Director of Public Prosecutions v Briggs
[2021] VCC 946
•15 July 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case Nos. CR-21-00447 &
CR-21-00736
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THEODORE BRIGGS |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 July 2021 | |
DATE OF SENTENCE: | 15 July 2021 | |
CASE MAY BE CITED AS: | DPP v Briggs | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 946 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentencing – offending relating to failure to comply with a conduct condition of a supervision order by consuming a prohibited drug – use drug of dependence and commit indictable offence whilst on bail – early plea of guilty – sentencing discount- genuine participation in the Koori Court Sentencing Conversation – mitigating factors – good prospects of rehabilitation - sentence of imprisonment imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr L Harrison | Abby Hogan, Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr T McCulloch | Victorian Aboriginal Legal Service |
HER HONOUR:
1Theodore Briggs, you are aged 29 and were born on 4 March 1992.
2You are currently subject to a supervision order that has been issued under the Serious Offenders Act 2018 (“the Act”).
3One of the conditions of your supervision order is that you must reside at Rivergum Residential Treatment Centre (“Rivergum”).
4The offending concerns you failing to comply with a conduct condition, as set out in 8.2 of your supervision orders, by consuming prohibited drugs.
5There are in total five charges, and those charges relate to two sets of offences that were detected in February 2021 and March 2021.
Circumstances of the offending
6On 11 February 2021 you were directed to attend for a urine analysis. You provided a sample that was analysed and later found to contain methylamphetamine.
7You were arrested on 16 February 2021 and interviewed by police. You made full admissions to using methylamphetamines. You explained to police that you had used methylamphetamines after not being able to cope with your mother’s illness.
8You were charged with the following offences:
· Charge 1 – fail to comply with supervision order. This offence relates to a breach of 8.2 of the supervision order.
· Charge 2 – use drug of dependence. This offence relates to you using methylamphetamines.
9On 19 February 2021, the charge for breach of supervision order was transferred from the Ararat Magistrates’ Court to the Melbourne County Court pursuant to s172A of the Act. The use drug of dependence charge (Charge 2) has been transferred to the County Court pursuant to s242 of the Criminal Procedure Act 2009.
10You were bailed to appear at Melbourne County Court on 7 May 2021. It was a condition of your bail that you reside at Rivergum and that you comply with the conditions of your supervision order.
11On 28 March 2021, you were directed to attend for another urine analysis. A sample was provided and when analysed it too was found to contain methylamphetamine.
12On 1 April 2021, you were arrested and conveyed to Ararat Police Station, where a record of interview was conducted, during which you made no comment in respect to these charges.
13You were then charged with the further following offences:
· Charge 1 – fail to comply with supervision order. This offence relates to a breach of condition 8.2 of the supervision order.
· Charge 2 – use drug of dependence. This offence relates to your use of methylamphetamine.
· Charge 3 – commit indictable offence whilst on bail. This offence relates to committing the breach of the supervision order whilst you were on bail.
14On 9 April 2021, the charge of breach of supervision order was transferred from Ararat Magistrates’ Court to the Melbourne County Court pursuant to s172A of the Act. The use drug of dependence charge (Charge 2) and commit an indictable offence whilst on bail (Charge 3), were transferred to the County Court pursuant to s242 of the Criminal Procedure Act.
Summary jurisdiction and penalties
15In relation to the hearing of an offence against s160 of the Act, the court may grant a summary hearing (s172(5) of the Act), and Criminal Procedure Act (s28). In such circumstances, the practice and procedure applicable in the Magistrates’ Court to the hearing of summary offences apply insofar as is appropriate to the summary hearing of this offence (s172(6)).
16The Crown did not oppose summary jurisdiction in this matter. The court exercised its discretion and therefore summary jurisdiction was applied.
17You were remanded on 1 April 2021 and granted bail at the Ararat Magistrates’ Court on 9 April 2021. Therefore, there are nine days’ pre-sentence detention.
18The offending is serious and that is reflected in the maximum penalties that are prescribed.
19For breach of Supervision Order charges, as the court is exercising summary jurisdiction, the maximum penalty is two years’ imprisonment (s113 Sentencing Act 1991).
20The penalty for use drug of dependence is 1 year maximum and for commit indictable offence whilst on bail it is 30 penalty units or 3 months imprisonment.
21You have admitted your criminal history as set out in the addendum attached to the Summary of Prosecution Opening. There is an extensive history spanning the period from 25 February 2005 to 29 April 2019.
22This is the fourth and fifth breach of your supervision order. However, it has been conceded, that the circumstances of the past breaches of supervision orders were more serious.
23The offending that is the subject of the breach of supervision orders relates to breach of a protective condition, that is, that you are not to consume any drugs.
24I have taken into consideration in your favour that when you were arrested on the first occasion that you made full admissions in respect to using methylamphetamines.
25You were co-operative with the authorities on both occasions by complying with the request to submit to a urine analysis.
26I consider that the offending is at the lower level of offending contemplated by the section given the broad spectrum of conduct that is covered by a potential breach of your supervision order.
27On both occasions, your act of using drugs did not directly cause or harm another, nor were the drugs used preparatory to or in furtherance of another type of more serious conduct.
28Mr McCulloch, on your behalf, did concede that the second instance of using methylamphetamines is aggravated by the fact that you were on bail for an offence of that nature.
29Denunciation, deterrence and the safety and protection of the community are important sentencing factors.
Koori Court Sentencing Conversation
30You are an Aboriginal man of Yorta Yorta and Gunditjmara heritage. You are strongly connected to your Aboriginal culture.
31You consented to your matter being heard in the Koori Court Division so that you could speak directly to the elders about your offending behaviour.
32The Court of Appeal in Victoria has recognised that the "Sentencing Conversation" in the Koori Court is designed to further the reformation of an Aboriginal offender.[1]
[1] See The Queen v Steelie Morgan [2010] VSCA 14 at page 11
33During the Sentencing Conversation, Uncle Wally Harrison and Auntie Jackie Stewart, Elders and Respected Persons, spoke to you about your offences. You acknowledged to them that what you had done was wrong.
34By way of explanation, you told the elders that there had been a lot of loss in your family, meaning deaths, and that you were upset about not being able to be with family to properly grieve and attend the funerals that were held at Cummeragunja.
35Cummeragunja is located on the Murray River in NSW. This is a place of great significance to the Yorta Yorta people.
36You were reducing your level of buprenorphine, feeling down, lost, and hopeless. In those circumstances, you made a poor decision and resorted to using drugs to take your pain away. You now feel guilty about what you have done.
37During the conversation you indicated your strong desire to return to and be with your community, to seek employment and to connect with family. You are currently working hard with your support team to have strategies in place to deal with your drug addiction. You expressed a love of landscaping, painting, and building.
38You have painted a mural at Rivergum and you have been responsible for the care and maintenance of the garden. You have also been participating in the Torch Painting Program. Your NDIS case workers have been helping you, supporting you to think about a future that is drug-free, where you can participate more positively in life.
39Both elders stressed to you that drug taking was not part of the Aboriginal culture and that respect is important, including respect for yourself and others.
40You expressed to them that you were now feeling more positive about yourself and you were pleased that you were no longer taking Buprenorphine. You were frank and open and said that you still had cravings and anxiety.
41Uncle Wally Harrison emphasised to you the importance of abstinence and for the need for you to obtain a sponsor to assist you in the future to deal with your drug addiction.
42Auntie Jackie Stewart acknowledged the hurt that you would have experienced in missing funerals and encouraged you to grapple with your drug addiction and seek help from the very good supports that you have at Rivergum. She urged you to put up your hand and seek help.
43Your background history is comprehensively described in the report of Dr Dion Gee, forensic psychologist, dated 8 September 2018.
44I do not propose to set out in length the detail that is therein described. I accept, however, that you experienced significant deprivation as a child and your early development was characterised by extensive adversity including, social, cultural, and emotional disruption, disadvantage, and dislocation.
45Specifically, in your formative years, you were exposed to:
· parental alcohol and substance abuse;
· exposure to domestic violence;
· neglect within the home;
· disintegration of the family unit;
· ineffectual maternal parenting and absent parental figure;
· instability in domiciliary environments;
· periods of abandonment, rejection, and loss;
· inconsistent/ineffectual education opportunities;
· poor academic attainment;
· difficulties with adaptive self-regulation;
· bullying and racism by peers;
· minimal prosocial peer networks;
· exposure to alcohol and illicit substances;
· externalisation of challenging/aggressive/bullying behaviours;
· periods in youth detention; and
· multiple interactions with the criminal justice system.
46This continued throughout your early adolescence into early adulthood.
47You have resided at Rivergum since 8 November 2019. This your longest period of stability in the community in recent times. You are currently participating in phase 2 of the Rivergum treatment model. The program is a very intensive treatment program with stringent supervision requirements.
48Dr Jessie Smith, senior clinician, Rivergum Residential Centre, in her report dated 11 June 2021, states that as part of phase 2 of the Rivergum treatment model, you are expected to attend weekly individual treatment appointments (one hour per session), twice weekly schema therapy treatment appointments (three hours per session), and three times weekly life toolkit group treatment appointments (one hour per session).
49Since 20 April 2021, at which time you participated in a Treatment Progress review, you have demonstrated a significant improvement in treatment, attendance, and engagement individual and group schema therapy. You have demonstrated an increased capacity to be open and self-reflective.
50Dr Smith notes that you have recently demonstrated increased awareness and openness to discussing the impacts of your avoidant coping, as well as successfully using strategies to manage avoidant ways of coping with impact treatment attendance and engagement.
51This observation is consistent with the way in which you conducted yourself in your conversation with the elders.
52You are open to discussing your substance cravings. Dr Smith anticipates that, should this continue to be an issue, treatment can be utilised to further target substance misuse and maladaptive coping.
53I strongly urge the authorities to monitor this aspect of your treatment program to ensure that appropriate measures are in place to maximise your rehabilitation prospects.
54Importantly, the report concludes that your engagement in the Rivergum treatment model has improved following your arrest and bail for producing the second positive urine analysis result for methylamphetamine on 28 March 2021.
55In addition to the program you have been engaging with a National Disability Insurance Scheme (NDIS) support coordinator, Rohan Davine, and support worker, Nelson Tuncks.
56You maintain regular Aboriginal and cultural support, including attending Aboriginal art classes. A Torch Program worker, Christopher Austin, attends Rivergum to support you in pursuing your interest in culture and painting.
57You also access pastoral support by connecting with Pastor Paul from Friends of Dismas.
58I accept that you are now well-motivated and have been engaging fully in your treatment and have been compliant with the conditions of your supervision order.
59Further urine analysis has been conducted, and on 27 May 2021 the results were negative for all substances except Buprenorphine, for which you were prescribed.
60Recently, you have been successful in finishing opioid substitute therapy. This is an important step for you.
61Recently, a vehicle has been purchased through your stepfather. It is anticipated that the vehicle will be restored for your use for when you return to live in the community. You are now motivated to study hard so that you can obtain a valid licence to drive.
62You spent 9 days on remand before being bailed on the offence following the second detection of methylamphetamine. This period was difficult for you as you were held under quarantine conditions due to the COVID 19 pandemic. You found the experience very depressing and expressed a strong desire not to return to jail. You frankly acknowledged that you did not want to become institutionalised.
63I have taken into account the circumstances under which you were held in custody.
64I accept all the matters put in mitigation on your behalf.
65I accept that you used methylamphetamines in the context of being disengaged and feeling hopeless and distressed about your inability to be able to engage with your family and culture at a stressful time, and your inability to participate in sorry business or the funeral.
66I accept that the plea of guilty was offered at the earliest opportunity and has significant utility in the pandemic climate.[2]
[2]Worboyes v The Queen [2021] VSCA 169, [39], Priest, Kaye and T Forrest JJA
67It is accepted that a plea of guilty entered during the pandemic ordinarily should attract a more pronounced amelioration of symptoms than at another time. There must be a perceptible amelioration of the sentence.
68You have facilitated justice and your sentence will be discounted accordingly.
69Dr Gee identifies an enduring dysfunctional association with substance use and diagnosed at least moderate to severe impairments of personality functioning relating to self.
70I accept that there is a link between your dysfunctional upbringing and exposure to violence and drugs use in your formative years.
71I accept that Bugmy[3] and the Verdins’ principles apply, and I have reduced your moral culpability and moderated the need to emphasise general and specific deterrence.
[3] Bugmy V The Queen (2013) 249 CLR 571
72I accept that you genuinely participated in the Koori Court Sentencing Conversation. You interacted appropriately with the elders and you were very open and honest in your discussions with them and revealed good insight into your offending behaviours. You know what you must do to comply with your supervision order and the need to address your drug addiction problem.
73Your genuine participation in the Sentencing Conversation is a factor that mitigates punishment and that has been recognised by the Court of Appeal in Victoria.[4]
[4] See The Queen v Steelie Morgan [2010] VSCA 14 at [11], confirmed in Honeysett v The Queen (2018) 56 VR 375 and DPP v Heyfron [2019] VSCA 130.
74I consider that your genuine participation in the Koori Court process is a strong mitigating factor.
75In formulating just punishment, I have had regard to all the facts and circumstances, and I consider, having regard to your current circumstances and your expressed intention to remain drug-free, that to further imprison you at this stage would be detrimental and disruptive of the very real progress that you are now making at Rivergum.
76On the 13 July 2021, His Honour Judge O’Neill made orders approving the extension of the intensive treatment and supervision condition of your orders so that you could continue in the Rivergum treatment program.
77You are on track to graduate from phase 2 to phase 3 in August 2021.
78Overall, I consider that you have shown good insight into your offending and that you have good prospects for rehabilitation. You now understand the need to adhere to the conditions of your supervision order and do whatever needs to be done to complete the order.
79Through your conduct following arrest for the second instance of using methylamphetamine, you have demonstrated an ability to reflect and show a more mature attitude and an openness to treatment and support. You need to be encouraged and supported to continue your very real progress to optimise your rehabilitation prospects and to ultimately, provide for the safety and the protection for the community for the future.
80The formal court orders are as follows:
CR-21-00447 – Charge 1, failure to comply with supervision order, convicted and sentenced to two days’ imprisonment. Charge 2, use drug of dependence, convicted, and sentenced to one day imprisonment.
CR-21-00736 – Charge 1, failure to comply with supervision order, convicted and sentenced to seven days’ imprisonment. Charge 2, use drug of dependence, convicted, and sentenced to two days’ imprisonment. Charge 3 convicted and sentenced to two days’ imprisonment.
81The sentence imposed with respect to CR-21-00736 is to be cumulative upon the sentence imposed with respect to CR-21-00447, making a total effective sentence of nine days’ imprisonment. I make a declaration of nine days’ pre-sentence detention and direct that it be noted in the records of the court.
82I make the following declaration pursuant to s6AAA of the Sentencing Act, but for your plea of guilty, I would have convicted and sentenced you to one-month imprisonment.
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