Director of Public Prosecutions v RB (a pseudonym)

[2025] VSC 333

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2025 0092

DIRECTOR OF PUBLIC PROSECUTIONS

v 

RB (A PSEUDONYM)

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JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 June 2025
DATE OF SENTENCE:	12 June 2025
CASE MAY BE CITED AS:	DPP v RB (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2025] VSC 333

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CRIMINAL LAW – Contravention of condition of supervision order – Where accused had prior convictions for breaching interim supervision order – Where accused used methylamphetamine – Where plea of guilty entered at earliest opportunity - Where consequences of breach not significant – Whether to impose a period of imprisonment – Sentenced to 28 days imprisonment being time served - DPP v SM [2019] VSC 466 – DPP v SJW [2020] VSC 746 – DPP v XG [2023] VSC 127 – Serious Offenders Act 2018 (Vic) ss 14(1)(b), 169(1), 174(1) – Sentencing Act 1991 (Vic) ss 6AAA(1), 18(4), 109(3).

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Ms Courtney Bristow	Office of Public Prosecutions
For the Accused	Ms Melinda Walker	Melinda Walker – Criminal Law Solicitors

HIS HONOUR:

1. On 27 June 2008, you, RB[1], were sentenced to a term of 21 years imprisonment, with a non-parole period of 17 years, for the murder of your intimate partner.  According to the material relied upon at the sentencing hearing for that offence, the various acts of violence that led to her death were associated with drug use by you – either a drug-induced or a drug-aggravated psychosis - and your ‘principal drug of abuse’ was amphetamine.

   [1]A pseudonym is used in these reasons because on 16 April 2025 when making the Supervision Order the Court also ordered, pursuant to s 279 of the Serious Offenders Act 2018, that any information that might enable RB or his location to be identified must not be published until the next review of the Supervision Order is heard and determined, or the expiration or revocation of the Supervision Order, or further Order of the Court.

2. On 3 January 2025, you were released from prison on an Interim Supervision Order. On 16 April 2025, Champion J imposed a final Supervision Order under Pt 3 of the Serious Offenders Act 2018.  The Supervision Order imposed conditions that you not use or possess prohibited drugs, obtain drugs unlawfully or abuse drugs of any kind, and that you undergo drug testing at the direction of an officer who has reasonable grounds to suspect that you had breached the Supervision Order.

3. On 12 May 2025, you disclosed to your case manager that you had spent time with an associate known to be a prohibited drug user, and that you had been in a physical fight with your son. Your case manager advised you that, because of these disclosures, you may be directed to undertake urinalysis testing. At finding this out, you became ‘aggressive and hostile’ towards your case manager.

4. On 13 May 2025, you were directed to undertake urinalysis testing, and you did so. Your urinalysis sample returned a positive result for methylamphetamine, which is a prohibited drug.

5. On 15 May 2025, you were arrested and gave a ‘no comment’ interview. You were charged with breaching a condition of your Supervision Order, which is an offence under s 169(1) of the Serious Offenders Act 2018.  Shortly thereafter, you indicated that you would plead guilty to that charge. You have been in custody since 15 May 2025.

6. A breach of s 169(1) of the Serious Offenders Act 2018 is ordinarily punishable by  up to five years imprisonment or a fine of 600 penalty units, that is, $118,554.[2] Section 174(1) of the Serious Offenders Act 2018 provides that this Court may hear and determine summarily a charge for an offence against s 169 of the Serious Offenders Act 2018.

   [2]Serious Offenders Act 2018 (Vic), s 169(1); Sentencing Act 1991 (Vic), s 109(3).

7. You submitted, through your lawyers, that the Court should hear this matter summarily. The prosecution did not oppose that being done.  I agreed that this was appropriate.  Accordingly, I ordered that, pursuant to s 174 of the Serious Offenders Act 2018, Charge 1 on the Charge Sheet dated 15 May 2025, by which you are charged with breaching s 169(1) of the Serious Offenders Act 2018, be heard and determined summarily.  Another charge with withdrawn.  You then formally pleaded guilty to that offence in accordance with your earlier indication.

8. On conviction in a summary hearing, the maximum sentence is two years imprisonment or a fine of 500 penalty units, that is, $98,795. 

9. You are now 52 years old. You had a disadvantaged childhood.  You have a long history of substance abuse and of suffering from mental illness.  Your criminal record is significant and includes offences of violence (intentionally or recklessly causing injury in or about 1996, assaulting police, assault with an instrument and recklessly causing injury in or about 1999, intentionally causing serious injury and making threats to kill in or about 2001, and then murder in 2003) and multiple convictions for possessing and using cannabis and amphetamines. 

10. The fact that Supervision Orders have been made reflects the fact that you pose ‘an unacceptable risk of committing a ... serious violence offence ... if a supervision order is not made and [you are] in the community’.[3]  The risk to the community if you continue to use methylamphetamine must not be underestimated.  The conditions of the Supervision Order must be complied with.  While your submitted that you had experienced ‘difficulties adjusting’ to living in the community, there are otherwise no particular circumstances identified that minimise your culpability and degree of responsibility for the breach the terms of the Supervision Order.  I am not persuaded, on the balance of probabilities, that your breach was in response to an assault on you by your son.

    [3]Serious Offenders Act 2018 (Vic), s 14(1)(b).

11. In DPP v SM,[4] Elliot J considered that, where a contravention of a supervision order is ‘drug related’, it may be that repeated contraventions will be required before the Court imposes ‘even a short period of imprisonment’.[5]  This approach was followed by Tinney J in DPP v SJW.[6] In DPP v XG,[7] Croucher J noted the importance of the ‘longer-term aim of rehabilitation’, insofar as the secondary purpose of the Serious Offenders Act 2018 is ‘to facilitate the treatment and rehabilitation of offenders’.[8]  In declining to impose a term of imprisonment, Croucher J considered that such a sentence would be ‘more severe than that which is necessary’ and noted that XG had been afforded minimal opportunity to adjust to life in the community after serving a lengthy term of imprisonment.[9]

    [4][2019] VSC 466.

    [5]Ibid, [13].

    [6][2020] VSC 746, [36].

    [7][2023] VSC 127.

    [8]Ibid, [62]; Serious Offenders Act 2018 (Vic) s 1(b).

    [9]Director of Public Prosecutions v XG [2023] VSC 127, [62].

12. However, this is the third time that you have breached a condition of a Supervision Order made under the Serious Offenders Act 2018 since your release from prison on 3 January 2025:

    (a)On 7 February 2025, you pleaded guilty to contravening the Interim Supervision Order by using a drug of dependence, namely methylamphetamine. You were sentenced to 15 days imprisonment, by way of time served.

    (b)On 16 April 2025, you pleaded guilty and were sentenced in this Court for two charges of contravening the Interim Supervision Order by consuming alcohol and not submitting to urinalysis or oral fluid testing. You were sentenced to 21 days imprisonment, by way of time served.

13. The prosecution submits that a ‘modest term’ of imprisonment is warranted. Your counsel has not submitted otherwise, but has contended that any sentence of imprisonment imposed should equate to no more than the time already served by you on remand.  In the circumstances of this case where this is your third offence, I accept that a term of imprisonment is appropriate.

14. Any sentence imposed must adequately take into account the need to deter you from again breaching the Supervision Order.  The previous sentences of 15 days and 21 days, on both occasions being ‘time served’, have not prevented you from, a month later, again offending.  Not only is it important that you comply with the Supervision Order, but the risk of you engaging in violence is most likely to materialise in the context of any drug use by you.  Further, the contravention of a supervision order is a serious matter[10] and general deterrence is an important consideration if the supervision order regime is to be effective.[11]

    [10]Director of Public Prosecutions v  SM [2019] VSC 466, [11] (Elliot J); Director of Public Prosecutions v SJW [2020] VSC 746, [36] (Tinney J); R v Ta [2021] VSC 479, [9] (Taylor J).

    [11]Acting Secretary to the Department of Justice v McKane [2012] VSC 459, [21] (Williams J); Director of Public Prosecutions v SJW [2020] VSC 746, [25] (Tinney J); Director of Public Prosecutions v XG [2023] VSC 127, [23]-[24], [46] (Croucher J); Director of Public Prosecutions v DW [2023] VSC 143, [30] (Lasry J).

15. On the other hand:

    (a)your breach of the order was detected by reason of you volunteering that you had spent time with a peer known to be a user of illicit substances and so, at least to that extent, I accept that you have acted honestly in your dealings with those supervising you;

    (b)you indicated that you would plead of guilty at the earliest opportunity and have cooperated with authorities, and I am satisfied that this reflects a degree of remorse.  The entering of the plea has also resulted in a utilitarian benefit to the community by saving the time and expense of a criminal trial;

    (c)while on remand, you have been held in an area of the Melbourne Assessment Prison that required you to be ‘locked down’ for 23 hours a day. I accept that this period in custody has for this reason been difficult for you;

    (d)your residence was searched, and no ‘items of interest’ were located; and

    (e)the breach was not associated with any significant acts of violence by you, or for which you have been charged. 

16. I therefore treat this as a breach that did not cause significant consequences for the community or others with whom you have come into contact.

17. These factors must also be borne in mind.

18. RB, will you please stand. 

19. Taking into account and synthesising the above factors, and having regard also to the need to impose a sentence that is no more severe than is necessary to achieve the sentencing purposes, I record a conviction and sentence you to a term of imprisonment of 28 days.  In the circumstances of this case, I consider that the amount of time spent in custody to date represents an appropriate sentence.  I note that the time served on this occasion is longer than the time served on the two previous occasions, and also that it has been served in circumstances where you have been locked down for 23 hours a day.

20. Pursuant to s 18(4) of the Sentencing Act 1991, I declare that you have served a total of 28 days of pre-sentence detention, excluding today, and I direct that this be reckoned as time already served under the current sentence.

21. I state, for the purpose of s 6AAA(1) of the Sentencing Act 1991, that but for your plea of guilty I would have sentenced you to a term of imprisonment of six weeks.

22. Finally, I wish to emphasis that, in the event that you again breach a term of your Supervision Order, you should not assume that any sentence imposed will be no longer than time served.

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