Director of Public Prosecutions v CJ
[2025] VCC 92
•6 February 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CR-24-01410
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CJ |
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| JUDGE: | HER HONOUR JUDGE HINCHEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6 February 2025 |
| DATE OF SENTENCE: | 6 February 2025 |
| CASE MAY BE CITED AS: | DPP v CJ |
| MEDIUM NEUTRAL CITATION: | [2025] VCC 92 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Contravene condition of a supervision order – fifty‑year-old offender subject to a supervision order – sixth breach offence
Legislation Cited: Serious Offenders Act2018; Summary Offences Act 1966; Sentencing Act1991
Cases Cited:Director of Public Prosecutions v SM [2019] VSC 466; R v TA [2021] VSC 479; DPP v MTE [2023] VSC 162; DPP v XG [2023] VSC 127; Price v R (No 2) (2019) 277 A Crim R 304; DPP v Brown [2014] VCC 2285; R v Piacentino (2007) 15 VR 501
Sentence:Offender released on an adjourned undertaking (six months), with conviction
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C Gomez Vazquez | Office of Public Prosecutions |
| For the Accused | Mr Z Menon | Victoria Legal Aid |
HER HONOUR:
1CJ, in this matter there is before the Court a single charge of failing to comply with the terms of condition 5.5 of your Supervision Order, by using a drug of dependence, namely methylamphetamine. That is matter CR-24-01410.
2At the commencement of the hearing, leave was given to the Prosecution to amend Charge 1 to properly reflect the drug of dependence used by you, by deleting the words “and amphetamine”. Leave was also given to the Prosecution to withdraw Charge 2.
3Your barrister, Mr Menon, applied for the matter to proceed by way of a summary hearing pursuant to s174 of the Serious Offenders Act 2018 (“the Act”). This application was not opposed by the Prosecution. As a result, I granted that application.
4When exercising summary jurisdiction:
(a) the maximum term of imprisonment to which the Court can sentence you is two years; and
(b) the maximum fine that this Court may impose is 500 penalty units.
5During the plea, the parties referred the Court to the following relevant documents, some of which were tendered into evidence:
(a) Summary of Prosecution Opening dated 22 January 2025, together with two annexures (“the Prosecution Summary”);[1]
(b) your criminal record dated 11 December 2024;[2]
(c) Prosecution submissions on plea dated 15 January 2025; and
(d) Defence submissions on plea dated 31 January 2025.
[1] Exhibit (“Ex”) P1
[2] Ex P2
6I have read all of the relevant material.
7The Prosecution Summary in relation to this matter outlined the particular circumstances of the offending, which was accepted by the defence. In summary, on 15 October 2024, you were a resident at Corella Place when authorisation was made by a staff member for you to undergo urinalysis, based on your presentation the day before, when you appeared hostile and erratic. You attended Dorevitch Pathology at East Grampians Health Services for urinalysis at 3.00pm on 15 October 2024 as directed and produced a sample. The urinalysis performed by Dorevitch Pathology returned a positive test result, confirming that you had used methylamphetamine in contravention of condition 5.5 of your Supervision Order. That is Charge 1 on this matter.
8The Prosecution referred to your criminal history, which was tendered during the hearing and summarised in the Prosecution Summary.
9I note that this history includes convictions in the County Court of Victoria for using a carriage service to groom a child under 16, possession of child pornography and failing to comply with reporting obligations under the Sex Offenders Registration Act 2004.
10On five previous occasions, you have also been convicted and sentenced in relation to a breach of your Supervision Order, in relation to the possession of child pornography and drug use and possession. You have been sentenced in relation to those offences, both to fines and a term of imprisonment.
11In written submissions filed with the Court, it was submitted by the Prosecution that despite the fact that this is the sixth breach of your Supervision Order, in the circumstances of this offending, the appropriate disposition is the imposition of a fine with conviction.
12Reference was also made by the Prosecutor to current sentencing practices in these types of matters, viz:
(a) in respect of sentencing practices specific to drug-related breaches, the observations made by Justice Elliott in Director of Public Prosecutions v SM,[3] where his Honour said:
“… repeated contraventions of an order are ordinarily required before even a short period of imprisonment is appropriate … .”
[3][2019] VSC 466 (“SM”) at paragraph [13] ; see also R v TA [2021] VSC 479 (“TA”), at paragraph [13], per Taylor J
(b) the conclusion reached by her Honour Justice Jane Dixon in Director of Public Prosecutions v MTE,[4] that an aggregate fine of $1800 with conviction was an appropriate sentencing disposition, in a case involving numerous breaches of supervision order conditions through drug use. In that case, it was noted that her Honour approved the approach and observations made by his Honour Justice Croucher in Director of Public Prosecutions v XG.[5]
[4] [2023] VSC 162 (“MTE”)
[5] [2023] VSC 127 (“XG”)
13As has already been referred to, Mr Menon appeared on your behalf and made extensive and detailed plea submissions, including an extremely helpful written submission. In particular, Mr Menon urged me to take into account the following matters:
(a) the circumstances of this particular contravention of your Supervision Order is at the lower end of seriousness;
(b) that is because:
(i)this offending constituted a single use of methylamphetamine on a single date; and
(ii)there were no allegations of harm to others associated with the contravention, nor any suggestion that your conduct increased your risk of re-offending;
(c) as to your personal circumstances:
(i)you are fifty years of age;
(ii)you have had a complicated and traumatic background, commencing from early childhood. You were exposed to parental neglect and physical and sexual abuse as a child;
(iii)despite this and to your credit, you have reasonable levels of education and work history;
(iv)you have lived with cognitive impairments, as well as mental health conditions including anxiety, depression and a Mixed Personality Disorder with dependent and borderline traits;
(v)you have spent a considerable period of time at Corella Place, but recently transitioned to Darebin Lodge, which, after some initial difficulties with transitioning, you are finding to be a positive experience;
(d) you pleaded guilty at the earliest opportunity. This ought lead to a meaningful discount in recognition of the utilitarian benefit of the plea to the community, by saving the inconvenience and expense of a contested hearing;
(e) in addition, your plea of guilty reflects an acceptance of responsibility for your conduct and a willingness to facilitate the course of justice;
(f) you have some insight into the seriousness of your conduct in taking drugs while subject to a Supervision Order;
(g) you have only a modest capacity to pay a fine, being in receipt of a disability support pension. You have been unable to pay off the last fine imposed upon you by this Court, but you remain committed to making that payment.
14I accept each of the matters that were put on your behalf during the plea.
15In considering what sentence to impose, I have taken into account all of the sentencing considerations that I am required to consider under the Sentencing Act 1991, together with all of the matters put in relation to the plea, both by the defence and by the Prosecution. Similarly, in accordance with the provisions of s5(2BD) of the Sentencing Act 1991, I have not had regard to the fact that you are subject to a Supervision Order.[6] No part of the sentence which I have imposed, requires me to have regard to the conditions imposed on the Supervision Order, or the terms of any current directions or instructions given by the Post Sentence Authority, under Part 11 of the Act.
[6] as to this, see Price v The Queen (No 2) (2019) 277 A Crim R 304, especially at paragraph [56]ff
16I have also had regard to the following specific matters which are relevant to your particular circumstances:
(a) some reduction should be applied by the Court in relation to your moral culpability for the offending. As was observed by his Honour Judge Tinney, the sentencing judge in relation to the 2014 sexual offending of another offender subject to a Supervision Order: “To think that [your intellectual impairment] has no impact on impulsivity and decision making would be … naïve”.[7] In finding on that occasion that there should be some reduction in the offender’s moral culpability, his Honour observed that those cognitive impairments had “real impact” on the offender’s ability to “exercise appropriate judgment and to make rational choices and to think clearly”. I consider that those comments are apposite in this case;[8]
(b) as was conceded by the Prosecution, the line of authority concerned with current sentencing practices indicate that where contraventions of a supervision order are drug-related, repeated contraventions are ordinarily required before even a short period of imprisonment is appropriate;[9]
(c) a court must not impose a sentence that is more severe than that which is necessary to achieve the purposes for which the sentence is imposed;[10]
(d) general deterrence must play a role in this sentencing exercise, because of the nature of the offending. However, given the circumstances of this offending, I have concluded that specific deterrence, although relevant, has a less prominent role, especially taking into account the fact that your history of contravening your Supervision Order, must been seen in the context of it having been in place for more than eleven years.
(e) while the primary purpose of the Act is to provide for the enhanced protection of the community, also of relevance is the secondary purpose of the Act, which is to facilitate the treatment and rehabilitation of offenders.[11] Ultimately, there is no doubt that the protection of the community is best achieved through your continued rehabilitation.
[7] DPP v Brown [2014] VCC 2285 at paragraph [17]
[8] Ibid, at paragraph [18]
[9]SM (supra) at paragraph [13]; TA (supra), at paragraph [13]; MTE (supra), at paragraph [29]
[10] Sentencing Act 1991, s5(3); R v Piacentino (2007) 15 VR 501, at paragraph [47]
[11] Section 1(b) of the Act
17In undertaking the sentencing task (which must involve a level of instinctive synthesis according to the facts of the particular case), I note the comments made by his Honour Justice Croucher, in XG,[12] where his Honour said, in the course of considering contravention proceedings under the Act:
“… sentencing is not a ladder of sorts in respect of which a judge is bound to impose a heavier sentence than (or, for that matter, a similar sentence to) a previous sentence imposed on an offender for the same or a similar kind of offence. … .”[13]
[12] Supra, at paragraphs [60]-[62]
[13] XG (supra), at paragraph [57]
18In that case, I note that XG was being sentenced for a second breach of his Supervision Order for use of methylamphetamine, in circumstances where only two-and-a-half weeks prior, he had been sentenced to 14 days’ imprisonment (in the form of a partial application of time served) for the same offence. Notwithstanding this, his Honour concluded that in all the circumstances, the offence neither warranted nor demanded a term of imprisonment.[14]
[14] XG (supra), at paragraphs [57]-[58]
19His Honour’s comments in relation to the circumstances of that case are particularly apposite:
“In my opinion, in all the circumstances, and notwithstanding … [the prosecution’s] submission, this offence neither warrants nor demands a term of imprisonment. It is just not serious enough to attract a prison sentence of any duration. Yes, XG breached the supervision order by taking methylamphetamine in contravention of an express condition prohibiting him from doing so. And yes, he, least of many people, it seems to be thought, can afford to be taking that illicit and potentially dangerous drug. But that is all he did, and on only one occasion, and in the circumstances that have been described. As I have said, there is no suggestion, and certainly no evidence, that he was in fact rendered dangerous in the slightest by his ingestion of the drug on this occasion, or that he believed that he was rendered dangerous. He is also, as Beale J accepted, mildly intellectually disabled, and he was in pain and feeling frustrated and hopeless. In all the circumstances, I regard XG’s moral culpability as low.”[15]
[15] XG (supra), at paragraph [58]
20Similarly, in the circumstances of this offending, I regard your moral culpability as being low.
21His Honour noted that in all sentencing exercises, the fundamental principle of parsimony must come into play. In particular, his Honour noted the words of s5(3) of the Sentencing Act 1991, which provides:
“… a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.”
22His Honour concluded that in the circumstances of that particular case, none of the sentencing purposes in s5(1) of the Sentencing Act 1991, including just punishment, general and specific deterrence, protection of the community and denunciation, either individually or collectively, demanded a prison sentence.[16] His Honour also observed that “to impose a prison sentence would be to thwart the longer-term aim of rehabilitation”.[17]
[16] XG (supra), at paragraph [61]
[17] XG (supra), at paragraph [62]
23Lastly, as referred to by the Prosecutor, I also note that in MTE,[18] a case which involved numerous offences based on breaches of conditions of a supervision order, including by using prohibited drugs (methylamphetamine and cannabis), her Honour Justice Jane Dixon cited the approach taken and observations made by Justice Croucher in XG, with approval.[19] In that case, despite the many offences involved and the fact that there were five instances of breaches of MTE’s supervision order by using prohibited drugs, taking into account all of the sentencing purposes, together with the circumstances of the offending and MTE’s personal circumstances, her Honour concluded that an aggregate fine, with conviction, was the appropriate sentence.
[18] Supra
[19] MTE (supra), at paragraphs [55]-[56]
24Given these matters, while I note the submission put by both counsel that a fine is the appropriate disposition, I also accept the submission put by Mr Menon that you only have a limited capacity to pay such a fine and have been unable to pay the last fine that was imposed upon you by this Court. I am also satisfied that one of the key purposes of the Act, namely ensuring the protection of the community, is best achieved through your continued rehabilitation, which would be undermined by imposing an additional burdensome financial penalty upon you.
Sentence
25Taking into account all of the matters referred to above, in relation to proceeding CR-24-01410, on Charge 1, pursuant to the provisions of the Sentencing Act 1991, I find the charge proven and release you on an adjourned undertaking with conviction. The period of the adjournment will be six months. During that time, in accordance with s72(2) of the Sentencing Act 1991:
(a) you must attend before the Court if called upon to do so; and
(b) be of good behaviour during the period of the adjournment.
26I am satisfied that in the circumstances of this case, despite the fact that on the last occasion you were before the Court, you were sentenced with conviction to a large fine, your release into the community on an adjourned undertaking with conviction, adequately addresses each of the purposes for which a sentence may be imposed.
27Since s6AAA of the Sentencing Act 1991 does not compel a declaration of sentence that would have been imposed – had you not pleaded guilty – in those circumstances, I decline to make such a declaration in this case.
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