Director of Public Prosecutions v MK

[2024] VCC 1855

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 24-01902

DIRECTOR OF PUBLIC PROSECUTIONS

v

MK

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JUDGE:	HIS HONOUR JUDGE PURCELL
WHERE HELD:	Melbourne
DATE OF HEARING:	8 November 2024
DATE OF SENTENCE:	8 November 2024
CASE MAY BE CITED AS:	DPP v MK
MEDIUM NEUTRAL CITATION:	[2024] VCC 1855

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW – Sentence

Catchwords:  Breach of interim supervision order

Sentence:  Convicted and fined $750

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Vingerhoets	Solicitor for the Office of Public Prosecutions
For the Accused	Ms D. Caruso	Hoffman Carroll Criminal Law

HIS HONOUR: 

1MK you have pleaded guilty to the single charge of breaching the interim supervision order which, as a result of the summary jurisdiction being granted, attracts a maximum penalty of two years' imprisonment or a fine of about $98,795.  I also note that you had pleaded guilty to the charge of using a drug of dependence, being methylamphetamine, for which you have been convicted at the Heidelberg Magistrates' Court and fined the amount of $500. 

2The circumstances of the offending that underpins the charge has been set out in the Amended Summary of Prosecution Opening which has been tendered on plea and I note is accepted by you.  I don't propose to set out the matters in detail in that, other than to say something very brief about it, because I consider something brief should be said about the circumstances leading up to the offending.  I note that in 2003 you were sentenced to a total period of 22 years and nine months for the index offending, that you had previously in August 2022 been released on parole but had been returned to custody in December 2023 in part because of drug use. 

3It is clear from the limited material for the plea that the use of amphetamine is a risk factor and has been an issue for you and subject to the index offending.  So while it is accurate to say that this is the first time you've been before the court for the breach of a supervision order, equally it's a breach which was within a relatively short period of time of the imposition for the first time of a supervision order.  so, putting it crudely, you have not covered yourself in glory by breaching within such a short period of time.  Nevertheless, the purpose of the supervision order is not to punish you. Rather it's the dual purpose to facilitate the primary purpose of reduction your risk of reoffending, but also, secondly, to promote your rehabilitation and treatment.  

4I accept the matters raised in the outline of submissions filed on your behalf.  I note that you pleaded guilty at the earliest stage and that is accepted by the Crown.  I accept that the breach is at a lower level of offending, but at the risk of repetition, the supervision order must and indeed has the dual purpose of protecting the community whilst allowing you to rehabilitate.  Again, at the risk of repetition, drug use has been a feature of the past offending and that is a fact that is relevant where the breach of the supervision order occurred within a matter of several weeks of the transition to Bundoora. 

5Nevertheless, I accept for the purposes of today that the early plea of guilty is a sign of remorse.  I accept that the sentence I should impose should not be crushing when it comes to prospects of rehabilitation or of a successful transition back into the community.  I take into account in a broad sense the fact that you've now been on remand for 17 days excluding today, and I am concerned that continuing incarceration may also defeat your prospects of rehabilitation.  Rehabilitation is a most critical factor but packaged up with that is also the critical factor of abstinence from drug use if you are to successfully rehabilitate. 

6As I said earlier, it's true to say this is the first breach of the supervision order, but where it occurred within a matter of weeks, I hope that this is an opportunity that you seize to make sure that this is not the first of a cascading return to drug use and further breach.  Your counsel suggested that a fine alone is the appropriate sentence.  The prosecution accepts that.  To be clear, frequently, for the breach of a supervision order, in particular situations where drug use is involved, the courts have considered, when considering both general and specific deterrence, that a custodial sentence is appropriate. 

7On this occasion, the submissions made on your behalf by your barrister, that a fine is appropriate, but to be clear, notwithstanding the concession or the submission on behalf of the Crown, I have gone dangerously close to imposing a custodial sentence. 

8At the risk of repetition, where the index offending, or rather given the nature of the index offending and the history of drug use, it is a line ball decision as to whether a fine is appropriate.  In respect to a fine, I take into account your financial situation.  I take into account that you will be released to Corella Place at least in the short term and it's going to be very difficult for you to obtain employment. 

9In the synthesis of all relevant sentencing considerations, MK, on the single charge of contravention of the supervision order, I sentence you to a fine of $750. For the purposes of s6AAA of the Sentencing Act 1991, I indicate that but for the early plea, I would have imposed a sentence of imprisonment for 25 days and a fine of $750. Before formally pronouncing those orders, I will check with the barristers as to whether there's anything else that needs to be done.

10MS VINGERHOETS:  Not, from the prosecution, Your Honour.

11MS CARUSO:  No, Your Honour.

12HIS HONOUR:  All right.  Well then, we will make orders to reflect what I have just said, namely the fine of $750, but other than the early plea, it would have been the imprisonment and the fine as indicated.  Now there will be someone participating in this link that will facilitate MK's transition to Corella Place.

13MS CARUSO:  I'm assuming so, Your Honour.

14HIS HONOUR:  Nothing we need to do about that?

15MS VINGERHOETS:  Yes, Your Honour.  The Post Sentence Branch is in attendance on the link and is aware.

16HIS HONOUR:  Yes, so as I recall the interim supervision order has a condition that gives them the power to do that, so I don't think I need to do anything else.

17MS VINGERHOETS:  No, Your Honour.

18HIS HONOUR:  All right.  This is twice I think now that you and I have met.  I believe you're meeting a different judge next Friday.  Take this in the spirit in which it's intended.  I hope you and I don't meet again, other than in circumstances where your rehabilitation is progressing.  Don't stuff it up.  All right.  Thank you, counsel.  We'll have those orders made as soon as we can.  As is clear, I've just got something else on the go at the same time so I'll return to that and we'll get this done as soon as we can.  We'll stand down temporarily.

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