Director of Public Prosecutions v L, J
[2024] VCC 1894
•26 November 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| L, J |
---
JUDGE: | HIS HONOUR JUDGE PURCELL |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 November 2024 |
DATE OF SENTENCE: | 26 November 2024 |
CASE MAY BE CITED AS: | DPP v L, J |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1894 |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW – Sentence
Catchwords: Breach of supervision order – use cannabis
Legislation Cited: Serious Offenders Act 2018; s174
Cases Cited: DPP v XG [2023] VSC 127
Sentence:Convicted and ordered to serve an adjourned undertaking of good behaviour for a period of six months.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms Hannett | Office of Public Prosecutions |
For the Accused | Ms B. Proud | Victoria Legal Aid |
HIS HONOUR:
1LJ, you are before the court again today in respect to breaches of a supervision order. You have pleaded guilty to two breaches of a supervision order, although the second involves three episodes of cannabis use. Summary jurisdiction was applied for and is granted.
2The circumstances of the offending are set out in the prosecution summary for opening which I propose to annex to these reasons for sentence. I note that summary is accepted. In addition, I have taken into account the written submissions made by your counsel. I have considered the written submissions as supplemented by the oral submissions today.
3For some time now you have been subject to a supervision order and this is effectively the fourth and fifth breaches of a supervision order and have broadly involved drug use. That is of concern and one of the syntheses of relevant factors this morning in arriving at an appropriate sentence is the risk of reoffending, and whether in fact I would be doing the right thing by you by accepting the submission made on your behalf that an undertaking of good behaviour is the appropriate sentence. In other words, there is no point giving you enough rope if you are just going to hang yourself, as it were.
4Broadly I note that the contraventions to which you have pleaded guilty arise out of the use of cannabis between July and September of this year.
5I note this morning that your counsel submitted, I think appropriately, that there has been open and honest communication with case managers and others involved in your transition into the community, and that you made full and frank admissions about the contravention. Although perhaps it could equally be said that the gig was up and you had no alternative but to make those full and frank admissions. In any event, you have been bailed now for some time having spent the better part of one day in custody.
6Your counsel submitted that the use of cannabis was offending at a low level and I accept that, but it is not just the use of cannabis that I have got to grapple with here this morning, it is the breach of the supervision order, and as I said earlier the fourth and fifth breach. In any event, appropriately your counsel submitted that the offending is at the low level of the range. Whilst your previous contraventions and your criminal history was admitted, it was said on your behalf that the offending in these scenarios that bring you here this morning, was a hiccup in your abstinence from drug and alcohol use.
7In mitigation the early plea was noted, as was your Aboriginality as a relevant sentencing consideration. It was noted that you have a good relationship with Dr Bird and others involved in your treatment and rehabilitation. That you have been now able to reduce the use of some of the medications that were related to opioid addiction and your prescription medication is now anti-depressants and sleeping medication.
8Your efforts to consider prospects for retraining, employment and rehabilitation into the community had been noted, as was your identification with your Aboriginality and your ability to be on country. That is something that I have some personal experience with, going back over 50 years of the Aboriginal elder, Banjo Clark, who is well known in the Warrnambool community. Whatever happens this morning, I urge you to make the most of the opportunities you have living on country in Warrnambool.
9In response, Ms Hannett on behalf of the Director of Public Prosecutions, highlighted that the breach of a supervision order is a serious matter. Counsel referred me to the cases set out in the outline and in case there is any misunderstanding about that, I unequivocally accept that the scenario of multiple breaches of a supervision order is a very serious matter indeed. It is one that absent appropriate mitigation would ordinarily result in an immediate custodial sentence, and I note that is in fact the sentence which the prosecution said is appropriate in this proceeding, although the duration of the custodial sentence was a matter for the court.
10Broadly, as I understand the submissions on behalf of the prosecution a custodial sentence is appropriate, but it would be a relatively short period of imprisonment.
11The prosecution submitted, again appropriately, that specific deterrence, general deterrence and community protection have a role to play in the sentence that I impose. The prosecution highlighted concerns to do with the use of cannabis and perhaps your failure to recognise the seriousness of the consequences of that where you remain on a supervision order, and in a situation where the offending occurred within a relatively short period of your transition from Corella Place to a unit in Warrnambool. The failure to make good choices was highlighted as a concern however the prosecution also, I think appropriately acknowledged broadly the low level nature of the offending and other relevant sentencing considerations, such as your Aboriginality and your early plea.
12I am greatly assisted by the Reasons of His Honour Judge Pillay of 23 March 2023, when His Honour had occasion to sentence you for the breach of a supervision order. I am sure LJ you well remember what His Honour said on that occasion, I do not propose to repeat it, but His Honour carefully set out your background, your personal circumstances, and some of the relevant sentencing considerations peculiar to you.
13In summary, the use of cannabis on several occasions between July and September 2024, leading to breaches of a supervision order, is a very serious matter. I note that you continue to be subject to a supervision order by reason of a renewal of the order made by Judge Pillay on 22 October 2024.
14The fact that you were in Corella Place for a long period of time is also a relevant sentencing consideration, in my view, having been there broadly from 2017 through until May of this year, albeit interrupted for a period of time when you were incarcerated for other breaches of the supervision order. It is clear that it has been a long and difficult road for you out of Corella Place. I am broadly aware of the living circumstances and restrictions caused when someone is subject to a residential condition and living at Corella Place.
15LJ, thankfully for you, you are now out of Corella Place and living in a settle environment which I understand is described in my words as some form of old folk's home in Warrnambool where you enjoy your living situation, have engaged with rehabilitation and treatment providers, and some of the cultural supports available to you.
16Indeed, I am not sure what Judge Pillay said to you, but I am sure when His Honour recently considered the Renewal of the Supervision Order that the good news story was that you were out of Corella Place and making some progress in the community. But unhappily within several months of transitioning to Warrnambool you were using cannabis. Whether or not that was a way of self-medicating to manage low mood, I think is irrelevant to some extent, because you had other medical, cultural and rehabilitation supports available to you and clearly decided not to use those supports. It is something that should be discouraged.
17OFFENDER: Yes.
18HIS HONOUR: The last thing you need is to be returned to Corella Place because it might be even more difficult to transition back into the community again.
19Whilst I accept that general and specific deterrence is a relevant consideration, equally your rehabilitation and prospects of successfully rehabilitating and transitioning into the community is a relevant sentencing consideration. A long period for which you were required to live at Corella Place cannot be ignored.
20In my view, a synthesis of all relevant sentencing factors and circumstances for you, LJ, leads me to conclude that a custodial sentence is not appropriate on this occasion. But I can tell you now, it is a close-run thing. I am prepared in the exercise of my sentencing discretion and a consideration of all relevant factors, to give you an opportunity to continue your transition in Warrnambool and your rehabilitation.
21In my view, that is what tips the scales in favour of a non-custodial sentence. I am probably now repeating myself, but in case I have not made myself clear, repeated breaches of a supervision order are a very serious matter. It is not good enough to think that you can simply use cannabis or otherwise breach the supervision order without some ramifications. A supervision order is there for a reason and like it or not, it needs to be respected. The fact that we are here for your fourth and fifth breaches of a supervision order is a significant consideration.
22I adopt though with respect what was said by His Honour Justice Croucher in DPP v XG, in the context of what I do consider to be relative low level breaches, the facts of the specific case must be taken into account. On this occasion prospects of rehabilitation, treatment and transition into the community tip the scales in favour of giving you an opportunity to remain out of gaol.
23Ultimately, I accept the submissions made by your counsel that a bond with an undertaking to be of good behaviour is the appropriate sentence. I do not consider a fine to be appropriate for a variety of reasons, including the high probability that you would have difficulty paying the fine and that may in fact be a more crushing result, rather than an undertaking.
24But at the risk again of repeating myself, as I said earlier, I have grappled with the concept of giving you rope and the risk that you end up using it to hang yourself, as it were, I will accept the submission that a bond with an undertaking of good behaviour is appropriate, you need to understand that any breach of that undertaking in the relevant period will have you back before me, where I will then have to grapple not only with the breaches of the supervision order, but also the breach of the undertaking.
25So I hope, in plain English, you are going to get one further chance today ‑ ‑ ‑
26OFFENDER: Thank you.
27HIS HONOUR: ‑ ‑ ‑ where you have had several already. So don't stuff it up.
28OFFENDER: No.
29HIS HONOUR: What I propose to do then is to sentence you by way of an undertaking on the following conditions.
30The undertaking starts today, that is November 26 and will go for a period of six months through until 26 May 2025.
31You must be of good behaviour during the period of the undertaking.
32You must attend before the court if called on to do so during the period of the adjournment.
33Not that it is strictly speaking, but I remind you that you also remain subject to the conditions of the supervision order. You need to keep that in mind.
34I indicate that for the record, but for the plea of guilty that you made at the earliest opportunity, I would have sentenced you to an aggregate period of 45 days in gaol, consolidated for the two matters to which you have pleaded guilty.
35Anything arising out of that?
36MS HANNETT: Just confirming that undertaking is imposed with conviction, Your Honour. With conviction?
37HIS HONOUR: With conviction. All right.
38COUNSEL: Nothing further.
‑ ‑ ‑
0