Director of Public Prosecutions v RJ (a pseudonym)
[2023] VCC 1630
•7 August 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RJ (a pseudonym) |
---
JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 August 2023 | |
DATE OF SENTENCE: | 7 August 2023 | |
DATE OF REASONS: | 13 September 2023 | |
CASE MAY BE CITED AS: | DPP v RJ (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1630 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Contravening a condition of a Supervision Order – commit indictable offence whilst on bail – offender subject to a Supervision Order – complex mental health issues – risk to offender of being in custody – appropriateness of fine rather than custodial disposition
Legislation Cited: Serious Offenders Act 2018 s1, Part 11, s169, s173, s174, s175, s176(1); Summary Offences Act 1966 s51(2); Sentencing Act 1991 s5(1), s5(2BD), s113(1)
Cases Cited:DPP v Mitchell (a pseudonym) [2018] VCC 912; DPP v RJ (a pseudonym) [2022] VCC 1937; DPP v RJ [2023] VCC 609; Bugmy v R (2013) 249 CLR 571; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; DPP v Hollow [2022] VSC 602; DPP v SJW [2020] VSC 746; R v TA [2021] VSC 479; DPP v SM [2019] VSC 466; Acting Secretary to the Department of Justice v McKane [2012] VSC 459; Secretary to the Department of Justice and Community Safety v SS (No 3) [2021] VSC 1; Director of Public Prosecutions v SW [2015] VCC 386; Director of Public Prosecutions v XG [2023] VSC 127; Director of Public Prosecutions v MTE [2023] VSC 162; R v Renzella [1997] 2 VR 88; R v Chimirri [2003] VSCA 45
Sentence: Fine imposed with conviction
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R Hamnet | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr B Newton | Randles Cooper Lawyers |
HER HONOUR:
Introduction
1RJ[1] you have pleaded guilty to two charges of contravening a condition of a Supervision Order (“SO”) contrary to s169 of the Serious Offenders Act 2018 (“the SO Act”). These charges carry a maximum penalty of 5 years’ imprisonment (or 2 years when exercising summary jurisdiction[2]) and a fine of up to 500 penalty units. You have also pleaded guilty to one charge of committing an indictable offence whilst on bail, contrary to s30B of the Bail Act 1977. This charge carries a maximum penalty of three month’s imprisonment or a fine of 30 penalty units.
[1] A pseudonym
[2] see s174(4) of the SO Act and s113(1) of the Sentencing Act 1991
2The contravention of SO charges came before this Court by virtue of s173(2) of the Act. The bail charge came before this Court by virtue of s176(1) of the Act. Pursuant to s174 of the Act, with the consent of the parties, all charges were heard and determined summarily.
Background to the offences
3On 7 October 2021, you were made the subject of an SO. That order remains in force until 6 October 2024.
4Pursuant to the conditions of your SO, you are required to reside at a residential treatment facility, namely Rivergum Residential Treatment Centre (“Rivergum”).
5Of relevance to the current offending, your SO contains the following conditions:
“8.2 [RJ] must not use or possess prohibited drugs (including synthetic drugs), obtain drugs unlawfully or abuse drugs of any kind.
8.3[RJ] must submit to breath testing, urinalysis or other test procedures (other than blood tests) approved by the Secretary or the Chief Commissioner of Police as the case may be for the detection of alcohol or drug use, at the direction of:
8.3.1an officer who has reasonable grounds to suspect the [RJ] has breached condition 8.1 and/or condition 8.2 of this Supervision Order by consuming alcohol and/or drugs.”
The offending
6The circumstances of your offending were detailed in the Summary of Prosecution Opening, which also contained the prosecution submissions concerning sentence. I set out a summary of the relevant conduct below.
7Your offending on the first contravention of SO charge occurred on 23 April 2023. On that date, you were directed to attend for urinalysis in accordance with the conditions of your SO. After some initial resistance from you to providing the sample, you eventually provided a urine sample for analysis at about 1.54pm on that day. The sample was analysed by Dorevetich Pathology on 27 April 2023. The report indicated that the sample was positive for methylamphetamine (an illicit drug) and buprenorphine (for which you had no prescription). (Charge 1 on proceeding CR-23-00667)
8On 28 April 2023, you were arrested and interviewed. You made admissions to using methylamphetamine. You denied using buprenorphine, but admitted that you were indoors in close proximity to two other residents, while they smoked this drug.
9Victoria Police enquired with Dorevitch Pathology whether it was possible to have a positive detection of buprenorphine in those circumstances. The Dorevitch Pathology chief scientist of biochemistry/toxicology advised that a positive result to buprenorphine is not possible from passive smoking. They also advised that buprenorphine would not occur as a metabolite or by-product of another drug.
10On 28 April 2023, you were charged with this offence and granted bail.
11On 28 June 2023, you returned to Rivergum after being hospitalised at Ballarat Base Hospital in the context of a self harming incident. As a result of the erratic nature of your conduct on that date, you were again directed to attend for urinalysis. After some negotiation with Rivergum staff, you agreed to provide a urine sample, which you did after some time.
12On 30 June 2023, the urine sample was analysed by Dorevitch Pathology. The report indicated that the urine sample was positive for the drug buprenorphine, for which you had no prescription. At the time of the ingestion of the buprenorphine, you were on bail (as a result of the conduct which founds charge 1 on proceeding CR-23-00667). (Charges 1 and 3 on proceeding CR-23-01124)
13On 3 July 2023, you were arrested and interviewed. You admitted you had been in another resident’s unit on 27 June 2023, when they were smoking buprenorphine. You also stated that you went to hospital the same night with heart issues and was given the “green whistle”, fentanyl and diazepam. You denied using buprenorphine.
14You were charged and bailed on 3 July 2023.
Prior criminal history
15You have a significant criminal history which was summarised in the Summary of Prosecution Opening and was also referred to in the sentence relating to the index offending.[3] I note that these charges constitute the third and fourth occasions on which you have contravened your SO. You have previously been sentenced in relation to the previous two breaches of your SO.[4]
[3] DPP v Mitchell(a pseudonym) [2018] VCC 912
[4]Director of Public Prosecutions v RJ (a pseudonym) [2022] VCC 1937, per Judge Hinchey; Director of Public Prosecutions v RJ [2023] VCC 609, per Judge Carmody
Sentencing submissions
Matters put in mitigation
16Your counsel put the following matters in mitigation:
(a) the objective seriousness of the offences is low;
(b) while your conduct constitutes a third and fourth breach of your SO, without derogating from the seriousness of the conduct involved in the offending, the contravening conduct took place in the context of mental health issues and extreme stress being suffered by you, causing you to experience suicidal ideation and engaging in self harm;
(c) you pleaded guilty at an early time;
(d) Charge 1 on proceeding CR-23-00667 is the only allegation of using or possessing an illicit drug, namely methamphetamine. Charges 1 and 3 on proceeding CR-23-01124, arise out of the use of a drug which can be prescribed, as opposed to an illicit drug;
(e) the principles in Bugmy v The Queen[5] and R v Verdins[6] apply to sentencing you, on account of your traumatic personal history and a profoundly disadvantaged background, together with the multiple and complex physical and mental ailments from which you presently suffer. In particular you suffer from a rare and extremely serious genetic heart condition of hypokalaemia, which continues to afflict you, causing frequent hospitalisation. For this reason alone, the prison environment constitutes a danger to your health and wellbeing and a barrier to receiving appropriate treatment;
(f) the mix of mental and other illnesses from which you suffer warrants a significant reduction in the assessment of your moral culpability and the weight to be afforded to the principle of general deterrence;[7] and
(g) you have previously already served 113 days in pre-sentence detention. This was in relation to a matter where the penalty to which you were sentenced was a fine without conviction.
[5](2013) 249 CLR 571
[6]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; (2007) 169 A Crim R 581; [2007] VSCA 102
[7] Verdins, ibid
17Given that the application for summary jurisdiction was granted by the Court, and having regard to the fact that the matter proceeded as a plea, it was submitted that imposition of a fine is within the range of sentences open to the Court.
18As to your ability to pay any fine imposed by the Court, the Court was informed that you are on the cusp of coming into funds, having recently inherited an amount of money from your mother.
Prosecution submission
19It was submitted by the Crown that in all of the circumstances of this offending, an immediate custodial sentence should be imposed. Reference was made to the fact that in the circumstances of third and fourth contraventions of an SO, ordinarily imprisonment would be the only sentence within the applicable range.
20However, by reference to the relevant case law, it was accepted by the Crown that where SO contraventions are drug-related, “repeated contraventions of an order are ordinarily required before even a short period of imprisonment is appropriate.”[8] It was also accepted that this is your first contravention of your SO by using a prohibited drug.
[8]Director of Public Prosecutions v SM [2019] VSC 466 (“SM”) at [13], per Elliot J; R v TA [2021] VSC 479 (“TA”) at [13], per Taylor J
Current sentencing practices
21As observed by Justice Tinney in Director of Public Prosecutions v Hollow[9], the cases make it clear that first-offence contraventions of non-restrictive conditions of SOs are often met with fines. In support of this proposition, the prosecutor drew the Court’s attention to the additional observations made by his Honour in Director of Public Prosecutions v SJW[10], viz:
“…as I understand sentencing practices in respect of contraventions of conditions of SOs, it is quite common, depending on the severity of the particular breach, of course, for offenders to be sentenced by way of a fine for a first offence. Second or subsequent offences are commonly met with terms of imprisonment. What I have said about the common sentence upon a first breach, however, should not be taken as obscuring the serious nature of all such offences.”
[9] [2022] VSC 602 (“Hollow”) at [21]
[10][2020] VSC 746 (“SJW”), at [36]; see also Secretary to the Department of Justice and Community Safety v SS (No 3) [2021] VSC 1 (“SS (No 3)”), at [49], per Tinney J.
22In Hollow, Justice Tinney also referred to the observations made by Justice Elliot in SM[11], where his Honour said “the contravention of a condition of an interim supervision order is a very serious matter”, which fact is demonstrated, “amongst other things, by the penalties such contraventions can attract under the Act.” I note also the observations made by Williams J in respect of the predecessor to the current Act, where she said:[12]
“It is essential to the effectiveness of the statutory scheme that offenders subject to supervision orders be aware of the significance of their obligations under the conditions of those orders and the seriousness with which breaches will be viewed by the court.”
[11] Supra, at [11]
[12]Acting Secretary to the Department of Justice v McKane [2012] VSC 459 (“McKane”), at [21]; I note that this passage was also cited with approval by Tinney J in Hollow
23In Director of Public Prosecutions v SW[13], her Honour Judge Pullen referred to the fact that the efficacy of the scheme under the precursor to the SO Act, is dependent upon SOs being “properly imposed and adequately maintained.”[14]
[13] [2015] VCC 386, at [61]
[14] citing Secretary to the Department of Justice v MAB (unreported, County Court of Victoria) with approval
24As already referred to above, it was observed by Taylor J in TA, that “repeated contraventions of an order are ordinarily required before even a short period of imprisonment is appropriate.”[15]
[15]Supra, at [13]; see also SM, Supra, at [13]
25Of course, each of these general propositions must be considered in light of the individual facts of each case (and indeed, of each case of its kind).
26In Director of Public Prosecutions v XG[16], after referring to Taylor J’s observations in TA, Croucher J said that “sentencing is not a ladder of sorts in respect of which a judge is bound to impose a heavier sentence than (or for that matter, a similar sentence to) as previous sentence imposed on an offender for the same or a similar kind of offence.”[17]
[16] [2023] VSC 127 (“XG”)
[17] Ibid, at [57]
27In that case, XG was being sentenced for a second breach of his SO for use of methylamphetamine, in circumstances where only two and a half weeks prior, he had been sentenced to 14 days imprisonment (in the form of a partial application of time served[18]) for the same offence. Notwithstanding this, and having regard to 14 days of “Renzella time” which was applicable, his Honour concluded that in all the circumstances, the offence neither warranted nor demanded a term of imprisonment.[19]
[18] having been in custody for 28 days at the time of the imposition of that sentence
[19] XG, supra, at [57]-[58]
28His Honour noted that in all sentencing exercises, the fundamental principle of parsimony must come into play. In particular, his Honour noted the words of s5(3) of the Sentencing Act 1991, which provides:
“…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.”
29His Honour concluded that in the circumstances of that particular case, none of the sentencing purposes in s5(1) of the Sentencing Act 1991, including just punishment, general and specific deterrence, protection of the community and denunciation, either individually or collectively, demanded a prison sentence.[20] His Honour also observed that “to impose a prison sentence would be to thwart the longer-term aim of rehabilitation.”[21]
[20] Ibid, at [61]
[21] Ibid, at [62]
30Lastly, I note that in Director of Public Prosecutions v MTE,[22] a case which involved numerous offences based on breaches of conditions of an SO, including by using prohibited drugs (methylamphetamine and cannabis), her Honour Jane Dixon J cited the approach taken and observations made by Croucher J in XG, with approval.[23] In that case, despite the many offences involved and the fact that there were five instances of breaches of MTE’s SO by using prohibited drugs, taking into account all of the sentencing purposes, together with the circumstances of the offending and MTE’s personal circumstances, her Honour concluded that an aggregate fine of $1800, with conviction, was the appropriate sentence.
[22] [2023] VSC 162 (“MTE”)
[23] Ibid, at [55]-[56]
Sentencing considerations
Sentencing Purposes under the Sentencing Act 1991
Just punishment and denunciation
31Whilst the sentencing purposes of just punishment and denunciation were not referred to in detail during the plea in this matter, I accept that these purposes are relevant to the sentence that will be imposed upon you.[24]
[24] see s5(1)(a) and (d) Sentencing Act 1991
32Conditions imposed on SOs are important measures to reduce the risk of serious offenders committing further serious offences. Any breach of a condition of an SO must be denounced as being serious offending.
Deterrence
General Deterrence
33I accept that the matter of general deterrence is a relevant sentencing purpose, in order to deter other offenders on SOs from contravening them.
34Those who are subject to SOs must understand that Courts will take a dim view of and strong action against, breaches of the conditions of such orders.
Specific deterrence
35In the circumstances of this case, I also accept that specific deterrence has a role to play, given the repetitive nature of your offending.
36Clearly, it is important that you be deterred from further breaches of your SO, which may contribute to an escalation in risk of further offending, thereby threatening community safety.
37You have an extensive and serious criminal history. This includes breaching the terms of your SO on two previous occasions, the second of which involved possession of methylamphetamine.
38In this matter, it is of particular relevance that you are charged with contravening your SO by using drugs and that on one of those occasions, the drug was methylamphetamine.
39I note that you have in the past been assessed as posing a “high risk” of committing a further serious sex offence, and that substance abuse is a factor that might contribute to your risk of committing a serious sex offence or serious violence offence.[25]
[25]See paragraphs [231] and [232] Detention and Supervision Order Progress Report authored by Mr Simon Candlish dated 2 June 2022, Ex P2
40I note that in other cases involving similar breaches of an SO, it has been accepted by the sentencing judge that there were reasons why the drug, although prohibited, had been used, such as the offender being mildly intellectually disabled, or to assist with management of pain.[26] During this plea, you offered no specific explanation for your use of buprenorphine and methylamphetamine however, I do take account of the fact that your offending took place in the context of serious mental health issues, resulting in self harming behaviour. I accept that this fact ought lower my assessment of your moral culpability in relation to the offending.
[26] XG, supra, at [49] and [58], per Croucher J
Protection of the community
41Protection of the community is an important consideration in sentencing you. That is the primary purpose of the SO to which you are presently subject.[27] It was to further the aim of protecting the community from possible future serious sexual offending by you, that various conditions including the condition which you have breached, were included in the SO.
[27] Section 1, Serious Offenders Act 2018
42Clearly if you continue to breach the conditions of your SO, especially by using prohibited drugs, the community may be put at risk.
Plea of guilty
43It is not in issue that you pleaded guilty to the charges at an early time. You are entitled to receive the full benefit of that early plea of guilty. I note that your plea of guilty has significant utilitarian benefit, avoiding the need for a contested hearing. It shows an acceptance of legal responsibility and a willingness to facilitate the course of justice. It is also demonstrative of a degree of remorse for your actions.
Gravity of the offending
44Despite the fact that any offending of the kind in which you have engaged can be considered to be serious, I accept that the circumstances in which you offended on this occasion, put those offences at the lower end of the scale of possible contraventions of the relevant sections.
Personal circumstances
45You have had a traumatic personal history and a profoundly disadvantaged background, to which I referred in my sentence concerning the first breach of your SO.[28] As was referred to then, you have experienced “a range of abuse and trauma that indelibly impacted [your] developmental trajectory”.[29] I accept that the principles in Bugmy v The Queen[30] apply in sentencing you.
[28] Director of Public Prosecutions v RJ (a pseudonym) [2022] VCC 1937
[29] Ibid, at [35]
[30](2013) 249 CLR 571
46I also accept that the principles in R v Verdins[31] apply in sentencing you. As referred to above, you have an extensive history of self-harm and a complex set of diagnoses. I accept that by reason of your medical conditions, you have had in the past, an arduous experience in prison.
[31]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; (2007) 169 A Crim R 581; [2007] VSCA 102
47Your ongoing health matters are relevant considerations in relation to moral culpability. These moderate the weight to be given to specific and general deterrence (although as set out above, both still have an important role to play). Rehabilitation and treatment for your mental health conditions, are also relevant considerations.
Pre-sentence detention
48You have previously already served 113 days in pre-sentence detention, in relation to a matter where you were ultimately sentenced to pay a fine without conviction.
49While this should not be taken into account as true pre-sentence detention in relation to this matter, it can be taken into account in a broad way.[32] My consideration of this matter is not to be treated as a mathematical exercise,[33] however it is relevant to the principle of totality. That time was spent at Melbourne Assessment Prison, often in lockdown lasting more than 23 hours. Many times during your remand period, due to your serious heart condition, you were hospitalised following “attacks” related to that condition (at times you presented with a heart rate exceeding 200bpm). In addition, I take into account the fact that your mother died during this period of detention.
[32] R v Renzella [1997] 2 VR 88, at 96
[33] R v Chimirri [2003] VSCA 45 at [5]
Financial circumstances
50I note that you are in a position to pay a fine, being on the cusp of inheriting some money left to you by your mother in her will.
Section 5(2BD) of the Sentencing Act 1991
51In considering the appropriate sentencing disposition in this case, in accordance with the provisions of s5(2BD) Sentencing Act 1991, I have not had regard to the fact that you are subject to an SO.[34] No part of the sentence which I have imposed, requires me to have regard to the conditions imposed on the SO, or the terms of any current directions or instructions given by the Post Sentence Authority, under Part 11 of the SO Act.
[34] as to this, see Price v The Queen (No. 2) [2019] VSCA 44, esp at [56]ff
Sentence
52Taking into account all of the matters referred to above, for the charges to which you have pleaded guilty, pursuant to s49 Sentencing Act 1991, with conviction, the Court imposes an aggregate fine on you in the sum of $1000.
53I am satisfied that in the circumstances of this case, taking into account the Renzella time to which you have been subject (and despite the fact that on the last occasion you were before the Court, you were sentenced to a period of imprisonment), the imposition upon you of a fine with conviction, adequately addresses each of the purposes for which a sentence may be imposed. I am also satisfied that none of the sentencing purposes, either individually or collectively, demand that you be sentenced to a period of imprisonment.
54Since s6AAA of the Sentencing Act 1991 does not compel a declaration of sentence that would have been imposed – had you not pleaded guilty – in circumstances where an aggregate fine of less that 20 penalty units is imposed, I decline to make such a declaration in this case.
0
15
0