Director of Public Prosecutions v C

[2018] VCC 226

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

I J C

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JUDGE:	HER HONOUR JUDGE SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:	26 February 2018
DATE OF SENTENCE:	26 February 2018
CASE MAY BE CITED AS:	DPP v C
MEDIUM NEUTRAL CITATION:	[2018] VCC 226

REASONS FOR SENTENCE
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Subject:         Criminal Law
Catchwords:  Breach of Supervision Order
Legislation Cited:
Cases Cited:
Sentence:      TES: 3 months’ imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Secretary to the Department of Justice	Ms F. Holmes	Russell Kennedy
For the Accused	Ms C. Beissman	VLA

158866  Pages 1 - 4

 

 

HER HONOUR:

1I J C you will be well aware that I'm not at all happy with the situation in which you find yourself or that the court finds itself as a result of your behaviour.   

2You have committed 11 charges which breach your supervision order imposed by me and they incorporate both the use of cannabis and the failing to attend for urinalysis because you knew that it would be showing you positive for cannabis use.  The maximum sentence for each of those charges is two years' imprisonment. 

3When I deferred this sentence last year on 5 December I said to you,

"The fact is that if we were proceeding today you would be going into gaol and it would be for considerably longer than you have gone into gaol for the same thing on previous occasions.  But as I mentioned it is clear to me that you are much less well or more unwell than when I saw you, even as at 1 November and it may be that this will be the final incentive for you to stop using cannabis, even if you do not stop using tobacco, both of them will be actually bad for you, in the condition you have got, the emphysema and also the chronic obstructive disease."

4I went on to say that you had told the court on a number of occasions that it would be a motivation, together with you not wanting to return to custody because it means that you would not be able to see, as opposed to have contact with, your daughters and granddaughters.  I also recognised that you have a long‑standing history of use of cannabis. 

5You may remember you then interrupted me to say, “I can give it up.  I know that, I've done it before. I've done it before.”  And I said, "I would be careful what more you say, because that just means that you have chosen not to, in breach of the conditions you have been under for a number of years now." And you said that that was where you were shallow, in what you said to me. 

6Well, the current circumstances are that you have not taken that opportunity to demonstrate your rehabilitation by abstaining from cannabis use or even reducing it and I have no urinalysis screening tests before me, because no doubt they would show that you had continued to use cannabis which I understand was up to four joints most evenings.  So that was despite the multiple incentives that you had of not wanting to go back to gaol or to go back to gaol for longer, wanting to be in continuing contact with your family, and also knowing that there was a renewal of the supervision order that was being applied for and you had the incentive to perhaps do something about getting off the supervision order. 

7I received letters from your doctor, a letter from the doctor and also one that he had handwritten on from the Department of Corrections, and I accept that your health is not good and that it may worsen in custody.  I say "may" because the doctor says that especially your chronic obstructive pulmonary disease (COPD) would be worse if you were in custody, but I can't see how staying out of custody and continuing to have four joints of cannabis a night would not also be affecting your COPD. 

8It's possible that you might have a break from the cannabis in custody as you say you have done in the past.  As we now know, you have a long history of continuing to smoke cannabis despite being on conditions not to do so, beginning with the breach of your parole way back in 2011.  You have continued to smoke throughout the supervision order and you have lied about it, to those that were treating you, those who were writing reports on you and me assessing the risk.  You lied about it to treating staff, to the report writers and to me in court. 

9This calls for a sentence which has deterrence as its most important purpose, first of all deterring others who are on supervision orders from breaching the conditions.  It is of the utmost importance that people on supervision orders continue to abide by the conditions, because the scheme is set up for that purpose.  The sentence today also needs to have as a purpose deterring you from breaching your supervision order, although it is absolutely clear that custodial sentences have failed to deter you in the past. 

10You have breached the supervision order multiple times in exactly the same way and there are multiple charges again here.  You have not demonstrated your rehabilitation and as I have said, you have lied to the court. 

11In your favour are your early plea of guilty to these charges, the fact that your cannabis use has not led to sexual offending, that you have the support of your daughters, and that you do have a number of serious health conditions, together with the concession by the prosecution that if you receive a custodial sentence of more than three months, you are likely to lose your Ministry of Housing house and that, it is submitted, is not in the interests of anyone, you or the community which must be protected from you if you lose your house and become either homeless, with the obvious additional stresses on you, or if still on a supervision order, at Corella Place. 

12All that places me in a difficult situation: to set a sentence which reflects the ongoing criminality and protects the community, but provides such chance for rehabilitation as you choose to engage in.  You well know that if you continue to use cannabis, you run the risk of increasing your ill‑health and also run the risk of going to gaol for longer and losing your house.  All of that has been well within your knowledge and it has still not stopped you.  On the one hand that may be a sign of your dependence, your addiction.  On the other hand, as I say, you have indicated that you had been able to avoid use of cannabis when in custody in the past.

13In the end in this difficult situation, I have decided that I will be more lenient than I intended to be, because of your ill‑health, potentially deteriorating further in custody, and also because of your housing situation. 

14However, be under no illusion that things may be different in future, but I am of course only sentencing you as at today.  So if you stand up please, I J C. 

15On all charges of breaching the supervision order, you are convicted and sentenced to an aggregate sentence of 3 months' imprisonment.  If you had not pleaded guilty, I would have sentenced you to a sentence of 12 months' imprisonment with a non‑parole period of six months. 

16Yes, take a seat please. 

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