Director of Public Prosecutions v H

[2023] VCC 1830

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL JURISDICTION

Revised

Not Restricted

Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

H V

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JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	9 October 2023
DATE OF SENTENCE:	11 October 2023
CASE MAY BE CITED AS:	DPP v H V
MEDIUM NEUTRAL CITATION:	[2023] VCC 1830

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  Sentence – contravention of supervision order – whether special reasons exist – rehabilitation primary consideration

Legislation Cited:           Sentencing Act 1991 (Vic)

Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; The Queen v Verdins (2007) 16 VR 269; Brown v The Queen [2020] VSCA 212; Worboyes v The Queen [2021] VSCA 169

Sentence:  180 days of imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Taylor	Office of Public Prosecutions
For the Offender	Mr G. Chipkin	Stary Law

HIS HONOUR:

1H V this is a sentence in respect of a plea of guilty relating to two offences committed on 8 December 2022.  The offences are:

1)Contravene Condition 5.4 of the supervision order currently in place regarding you in that you threatened the safety and welfare of staff at Corella Place by threatening them with a knife; and

2)Contravene Condition 6.13(d)(of the supervision order) by removing your electronic monitoring device on that day.

2Both offences constitute contraventions of the Serious Offenders Act 2018 (Vic).

3The maximum penalty in respect of each individual charge is a maximum of Level 6 imprisonment.

4Summary jurisdiction was sought in respect of both charges and granted.  The maximum in respect of such charges heard and tried summarily is two years and the maximum cumulative term for several offences is five years.

5The circumstances of the offending are set out in the summary of the prosecution opening.[1]  This is accepted as an accurate record of the facts surrounding the offending and I do not repeat those factual matters which are set out further.

[1]Exhibit P1

6Of real relevance, however, is that the prosecution accepts that:

'At the time of the offending your capacity to engage in rational decision-making and appreciate the wrongfulness and consequences of your conduct were impaired.'[2]

[2]Exhibit D1 Report of Fakhri 4 September 2023 at [122]

7It is accepted that by reason of your underlying psychological diagnoses, the opinion of Ms Fakhri and the facts of the episode on 8 December 2022, where you had no recall of the events which occurred, special reasons exist in accordance with s10A(2)(c)(i) of the Sentencing Act that make the imposition of the mandatory term of 12 months' imprisonment for breach of a restrictive condition inapplicable.

8I accept the defendant's submission that that is the case and I consider the Crown's concession in this regard properly made.  I consider that special reasons therefore exist and the sentencing discretion is at large.

9Turning to consider the other submissions made on your behalf by Mr Chipkin, your counsel.

10The material presented as to your troubled chaotic early years, both at home with your parents and then from 17 onwards of a very unsettled homelife with your sister and others, leads to an acceptance that weight must continue to be given to your deprived background.[3]

[3]Bugmy v The Queen (2013) 249 CLR 571

11Further, the report of Ms Fakhri and her diagnosis clearly leads to the acceptance of the submission that all six limbs of Verdins are relevant and have work to do.[4]

[4]The Queen v Verdins (2007) 16 VR 269

12For reasons set out above, in consideration of the special reasons point, your moral culpability for the offending, whilst not extinguished because your plea of guilty accepts responsibility for the offending, can be regarded, in my opinion, as very low.  This is because you were completely unaware of acting in the way that you did on 8 December 2022.  You could not even remember your actions of cutting yourself when you woke from your state the following day in hospital.  You have never behaved in this way previously or since. 

13It is relevant that this event occurred at a time of considerable stress after the death of a partner and during the initial stages of transition to the community.  These very personal factors also make general deterrence a low consideration.[5]  Specific deterrence has a role, however, there is little to suggest that imprisonment would act on the longstanding psychological factors at play.  Specific deterrence then has only low to moderate applicability, I find.  Community protection is a factor to which regard must be had given the potential injury caused by repeat behaviour, and I note that I have had regard to the victim impact statement filed in this matter.

[5]Brown v The Queen [2020] VSCA 212 at paragraphs [84]-[85]

14However, as far as I can ascertain, this was an entirely isolated incident brought on by a specific concatenation of events.  I do not place much weight on this factor.

15I am mindful of the evidence of Ms Fakhri that a period of imprisonment would weigh more heavily on you given your mental health vulnerabilities.  Her evidence is that a sentence which prioritised rehabilitative treatment would be far more beneficial.  Such is not available to me and in fact it is noted by Ms Fakhri that in a custodial setting the specific individual psychological treatment that you require is unlikely to be provided.  Undoubtedly then a custodial sentence would have an adverse impact on you without such treatment.

16It was accepted that this plea was an early one and that in addition the principles in Worboyes apply.

17Balancing these matters then, I consider that a term of imprisonment of 180 days is appropriate, to give effect to the sentencing principles which I apply to your matters and as I have set out above.

18I reckon, in total, 307 days as pre-sentence detention. 

19I will order your immediate release.

20That concludes my sentencing remarks to you, G V.  Ms Taylor, are there any matters arising?

21MS TAYLOR:  No, Your Honour. 

22HIS HONOUR:  Mr Chipkin?

23MR CHIPKIN:  No, Your Honour. 

24HIS HONOUR:  Mr H V, that then concludes the sentencing in your case ‑ ‑ ‑ 

25MS TAYLOR:  Your Honour, I apologise.  The matter of 6AAA.

26HIS HONOUR:  6AAA.  If I was – do I need to declare a 6AAA amount given the sentence of six months?

27MS TAYLOR:  Yes, Your Honour. 

28HIS HONOUR:  Just take me to that.

29MS TAYLOR:  Sorry.  If Your Honour imposes any term of imprisonment or a fine exceeding ten penalty units then a 6AAA declaration should be made.

30HIS HONOUR:  Well then I ‑ ‑ ‑ 

31MS TAYLOR:  Or – sorry, Your Honour, I believe that's correct.  Let me just – yes, Your Honour, any term of imprisonment.

32HIS HONOUR:  Then for the purposes of s6AAA, but for the early plea of guilty I would have sentenced you to a term of imprisonment of nine months.  I declare that to be the s6AAA term of imprisonment.  Anything further, Ms Taylor?

33MS TAYLOR:  No, Your Honour, thank you. 

34HIS HONOUR:  No, thank you for reminding me of that.  Anything from you, Mr Chipkin?

35MR CHIPKIN:  No, Your Honour, I just ask a brief moment with my client after this proceeding has concluded, if I may.

36HIS HONOUR:  Yes, certainly.  Mr H V, that then concludes the sentencing in your matter, I understand you will be removed from your environment today and taken back to Corella.  We will make available to you and Mr Chipkin a breakout room shortly.  Thank you for your attendance this morning.  Madam Associate, please place Mr Chipkin and Mr H V into a breakout room and otherwise terminate the link for everyone else.  Thank you, adjourn the court until 10.00 am please.

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