Director of Public Prosecutions v R, J

[2023] VCC 609

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-00521

DIRECTOR OF PUBLIC PROSECUTIONS

v

R, J

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	14 April 2023
DATE OF SENTENCE:	14 April 2023
CASE MAY BE CITED AS:	DPP v R, J
MEDIUM NEUTRAL CITATION:	[2023] VCC 609

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW – Sentence

Catchwords:  Breach of supervision order

Legislation Cited:  Serious Offenders Act 2018; s174

Cases Cited:        Bugmy v The Queen [2013] HCA 37

Sentence:  Convicted and sentenced to 30 days’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Kornhauser	The Office of Public Prosecutions
For the Accused	Mr B. Newton	Randles Cooper Lawyers

HIS HONOUR:

1RJ, this is a second breach of a supervision order imposed on you by Judge Hinchey on 7 October 2021.  I previously granted summary jurisdiction in this matter under the Serious Offenders Act. 

2You pleaded guilty through your counsel to two charges. The first one, Charge 1, being in possession of a prohibited drug, which was methylamphetamine. This breached condition 8.2 of your supervision order. The second one, is Charge 3, possession of pornography material, which was in breach of condition 8.7 of your supervision order. The offence date in Charge 3 was amended to reflect 15 March 2023 rather than 14 March 2023.  Charge 2 was withdrawn.

Circumstances of your offending

3On 14 March 2023 at Rivergum your unit was searched due to a previous incident of self-harm by you.  The Rivergum staff attended and they searched your unit.  They found razorblades and a noose that was located and seized within your unit, and also white crystal substance located underneath clothing which was seized.

4The next day, 15 March 2023, the Supervision Order Specialist Response Unit members attended. They tested the substance and found it to be methylamphetamine.  When you were in custody at the Ararat police station you were searched and in amongst your underwear a USB stick was found which contained pornography. I note here that it was clarified by the learned prosecutor, that the pornography material was of consensual adult pornography rather than something more sinister for example child pornography. The USB stick also had other television and movie shows, which were not described and not properly understood to be directly contrary to the rules of Rivergum or your supervision order.

5You were arrested, and provided an explanation to the police about the drugs stating simply that you would not use methylamphetamine because it has the wrong effect on the testosterone blocking medication that you are currently taking. You stated that you thought you had been set up by another member within the Rivergum unit.  Similarly, you said that it was not your
USB device containing the pornography but you had removed it from another resident’s television so you could watch Game of Thrones.

6You were charged and remanded in custody and you have been in custody since 15 March 2023, which means you have been in custody not including today for 30 days on these charges.  You have been dealt with for other matters in the interim.  I do not need to traverse those matters.

7The maximum penalties for each of these contraventions of the supervision order is two years on each charge.

8You have an extensive criminal history.  You also have a number of conditions that have impacted upon your personal wellbeing. 

Personal circumstances

9You have a moderate personality impairment.  You have suffered from an eating disorder, said to be anorexia.  You have a serious cardiac issue which is genetic in nature or origin, and unfortunately and very sadly, your mother passed away in July 2022 from that condition. You have personally suffered a number of emergency trips to hospital because of this condition and unless it can be properly moderated, this may be a frequent practice.

10You also have a history of self-harming behaviour.  You have had a grossly misfortune young life,  I accept that is an understatement, which is now the subject of litigation against the Department of Housing and Family Services. Your background enlivens Bugmy considerations.

11I note that by way of criminal history your first court appearance was two and a half weeks before your 16th birthday in the Children's Court and you have had regular periods of incarceration throughout youth and adult facilities.  As I have said before, your life is one of unfortunate circumstances involving drug use, sexual abuse, homelessness and very few positive influences or moments in your life.

Sentencing considerations

12I take into account your plea of guilty in these charges and that it has been a very early plea of guilty.  I take into account your clearly deprived upbringing. You enjoyed the support of your mother right up until she passed away.  I take into account your ill-health, which is serious to say the least.  I also take into account your transitioning from male to female and you are currently in male incarceration which is a very difficult circumstance for you.  Further, the recent medications you are taking to complete that transition have made it even more difficult for you whilst you are in custody.

13I take into account the seriousness of the offending.  On the surface the seriousness of offending is pretty minor, but it is, and I have to note, that the offending is in the context of a supervision order, so that for want of a better way of describing it, ramps up the seriousness of what would otherwise be not considered grossly serious offending. 

14You will be returned to Rivergum upon your release from custody, which should be today as I sentence you as follows:  you are convicted on both charges and I sentence you to an aggregate sentence in respect to Charges 1 and 3 to 30 days' imprisonment. I declare that you have served 30 days' pre-sentence detention.  That is, your sentence has been completed.

15Do you understand what I have just said?  Sorry, sorry.  Thanks.  Do you understand what I have just said?

16OFFENDER:  Yes, Your Honour.

17HIS HONOUR:  Thank you.  I wish you the best in the future, RJ.  You have got a difficult road in front of you.  Thanks counsel for your assistance.

18COUNSEL:  As Your Honour pleases.

19HIS HONOUR:  Yes, and I will sign this forfeiture order now.  I formally make the forfeiture order.  RJ, I am just going to leave the link open so you can speak to your counsel and I will ask - there will be just your counsel and my tipstaff in the courtroom.  Everyone else will be out, all right.

20OFFENDER:  Yeah.

21MR KORNHAUSER:  Your Honour, there is one further matter before
Your Honour leaves the Bench.

22HIS HONOUR:  Yes.

23MR KORNHAUSER:  Which is the s6AAA statement, unless I missed that.

24HIS HONOUR:  Yes, thanks. But for your plea of guilty, I would have sentenced you to two months’ imprisonment.

25MR KORNHAUSER:  As Your Honour pleases.

26HIS HONOUR:  I am just going to leave the link open.  It is only open for a short time I understand.  If you and your instructor can vacate the court.

27MR KORNHAUSER:  Yes.

28HIS HONOUR:  Just immediately I do.

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