Director of Public Prosecutions v RC (No 2)
[2023] VSC 422
•11 July 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
Criminal Division
S ECR 2023 0117 & S ECR 2023 0134
| Between: | |
| DIRECTOR OF PUBLIC PROSECUTIONS | |
| -and- | |
| RC | Accused |
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JUDGE: | Croucher J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 July 2023 |
DATE OF SENTENCE: | 11 July 2023 |
DATE OF REASONS: | 21 July 2023 |
CASE MAY BE CITED AS: | DPP v RC (No 2) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 422 |
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CRIMINAL LAW — Sentence — Breach of non‑contact condition of interim family violence intervention order (FVIO) by being with SM (accused’s partner) on multiple occasions — Breach of supervision order by breach of interim FVIO — Breach of bail by breach of supervision order — Rolled‑up charges — Mandatory imprisonment for 12 months for supervision order offence unless “special reason” exists — Whether “substantial and compelling circumstances that are exceptional and rare” amounting to “special reason” — SM, in dire straits, wanted accused’s presence — Accused provided SM with succour, and necessities — No violence when accused with SM — SM has extant application to revoke interim FVIO, but police oppose — Were FVIO a final order, non‑contact condition could not exist because SM does not consent to it — Low level instances of offences — No evidence of illicit drug use — Accused compliant with anti‑psychotic medication — Whether “special reason” because of risk of decline in accused’s mental health if imprisoned — DPP concedes mandatory 12‑month prison term would be “intolerably unjust” — Special reason test met on both bases — Early pleas of guilty — Extensive criminal history but stable accommodation, employment and mental health for 18 months — Triple punishment — Parsimony — Sentencing purposes met by aggregate fine of $1,000, with conviction — Family Violence Protection Act 2008 (Vic), ss 75, 81 & 123; Serious Offenders Act 2018 (Vic), ss 1, 3, 5, 34, 169 & 173‑176 & Schedule 3; Bail Act 1977 (Vic), s 30B; Sentencing Act 1991 (Vic), ss 5, 6AAA, 10AB, 10A, 51, 52 & 113; Mental Health Act 2014 (Vic), ss 3, 4, 52 & 275.
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| APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J Warren | Abbey Hogan, Solicitor for Public Prosecutions |
| For the Accused | Ms J Hotchkin | Stephen Peterson Lawyers |
HIS HONOUR:
Overview
In part, this is a story of love, and what a couple will risk for it. It is also a cautionary tale about the inexpedience in punishing a man more for what he might have done than what he actually did.
In spite of an interim family violence intervention order (“FVIO”) prohibiting contact between them, RC dared to be with his partner SM several times.[1] While the purpose of the order was to protect SM because of a concern that RC may have been violent to her on a previous occasion, there was not a hint of violence on these occasions. Instead, RC was with SM because she welcomed his presence, and so that he could provide her with succour in a time of adversity. But added to RC’s predicament was that this behaviour placed him in triple jeopardy, because it had the cascading effect of breaching a supervision order and an order granting him bail as well.
[1]Pursuant to a previous order of this Court, the accused’s name must be anonymised, and his address must not be revealed. For related reasons, I have done the same vis‑à‑vis SM.
On the application of ordinary sentencing principles, none of the offences RC committed by breaching these orders is serious enough to warrant imprisonment. Yet central to the sentencing task here is a statutory provision which commands that, unless there is a “special reason” justifying a different disposition, RC must be imprisoned for at least 12 months for his breach of the supervision order. But, as the prosecutor Ms Warren put it so aptly, that would be “an intolerably unjust outcome” in this case.
While the legislature has allowed that there will be relief from intolerable results where there are “substantial and compelling circumstances that are exceptional and rare”, it has been said that that test is almost impossible to satisfy. Happily, however, I am persuaded that it is met in the unique circumstances of this case.
In the result, RC will not be imprisoned for his breaches of court orders by acts of love and support that harmed not a soul but himself. For, at the very least, his behaviour has still cost him convictions for three offences, a fine of $1,000, and 24 days spent on remand. It also put at risk his hard‑won gains vis‑à‑vis his accommodation, employment, and stability in mental health, all of which have been, and are likely to remain, critical to his rehabilitation.
RC’s reform should be encouraged by allowing him to continue his good progress on the supervision order, not thwarted by condemning him to the potentially destructive effects of further incarceration. The former approach is, I think, more likely to protect the community in the longer run.
The full story goes something like this.[2]
[2]On 11 July, I gave brief ex tempore reasons for sentence, but indicated that I would publish something more detailed later. These are those reasons, which I have left mostly in the present tense.
Background
RC’s criminal, psychiatric and personal history[3]
[3]The history that follows is taken largely from my reasons for sentence imposed on RC in another matter on 18 May 2023. See DPP v RC [2023] VSC 312, and below.
RC, now 43, has a lengthy criminal history for a range of offences, including some involving serious acts of violence.
For example, after stabbing a stranger to the neck while on a tram and affected by illicit drugs, in 2013, he was sentenced in the County Court to five years’ imprisonment with a non‑parole period of two years and nine months for recklessly causing serious injury.
Subsequently, while on parole, after an altercation with his neighbour, RC forced his way into his neighbour’s unit and stabbed him to his upper body three times with a screwdriver. As a result, in 2018, for offences including aggravated burglary and intentionally causing injury, he was sentenced in the County Court to a total effective term of three years’ imprisonment with a non‑parole period of 18 months.
RC ended up serving the entirety of both sentences. Thus, for around eight years out of the past decade, he has been in prison.
He also has a history of poor mental health, which has included suffering from psychotic symptoms arising from his schizoaffective disorder.
After RC’s release from prison, in April 2021, a judge of the County Court imposed on him an interim supervision order under the Serious Offenders Act 2018 (Vic) (“the SOA”). This order included a condition requiring RC to reside at Rivergum (which is a secure residential treatment facility).
In July 2021, as his mental health deteriorated, RC was placed on a secure treatment order pursuant to s 275 of the Mental Health Act 2014 (Vic), and was transferred to Thomas Embling Hospital.
In October 2021, he was released into the community again on an interim supervision order, which, on this occasion, was made in this Court by Beale J. At the same time, RC was also subject to a community treatment order pursuant to s 52 of the Mental Health Act, which involved administration of depot injections to treat his psychotic symptoms.
Shortly after his release, RC committed an offence, contrary to s 169(1) of the SOA, of breaching a condition of his interim supervision order. He did so by using methamphetamine. As a result, on 22 November 2021, he was sentenced by Beale J to 21 days’ imprisonment. This was the period he had spent in custody to that date. Accordingly, he was released into the community again.
On 7 February 2022, Beale J placed RC on a supervision order for five years. For the purposes of the SOA, he was an “eligible offender” because of his sentence back in 2013 for recklessly causing serious injury. In addition, his Honour was satisfied that RC posed an unacceptable risk of committing a “serious violence offence” if he remained in the community without the strictures of a supervision order.
Since the imposition of that order, in the main, RC has done very well in the community. He has maintained full‑time employment as a labourer in a large civil contracting company. He obtained his driver’s licence, and saved for — and bought — a car, which he uses to get to work and attend various appointments under his supervision order. Recently, he took over the private lease on his home, which had initially been rented with assistance from his case worker under the supervision order. He has been managing his own finances with success, including paying all living costs and rent. He has continued to take his prescribed anti‑psychotic medication, and his mental health has remained stable. Aside from the next incident I shall address, he has been free of illicit drugs.
On 9 May this year, however, RC had a minor setback with respect to drug use. He reported this use to those administering his supervision order. On 11 May, following testing that confirmed his self‑report, RC was arrested, charged, and held in custody until 18 May, when he pleaded guilty in this Court to an offence of breaching a condition of his supervision order because of his use of methamphetamine, albeit on just the one occasion. This offence was committed in less culpable circumstances than his earlier breach of the interim supervision order, and against a background of stability and rehabilitation since February 2022. I recorded a conviction and fined him $100, thereby releasing him back into the community.
Interim FVIO
The day before that appearance, on 17 May, police applied to the Magistrates’ Court, and obtained, an interim FVIO against RC for the protection of SM.
At the hearing of the application for the interim order, it was alleged that, on 8 May, RC woke SM and accused her of stealing his mobile phone. It was said that he became violent and forced SM’s head into a tap, causing a large bump and bruising, and then told her to leave his home.
Although, on 8 May, SM attended a police station to report the incident, she declined to make a formal statement. Later that day, RC was arrested and interviewed. He was bailed to appear at the Magistrates’ Court on 17 May, but no criminal charge has been laid in connection with that alleged incident. (It seems that it was in the wake of, and/or in connection with, this alleged incident that he used the methamphetamine, on the one occasion, that led to his arrest on 11 May and the offence of breaching his supervision order that I dealt with on 18 May.)
In addition to the usual condition prohibiting family violence, most important for present purposes is the fact that the interim FVIO prohibits RC from contacting or communicating with SM by any means, approaching or remaining within five metres of her, or being within 200 metres of any place where she lives or works.
SM does not want the FVIO
Whatever the truth may be, the facts giving rise to the interim FVIO remain unproven. I say this for the following reasons.
First, at every turn, SM has declined to make a statement to police against RC in support of either any potential criminal charge arising out of that alleged incident or the making of a final FVIO.
Secondly, whatever she may have desired when she went to the police initially, since the imposition of the order, or perhaps even before, SM has not wanted any restriction on RC’s contact with her. In fact, on the evidence and submissions I have heard, I am satisfied that she wants him to be with her.
Thirdly, part of that evidence includes the fact that, on 31 May, SM and RC attended the Magistrates’ Court and expressed a desire to have contact with one another. Despite this, the interim FVIO remained in place, without variation.
Finally, another part of that evidence is the fact that, on 16 June, SM even filed an application with the Magistrates’ Court to revoke the interim FVIO. In the application, she stated, among other things, that “the allegations made are untrue”.
But all of this has been to no avail, at least so far, as police continue to oppose SM’s application for revocation. Further, while the hearing of the application has been abridged from 9 August to 26 July, it seems that the interim FVIO will remain in place for at least another fortnight, notwithstanding SM’s wishes to the contrary.
The offending
It is against that background that RC committed the offences in respect of which he now stands for sentence.
Despite the non‑contact conditions of the interim FVIO, it seems that the pull of love and companionship could not keep RC and SM apart, for on 8 June they set off together on a road trip to Bright in the picturesque north‑east of this State. This was easily detected by the authorities, because RC’s movements are monitored via an ankle bracelet he must wear as a condition of his supervision order.
While there may have been some confusion in the couple’s minds about the status or conditions of the interim FVIO following their attendance at the Magistrates’ Court on 31 May, RC now accepts that their being together on 8 June amounted to the commission of the summary offence of breaching that order.[4]
[4]Contrary to s 123(2) of the Family Violence Protection Act 2008 (Vic).
But, more than that, RC was doubly in trouble, because his offence of breaching the interim order also amounted to another instance of the offence of breaching a condition of the supervision order — and this time, a restrictive condition of the order, the added significance of which I shall explain shortly.
In consequence, he was arrested by police, taken to Wangaratta, and charged with both offences.
Surprisingly, it might be thought, RC remained in custody for 15 days until 22 June, when the matter reached this Court. The same day, I granted his application for bail. By that time, he well understood that, despite SM’s desire, and her extant application, to revoke the interim FVIO, he was not allowed to be with her unless and until that order was either revoked or varied by removing the non‑contact conditions.
During the previous fortnight that RC was in custody, SM lived at his home. She was, however, in a bad way. As she explained in her written application to revoke the interim FVIO, she suffers from rheumatoid arthritis, PTSD, and bipolar disorder. Plaintively, she described RC as her “partner and only friend in Victoria”. She had nowhere else to go. It is also apparent that she was battling drug addiction at the time.
Upon RC’s release on bail, he returned to his home in accordance with the conditions of his supervision order. While it would be contrary to their wishes, because of the conditions of the interim FVIO, he and SM agreed that they had to be separated. This meant that, because RC had to reside at his home, SM now had to move out. Unfortunately, a room in a motel was the only available option for her at that time, which is where she went.
But, despite the interim FVIO, over the next three days after being bailed (namely, 23, 24 and 25 June), RC went to see SM at the motel for brief periods. He did this out of concern for his partner, particularly in light of her parlous state and precarious circumstances. Thus, he took her supplies and checked on her welfare. As he explained on a second bail application last week, RC helped finance SM’s stay at the motel. He also made sure that her room was adequate and clean, and promised her he would come each day and give her money for food and other necessities, which he did. He was concerned that SM should maintain her health and stability so that she would be in a reasonably fit state to begin a stint in the residential drug rehabilitation facility that had been organised for her. So, on one occasion, concerned about her lack of Vitamin D as a result of being cooped up in the motel room, he took her out to the park to get some sun.[5] Otherwise, his visits were for only a matter of minutes at a time.
[5]There was also an unconfirmed suggestion by RC that SM may have been pregnant. However, in the circumstances of this case, I find it unnecessary to determine whether that was so.
But, equally, each time RC was in SM’s presence over those three days, he was again committing the summary offence of breaching the interim FVIO. This in turn meant he was again committing the indictable offence of breaching a condition of his supervision order. And, because he was now on bail, this in turn meant he was committing yet another offence by the very same conduct — namely, committing an indictable offence (that of breaching the supervision order) while on bail.[6]
[6]Contrary to s 30B of the Bail Act 1977 (Vic).
RC knew he was in breach of these orders. But, to him, love, and his moral obligation to service a greater need, had to triumph over the strictures of court‑imposed conditions which SM neither wanted nor (as it turns out) needed, and whatever risk to his liberty this might entail.
As a result of RC’s behaviour, on 27 June, police thought it fit to arrest and charge him again, this time with multiple instances of those three different types of offence. And prosecutorial discretion was exercised to persist in those charges, albeit, as we shall see, they were ultimately reduced in number and put in a rolled‑up fashion.
RC was held in custody again, this time for nine days, until 5 July. On that day, I granted him bail again, this time to appear here today, 11 July, for what was foreshadowed to be a summary plea hearing.
Rolled‑up charges; summary jurisdiction; pleas of guilty; priors admitted
And so it was that, this morning, Ms Warren, who appeared for the Director of Public Prosecutions, applied to withdraw all but three of the 14 charges that had been laid in the two separate matters before the Court. She also applied to amend the dates of two of the remaining charges to span the period of his breaches of the orders. Ms Hotchkin, who appeared for RC, had no objection to these applications, which were granted.
The result was that RC was left to face three rolled‑up charges embracing the events I have just described: one charge of breaching the interim FVIO (between 8 and 25 June), one of breaching the supervision order (again, between 8 and 25 June), and one of offending while on bail (between 23 and 25 June).
Next, I granted Ms Hotchkin’s application to have the charges heard summarily,[7] which was not opposed.
[7]See ss 173‑176 of the Serious Offenders Act 2018 (Vic).
Then, through Ms Hotchkin, RC pleaded guilty to each charge, and admitted his extensive history of prior convictions.
Ms Warren tendered a summary of the prosecution case, the substance of which is reflected in the foregoing outline.
Ms Hotchkin then delivered a plea in mitigation.
Both counsel made very thoughtful and persuasive submissions (orally and in writing), especially on the curly question whether there is a “special reason” within the meaning of the relevant provisions, to which I shall come shortly.
Maximum penalties
Before addressing that issue, however, I should note that the maximum penalty for an offence of contravening an FVIO is two years’ imprisonment.[8]
[8]See s 123(2) of the Family Violence Protection Act 2008 (Vic).
The indictable offence of contravening a condition of a supervision order is punishable by a maximum penalty of five years’ imprisonment.[9] If such a charge is heard and determined summarily, as here, the maximum term of imprisonment which this Court may impose is two years.[10]
[9]See s 169(1) of the Serious Offenders Act 2018 (Vic).
[10]See s 174(4) of the Serious Offenders Act 2018 (Vic); and s 113(1) of the Sentencing Act 1991 (Vic).
And the maximum penalty for an offence of committing an indictable offence while on bail is three months’ imprisonment.[11]
Whether special reason exists
[11]See s 30B of the Bail Act 1977 (Vic).
Relevant provisions
I turn now to the question of whether a special reason exists so as to deny the mandatory imposition of a 12‑month prison sentence for RC’s supervision order offence. I shall commence with the relevant statutory provisions.
Section 10AB(1) of the Sentencing Act 1991 (Vic) provides that, subject to s 10AB(2), in sentencing an offender for an offence against s 169 of the SOA, “a court must impose a term of imprisonment of not less than 12 months unless the court finds under [s] 10A that a special reason exists”.
Relevantly, s 10AB(2) provides that s 10AB(1) applies only if the court is satisfied beyond reasonable doubt that the offender “intentionally or recklessly contravened a restrictive condition of the supervision order”.
Ms Hotchkin indicated that there is no dispute that RC contravened the relevant condition intentionally or recklessly.[12]
[12]That said, while there could be no reasonable doubt that he did so after being granted bail on 22 June 2023, there may have been argument that there was a reasonable possibility that his state of mind on 8 June denied proof of the intention or recklessness required. If there had been such an argument, that may have raised a nice question whether the “intentionally or recklessly” requirement could be regarded as satisfied in this case notwithstanding that, on this hypothesis, one of the instances of the contravention of the restrictive condition forming the rolled‑up charge was not committed intentionally or recklessly whereas the others were. It became unnecessary to answer that question in this case. In those circumstances, and given that I neither heard argument on the point nor raised it with the parties, I shall not, and should not, attempt to resolve it now.
A “restrictive condition” includes a “core condition” referred to in s 34(2) of the SOA, which provides that the offender must not commit an offence referred to in Schedule 3. The offence of contravening an FVIO is one of the many offences referred to in that schedule.[13]
[13]See item 4(c) of Schedule 3 of the Serious Offenders Act 2018 (Vic).
Pursuant to s 10A(2) of the Sentencing Act, relevantly to this case, a court may make a finding that a special reason exists if:[14]
[14]Section 10A(4) provides that, if a court makes a finding under s 10A(2), it must state in writing the special reason and cause that reason to be entered in the records of the court. These are those reasons.
(c)the offender proves on the balance of probabilities that—
…
(ii)he or she has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment; or
…
(e)there are substantial and compelling circumstances that are exceptional and rare and that justify doing so.
Section 10A(2B) provides that, in determining whether there are substantial and compelling circumstances under s 10A(2)(e), the court:
(a)must regard general deterrence and denunciation of the offender’s conduct as having greater importance than the other purposes set out in section 5(1); and
(b)must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and
(c) must not have regard to—
(i)the offender’s previous good character (other than an absence of previous convictions or findings of guilt); or
(ii) an early guilty plea; or
(iii) prospects of rehabilitation; or
(iv) parity with other sentences.
Additionally, s 10A(3) provides that, in determining whether there are substantial and compelling circumstances under s 10A(2)(e), the court must have regard to:
(ac)the Parliament’s intention that a sentence of imprisonment of not less than 12 months should ordinarily be imposed for an offence covered by section 10AB; and
…
(b)whether the cumulative impact of the circumstances of the case would justify a departure from that sentence and, where relevant, minimum non‑parole period.
Authorities on “substantial and compelling circumstances that are exceptional and rare”
Helpfully, in the course of their submissions, both counsel referred in particular to three decisions of the Court of Appeal that bear on the test in s 10A(2)(e) and the related provisions.
In 2020, in Farmer v The Queen,[15] when speaking of s 5(2H)(e) of the Sentencing Act, which employs the same test as in s 10A(2)(e), in their joint judgment, Maxwell P, Kaye and Niall JJA said this:
[51] Within the context of s 5(2H), paragraph (e) is a residual category of limited scope. On any view, it is a very high hurdle that will not often be surmounted. ….
[52] … In some cases, the operation of s 5(2H) will be harsh. In other cases, a term of imprisonment … would be entirely unjustified, counterproductive from the viewpoint of rehabilitation and work a serious injustice. That may be particularly so for young offenders. To a degree, paragraph (2H)(e) guards against the risk of injustice. But the stringency of the test cannot be avoided.
[15]Farmer v The Queen [2020] VSCA 140 at [51]‑[52].
In 2022, in Buckley v The Queen,[16] when addressing the same provision, Maxwell P and T Forrest JA (in a joint judgment) put it in this way:
[3] As this Court said recently, ‘that requirement is — no doubt quite deliberately — almost impossible to satisfy’.[17] Assuming that there is a difference between ‘exceptional’ and ‘rare’, the inclusion of both words exposes the legislature’s clear intention that, in nearly every case to which the mandatory sentencing provisions apply, the offender should go to gaol.
[4] In deciding whether this near‑impossible test is satisfied, the court is expressly prohibited from taking into account the offender’s previous good character, prospects of rehabilitation and (if relevant) early plea of guilty, and must disregard ‘parity with other sentences’. In any other case, those considerations would be of critical importance to the determination of a sentence which punishes the offender ‘to an extent and in a manner which is just in all of the circumstances’, as referred to in s 5(1) of the Sentencing Act.
[16]Buckley v The Queen [2022] VSCA 138 at [3]‑[4] (one footnote omitted).
[17]DPP v Bowen [2021] VSCA 355 at [11] (per Maxwell P, Priest, McLeish, T Forrest and Walker JJA).
Two months later, in DPP v Lombardo,[18] the Court of Appeal was called upon to consider the same provisions in the context of a Director’s appeal against a non‑custodial sentence imposed for an offence of dangerous driving causing death.
[18]DPP v Lombardo [2022] VSCA 204.
In their joint judgment, McLeish, Niall and Kennedy JJA said that the phrase “exceptional and rare” refers to “circumstances that are wholly outside the ordinary factors typical of the relevant offence”.[19]
[19]DPP v Lombardo [2022] VSCA 204 at [71].
In their Honours’ view:[20]
[72] Applying the two steps of the mandated analysis calls for the sentencing judge to make an ‘evaluative judgment’ once the underlying facts have been established, and unaffected by notions of burden of proof.[21] It is possible that a set of circumstances may engage the exception in combination, even where the constituent circumstances are mainly, or even wholly, ‘relatively common’.[22]
[20]DPP v Lombardo [2022] VSCA 204 at [72].
[21]Citing Fariah v The Queen [2021] VSCA 213 at [24]‑[25] (per Priest and Beach JJA).
[22]Citing Fariah v The Queen [2021] VSCA 213 at [24]‑[25] (per Priest and Beach JJA); and see also Farmer v The Queen [2020] VSCA 140 at [55]‑[56] & [65]‑[66] (per Maxwell P, Kaye and Niall JJA).
When discussing the application of the “substantial and compelling circumstances” step in the case before them, their Honours’ observations included the following:[23]
[81] The personal circumstances of the respondent are of the most mitigating kind. He is youthful and has no criminal past. He took immediate responsibility for his conduct and its terrible consequences, by which he is naturally haunted. His plea of guilty is evidence of his taking of responsibility and his remorse. He has strong family, social and employment supports. He also has … symptoms of anxiety and post‑traumatic stress …, which are likely to be exacerbated if he is imprisoned and to make prison more difficult than it would otherwise be, as a result.
[82] We do not accept the Director’s submissions that some of these considerations are foreclosed by s 5(2HC)(c). In particular, most of these matters bear on specific deterrence and the need to protect the community from the offender, which remain relevant sentencing considerations. They may be taken into account without treating them as bearing on the respondent’s prospects of rehabilitation. His guilty plea is also relevant, without taking into account its early character.
[83] Moreover, the legislative injunction to give less weight to these matters and more to the nature and gravity of the offence does not dictate an answer to the ultimate question where the balance lies. To the contrary, in a case such as the present where the respondent’s moral culpability is low and the offending is agreed to be at the lower end of the range for the offence, consideration of the ‘nature and gravity of the offence’ tends to justify rather than negate the invoking of the exception.
…
[85] Finally, we also do not consider that the requirement to regard general deterrence and denunciation of the offender’s conduct as more important than other sentencing purposes points to any different conclusion regarding ‘substantial and compelling circumstances’. General deterrence and denunciation are always important in these cases, which is why non‑custodial sentences are exceptional. But the strength of those considerations, again, is influenced by the nature and gravity of the offending. They are stronger in cases where the offending is more egregious.
[23]DPP v Lombardo [2022] VSCA 204 at [81]‑[83] & [85] (footnotes omitted).
Finally, when discussing whether the sentence was manifestly inadequate, the Court in Lombardo said this, among other things:[24]
[97] It should be noted that, whether or not an exception in s 5(2H) applies, nothing in s 5(2H) limits the relevant sentencing considerations or requires particular weight to be accorded to any individual matter. Sections 5(2HC) and 5(2I) are expressly directed to the issue whether substantial and compelling circumstances exist and are silent as to the application of the instinctive sentencing synthesis. Subsections 5(3) and (4) make it plain that, subject to the requirement for a custodial sentence in s 5(2H) (where applicable), ordinary principles of parsimony and proportionality apply. This means that there is no statutory requirement that a sentencing judge, in a case where an exception applies, leans towards a term of imprisonment — quite the opposite.
[24]DPP v Lombardo [2022] VSCA 204 at [97].
I note that ss 5(2H)(c) and (e), 5(2HC), and 5(2I)(a) and (b) of the Sentencing Act are the respective equivalents of ss 10A(2)(c) and (e), 10A(2B), and 10A(3)(ac) and (b).
Whether “substantial and compelling circumstances that are exceptional and rare”
While Ms Hotchkin and Ms Warren may have varied in their emphases, both submitted that, for a combination of reasons, it is open in this case to conclude that there are, within the meaning of s 10A(2)(e), “substantial and compelling circumstances that are exceptional and rare” that would justify a finding that a special reason exists. This, then, would deny the mandatory imposition of a term of imprisonment of not less than 12 months on the supervision order offence otherwise provided by operation of the terms of s 10AB(1). For reasons that follow, I accept those submissions.
First, the offence which gives rise to the supervision order offence (namely, that of breaching the interim FVIO), albeit constituted by several instances of breaching that order, is only a very minor example of that offence on the scale of gravity. This is so for several reasons. First, the offence of breaching an FVIO can be committed in many different ways, ranging from merely contacting a protected person via, say, a phone call, to being near his or her home or place of work, to being in his or her presence, to harassment, to committing verbal or physical violence, or to engaging another to do any of these things. Merely to have been in SM’s presence was at the lower end of this scale of behaviour. Secondly, there was not even a hint of violence or intimidation or the like when RC was with SM on the occasions forming the factual basis for the charge. Thirdly, RC was with SM for only a matter of minutes on all but one of the visits between 23 and 25 June, which was when he took her out for some sun. Fourthly, RC believed that SM consented to his presence on all occasions, which she did, and he was only with her out of love and concern to assist and give succour in a time of adversity for her. Finally, despite police opposition, SM did not want the order in place.
Secondly, in the main, the offences (listed in Schedule 3 of the SOA) the commission of which may amount to a contravention of a restrictive condition of a supervision order, thereby attracting the mandatory 12‑month prison sentence,[25] involve causing injury, serious injury or death, a display of violence, causing property damage, threats of violence or property damage, endangerment, or use of firearms to commit offences, or other behaviour usually regarded as far more serious than an offence of breaching an FVIO. Thus, RC’s offence against s 169(1) is constituted by a comparatively minor instance of an offence in the less serious (perhaps the least serious) category of offences that might give rise to a breach of a restrictive condition of a supervision order.
[25]Remembering also that the mandatory provision “applies only if the court is satisfied beyond reasonable doubt that the offender intentionally or recklessly contravened a restrictive condition of the supervision order” (see s 10AB(2) of the Sentencing Act 1991 (Vic); and see above).
Thirdly, as Ms Hotchkin explained, while the Magistrates’ Court has broad powers to make an interim FVIO necessary to ensure the safety of an affected family member, the court’s powers are more limited when making a final FVIO. Thus, pursuant to s 75 of the Family Violence Protection Act 2008 (Vic), while the court may still make a final FVIO without the consent of the affected family member, it is limited to imposing the conditions listed in s 81(2), which list excludes any of the non‑contact conditions RC could be said to have breached on the occasions in issue. Thus, had SM’s wishes been honoured when she and RC attended the Magistrates’ Court on 31 May, even if, contrary to those wishes in part, a final FVIO had been made, the order could not have contained non‑contact conditions. In those circumstances, by merely being with SM on the charged occasions, RC could not have committed any breach of the FVIO and, therefore, could not have been in breach of his supervision order either.
I hasten to add that, in considering these factors, I have not ignored the protective purposes for the interim FVIO and the supervision order, and the risks they are designed to curtail. Ms Warren was right to emphasise these matters, particularly in light of the concerns which led to the making of the interim FVIO and the evidence and findings that led to the making of the supervision order.
But, in the end, the gravity of RC’s offence of breaching his supervision order (and his other offences), and the appropriate punishment to be imposed by way of sentence, must reflect not what it is feared he might have done because of those concerns but what he actually did, and the surrounding circumstances in which he engaged in that behaviour.
I am persuaded that the foregoing three factors amount to “substantial and compelling circumstances”, within the meaning of s 10A(2)(e) of the Sentencing Act, that go to the nature and gravity of RC’s particular offence of breaching a restrictive condition of a supervision order.
In coming to this view, I have considered the matters listed in s 10A(2B), including the injunction in paragraph (a) that I must regard general deterrence and denunciation of RC’s conduct as having greater importance than the other purposes set out in s 5(1) of the Sentencing Act. I have also considered the injunction in paragraph (b) to give less weight to his personal circumstances than to other matters such as the nature and gravity of the offence. However, consistent with the Court’s observations in Lombardo, I think that, where RC’s moral culpability is low (which it must be) and the offending is agreed to be very much at the lower end of the range for the offence (as it is here), consideration of the “nature and gravity of the offence” tends to justify rather than negate the invoking of the exception in s 10A(2)(e) via s 10AB(1).[26]
[26]DPP v Lombardo [2022] VSCA 204 at [83].
Further, pursuant to s 10A(3), I have had regard both to Parliament’s intention that a sentence of imprisonment of 12 months or more should ordinarily be imposed for an offence covered by s 10AB, and to the question whether the cumulative impact of the circumstances of the case would justify a departure from that sentence. I am confident that this is not a case in which Parliament would have contemplated that mandatory imprisonment should be imposed. On the contrary, the cumulative impact of those three factors does, in my judgment, justify a departure from such a sentence.
In addition, to employ the words of the Court in Lombardo again, I regard those factors as “wholly outside the ordinary factors typical of [that offence]”,[27] and in that sense they also amount to circumstances that are “exceptional and rare” within the meaning of s 10A(2)(e).
[27]DPP v Lombardo [2022] VSCA 204 at [71].
It follows that I am persuaded that the three factors I have mentioned thus far are enough to satisfy the “special reason” test in s 10A(2)(e), and therefore to engage the exception in s 10AB(1).
But, if need be, there are more factors that combine to satisfy the test.
Thus, the fourth point is that, relevantly, the purposes of the SOA (as set out in s 1) are, primarily, to provide for enhanced protection of the community by requiring offenders who have served custodial sentences for certain serious violence offences and who present an unacceptable risk of harm to the community to be subject to ongoing supervision; and, secondly, to facilitate the treatment and rehabilitation of those offenders.[28] While imprisonment will protect the community from RC in the short term, it is doubtful that it would do so in the longer term. Instead, imprisoning him now, and for such a minor instance of breaching his supervision order, would risk undoing the impressive rehabilitative gains he has made in the last 18 months. It will be, I think, far better for both RC and the community in the longer run, if he is allowed to remain in the community so that he can continue his path towards reform — which is manifested by his stable accommodation, employment and mental health — under the strictures of the supervision order.
[28]I also note s 5 of the Serious Offenders Act 2018 (Vic), which provides that, “[in] making any decision under this Act, a person or body must give paramount consideration to the safety and protection of the community”. Query whether this provision extends to sentencing for offences contrary to the Act, such as an offence against s 169(1). It is, however, unnecessary to decide the point, given the purposes of the Act set out in s 1, and also the purposes of and guidelines for sentencing set out in s 5 of the Sentencing Act 1991 (Vic) (as they may be qualified by ss 10AB and 10A).
Fifthly, as Ms Warren conceded, there is no evidence that RC was using illicit drugs on any of the occasions on which he was with SM. It will be remembered that his serious offence of violence back in 2013 was associated, at least in part, with illicit drug use. Thus, there was no danger that on the present occasions he might have acted inappropriately by being affected adversely by illicit drug use.
Finally, RC was, and remains, compliant with his anti‑psychotic medication. In fact, the only material alteration to his medication has been determined in consultation with his treating psychiatrist. In particular, in response to RC’s concerns that the side‑effects of his medication were potentially affecting his safety at work, his psychiatrist adjusted his medication accordingly.
When all of the foregoing factors are considered in combination, I am satisfied that there are substantial and compelling circumstances that are exceptional and rare that justify a finding that a special reason exists. In this way, the mandatory imposition of a sentence of imprisonment of 12 months or more on the supervision order offence is denied.
Whether risk of deterioration in mental health if imprisoned
Ms Hotchkin submitted, and Ms Warren conceded, that, given RC’s previous history of mental ill‑health, including being transferred from Rivergum to Thomas Embling Hospital in the past and being placed on orders under the Mental Health Act, there is a risk that imprisonment for any substantial period would cause a significant deterioration in his mental health.
Both counsel submitted that, in those circumstances, it was open to find that the test in s 10A(2)(c)(ii) of the Sentencing Act was satisfied, which is another independent basis for finding that a special reason exists.
Equally, in the next breath, both accepted that the evidence may be a bit thin on the point. Ms Hotchkin raised the possibility that, if I were not satisfied that the test in s 10A(2)(e) had been met, then I might consider adjourning the matter so that she might obtain and put on more up‑to‑date evidence in an attempt to satisfy the test in s 10A(2)(c)(ii).
In addition, it was submitted that a finding of this kind could also be another factor, in combination with the others, leading to satisfaction of the test in s 10A(2)(e). It is, however, unnecessary to decide this point because of my conclusion that the other matters identified are already sufficient to meet the test in s 10A(2)(e).
That said, and notwithstanding that the evidence may be thin, I am satisfied that a special reason also exists under s 10A(2)(c)(ii) in any event. While it would have been preferable to have more recent evidence on the issue, there is sufficient evidence before me, and in the history disclosed in the reasons of this Court in other matters touching upon the imposition of RC’s supervision order and his past breaches, to make the following findings.
First, there is no doubt that RC has the impaired mental functioning for the purposes of s 10A(2)(c)(ii). In this regard, I note that, by s 10A(1)(a), “impaired mental functioning” includes a mental illness within the meaning of the Mental Health Act, which in turn would include RC’s schizoaffective disorder.[29]
[29]See ss 3 and 4 of the Mental Health Act 2014 (Vic).
Secondly, I am satisfied, on the balance of probabilities, that RC’s schizoaffective disorder “would result in him being subject to substantially and materially greater than the ordinary burden or risks of imprisonment”. In particular, I am satisfied that, if imprisoned for any significant period, there is a substantial risk that his mental health would deteriorate in much the same way as it did around the time he was transferred to Thomas Embling Hospital from Rivergum in July 2021. This would not only subject him to “substantially and materially greater than the ordinary burden of imprisonment”, but would risk undermining his chances of reform, and thereby community protection, in the longer run.
Conclusion on special reason
Accordingly, under either s 10A(2)(e) or s 10A(2)(c)(ii), or both, there is a special reason that ousts the mandatory imprisonment requirement for the offence of breaching a restrictive condition of the supervision order.
Conventional considerations
I turn then to consider the imposition of sentence for all three offences under the more conventional regime.
All of the matters I have just discussed are relevant to that task, and need not be repeated here. It is enough to say that, for the reasons I have given, I regard each offence as a relatively minor instance of the particular offence on a scale of gravity.
I say this despite the fact that each offence involved a flagrant breach of a court order and, in part, was committed in the days immediately following RC’s release on bail. In addition, while it may have been inconvenient — and may reasonably thought to have been unjust in the circumstances — that they had to stay apart at these times, RC simply had to abide by these orders and perhaps find other ways to support SM through her particular difficulties, compelling though they were. I also take into account the mischief, or risk of it, that orders of these kinds are each designed to prevent, but at the same time I recognise that, in the end, nothing even slightly untoward happened when RC was in SM’s presence.
As for mitigating factors, it is significant that RC pleaded guilty at a very early stage.
I do not think he is remorseful in the deeper sense, because his motive for the offending is inconsistent with remorse. But that motive — to care for his loved one when she was in dire straits — is, to my mind, surely a laudable one, and well capable of outdoing remorse as a relevant consideration.
Further, as I have said, RC’s progress towards reform over the last 18 months is impressive, especially for one who has had such a troubled history. There is good reason to think that his prospects of further rehabilitation are bright.
Sentencing purposes
While there is some role for general and specific deterrence in sentencing for these offences, the unusual circumstances in which they were committed render those purposes of much less importance than they would be in more conventional cases.
For the same reason, I find it difficult to denounce RC’s offending, other than, perhaps a little half‑heartedly, for the purpose of vindicating the importance of adhering to court orders. It seems wrong to be denouncing strongly, if at all, behaviour directed towards helping another human being in need of solace, succour and the touch of the hand of a loved one in times of trouble.
Further, that RC spent 24 days on remand in custody for offences that, in my view, are not serious enough to warrant imprisonment in the first place means that specific deterrence and just punishment might be said to have been exceeded, and substantially so.
While the purpose of the orders breached is, at least in part, to provide for a measure of individual and community protection, in the peculiar circumstances of this case, I do not think there is any need to protect SM or the community from RC in the sentence to be imposed.
Rehabilitation, on the other hand, is a purpose of significant weight in the sentencing synthesis, particularly when RC has been doing so well in recent times.
Subsections (3) to (7) of s 5 of the Sentencing Act provide, in one way or another, that a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed. These provisions reflect the common law principle of parsimony, which I have sought to apply in arriving at the appropriate sentence in this case.
Current sentencing practices
To the extent that I can determine them, I am also required to have regard to current sentencing practices for these offences.[30] This is just one factor in sentencing, and certainly not a controlling one at that, but it can nevertheless be important in the sentencing synthesis.
[30]See s 5(2)(b) of the Sentencing Act 1991 (Vic).
Sentencing statistics may provide some guidance as to current sentencing practices. The statistics I considered show that, for the period from 1 July 2016 to 30 June 2021, of the 169 sentences imposed for the offence of contravening a supervision order, about 81 percent were by way of imprisonment, about four percent were community correction orders, about nine percent were fines, and about five percent were adjourned undertakings or discharges.[31] Thus, around one in five were non‑custodial sentences. However, like most other sentencing statistics, in the end, these statistics are of only limited value, as they do not distinguish cases according to their individual circumstances. And yet breaches of supervision orders can range from comparatively trivial offending through to quite serious behaviour, and the circumstances of the offender can vary markedly from case to case as well.
[31]See Sentencing Advisory Council, SACStat, Contravene a supervision or interim supervision order, Serious Offenders Act 2018 (Vic), s 169(1), Higher Courts, 1 July 2016 to 30 June 2021.
I have not seen any sentencing statistics for the offence of breaching an FVIO or the offence of committing an indictable offence while on bail. However, both counsel submitted that, ordinarily, offences of these kinds would attract fines in the Magistrates’ Court. I accept that that is so.
Submissions
As I understood her, Ms Hotchkin submitted that, in all the circumstances, there should be no imprisonment for these offences, and that it would be appropriate to fine RC instead.
Ms Warren submitted that it would be open either to imprison RC for the supervision order offence (albeit time served would be sufficient) or to impose a modest monetary penalty by way of a fine, and to impose fines on the other offences too.
Aggregate fine
While I regard the breach of the supervision order as the most serious of the three offences, for the foregoing reasons, I am satisfied that all sentencing purposes will be met by a fine, with conviction, for each offence.
I do not, however, think it is necessary to impose separate individual sentences for each offence. Instead, I consider an aggregate fine to be an appropriate sentence for the three offences.[32] This is all the more suitable a disposition given that, putting aside the absence of any breach of bail on 8 June, each offence is constituted by precisely the same behaviour on that date and between 23 and 25 June. In addition, the related requirement of avoiding triple punishment sits more comfortably with an aggregate fine.
[32]See s 51 of the Sentencing Act 1991 (Vic).
Sentence
Taking into account all of the circumstances, on all three offences collectively, I have determined to sentence RC by ordering that he be fined an aggregate sum of $1,000, with conviction.
Given RC’s income from his employment, I am satisfied he is able to pay a fine of that amount.[33]
[33]See s 52 of the Sentencing Act 1991 (Vic).
While the level of aggregate fine I have imposed means that such a declaration is not mandatory, I am empowered, pursuant to s 6AAA of the Sentencing Act, to declare the sentence I would have imposed had RC pleaded not guilty but been found guilty following a contested hearing.[34] I declare that, but for RC’s pleas of guilty, I would have imposed an aggregate fine of $2,000, with conviction.
[34]See s 6AAA(1)(a) & (ib)(ii) & (3) of the Sentencing Act 1991 (Vic).
Epilogue
Finally, I wish to add this.
This whole process, particularly RC’s incarceration for 24 days, I fear, unwisely risked undoing his great strides towards reform. He could have lost his job, his accommodation, his mental health, his stability. That would have been disastrous.
And all this for no more than daring to defy an interim FVIO, and the knock‑on effect of breaching two other orders, in circumstances where SM — the person for whose protection the FVIO was made — did not want that order at all but rather was crying out for her partner’s support in a time of great need.
I doubt that bringing down upon RC the potentially crushing weight of the criminal law in this way has enhanced protection of the community one iota in the longer run. Yet this, after all, is a principal aim of the criminal law and the primary purpose of the Act which, upon RC’s being charged, triggered not only his temporary incarceration but also the possibility of a damaging mandatory sentence of at least 12 months’ imprisonment.
While I appreciate the concerns about RC’s violent past, his mental health and the thought that he may have engaged in family violence on 8 May, there was in the end no admissible or satisfactory evidence before this Court that SM was harmed or that she or the community was put at risk by his behaviour on the charged occasions. Instead, he did what he regarded as the right and decent thing by helping his partner when she needed it.
In the unique circumstances of this case, there must have been a better way to deal with concerns of the kind that animated the decisions to arrest, then charge, then remand and then continue to prosecute RC. I dare say it was not a wise use of the resources of the criminal justice system to deal with the matter in this way.
More concerning, however, is that this whole legal process has risked the loss of RC’s hard‑won gains and a deterioration in his mental health, which in turn might have undermined, not enhanced, community protection, and for behaviour that, yes, amounted to criminal offences of sorts, but had a good deal more to commend it than to condemn it.
To my way of thinking, something has gone wrong for it all to have come to this.
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