from 27 January 2023 and after the imposition of the GBO on 4 September 2023.

15․ The prosecutor was rightly concerned about your non-compliance with the supervision condition of the GBO which is intended to assist you in your rehabilitation and provide a significant measure of protection to the community. The prosecutor did not support the submission of your lawyer that I should resentence you, though she did not press strongly for the sentence to be imposed. Instead, she submitted that the exercise of the discretion to resentence or impose the sentence was a matter for the court, but that any resentence should involve an extended period of good behaviour and supervision to ensure that the importance of compliance with GBO obligations is brought home to you and others.

16․ For the reasons that follow, I will resentence you in the same terms as the sentence imposed upon you by Refshauge AJ on 4 September 2023. You will be sentenced to a total term of imprisonment of 3 years and 11 months, backdated to commence on 26 July 2023 to take account of the 253 days you have spent in custody and conclude on 25 June 2027.

17․ Your sentence will be suspended from today upon your entering into a GBO. This will, in effect, extend your GBO by 7 month and 1 day, until 25 June 2027. Supervision will also be extended for this further period giving the community a continued measure of protection, whilst providing you with ongoing support and structure to help you achieve your rehabilitation goals. The period of supervision may be reduced if the person supervising you deems that appropriate having regard to your progress.

Imposition or resentence

18․ Where a court is satisfied that a condition of a good behaviour order made under s 12(3) of the Sentencing Act has been breached, the court must cancel the good behaviour order and either impose the suspended sentence or resentence an offender for the offences: s 110 of Sentence Administration Act.

19․ Here you have admitted the breach of the good behaviour order. I am therefore satisfied that the order was breached.

20․ There is no presumption in favour of imposing the original sentence that has been suspended: Guy v Anderson [2013] ACTSC 5 at [83]-[87] (Anderson). However, the importance of ensuring compliance with GBO obligations and public confidence in the administration of criminal justice means that the breach of trust demonstrated by non-compliance must be firmly addressed. This will often result in the imposition of the outstanding sentence: see Anderson [87]; DPP v JJ (No 2) [2024] ACTSC 74 at [27]-[30] (JJ): DPP v Hagen (No 2) [2023] ACTSC 386 at [20] (Hagen (No 2)).

21․ You had served only a very short period of the good behaviour order prior to your breach, for this reason it cannot be said that you attained any rehabilitation, over and above the significant rehabilitation that you achieved prior to the imposition of the GBO. The significance of the rehabilitation you achieved prior to the imposition of the GBO is however a critical reason why I have decided that it is appropriate to exercise the discretion to resentence you.

22․ Your breach did not involve offending. This is important because imposition of the outstanding term of imprisonment of over three years would be a very grave response to a breach of supervision. That said, the offences for which you were sentenced were serious and the supervision requirement was calculated to ensure that there was an appropriate measure of protection for the community as well as support for your rehabilitation.

23․ The evidence does not establish that you have an intention to disregard or abandon your commitment to be of good behaviour. The fact that it is not a breach by reoffending supports this conclusion. I am satisfied that you understood the terms of the GBO and the potential consequences of non-compliance. These consequences have now been reinforced to you.

24․ It is also relevant to consider the nature and extent of judicial and community resources that have been devoted to assisting you to rehabilitate. These are significant. However, the fact that you have not reoffended and that you have made such significant progress in your rehabilitation provides ample justification for the dedication of these resources to help you. This is to recognise that “[r]ehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest”: Hogan v Hinch [2011] HCA; 243 CLR 506 at [32].

25․ For these reasons, I consider it appropriate to resentence you. I accept that you remain motivated to pursue your rehabilitation. It must also be recognised that sending your back to prison today has the potential to halt or even reverse your progress. This would not be in your interests or the interests of the community.

Resentence

26․ Your lawyer and the prosecutor agree that the original sentence imposed on you on 2 March 2022 appropriately took account of all of the relevant circumstances of the offences as well as your personal circumstances at the time: Subasic at[13]-[41] and [116]-[114].

27․ I agree with the remarks of Refshauge AJ with respect to the nature and circumstances of these offences and their objective seriousness: Subasic at [66]-[115].

28․ I have read the presentence report that was before the court on 2 March 2022. It records the devastating experiences you had as a child from age 5 to 15. I will not refer to the details of those experiences. No child should have to face what you faced. The report makes clear that the trauma you suffered is linked to the development of your dependency on illicit substances. It also makes clear that, like so many others who experience addiction, your journey of rehabilitation is a journey of healing from childhood trauma. For this reason, it is particularly important to recognise that you are continuing to reach out for the support of a counsellor with whom you have developed a therapeutic relationship and to encourage you to continue that relationship.

29․ A full understanding of your circumstances as they now exist must include the significant steps forward you have taken on your path to rehabilitation, as well as the challenges you have faced with supervision. These are set out above and were considered by Refshauge AJ when he resentenced you on 4 September 2023.

30․ I agree with sentencing remarks of Refshauge AJ, delivered on 2 March 2022, with respect current sentencing practice, the reductions afforded to you for your pleas of guilty and the way in which the purposes of sentencing were weighed: Subasic at [144]-[170].

Orders

31․ For those reasons, the orders of the Court are that: Order Number 2

(1) The Good Behaviour Order entered into on 4 September 2023 be cancelled under s 110(2) of the Crimes (Sentence Administration) Act 2005 (ACT).

(2)       The conviction of Jeremy William Subasic of obtaining property by deception (CAN 524/2020) be confirmed and he be sentence to 2 months imprisonment commencing from 26 July 2023 and expiring on 25 September 2023.

(3)       The conviction of Jeremy William Subasic of dishonestly driving a motor vehicle without consent (CAN 10128/2020) be confirmed and he be sentenced to 6 months imprisonment commencing from 26 August 2023 and expiring on 25 February 2024.

(4)       The conviction of Jeremy William Subasic of dishonestly driving a motor vehicle without consent (CAN 9858/2021) be confirmed and he be sentenced to 6 months imprisonment commencing from 26 February 2024 and expiring on 25 August 2024.

(5)       The conviction of Jeremy William Subasic of dishonestly driving a motor vehicle without consent (CAN 7308/2021) be confirmed and he be sentenced to 12 months imprisonment commencing from 26 August 2024 and expiring on 25 August 2025.

(6)       The conviction of Jeremy William Subasic of minor theft (CAN 523/2020) be confirmed and he be sentenced to 1 month imprisonment commencing from 26 August 2025 and expiring on 25 September 2025.

(7)       The conviction of Jeremy William Subasic of possessing a declared substance (CAN 522/2020) be confirmed and he be sentenced to 4 months imprisonment commencing from 26 August 2025 and expiring on 25 December 2025.

(8)       The conviction of Jeremy William Subasic of unlawful possession of stolen property (CAN 519/2020) be confirmed and he be sentenced to 3 months imprisonment commencing from 26 November 2025 and expiring on 25 February 2026.

(9)       The conviction of Jeremy William Subasic of unlawful possession of stolen property (CAN 520/2020) be confirmed and he sentenced to 4 months imprisonment commencing from 26 December 2025 and expiring on 25 April 2026.

(10)    The conviction of Jeremy William Subasic of unlawful possession of stolen property (CAN 521/2020) be confirmed and he sentenced to 4 months imprisonment commencing from 26 February 2026 and expiring on 25 June 2026.

(11)    The conviction of Jeremy William Subasic of possessing a prohibited drug for supply (CAN 13842/2020) be confirmed and he be sentenced to 6 months imprisonment commencing from 26 April 2026 and expiring on 25 October 2026.

(12)    The conviction of Jeremy William Subasic of driving while disqualified (CAN 10130/2020) be confirmed and he be sentenced to 3 months imprisonment commencing from 26 September 2026 and expiring on 25 December 2026. It be noted that this carries an automatic 12-month disqualification, and this commenced on 2 March 2022 and it has been served.

(13)    The conviction of Jeremy William Subasic of failing to stop for police as a repeat offender (CAN 9561/2021) be confirmed and he be sentenced to 6 months imprisonment commencing 26 October 2026 and expiring on 25 April 2027. It be noted that this carries an automatic 12-month disqualification which was directed to be served concurrently with the disqualification in order 12 and which is confirmed.

(14)    The conviction of Jeremy William Subasic of possessing a drug of dependence (CAN 13437/2020) by confirmed and he be sentenced to 3 months imprisonment commencing 26 March 2027 and expiring on 25 June 2027.

(15)    The sentence be suspended today, 4 April 2024, for the balance of the term of imprisonment, namely to 25 June 2027.

(16)    Jeremy William 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) for 3 years 2 months 22 days from today, 4 April 2024, until 25 June 2027, with the following conditions:

(a) A probation condition that he accept supervision of the Commissioner of ACT Corrective Services or his delegate and obey all reasonable directions of the person delegated to supervise him for 3 years, 2 months, 21 days from today, 4 April 2024, until 25 June 2027, or for such lesser period as the person supervising him deems appropriate, and to obey all reasonable directions of the person supervising him including as to alcohol and drug testing; and

(b) That he not consume cannabis, illicit drugs and prescription drugs not prescribed to him.

Final Words

32․ Mr Subasic, facing and recovering from addiction has been and will continue to be incredibly challenging for you. So, too, is healing from the harm caused to you as a child. You know this far better than I do. It has been your lived experience.

33․ There is a mountain to climb. To reach the top, you will need support and you will need to commit to compliance with your supervision obligations under your GBO.

34․ Remember, each step you take up the mountain will give you a better view. Each step can be a source of pride for you. Each step will make others proud. If there are steps back along the way, then you will still remember the view. With courage you will continue to climb.

35․ You have the strength to do this. The view from the top will be worth it. I wish you luck.

 

I certify that the preceding fifty-three [35] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Hopkins.

Associate: J Liu

Date:

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