Director of Public Prosecutions v M
[2018] VCC 566
•24 April 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR -17-02135
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| R M |
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| JUDGE: | HER HONOUR JUDGE SEXTON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 March 2018 |
| DATE OF SENTENCE: | 24 April 2018 |
| CASE MAY BE CITED AS: | DPP v M |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 566 |
REASONS FOR SENTENCE
---Subject: Criminal Law – Breach of Supervision Order
Catchwords: Breach of supervision order – breach of a restrictive condition
Legislation Cited: Sentencing Act – Serious Sex Offender (Detention and Supervision) Act
Cases Cited:DPP v [RM] [2009] VSCA 264 – DPP v Terrick [2009] VSCA 220 – R v Verdin [2007] VSCA 102 – R v McKee & Brooks [2003] VSCA 16 – DPP v Whittle [2017] VCC 2017 – DPP v O’Neill [2015] VSC 25 - DPP v Hudgson [2016] VSCA 254 – DPP v Price [2017] VCC 1766 – DPP v Collingwood [2013] VCC 2043
Sentence: Sentence deferred pursuant to s83A Sentencing Act.
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APPEARANCES: | Counsel | Solicitors |
| For the Secretary to the Department of Justice and Regulation | Mr D. Grace QC | Russell Kennedy |
| For the Accused | Ms E. Ramsay | Victoria Legal Aid |
HER HONOUR:
1RM, today I am dealing with you again for breaking a condition of your Supervision Order. It is a condition of your order that you not use or possess drugs. On 16 August last year a urine sample was taken from you. It showed that you had used both methylamphetamine and amphetamine.
2The condition not to use or possess drugs is a restrictive condition which means that if you break that condition then I must send you to gaol for at least
12 months unless there is a special reason. I have decided that there is a special reason and so my sentence can be less than 12 months in gaol.3I now want to say some things to the lawyers and at the end of these quite lengthy remarks, I will come back to speak to you again and tell you exactly what I am going to do.
THE CHARGE
4At the plea hearing on 5 March 2018, I granted summary jurisdiction for the hearing of what were then four charges of failing to comply with a Supervision Order. On application made on behalf of the informant, the charges were amended to be rolled up into one charge and Charges 2, 3 and 4 were withdrawn. I received a plea of guilty through RM’s counsel to the rolled up charge.
5The charge is that on or about 16 August 2017 RM, whilst the subject of a Supervision Order reviewed and confirmed on 29 May 2017, without reasonable excuse failed to comply with a condition of that supervision order, being Condition 5.6, in that he used and possessed both methylamphetamine and amphetamine.
6The maximum sentence when exercising summary jurisdiction is two years' imprisonment. Because the condition not complied with was a restrictive condition I must impose a minimum sentence of 12 months' imprisonment unless a special reason exists[1].
[1] Section 10AB Sentencing Act
HISTORY
7There is a lengthy history to this case, and as I have made certain findings that I will turn to, I think it is necessary to set out the history again rather than refer to my previous sentencing remarks as I have in the past and to also include the remarks of other courts in which RM has appeared.
8In 2008, RM pleaded guilty and was sentenced for aggravated burglary and rape by another judge of this court. The offence of rape became the index offence for the Supervision Order. In his reasons the sentencing judge set out RM's personal circumstances as follows[2]:
"The Forensicare report…and particularly the tendered letters of [RM's aunt] state a deprived and damaged background in the very extreme sense. [His] early life was marked by [his] parent's alcoholism, drug use and the violence in the home. [His] mother's alcohol use during pregnancy has caused [his] alcohol foetal (sic) syndrome. [He was] taken from [his] parents by his aunt when about two years. [He] rarely saw [his] mother after that. [His] father died when [he was] 13 or 14. [His] aunt describe[d] [him] as devastated by his decline and death. Many other members of [his] family had also suffered early death. That tragically has continued into recent times. [His] intellectual disability, largely caused by alcohol foetal (sic) syndrome, made school increasingly difficult. By mid-teenage [he] had slid into alcohol and drug use, including inhalants".
[2] As set out in DPP v [RM] [2009] VSCA 264 at [4]; RM’s background is also described by Lasry AJA at [39]
9The offending was very serious and the violent attack took place in the early hours when RM was heavily intoxicated, including from chroming[3].
[3] Assessment Report for Supervision Order date 27 July 2015 at [23]
10The Director of Public Prosecutions appealed against the sentence and the Court of Appeal by majority held it was inadequate and re-sentenced RM to five years' six months' imprisonment with a minimum of four years.
11The majority in their reasons referred to RM's personal circumstances, most relevantly his aboriginality, his "shockingly deprived childhood", his intellectual disability, his Attention Deficit Hyperactivity Disorder and his tendency to abuse alcohol and drugs[4]. Their Honours stated that:
·The principles relevant to the sentencing of Aboriginal offenders summarised in Terrick[5] were appropriately recognised by the sentencing judge;
·[t]he fact that [RM’s] childhood was blighted by his exposure to violent adults who abused alcohol explain[ed] to some extent his own tendency to abuse alcohol and drugs, which in turn contributed to his offending behaviour”[6]
·“clearly, [RM’s] intellectual disability and his Attention Deficit Hyperactivity Disorder were relevant to his moral culpability, since they affected his capacity to behave rationally, and to control his behaviour”[7]; and
·[his] cognitive difficulties also required the judge to modify the application of the principle of general deterrence”[8].
[4] Ibid at [3] – [5], [7]
[5]DPP v Terrick [2009] VSCA 220
[6]DPP v [RM] [2009] VSCA 264 at [6]
[7] Ibid at [7]
[8] Ibid at [8]
12His Honour Lasry AJA decided that the sentence was not manifestly inadequate. While his judgment is a dissenting one as to the outcome of the appeal, his Honour made certain observations and findings which are consistent with the statements of the majority that I have just outlined. I note his finding at [52] that:
"Intellectual disability is a recognised condition to which Verdins[9] applies. In these circumstances the link between impaired cognitive skills and judgment and the offending is made out".
[9]R v Verdin [2007] VSCA 102; (2007) 16 VR 269
13Lasry J also found that the principles in Verdins would continue to apply despite the complicating factor that RM had previous convictions for violence, although not sexual offences, because of the kind of impaired mental functioning RM has[10].
[10]DPP v [RM] [2009] VSCA 264 at [56]-[58]
14The Forensicare report provided to the sentencing judge was referred to in both judgments of the Court of Appeal, and Lasry J quoted the report[11] as
"canvass[ing] [RM's] cognitive functioning in some detail. Concluding, amongst other things, that, 'his overall intellectual functioning was within the intellectually disabled range, below the lowest two per cent of the adult population'. Then later, 'psychometric assessment suggested RM's cognitive functioning is comparable to a same aged person with an intellectual disability'".
[11] Ibid at [42]
15RM was released on parole from the sentence on two occasions, but on the first, his parole was cancelled because of drug use and non-sexual re-offending and on the second, because his risk of re-offending was considered to have increased[12].
[12] Assessment Report for Supervision Order dated 27 July 2015 at [11]-[12]
16Upon completion of that sentence the Department of Justice and Regulation (DJR) applied to this court for RM to be placed on a Supervision Order under the Serious Sex Offenders Detention and Supervision Act 2009[13]. The making of the order was not contested, but issue was taken with a condition being imposed for electronic monitoring of RM's whereabouts by obliging him to wear a GPS ankle bracelet.
[13] An Interim Supervision Order was imposed by another judge of this court, commencing on 7 September 2013, being the end of his sentence.
17On 4 December 2013, I heard evidence from the assessment report writer relied on by DJR for the making of the Supervision Order, as well as from experts called on behalf of RM. I found that there was an unacceptable risk of RM committing a sexual offence if out at night, affected by substances and not coping with matters acting as stressors in his life[14].
[14] Reasons for making a Supervision Order, 4/12/2013 p125
18On that day, I imposed the Supervision Order for a period of five years with conditions including electronic monitoring. In determining whether that condition should be imposed over the objection of RM, I referred to the evidence of an expert called on behalf of RM that RM “has an extremely poor memory…at the lowest level to record: that he has a few minutes of recall, and that his loss of memory in that time is more profound than others even of his level of intellectual disability”[15]. A condition was also imposed that he not use the alcohol without permission of the Adult Parole Board.
[15] Ibid p128
19At the time the Supervision Order was made, RM was living with his partner amongst family in the Swan Hill area.
20On 4 March 2014, I dealt with RM for the first time for failing to comply with conditions of the Supervision Order by him leaving Victoria, drinking alcohol, removing his electronic monitoring bracelet and using and possessing drugs.
21I found that the principles of Verdins[16], Terrick[17] and McKee[18] applied; that his moral culpability was somewhat reduced; that specific deterrence, while moderated, was still of significance; and that while the principal purpose of sentencing RM was to protect the community, and giving full effect to the Supervision Order scheme was of the utmost importance, there were other important factors to be taken into account in the balancing exercise[19]. An aggregate term of one month’s imprisonment was imposed.
[16] [2007] VSCA 102; (2007) 16 VR 269
[17] [2009] VSCA 220
[18] [2003] VSCA 16
[19] Reasons for sentence, 4/3/14 at [15] and [20]
22At the time of sentence in March 2014, RM had spent 16 days remanded in custody. After completing the sentence, RM was directed to reside at Corella Place until suitable accommodation was found again in Swan Hill.
23In December 2014, RM was remanded in custody after breaching a curfew condition and the condition not to drink alcohol, and he was remanded in custody.
24On 5 February 2015, I reviewed the Supervision Order and confirmed it, without dispute, with conditions including an electronic alcohol monitoring condition. After considering all relevant matters, I found that condition was sought to "monitor the alcohol consumption of [RM] and this is a matter that goes directly to the risk of re-offending" and "having regard to…the index offence which led to the making of the Supervision Order," I was satisfied that the condition was reasonably related to the gravity of the risk of him re-offending. I released RM on bail to May for the plea hearing on the charges of failing to comply with conditions of the Supervision Order.
25In March 2015, urine screening of RM while in the community returned positive readings for amphetamine, methamphetamine, oxazepam and cannabis.
In April he was also arrested for, and remanded on, an allegation of criminal damage.26On 19 May 2015, I dealt with RM for the second time for failing to comply with conditions of the Supervision Order, by using drugs and alcohol, while living in the community in Swan Hill. His drug use was discovered through random urine screening. He had been remanded in custody and on 19 May, I sentenced him to an aggregate sentence of 105 days’ imprisonment, being time served. He was released and returned to live in Swan Hill.
27I noted[20] then that although the breaches involved the use of drugs and alcohol, which are risk factors for serious offending by RM, there was no other offending and the substance use was not preparatory to any other sort of offending. On the basis of his intellectual deficits and deprived background I applied Verdins, Terrick and McKee as I had in March 2014. I had regard to the tendered reports which referred to his very much reduced ability to change his behaviour and I was satisfied that his moral culpability was somewhat reduced, and in that sentence, that both general and specific deterrence were somewhat reduced, and in that sentence, that both general and specific deterrence were somewhat moderated. I noted he may have the beginnings of insight as to his life being managed under the Supervision Order but I recognised that his addition to alcohol and drugs was longstanding, which I noted is always difficult to overcome, but even more so for someone in RM’s position.
[20] Reasons for sentence, 19/5/15 at [11]-[16]
28Between June and August 2015, RM was alleged to have committed offences of assault and intentionally causing injury, including serious injury, to his partner. At some stage, charges of rape were also laid arising from the same incident. DJR obtained a warrant for his arrest and he was remanded on that warrant as well as on the pending charges.
29Urine screenings of RM conducted on three occasions before he was remanded returned positive readings variously for amphetamine, methylamphetamine, methamphetamine and cannabis. Two charges were filed for failing to comply with a condition of the Supervision Order.
30On 8 October 2015, I dealt with RM for the third time for failing to comply with conditions of the Supervision Order by using drugs. I struck out a charge (not related to the drug and alcohol condition) and sentenced RM to six months' imprisonment on two charges of failing to comply with a condition of the Supervision Order with 49 days of pre-sentence detention declared.
31On the plea hearing on 8 October, counsel for the Secretary to DJR referred to[21] my application of the principles of the cases of Verdins, Terrick and McKee on previous occasions and submitted that "those principles apply again to any sentence that you must impose"; referred to my recognition of RM's intellectual deficits likely as a result of foetal alcohol syndrome compounded by abuse of illicit substances and submitted "the same applies to this offending"; referred to RM's "very much reduced ability…to change his behaviour and his criminal record shows he has previously found it difficult to comply with court orders"; and stated that "it is accepted that his moral culpability is reduced by use (sic) of his deficits"[22].
[21] Transcript 8/10/15 p30-31 also referred to in Reasons for Sentence 8/10/15 at [19]
[22] Referred to in Reasons for Sentence 8/10/15 at [19]
32Although counsel for DJR went on to say that even though the court would thereby reduce the moral culpability, nevertheless this behaviour cannot continue. There must be some break in the cycle, and the Supervision Order scheme cannot survive for supervision if "these types of wanton breaches are allowed to go by way of punishment of small order", the concessions I have outlined relating to RM's personal circumstances are important for the findings I need to make for the current sentence I am to impose. Indeed counsel for RM specifically relied on these in her submissions on 5 March.
33A review of the Supervision Order due in November 2015 was adjourned while RM remained in custody on the injury and rape charges. In May 2016, the rape charges and the serious injury charge were withdrawn and in October that year RM was sentenced after a contested hearing in the Magistrates' Court for three charges of intentionally causing injury and one of common assault, receiving an aggregate sentence of three months' imprisonment. This was made cumulative on a sentence he was undergoing with a total effective sentence of 1 year 9 months and a non-parole period of 15 months with 238 days declared as already served, he having been in custody since August 2015.
34RM was also charged with breaching an intervention order (by repeatedly contacting the victim of the injury charges from prison) and was sentenced to
30 days' imprisonment in May 2017 concurrent with other sentences.35During 2016 and 2017, DJR obtained two addendum reports from the original assessment report writer for the review adjourned from November 2015.
36On 29 May 2017, I heard the first review of the Supervision Order. There was no challenge to the order being confirmed, but the application made by DJR to have three conditions of the order declared restrictive was opposed. I confirmed the Supervision Order with the proposed conditions, refused to declare the conditions relating to curfew and abstinence from alcohol as restrictive conditions, but did declare as restrictive the condition not to inhale a volatile substance, use or possess prohibited drugs, obtain drugs unlawfully or abuse prescription or other medications. It is failing to comply with that restrictive condition which is the subject of today’s sentence.
37On that day I also granted leave to RM to review the residence condition and adjourned that to a date to be fixed depending on a number of factors including whether RM was in custody. He was due for parole in July 2017 and his sentence at that time was due to expire in December 2017.
38RM was granted parole on 20 July and was directed to live at Corella Place.
It was 16 August when a urine sample was collected which later revealed the presence of both amphetamine and methylamphetamine. His parole was reclaimed because it was a breach of parole by using those drugs. He was released in December 2017.39The Supervision Order expires in December 2018. RM has remained at Corella Place until today's sentence and the residence condition has not yet been set down for review.
THE ISSUES
40As noted at the outset when sentencing an offender for failing to comply with a restrictive condition of a Supervision Order, a court must impose a term of imprisonment of not less than 12 months if it is satisfied that the offender intentionally or recklessly failed to comply, unless the court finds under s.10A that a special reason exists[23].
[23] Section 160 Serious Sex Offender (Detention and Supervision Act) and section 10AB Sentencing Act
41RM seeks to prove on the balance of probabilities that a special reason exists on one of three bases;
·Section 10(2)(c)(i) – He had impaired mental functioning at the time of commission of the offence that is causally linked to the commission of the offence and substantially reduces his culpability; or
·Section 10(2)(c)(ii) – He has impaired mental functioning that would result in him being subject to significantly more than the ordinary burden or risks of imprisonment; or
·Section 10(2)(e) – There are substantial and compelling circumstances that justify the court making a finding that a special reason exists.
42The Secretary to DJR submits that RM cannot prove any of the three matters which would give rise to a finding that a special reason exists to depart from the statutory minimum. While there is no dispute that RM has an intellectual disability and had it at the time of failing to comply with the condition of the Supervision Order, issue is taken with that disability being causally linked to the failure to comply and with it substantially reducing his culpability for that failure. Issue is also taken with his disability making him subject to significantly more than the ordinary burden of imprisonment and with there being substantial and compelling reasons to depart from the statutory minimum.
43The submissions of both parties were received in writing and orally during the hearing and appear on the transcript.
44To prove the special reasons, counsel for RM relied on a report dated 15 February 2018 addressing whether there was impaired mental functioning such as to meet the requirements for special reasons, and called the author of that report to give evidence. The author had previously assessed RM in 2013 on the initial application by the Secretary for the making of the Supervision Order, but was not asked in this instance to assess his risk.
THE LEGISLATION
45Impaired mental functioning is defined in s.10A of the Sentencing Act and means, relevantly for this case, an intellectual disability[24].
[24] Section 10(a) Sentencing Act
46The special reasons are set out in s.10A(2).
47I adopt with respect the analysis of Her Honour Judge Cohen in Whittle[25], to which I was referred by counsel for RM, as to the three findings required for a special reason under s.10(2)(c)(i) to be established.
[25] [2017] VCC 2017 at [55]-[59]
48Section 10(3) provides specific factors to which the court is to have regard in determining whether ‘substantial and compelling circumstances’ exist.
49What does or might constitute substantial and compelling circumstances is not defined in the legislation but I was referred by counsel for DJR to a decision of the Court of Appeal[26] where this phrase was discussed in the context of a mandatory minimum custodial sentence for an offence of intentionally causing serious injury in circumstances of gross violence under s.15A of the Crimes Act.
[26]DPP v Hudgson [2016] VSCA 254
50My attention was drawn to the references in that judgment[27] to the second reading speech of the Crimes Amendment (Gross Violence Offences) Bill 2012 where the Attorney-General referred to "rare unforeseen" circumstances, and the Explanatory Memorandum where the two factors to which regard must be had were set out (Parliament's intention that the sentence should ordinarily be a prison sentence with a mandatory minimum, and whether the cumulative impact of the circumstances justify a departure from that) together with a list of possible factors.
[27] Ibid at [109] – [110]
51I note that neither the 2nd Reading Speech nor the Explanatory Memorandum for the amendment introducing s.10AB into the Sentencing Act, being the section with which I am concerned, contains these statements referred to in Hudgson. Introducing the Serious Sex Offender’s (Detention and Supervision) Amendment (Community Safety) Bill 2016[28], the Acting Minister said:
“The bill reforms the sentences handed down for the most serious breaches of supervision order (emphasis added).”
[28] 2nd Reading Speech, Hansard 23/3/16 p1150
52As to restrictive conditions, he said that for certain conditions, including alcohol or drug abstinence,
"a court declaration will be necessary and puts the offender on notice that a serious breach of these conditions will carry stern consequences (emphasis added)".
53The Acting Minister also said:
"The special reasons are those under s.10A of the Sentencing Act which are limited and specific. Special reasons include an offender who has impaired mental functioning at the time of the offence, for example".
54In the statement of compatibility[29] the Acting Minister said that the statutory minimum sentence is only triggered by breaches of restrictive conditions, which he said ensures the minimum sentence is sufficiently connected and commensurate to breaches which present the most serious risk to community safety (emphasis added). Further he said:
"the breach must be intentional or reckless, which focuses on the mindset of an offender and involves consideration of their level of premeditation or malicious intent prior to or during the offending".
[29] Statement of compatibility, Hansard 23/3/16 starting at p1142
55He also said 12 months would be considered to be within the range for any offence considered to be at the higher end of the objective range of wrongdoing (emphasis added) and that the bill,
"acknowledges the possibility that…there may be factors present which lessen the culpability of an offender, such that the offender should not be subject to the statutory minimum sentence"
56And later:
"the special reason provision allows a court to take account of factors that reduce an offender's culpability to such a degree that the offender should not be subject to the statutory minimum sentence…such as proving that [the offender] possessed impaired mental functioning".
57I will return to some of these aspects when I come to my findings.
58As the phrase ‘substantial and compelling’ is not specifically referred to in the statements made by the Acting Minister about special reasons, I find that the remarks made by the Court of Appeal in Hudgson are binding as to the meaning of the phrase, given that both s.10(1) (with which the Court of Appeal were there concerned) and s.10AB of the Sentencing Act, (with which I am concerned) rely on s.10A - the special reasons section.
59Further, I apply the remarks of the Court of Appeal that it was plainly the intention of Parliament that the burden imposed on an offender who sought to escape the operation of s.10 should be a heavy one, and not capable of being lightly discharged[30].
[30]DPP v Hudgson [2016] VSCA 254 at [111]
60Lastly, I proceed on the basis that in determining if the circumstances are substantial and compelling the court is not confined to those arising since the making of the restrictive condition. There is no express provision to that effect in s.10AB and the list of factors referred to in paragraph 110 by the Court of Appeal for consideration under s.10 including the personal circumstances of the offender without any qualification.
FINDINGS
Intentional or reckless failure to comply?
61I turn first to an aspect which is unique to s.10AB in the mandatory minimum sentence scheme: the statutory minimum only applies if the court is satisfied beyond reasonable doubt that the offender intentionally or recklessly failed to comply with a restrictive condition of the Supervision Order[31].
[31] Section 10AB(2) Sentencing Act
62Counsel on behalf of RM in submissions said that RM acknowledged "that he did have some awareness and so therefore the intention, or at least the reckless, element of the breach was met"[32].
[32] Transcript 5/3/18 p79-7-10
63I have already referred to what was said by the Acting Minister with respect to this sub-section: that it focuses on the mindset of an offender and involves consideration of their level of premeditation or malicious intent prior to or during the offending.
64Focusing on the mindset of RM when he failed to comply by possessing and using illicit drugs:
· I take into account findings by courts on previous occasions, that
- RM's intellectual disability and his Attention Deficit Hyperactivity Disorder were relevant to his moral culpability, since they affected his capacity to behave rationally and to control his behaviour[33];
- RM “has an extremely poor memory…at the lowest level possible to record: that he has a few minutes of recall, and that his loss of memory in that time is more profound than others even of his level of intellectual disability”[34];
- his addition to alcohol and drugs is long-standing, which is always difficult to overcome, but even more so for someone in RM’s position;
· and I note that
- his criminal record shows that he has difficulty complying with court orders; and
- all of his charges for failing to comply with a condition of a Supervision Order which pertain to drug use have been detected through random drug screening.
[33]DPP v [RM} [2009] VSCA 264 at [7]
[34] Reasons for making a Supervision Order, 4/12/2013 p128
65I accept that RM's act of using drugs, and probably also of possessing them, was intentional in that it was it not accident. Although he instructed his counsel that someone had spiked his drink at Corella Place, nevertheless he apparently made the acknowledgement of awareness referred to a moment ago. However, the state of mind is as to failure to comply with a condition of the Supervision Order. I have no doubt that he has been reminded many times by his case manager of that condition amongst others, and yet, he has committed the offence multiple times.
66I note that in the oral submissions made on behalf of DJR, reference was made to conversations with his specialist case manager and to other urine screening tests being conducted between 20 July (his release from custody) and 16 August 2017, (the day of the test which revealed the presence of two illicit substances). Counsel for RM submitted that this information did not form part of the summary in the original outline of submissions and submitted that the proper basis for sentencing in this hearing under summary jurisdiction is the fact of a positive drug test on 16 August and the results of that test. I proceed on the basis of the outline in the written submissions of the Secretary.
67Returning to my findings, given that RM's capacity to behave rationally and control his behaviour is affected by his cognitive deficits, and given his extremely poor memory and associated limited recall, it may be difficult to be satisfied to the highest standard that he had "any level of premeditation or malicious intent", such that he intended to fail to comply with the drug abstinence condition as opposed to intending to use drugs. It may be less difficult to be satisfied to that standard that he was reckless, in that he turned his mind to the likelihood of breaching the condition by using drugs, but went ahead anyway.
68If I am unable to be satisfied then s.10A(1) does not apply. However given that it is conceded that I should be so satisfied, as to intention or recklessness,
I proceed on the basis that I am so satisfied.
Special Reason - Impaired Mental Functioning?
69Next I turn to s.10A - the special reasons section.
70Considering s.10(2)(c)(i) first, I am satisfied on the balance of probabilities that RM has impaired mental functioning as defined, and that is conceded on behalf of DJR.
71Next, I am satisfied on the balance of probabilities that at the time of failing to comply with the condition of the Supervision Order by using and possessing drugs, RM had impaired mental functioning which is causally linked to that failure. There is a realistic connection with the offending, and his intellectual disability and associated cognitive deficits caused or contributed to him failing to comply with the drug condition[35].
[35]R v Whittle [2017] VCC 2017 and R v O’Neill [2015] VSC 25
72Although the expert called on behalf of RM opined that there was not a causal link, as to that I say, first, that is a finding for me to determine and, second, he did opine that there was "a clinical association". I accept the submission of counsel for RM that RM's impaired mental functioning only needs to be a contributing factor, and I consider that the expert may not have had this requirement in mind. Further, I accept that the expert’s evidence that if RM was aroused in a negative way at the time he chose to use drugs, as RM reported to the expert he was, then RM was not able to articulate the consequences of his actions, or contemplate the consequences, and so acted impulsively, and his significant problem with impulsivity is a direct result of his impairment.
73Further, until the plea hearing in this matter it has always been conceded, either by the prosecution when proceedings for failure to comply have been brought by the Director of Public Prosecutions, or by DJR when they have brought the proceedings that under the Verdins principles there is a causal link between RM's intellectual disability and his offending.
74In my view, the causal link under either sentencing principle is virtually the same question: did the impaired mental functioning have the effect of
·Impairing the offender's ability to exercise appropriate judgment;
·Impairing the offender's ability to make calm and rational choices or to think clearly;
·Making the offender disinhibited;
·Impairing the offender's ability to appreciate the wrongfulness of the conduct;
·Obscuring the intent to commit the offence; or
·Contributing (causally) to the commission of the offence?[36]
[36] [2007] VSCA 102; (2007) 16 VR 269
75I find the causal link exists because RM's cognitive deficits affect his capacity to behave rationally and to control his behaviour, which means that he is not always able to resist impulses or avoid learned behaviours of drug use arising from his background, even when not under stress, or to have regard to consequences and employ rational thinking, even more so when regard is had to his profoundly limited recall.
76Lastly, as to the third requirement I am satisfied on the balance of probabilities that RM's impaired mental functioning substantially reduces his culpability.
77RM has always been entitled to have his impaired mental functioning taken into account in reducing his moral culpability[37]. I accept that the test under s.10A(2)(c)(i) is more stringent than that under the Verdins principles in that his impaired mental functioning must substantially reduce his culpability, and that in the past I have found under the Verdins principles that his moral culpability is “somewhat” reduced by this factor. However, I accept the submission of counsel for RM that the evidence (including previous findings) properly considered in light of the special reason provisions establishes that his culpability is substantially reduced for the same reasons as I found the second requirement was met.
[37] 2009 VSCA 264
78In my view, and in contrast to the submissions made on behalf of DJR, RM is the type of offender which the Acting Minister had in mind when he said there may be factors present which lessen the culpability of an offender, to such a degree that the offender should not be subject to the statutory minimum sentence. The Acting Minister referred several times to an offender who possessed impaired mental functioning at the time of the offence without, I note, the added requirements of the causal link and substantial reduction in culpability.
79Further, the Acting Minister made several references to “the most serious breaches”, “presenting the most serious risk to community safety” and also said that 12 months would be considered to be within the range for “any offence considered to be at the higher end of the objective range of wrongdoing”.
80There is no doubt that drug use is a high risk factor for RM and has featured in most, if not all, of his serious offending, including the index offence of rape, and the violence and injury offences committed in 2015. However, he has not committed another sexual offence, even when he has consumed drugs in breach of the condition of his Supervision Order.
81The offence before me, one rolled up charge of failing to comply with a condition of possessing and using drugs, was detected by urine tests taken shortly after the offence was committed, was an offence committed within Corella Place, no member of the community was at risk, no other offence was committed, and the taking of the drugs was not preparatory to any other offending.
82While any failure to comply with a Supervision Order is serious, in that the scheme cannot work to protect community safety unless those offenders on orders do comply, there are always varying degrees of seriousness. On any view this offence could not be classed as “the most serious breach”, “presenting the most serious risk to community safety” or at “the higher end of the objective end of wrongdoing” as envisaged by the Acting Minister[38].
[38]DPP v Price [2017] VCC1766 and Explanatory Memorandum
83Twelve months would be within range for an offence at the higher end, if summary jurisdiction is granted and the maximum sentence is two years' imprisonment. However the experience of the court is that the higher end of the range is dealt with on indictment where the maximum sentence is five years' imprisonment. The most serious breaches, presenting the most serious risk to community safety and at the higher end of objective wrongdoing are those that involve a failure to comply with the condition not to re-offend with a higher level of premeditation and malicious intent by committing another sexual offence[39].
It follows that this case is at the low end of the range.[39]DPP v Collingwood [2013] VCC 2043, DPP v Price [2017] VCC 1766
84As the basis for a finding of special reason exists under s.10(2)(c)(i), it is not necessary for me to consider whether a special reason also exists under sub-s.(2)(c)(ii) or (2)(e), although my preliminary view is that each of those special reasons would also exist.
85Further, as I have found that the special reason of his impaired mental functioning exists, I am not bound to impose the mandatory minimum term and I therefore proceed to sentence under the usual sentencing principles.
USUAL SENTENCING PRINCIPLES
86First, it follows that I am satisfied that the principles of Verdins are once more enlivened for the reasons I have already set out, and continue to apply despite RM's criminal history, including similar offending by drug use on three previous occasions, so that his moral culpability is reduced and general deterrence is moderated and less important as a sentencing objective.
87On the basis of the evidence from the expert called on behalf of RM, I am satisfied that because of RM's intellectual disability and associated cognitive deficits, prison sentences are more burdensome for him because he is, due to his deficits, unable to stay out of trouble and ends up in management units, which is even more detrimental to his wellbeing than to that of a person of average intelligence.
88As to specific deterrence, I have considered whether it still has a role to play.
I have considered the evidence of the expert called on behalf of RM[40] - that although RM knows the consequences of breaching a condition, he is unable to self-regulate, he uses drugs to cope and to function, and he is not deterred by the fact that this is a restrictive condition and that failure to comply with it will result in 12 months' imprisonment in the absence of a special reason.[40] Transcript 5/3/18 p36/12-25
89I have also considered that in 2009 the majority in the Court of Appeal hearing RM's appeal against sentence for the index offence of rape and aggravated burglary, referred to the evidence before the sentencing judge that RM's low level of cognitive functioning and his tendency to abuse drugs would make it difficult to address his offending behaviour and that it was therefore necessary for the court to give considerable weight to specific deterrence[41].
[41] [2009] VSCA 264
90While the low level of functioning and tendency to abuse drugs has not changed in the years since, what can now be seen is that a cycle of offending, prison, release, residence at Corella Place or in the community or back and forth, further offending, prison and so on, has provided no deterrence for a man of RM's difficulties. Despite this I am of the view that while specific deterrence is substantially moderated, it still has some role to play in that RM does know the consequence of a breach by using drugs even if he lacks the capacity to act in keeping with that knowledge to not impulsively use drugs.
91From the distance of nine years I consider the remarks of His Honour Lasry J to remain telling.
92At paragraph 58 His Honour said:
"Such an evolving background of offending would also be more relevant to the issue of rehabilitation where the prospects of it was significantly under the control of the offender and his or her attitude. However in the case of a person with the kind of impaired mental functioning that the respondent in this case has, he could not be assumed to have linked this offence with earlier breaches of the law so as to demonstrate a conscious disregard for the community or for the law. Also in the case of someone such as this respondent his rehabilitation does not seem to me to be within his control without significant specialised assistance".
93At 64, he said:
"It would have to be accepted that in sentencing a person for violent offences where there is a prior criminal history and a mental impairment, the protection of the community becomes a relevant matter. Not of course to the point of admitting a sentence beyond what is appropriate for the crime but rather relevant as a material factor in fixing an appropriate sentence. However, that accepted, it is also appropriate to apply the Verdins analysis to an offender with intellectual impairment notwithstanding a history of relevant prior convictions. Short of indefinite incarceration of the offender the various components in protecting the community may not be straightforward. In such cases advancing the cause of protecting the community is more likely to be achieved by the intensive treatment and medication of the intellectual or mental impairment rather than prison confinement without such treatment. That is certainly what seems to be required in the case before us on the evidence available to the sentencing judge".
94Finally at 78:
"I accept that the sentence imposed by the sentencing judge was a merciful one. There is room for mercy in the criminal justice system and I consider the sentencing judge's sympathies were reasonably excited by the circumstances of this case. However I also accept that the respondent is a person who, given the consequences of his extremely adverse and deprived history, carries a risk of further violent offending whenever he be released. If ever there was a case for the prison authorities to ensure that concentrated treatment and assistance which could avoid that eventuality is rendered to a prisoner, this is such a case. [RM’s] life in the future depends on him being expertly assisted to deal with his history and his impairments and also that he be invested with the motivation to take up the value of that assistance. If that does not occur in a manner commensurate with his need there will, sooner or later and regardless of the outcome of this appeal, be adverse consequences".
95The expert called on behalf of RM before me gave evidence directed to these very remarks.
96On behalf of DJR it was submitted that the Specialised Sex Offender Assessment and Treatment Service, (SOATS), had recently involved the specialised services of Disability Forensic Assessment and Treatment Service, (DFATS), for RM's management and possible rehabilitation. That was, I note, after two years passed since that proposal was first suggested. In my view this is a vital step if there is to be any prospect of breaking the cycle. RM cannot do it alone, as was recognised back in 2009.
97I will pause at that point and seek the information that may be available as a result of enquiries made this morning.
98MR GRACE: Yes, Your Honour. On Friday, 20 April, which is last Friday
RM was assessed by DFATS. The result of that assessment is yet to be received. The Department of Justice and Regulation is not sure at this stage as to when RM could be considered for treatment or intervention programs until the assessment outcome is made known.99Meanwhile, since the date of the last appearance before Your Honour, RM has continued to attend weekly Wednesday appointments in relation to drug and alcohol addiction with the Ballarat Caraniche organisation. There has been no documented concerns regarding possible drug use since his last court appearance and he's not been directed for urine analysis and there's been no incident reports adverse to him. That's since the last appearance on 5 March.
100HER HONOUR: Yes thank you very much. Ms Ramsay, do you want to make any submissions about any of that? I know this is a little unusual but it is up to date information.
101MS RAMSAY: Yes. Only, Your Honour, that given things are now progressing in terms of putting into place at least assessments to see what can be provided in the community it might be appropriate for Your Honour to defer sentencing in the matter to see how RM conducts himself in following through with those referrals and what can be achieved by all parties.
102HER HONOUR: Yes thank you. Mr Grace?
103MR GRACE: The problem is this, that a deferral of sentencing with an uncertain outcome as to what that sentence will be affects the planning for RM. The Secretary would like to be in a definitive position as to his immediate future because if he's to be incarcerated then any programs will have to be deferred until his release. If he's not to be incarcerated then the steps can move forward without that possible impediment. Because the worst thing to happen would be, for instance, for DFATS to say "Yes, he's acceptable, we've got accommodation for him" and we come back before Your Honour and he's sentenced to a period of time in prison which means that that offer of accommodation for residence is gone and he has to go back into the system.
104As you know there's a huge demand for DFATS places and DFATS assistance in the community. Although RM would have priority there are others in similar positions to him unfortunately who also have priority. So there's pros and cons for deferring and I understand why Ms Ramsay might suggest it but there are, overall in my submission, potential greater detriments in deferring than imposing sentence today.
105HER HONOUR: I know that it is - you've told me that it's not known when the assessment is going to be provided but if there was a short deferral of sentence, and I know there has already been a two month passage of time since the original plea date, so maybe a month deferral that, while still having some of the problems that you've referred to, might also enable some information.
I would imagine the assessment would be available within that time.106MR GRACE: Yes, I would expect so, yes.
107HER HONOUR: Yes all right thank you, Mr Grace. Yes well, returning to my sentencing remarks.
108I have just helpfully received from counsel for DJR an update which appears on the transcript. In brief there has been an assessment by DFATS but the result of that assessment as to suitability and suggested treatment has not yet been provided by DFATS to the SOATS team. But in the meantime RM continues to attend weekly drug and alcohol counselling. There are no documented concerns about possible drug use, no adverse incident reports and he has not been directed for urine analysis.
109Counsel on behalf of RM has submitted that in the light of this potential progress I defer sentence in order to see the outcome of this assessment. Counsel on behalf of DJR has submitted that there should not be a deferral of sentencing but recognises that a short deferral might provide the court with further assistance in terms of what is a very difficult sentencing exercise. Not made simpler by virtue of my having sentenced on previous occasions for the same offending.
110Deferral of sentence was a matter that had occurred to me. I should also note that counsel for RM had previously submitted that I should consider a community correction order with a Justice Plan, and counsel for DJR had submitted that that was not appropriate. I said on the day of the plea that I did not think that I would have RM assessed and I have not done so.
111On balance, however, I think that I would be assisted by knowing what the outcome is of the DFATS assessment and so I propose to defer sentence for a short period of a month in order to have the benefit of that and further submissions. So I will not proceed to the other aspects of the usual sentencing principles on which I have received submissions. I will defer the balance of that until a sentencing date. So, RM, if you could stand up please?
112I know I said at the beginning that I am sorry that it has taken so long to get to today. In fact it is going to be a bit longer. I am not going to decide today what your sentence is going to be because at the moment you are working well on your order and I want to see over the next couple of weeks or next few weeks what the appointment you had last Friday, what that brings up. I think that's very important for me to know before I decide what the sentence is going to be: if you are going to gaol, for how long or if you are remaining in the community. So there is going to be a further period of time before you come back and I hear more from the lawyers but I think that it is worth doing that for me to have as much material as I can to decide what to do. All right?
113ACCUSED: Yep.
114HER HONOUR: Yes just take a seat. So could I set that date now with counsel? In the meantime ‑ ‑ ‑
115MR GRACE: I'm just instructed, it could take up to six weeks, Your Honour, from the date of the assessment on 20 April.
116HER HONOUR: Yes.
117MR GRACE: So that'll take us through to early June.
118HER HONOUR: All right well what about in the week commencing 4 June I'm available any day except Friday, the 8th, at 10.30.
119MR GRACE: Could we make it Thursday, the 7th, Your Honour?
120HER HONOUR: The Thursday?
121MS RAMSAY: That's suitable, Your Honour.
122HER HONOUR: All right. That seems a suitable date for all of us.
123MR GRACE: Can we have an early start, Your Honour, is that possible?
124HER HONOUR: Meaning?
125MR GRACE: Nine or 9.30.
126HER HONOUR: Yes we can do that. I'm available at nine or 9.30.
Ms Ramsay?127MS RAMSAY: Yes, Your Honour.
128HER HONOUR: All right well we'll say 9.00 am and that will be for further plea and sentence. The sentencing remarks that I've outlined so far today will be revised and provided to the parties. I understand they are quite lengthy so that will enable counsel to absorb that more fully. 9.00 am is a very early start from Corella Place, that's still manageable?
129VOICE (from body of the court): 9.30 would be preferable depending on traffic but we could do it.
130HER HONOUR: Yes. Let's work on nine o'clock but if it's 9.30 I'll understand why. Yes so just for completeness. I can indicate I have had regard to s.83A of the Sentencing Act for deferral of sentencing and in particular the purposes under sub-s.1a, in effect allowing the capacity for prospects of rehabilitation to be assessed as well as potentially further participation in programs. Any other purpose that might be appropriate will be clear from the sentencing remarks that I have previously given this day.
131Pursuant to s.83A of the Sentencing Act, sentence is deferred to
7 June at 9.00 am. I do not think that there are any other orders that are required at this stage?132MR GRACE: No, Your Honour.
133HER HONOUR: All right well I thank counsel and everyone else for their assistance in this difficult matter.
134MR GRACE: Your Honour, the issue of the review of the residence condition ‑ ‑ ‑
135HER HONOUR: Yes.
136MR GRACE: ‑ ‑ ‑ if that can be deferred also too?
137HER HONOUR: Yes well that's still just adjourned to a date to be fixed.
138MR GRACE: Yes.
139HER HONOUR: So that can be addressed at some stage when it's suitable to the parties.
140MR GRACE: Thank you, Your Honour.
141HER HONOUR: Yes thank you, nine o'clock Thursday.
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