Director of Public Prosecutions v SJW (No 2)
[2021] VSC 55
•15 February 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0007
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| SJW | Accused |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 February 2021 |
DATE OF SENTENCE: | 15 February 2021 |
CASE MAY BE CITED AS: | DPP v SJW (No 2) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 55 |
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CRIMINAL LAW – Sentence – Three charges of contravening a condition of a supervision order – One charge of committing an indictable offence whilst on bail – Summary hearing – Condition prohibiting drug use breached twice by use of cannabis - Gambling prohibition condition breached by online gambling encompassing 293 transactions over a period in excess of 4 months – Some offending occurred in breach of a grant of bail on first charge of contravening drug prohibition condition – Early pleas of guilty and cooperation with authorities – Moral culpability for offending somewhat reduced due to gambling and drug addiction – General and specific deterrence still important – Protection of community – Rehabilitation – Aggregate sentence of 3 months’ imprisonment on all charges – Serious Offenders Act 2018 ss 169, 174.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms J Kretzenbacher | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr R de Vietri | Victoria Legal Aid |
HIS HONOUR:
Introduction
SJW, you pleaded guilty on 10 February 2021 to three charges of contravening a condition of a supervision order (‘SO’) pursuant to s 169(1) of the Serious Offenders Act 2018 (‘the Act’) and one charge of committing an indictable offence whilst on bail pursuant to s 30B of the Bail Act 1977. You admitted prior convictions contained in a criminal record filed in this case.
This is the second time on which the Court has been called upon to sentence you for contravening a condition of the SO. Your offending leading up to the first occasion bore considerable similarity to the current offending. The relevant circumstances are set out in the sentence of the Court.[1]
[1]DPP v SJW [2020] VSC 746 (‘DPP v SJW’).
The current charges of contravening a condition of a supervision order came before this Court by virtue of s 173(2) of the Act. The case was heard and determined summarily by me pursuant to s 174 of the Act, you having consented to this course and entered pleas of guilty to those charges. The other charge before the Court is a summary offence.
The maximum penalty for contravening a condition of a supervision order is 5 years’ imprisonment, but because those charges were dealt with summarily by this Court, the maximum penalty on each charge is 2 years’ imprisonment.[2] As for the charge of committing an indictable offence whilst on bail, the maximum penalty is 30 penalty units or 3 months’ imprisonment. The maximum cumulative penalty applicable for all of the offences is imprisonment for 5 years.[3]
[2]Sentencing Act 1991, s 113(1).
[3]Ibid s 113B.
Background to the offences
On 12 March 2003, you were sentenced to a long term of imprisonment for the crime of murder. The facts of that crime are set out in the decision of this Court in Secretary to the Department of Justice and Community Safety v SJW (‘SJW’).[4]
[4][2020] VSC 503.
On 18 March 2020, I made an interim supervision order against you. On 13 August 2020, I made a SO for a period of 5 years, being satisfied that you posed an unacceptable risk of committing a serious violence offence if a SO was not made and you were in the community.
The SO contained, inter alia, the following conditions:
6.5 [SJW] must not use or possess prohibited drugs (including synthetic drugs), obtain drugs unlawfully or abuse drugs of any kind.
6.6 [SJW] must submit to breath testing, urinalysis or other test procedures (other than blood tests) …for the detection of alcohol or drug use, at the direction of:
6.6.1 an officer who has reasonable grounds to suspect that [SJW] has breached condition 6.4 and/or 6.5 of the Supervision Order by consuming alcohol and/or drugs.
…
6.10 [SJW] must not engage in any form of gambling, except in accordance with the written directions of the Post Sentence Authority.
As indicated, the earlier offending for which I sentenced you on 11 November 2020 was similar to that currently before the Court. This is important background material for the current proceedings.
Also important is the fact that the Secretary to the Department of Justice and Community Safety (‘the Secretary’) has commenced proceedings seeking leave to apply to the Court to review the conditions of your SO. The Secretary will seek the inclusion of an intensive treatment and supervision (‘ITS’) condition amongst the conditions of the SO, which would require you to reside at Rivergum Residential Treatment Facility (‘Rivergum’). The approach you will take to the proposed application is unclear.
The current offending
On 11 January 2021, largely as a result of a conversation you had with your Australian Community Support Organisation (‘ACSO’) worker in which you stated, ‘I’ve been smoking choof and drinking all day’, you were given a verbal direction to attend for urinalysis testing. On 11 January 2021, you attended for the testing, and the results indicated the presence of cannabis in your system. You were arrested and charged on 14 January 2021 with contravening condition 6.5 by using a prohibited drug on 11 January 2021. You were released on bail in the Magistrates’ Court the same day.
On 16 January 2021, you self-reported to your ACSO support worker that you had spent some hours that night with your neighbour, a known active user of cannabis. You were directed to attend for urinalysis. The resultant test detected the presence of cannabis in your system on 19 January. The results of that testing were obtained by the authorities on 21 January 2021. You were arrested and remanded in custody on that day.
On that same date, investigators from the Supervision Order Specialist Response Unit received information from gambling platforms indicating that you had accessed your online accounts.
On 25 January 2021, statements were received from Sportsbet which indicated that between 9 September 2020 and 21 January 2021, you spent a total of $705.57 in 293 transactions, some of which were single bets and some of which were multi bets. The Sportsbet Client Betting Statement which became Exhibit B on the plea revealed, on my brief perusal of it, that the majority of your bets were on horse races and AFL matches, with some bets on other Australian or international sporting outcomes.
It is notable, in light of the date upon which I last sentenced you to a term of imprisonment for offences including contravening the gambling prohibition condition of your SO, that two days later, on 13 November 2020, you laid no fewer than six bets on individual horse races.
The period covered by the charge of breaching the gambling prohibition condition as amended during the hearing was from 9 September 2020 to 21 January 2021. The period from 9 September 2020 until 24 September 2020 overlapped the period of gambling covered by the charge on which you were previously sentenced by me of contravening the non-gambling condition. I take that fact into account when sentencing you, as requested of me by your counsel Mr de Vietri.
Performance on the SO and context of the offending
No progress report as to your performance on the SO was placed before the Court on the plea. I did receive some indications as to your progress, and on the occasion of the hearing of the previous charges, additional information was provided to the Court which is set out in the sentence. As far as I could assess it in the current case, the indications were that notwithstanding the offences to which you have pleaded guilty, which showed repetitive contraventions of two conditions of the SO, your attitude towards the order has generally been one of acceptance and engagement. As I understand it, you have attended for supervision and treatment as required, and there has been a degree of stability in your life. You have had stable accommodation, and have continued to care for your bird, which, as I understand it, is now being cared for by a neighbour. Your life, however, could be considered to be somewhat limited. You apparently stay at home, playing video games for much of the time.
Personal circumstances and criminal history
Your personal background and criminal history were set out sufficiently in SJW so as to not require repetition, and were also touched on in the previous sentence of the Court. In the sentence I made note of the fact of your having been diagnosed by Dr Michael Davis as suffering from Opioid Use Disorder and Antisocial Personality Disorder at the time of his first Detention and Supervision Report, and with Gambling Disorder by the time of the Addendum Report, following your descent into seriously problematic gambling from the time of your release from prison.
Cooperation and plea of guilty
Mr de Vietri relied upon the admissions you made and your cooperation otherwise with the authorities as being to your credit. The offending the subject of the first charge of contravening the drug condition came to light as a result of what you told your ACSO worker. You have been very forthright in permitting the resolution of these matters as pleas of guilty expeditiously, it was submitted. You have accepted the prosecution case without any argument.
In addition, and importantly, you pleaded guilty at the earliest opportunity. Mr de Vietri submitted that you should receive the full discount for that early plea of guilty for all of the reasons set out in his outline of submissions, including the fact that your plea demonstrates your remorse and your recognition of your wrongdoing. He also made note of the fact that the current circumstances surrounding the COVID-19 pandemic enhance the utilitarian value of your plea of guilty.
I accept the submissions of Mr de Vietri in respect of your cooperation with the authorities, and the strong mitigatory effect of your early plea of guilty.
Moral culpability
As he did on the occasion of the previous plea hearing, Mr de Vietri submitted that your diagnosed mental condition of Gambling Disorder, as revealed in the Addendum Report of Dr Davis, is relevant to sentencing as it reduces your moral culpability in respect of contravention of the gambling condition in this case. He referred to the authority of R v Grossi,[5] in which Redlich JA surveyed the authorities in respect of gambling and mitigation. He submitted that because of the direct link between your gambling addiction and the offending, this should be viewed as being one of those ‘rare cases’, to use the words of Redlich JA at [51], where the presence of a gambling disorder is mitigatory in the sense that limb 1 of R v Verdins (‘Verdins’)[6] is enlivened. Mr de Vietri did not submit that the gambling disorder from which you suffered had the effect of reducing the need for specific or general deterrence, or that any of the other limbs of Verdins applied.
[5](2008) 23 VR 500.
[6](2007) 16 VR 269.
In sentencing you in the past, I stated:
Without necessarily deciding that that principle in Verdins is applicable in your case, I do accept the proposition that your moral culpability in respect of your offending constituted by charge 2 is reduced by the fact that whilst you clearly knew that you were not permitted to engage in any gambling, and could readily perceive that it was wrong to do so, your conduct was driven less by a deliberate disrespect for the order of this Court than by the gambling obsession which gripped you.[7]
[7]DPP v SJW [24].
Ms Kretzenbacher for the Director of Public Prosecutions did not contend that I could not make a finding that your moral culpability is somewhat reduced, but submitted that such a finding would go principally to the relevance and importance of denunciation as a sentencing objective, and would need to be balanced against the importance of other sentencing purposes including specific deterrence as touched on in the warning I gave you in the previous sentence.[8]
[8]Ibid [44].
Your contravention of the non-gambling condition could be viewed as being quite flagrant. Only two days after you were released from the sentence I imposed upon you, in part, for breaching that same condition, you again engaged in gambling, and continued to do so on hundreds of occasions. You claim now, as you did in the past, that your reason at first for engaging in this conduct was to get the balance of your account over $100 so that you could withdraw the sum. Mr de Vietri conceded that this was by no means an excuse, and rightly so. In any event, the claim has an air of implausibility about it in light of your pattern of gambling on that first day and the ensuing months.
It is easy enough to accept, however, that whilst there may be the appearance of conduct by you in connection with your gambling which was deliberately contemptuous of the previous sentence of the Court, I should not view your behaviour in that manner. Mr de Vietri submitted that your conduct ‘must be seen through the light of a clinical addiction, rather than a purposeful disrespect for the authority of this Court’.[9]
[9]Outline [12].
In the circumstances, I am prepared to view your gambling conduct in that way, albeit that it cannot be doubted that your offending was deliberate, repeated and flagrant. It cannot be forgotten that you engaged in the gambling fully understanding that it would constitute a serious breach of an important condition of the SO.
Mr de Vietri somewhat faintly submitted that your offending relating to drug use stemmed, in part, from your drug addiction, and that your moral culpability for that offending, also, should be considered to be somewhat reduced as a result. He submitted also that your drug use happened in the context of your self-medicating to relieve the pain resulting from a bicycle accident, and your ruminating on the impending anniversary of the death of your former partner.
Again, although your use of cannabis could only be viewed as the deliberate contravention by you of a condition of your SO, I am prepared to take the view that it occurred in circumstances where you still struggled with your drug addiction and in a context of there being a number of stressors in your life, including those to which I have just referred, and the fact that you were fighting a losing battle with your gambling addiction.
Nature and gravity of the offences and degree of responsibility
There is no question that notwithstanding any generous conclusion as to your moral culpability for your offending, the crimes to which you have pleaded guilty are serious. As Mr de Vietri justifiably conceded in his outline of submissions:
It is accepted that the offending on each (sic) represents a serious disregard for the conditions this Honourable Court saw fit to impose on 13 August 2020, and for the Court’s warning issued clearly in delivering judgment in DPP v SJW [2020] VSC 746 at [44]. The fact that the gambling offending is sustained over the period of months and repeated on many separate occasions also adds to the seriousness of the contravention, as does the repetition of cannabis use on two occasions, the second occurring after being arrested and bailed for the first.[10]
[10]Outline [11].
Important sentencing considerations
Contravening a condition of a SO will always be a serious matter. As was noted by Elliot J in Director of Public Prosecution v SM,[11] a case concerning the breach of an interim supervision order:
The contravention of a condition of an interim supervision order is a very serious matter. This is demonstrated, amongst other things, by the penalties such contraventions can attract under the Act.[12]
[11][2019] VSC 466.
[12]Ibid [11].
It was submitted by the prosecution, and not challenged by your counsel, that general and specific deterrence are both important in sentencing you. Those who are on SOs must understand that courts will take a dim view of, and strong action against, breaches of the conditions of such orders. As was stated by Williams J in Acting Secretary to the Department of Justice v McKane:[13]
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 courts.[14]
[13][2012] VSC 459.
[14]Ibid [21].
Protection of the community is also an important consideration in sentencing you. That is the primary purpose of the SO which was made against you, and it was to further that aim of protecting the community from possible future acts of violence by you that the various conditions including those which you have breached were included in the order.
Mr de Vietri submitted, and I accept, that rehabilitation is also an important consideration in your case. You have taken at least some small steps towards your ultimate rehabilitation. Importantly, you have avoided any significant acts of violence[15] and notwithstanding your contraventions of conditions applicable to you, you have engaged in supervision and treatment, including treatment aimed at dealing with your gambling and drug addictions. Clearly, substantial further treatment is required in your case, and there is no reason to suppose that this would be realistically open to you in custody in the way in which it will be in the community. To my mind, it is desirable that you have the opportunity to return to the community at some time in the not-too-distant future, resume what has been quite stable accommodation, and recommence the important treatment you still need to receive to treat your various issues, including your drug reliance and your gambling addiction.
[15]Mr de Vietri informed the Court following the plea hearing of a minor incident in Ravenhall Prison on 6 November 2020 when you apparently grabbed another prisoner in response to having been insulted by him.
COVID-19 considerations
I take into account, in sentencing you, the onerous nature of the conditions in which you have found yourself on remand awaiting this hearing, and in which you would be held for at least some time into the future if not for the entirety of your sentence. You were subject to quarantine conditions until the day before the plea hearing. In addition, in other ways which have become well known since the onset of the pandemic, the conditions of incarceration have been quite difficult, imposing limitations and challenges upon those in custody.
Prospect of ITS condition in future
In sentencing you, I do not take into account the prospect that in future, as I understand it, the Secretary will seek the imposition of an ITS condition which would have the effect of requiring you to reside at Rivergum. The result of such an application and the material on which it would be based is entirely unknown to me. However, this matter became of some significance, because Mr de Vietri submitted that your knowledge of the impending application is a matter which provides extra motivation to you to prove to the Court and to yourself that you can resist your addictions and live successfully and independently in the community. I take that submission into account, and do hope that the impending application by the Secretary along with the specific deterrent effect of the sentence I pass upon you will be sufficient to ensure your improved conduct should you be in the community again before the hearing of the application.
Conclusion
In your case, your first appearance before the Court for contravening a condition of the SO resulted in a term of imprisonment. Unfortunately, in spite of that outcome, and the strong warning I gave to you reminding you of the high maximum penalty for each offence of contravening a condition of a SO, and what you might expect were you to offend in future, you did exactly that, and within a very short space of time.
In the circumstances, the prosecution submitted that the only sentence reasonably open is a custodial one. Unsurprisingly, Mr de Vietri did not challenge that contention. He urged me, however, to impose a short term of imprisonment. In the end, I have concluded that a term of imprisonment is required in respect of each crime to which you pleaded guilty. No other sentencing disposition could meet the needs of the case.
In arriving at the length of the sentence, I have had regard to all of the submissions made on your behalf, and to all of the relevant sentencing purposes to be achieved by the sentence.
I have contemplated whether each crime to which you pleaded guilty should be met with an individual sentence, with orders for cumulation used to arrive at a sentence which is just and appropriate in the circumstances of the case. An alternative way of arriving at the same practical outcome may be the imposition of an aggregate term of imprisonment. Such a prospect was not specifically dealt with during the plea hearing. I have considered the provision in the Sentencing Act 1991 dealing with aggregate sentences,[16] have considered also the relevant case law, and have formed the view that the charges for which you are to be sentenced do meet the requirements of the legislation, and that it would be appropriate for you to be dealt with by way of an aggregate sentence of imprisonment.
[16]Section 9.
Sentence
SJW, on the four charges before the Court, you are sentenced to be imprisoned for an aggregate term of 3 months.
I declare a period of 25 days up to and including yesterday, 14 February 2021, as being a period already served under this sentence. I direct that the fact of the making of that declaration and its details be noted in the records of the Court.
I indicate pursuant to s 6AAA(1) of the Sentencing Act 1991 that, but for your plea of guilty on all charges, I would have sentenced you to 6 months’ imprisonment.
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