Director of Public Prosecutions v H,v
[2024] VCC 672
•14 May 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR -24-00334
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| H, V |
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JUDGE: | HIS HONOUR JUDGE PILLAY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 May 2024 |
DATE OF SENTENCE: | 14 May 2024 |
CASE MAY BE CITED AS: | DPP v H,V |
MEDIUM NEUTRAL CITATION: | [2024] VCC 672 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Breach of Supervision Order -
Legislation Cited: Serious Offenders Act 2018 (Vic) ;Sentencing Act 1991 (Vic)
Cases Cited:DPP v XG [2023] VSC 127; DPP v XG [2024] VSC 82; DPP v SJW [2020] VSC 746; Bugmy v R (2013) 249 CLR 571; R v Verdins (2007) 16 VR 269
Sentence: 81 days imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Roodenburg | Office of Public Prosecutions |
For the Offender | Mr J. Hurley | Stary Law |
HIS HONOUR:
1H V, this is a sentence in respect of one charge of contravening a supervision order contrary to s169 of the Serious Offenders Act. The maximum penalty in respect of the offending is Level 6 imprisonment.
2Summary jurisdiction was sought in respect of the charge and granted. A plea of guilty was then entered through your counsel, Mr Hurley. A maximum of two years applies then. It is accepted that your plea was at the earliest stage.
3The circumstances of the offending are set out in the summary of prosecution opening, Exhibit P1, and do not need to be repeated in great detail. Your counsel accepted the summary as accurate.
4From that summary it is relevant to note that you have been the subject of a supervision order since about 2010. That supervision order has been reviewed on numerous occasions, most recently in December 2022, at which time conditions were imposed on you that require you to reside at a place deemed appropriate by the Post Sentence Authority. From at least that time you have been ordered to stay at Corella Place, a residential facility at Ararat. The offending occurred in that context.
5Briefly, on 22 February 2024 you became agitated about your safety in your unit at Corella. You expressed that concern to staff at Corella and then also to police. You wanted to move to Corella Place 228, but this could not be accommodated immediately. You were told by staff at Corella that the process for such a transfer could be commenced but authority was needed to be obtained. Overnight you became even more concerned about your safety. You spoke to staff again and also called Beyond Blue.
6Broadly, it seems, that as you felt your concerns could not be allayed by staff at Corella or police, you determined to walk out of Corella Place to stimulate your arrest. You did so on 23 February 2024.
7Immediately after walking out of the gates at Corella Place you called police and were arrested very shortly afterwards and placed immediately into custody. As at today you have been in custody for 81 days.
8Your counsel’s primary submission was made in reliance on the case of DPP v XG [2023] VSC 127. In that case His Honour Croucher J reminded a sentencing court of the importance of s5(3) of the Sentencing Act which requires a court to impose a sentence which is of a severity necessary to achieve the purposes for which it is imposed.
9Counsel primarily submitted that in the circumstances of this case such a sentence was of conviction with immediate discharge pursuant to s73 of the Sentencing Act given the nature of the offending and the significant time to be called into account from past sentencing – I interpolate 127 days – and the immediate post-offending detention of 81 days, a total of 208 days, arguably Renzella time. Alternatively a fine with conviction.
10The initial written submission was that a term of imprisonment of less than 81 days reckoned as time served, with conviction, was appropriate.
11The Crown position was that the offending warranted a term of imprisonment.
12In dealing with the competing submissions, it is important to refer to some of the background. This is most helpfully set out in the report of Ms Fakhri, 4 September 2023, Exhibit D1, who saw and examined you in late 2023.
13That report was tendered also in the plea before me last year. I made the comment then that it is clear that all six limbs of Verdins apply. That situation continues to exist here, despite the fact that no further report has been made available from her to opine on the current offending and your mental state. Given the recent opinion of Ms Fakhri and the longstanding conditions of you, H V, I consider her opinion is still relevant. Given your history, the principles in Bugmy also apply.
14Turning to the offending.
15I accept that it was low-level offending in the sense that there was no violence, no evidence of significant planning or attempt to evade capture. In fact you took many steps to deal with your concerns by initial reports to staff and police. You ought be commended for that. It is relevant also that after leaving the gates of the facility you called police and asked them to come and arrest you. BWC footage on scene captures your comments that you wanted to be arrested so you could be taken from Corella.
16Counsel made the point that it was relevant to look at the offending through the lens of a psychiatrically unwell man and not seek to impose an objective standard. That much can be accepted. However, in this setting you have been the subject to a supervision order for a long period, you have broadly complied with the terms of the order and you are aware of the structure that it imposes on you. It could be said that you took action which may well have been spontaneous but you clearly knew that it breached the rules.
17I accept the principles in DPP v SJW, however, breaches of supervision orders are serious in nature. This is the third breach of the supervision order, and while it is your first by absconding, I consider that it also impacts upon the sentence I impose.
18Given your mental issues, I accept that both general and specific deterrence are moderated. Further, I accept that punishment is not a primary goal here. Rehabilitation, however, remains important given the purposes of the supervision order. This was a point made by defence in the reliance on XG. I was also taken to the further decision of Croucher J in the matter of XG when there had been further offending after the initial sentence. See DPP v XG [2024] VSC 82.
19I record that I have had regard to the decision in Harrison and in Robertson. I have read those matters and they have provided some very broad guidance, however, I consider that each case is different and must be treated on its merits.
20In balancing these matters, I have also had regard to the significant Renzella time to be counted. Both parties accepted that there ought to be some accounting for this. However, I note that the offending last year is wholly unrelated to this offending. Renzella time ought be taken into account at the earliest time possible, and I do so now. That equates in total to 127 days from time on remand last year when I sentenced you, and in addition there are 81 days currently on remand for this offending.
21Despite my findings as to the nature and gravity of the offending, being at the low end of the scale, and my acceptance of the reduced moral culpability for the offending here, there is still some modest role to play for, in particular, general deterrence, and to reinforce the rehabilitation principles by ensuring that the supervision order is complied with. This is also in the context of this being the third breach of the supervision orders.
22In those circumstances then I will sentence you, H V, to 81 days in prison reckoned as time served. I order that you be released immediately, and I make it clear that I have taken the remaining Renzella time into account.
23But for the plea of guilty and pursuant to s6AAA of the Sentencing Act, I would have sentenced you to 120 days.
24Counsel, are there any further matters.
25MS ROODENBURG: No, Your Honour, thank you.
26HIS HONOUR: Mr Hurley?
27MR HURLEY: No, Your Honour.
28HIS HONOUR: Mr Hurley, I note the time. Given what your client’s just said, before I conclude would you like a moment with your client.
29MR HURLEY: I would appreciate a brief moment, Your Honour.
30HIS HONOUR: We’ll just adjourn this matter temporarily please for ten minutes until 3.55.
31(Short adjournment.)
32HIS HONOUR: Mr Hurley ‑ ‑ ‑
33MR HURLEY: Thank you, Your Honour. Thank you for the time with H V. He is not in our presence now but I am happy to proceed in his absence. I just wanted to raise one matter that I believe Your Honour included in the reasons for sentence.
34As I understood my ultimate submission it was to convict and discharge ‑ ‑ ‑
35HIS HONOUR: Correct ‑ ‑ ‑
36MR HURLEY: And if Your Honour was against that, a financial penalty. I believe in the reasons Your Honour stated that my ultimate submission was to convict and discharge, and if Your Honour was against that 80 days’ imprisonment. I just wanted to clarify that in the published reasons ‑ ‑ ‑
37HIS HONOUR: Yes. I think I have taken that from when you initially filed the submissions and then I think that was amended. I think that’s the error that I have made.
38MR HURLEY: Yes, well paragraph 6 of my written submission reads: ‘It is respectfully submitted that in all of the circumstances a term of imprisonment of less than the 80 days available is appropriate.’
39HIS HONOUR: Yes.
40MR HURLEY: Obviously I amended that on my feet to a convict and discharge or the financial penalty. So I just wanted to make that clear.
41HIS HONOUR: Yes, certainly. I certainly recall you amending that on your feet and I know I have simply skipped over how I have read that the first time. So thank you for that.
42MR HURLEY: As the court pleases. I believe my learned friend has a matter to raise as well.
43MS ROODENBURG: It’s not a big matter, Your Honour, but Your Honour referred to Unit 228 in your submissions and I wasn’t sure whether Your Honour was referring to it as a particular unit within Corella Place. I just wanted to make clear for Your Honour that 228 is a separate facility, which I expect Your Honour knows ‑ ‑ ‑
44HIS HONOUR: Yes.
45MS ROODENBURG: But it just wasn’t clear from – I wasn’t sure from Your Honour’s reasons and I just thought if that could be clarified in your reasons that would make it clear ‑ ‑ ‑
46HIS HONOUR: Yes, I meant it in the sense of area 228 but I’ve lapsed into using the language appropriate for where he’s currently placed.
47MS ROODENBURG: Thank you, Your Honour.
48HIS HONOUR: Yes, thank you for that. I’m happy to make those two amendments.
49MS ROODENBURG: Thank you, Your Honour.
50MR HURLEY: As the court pleases.
51HIS HONOUR: I’ll just have you remain at the bar table while we call the next matter back please. I can let you go Ms Roodenburg, and you Mr Hurley, thank you for your attendance. Madam Associate, just call the next matter please.
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