Director of Public Prosecutions v SJW (No 4)
[2023] VSC 505
•14 July 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0216
S ECR 2022 0344
S ECR 2023 0050
S ECR 2023 0104
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SJW |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 July 2023 |
DATE OF RULING: | 14 July 2023 |
DATE OF SENTENCE: | 24 August 2023 |
CASE MAY BE CITED AS: | DPP v SJW (No 4) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 505 |
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CRIMINAL LAW – Sentence – Four charges of contravening a condition of a supervision order (‘SO’) – Related charges of using a drug of dependence (two charges) and committing an indictable offence whilst on bail (two charges) – Conditions of SO prohibiting drug use and gambling – Both conditions contravened on repeated occasions – Prior convictions for similar offending – Early pleas of guilty in respect of most of offences - By time of plea hearing, accused had been transitioned back into the community from Rivergum Residential Treatment Centre – Term of imprisonment may disrupt progress of accused – General deterrence – Specific deterrence – Protection of community – Rehabilitation – Adjourned undertaking on conviction on all charges for period of two years – Serious Offenders Act 2018 ss 169, 174.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S Locke | Abbey Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr T McCulloch | Victoria Legal Aid |
HIS HONOUR:
Introduction
SJW, you have been found guilty at a contested hearing in this Court of contravening a condition of a supervision order (‘SO’) by using a drug of dependence namely methylamphetamine (‘MA’), using a drug of dependence namely MA and committing an indictable offence, namely, contravening a condition of a SO, whilst on bail. In addition, you have pleaded guilty to two charges of contravening a condition of a SO by gambling, one charge of contravening a condition of a SO by using cannabis, and related charges of using cannabis and committing an indictable offence, namely, contravening a condition of a SO, whilst on bail.
The offences to which you have pleaded guilty and of which you have been found guilty arose from four separate occasions of criminality by you.
You have also admitted a substantial criminal history.
Background to your offending
Since 13 August 2020, you have been subject to a SO made under the Serious Offenders Act 2018 which came into effect upon your release on 20 April 2020 from a sentence of imprisonment you received on a charge of murder on 12 March 2003.[1]
[1]Date of index offence 5 June 2001.
On 9 April 2021, following an application to review the conditions of the SO, an intensive treatment and supervision condition was imposed, requiring you to reside at Rivergum Residential Treatment Centre (‘Rivergum’). You commenced residing at Rivergum on 12 April 2021.
At all relevant times, you were subject to conditions of the SO prohibiting the use or possession of prohibited drugs, requiring you to submit to breath testing or urinalysis at the direction of an officer, and prohibiting your engaging in any form of gambling except in accordance with the written directions of the Post Sentence Authority.
Although your progress through the program at Rivergum was not without its difficulties for you, you progressed satisfactorily through the program to the point that by the time of the commission of all of the offences for which you fall to be sentenced, you were nearing the final stage of the program, and being readied for re-integration into the community. Indeed, as I will detail later, you have now departed Rivergum, having graduated from the program, and are living in a home in the community.
Your offending and the procedural history
The first charge to which you pleaded guilty concerned your engaging in gambling in the period 6 to 18 July 2022. Victoria Police conducted an investigation into your online gambling accounts as a result of your informing a member of the Specialist Supervision Order Response Unit that Sportsbet had placed $10 into your NAB bank account. Account statements from Ladbrokes and Neds, two online bookmakers, revealed that in the period in question, you had placed some 514 individual bets totalling $7891.41. A review of your phone records showed that you had made 40 calls in total to the two bookmakers. When interviewed by police on 16 July 2022, you provided full and frank admissions in response to questions asked.
This first matter came before me on 3 October 2022. It was accepted by the prosecution that your plea of guilty had been entered at the first available opportunity.
During the plea hearing, it was submitted on your behalf by Mr McCulloch that I should defer sentencing you to foster your rehabilitation by enabling you to continue unimpeded through the process of finishing your time at Rivergum. Although the position of the prosecution was that if you were sentenced at that time, a term of imprisonment would be necessary in light of your previous convictions, to which I will turn later, it was conceded that it would be open to me to defer sentencing you, and the prosecution would not speak against that being done.
In the end, I did defer sentencing you until 3 May 2023.[2] In doing so I made it clear to you that whilst no guarantees could be made, you could have confidence that should you be able to remain out of trouble and continue to progress satisfactorily on your SO in the interim, you may receive a non-custodial sentence. I emphasised the need for you to stay out of trouble, pointing out the importance of compliance with all of the conditions of the SO.
[2]Mr McCulloch submitted that I could defer sentence under s 83A of the Sentencing Act 1991. Ms Dane, who appeared for the prosecution at that hearing, disputed that I could act under that provision, but did not dispute that I would in any event have the inherent power to defer sentence for the reasons set out in the provision.
The second charge to which you pleaded guilty concerned your engaging in gambling in the period 5 July to 11 September 2022. On 14 September 2022, Victoria Police were informed by a Rivergum Specialist Case Manager that you were having issues with money. Consequently, Victoria Police conducted an investigation of your phone records and bank account. It was ascertained that you had made numerous phone calls to online betting agencies and deposits totalling in excess of $4000 into three betting accounts. When interviewed by police on 7 December 2022, that is, about two months after you had appeared before me for the plea hearing in the first matter, you stated that having been arrested in July 2022 for contravening the gambling prohibition, you became convinced that you would go to gaol for those matters, and decided that you would continue to place bets.
This charge came before me on 17 February 2023. Again it was accepted by the prosecution that your plea of guilty had been entered at the first available opportunity.
During the plea hearing, it was submitted on your behalf by Mr McCulloch that I should defer sentencing you until the same date specified on the occasion of the first plea hearing. Again, although the position of the prosecution was that if you were sentenced at that time, a term of imprisonment would be necessary, the prosecution, for whom by that stage Ms Locke appeared, did not oppose the deferral of sentence sought by Mr McCulloch.
I did defer sentencing you on this matter until 3 May 2023, again pointing out the importance of your staying out of trouble in the interim, and the prospect that were you able to do so, you would place yourself in a good position to avoid a term of imprisonment.
In spite of the opportunities extended to you by the Court, and the clear warnings spelt out to you, unfortunately, you continued to offend.
The third set of charges, being those which were subject to the contested hearing, following which you were found guilty,[3] arose on 15 March 2023, by which time you were in the latter stages of the process of transitioning to community accommodation, but still residing at Rivergum. On 14 March 2023, MA was found in the room of a fellow resident at Rivergum. You had frequented that unit on a number of occasions in the week leading up to 14 March 2023. On 15 March 2023, you complied with a direction to provide a urinalysis sample. On 20 March 2023, analysis of the sample revealed the presence of MA and its metabolite amphetamine. You were arrested on 20 March and interviewed by police. You denied having used MA. You were charged with the three offences to which I earlier referred, all flowing from the finding of MA in your system.
[3]DPP v SJW (No 3) [2023] VSC 408.
You contested these charges before me on 13 July 2023. This was, of course, your right. You therefore cannot call in aid a plea of guilty, unlike the position with the other charges.
The final set of charges arose about six week after the MA charges on 27 April 2023. On 28 April 2023, you returned to Rivergum following an unaccompanied outing into the community as part of your transition plan. A Rivergum Team Leader believed you to be under the influence of drugs as a result of your physical presentation. You complied with a direction to provide a saliva sample for drug testing. What was described as a ‘non-negative indication for cannabis’ was the result. You refused a request to provide a urinalysis sample. The next day, you complied with a further request for urinalysis. The sample upon analysis was positive for cannabis. During the police interview conducted with you, you admitted having used cannabis while in the community.
You pleaded guilty to this charge before me on 14 July 2023, that is, the day after the contested hearing. This was a plea of guilty at the earliest opportunity.
Previous convictions
You have admitted the many previous convictions contained in the Criminal Record filed in your case. It is unnecessary for present purposes to say much about these, other than to make mention of the two most recent convictions, which are in this Court in respect of earlier breaches by you of conditions of your SO.
On 10 November 2020 you pleaded guilty before me to three charges of contravening a condition of a SO and one charge of possession of a drug of dependence. The contravening charges arose from a urinalysis sample you provided on 22 September 2020 which was positive for cannabis, betting activity on two betting accounts in August and September 2020 showing over 200 bets, and an occasion in September 2020 on which a small quantity of cannabis was found at your home address.
On the contravention charge relating to gambling, you were sentenced on 11 November 2020 to be imprisoned for 47 days, the period of time you had spent on remand prior to sentence. On the other three charges, you were convicted and fined. In sentencing you, I cautioned you as follows:
[Y]ou should be under no illusions as to the fact that the offending upon which you have been sentenced is serious. All of the conditions of your SO are important, and compliance with all of them is essential. It is vital that you continue to engage in treatment as directed by the authorities and that you avoid any repetitions of the current offending, or any breaches of different conditions of your SO. Without the Court pre-judging anything that might arise in future, you must understand that any future breaches will be viewed seriously. The maximum penalty for contravening a condition of a SO is 5 years’ imprisonment.[4]
[4]DPP v SJW [2020] VSC 746 [44].
Notwithstanding that warning, you were again before the Court on 10 February 2021 on three contravening charges and related offences. You had breached the condition of your SO relating to drug use on two occasions in January 2021 by using cannabis. In addition, you had breached the gambling prohibition over a period in excess of four months by placing 293 individual bets on an online account.
On 15 February 2021, you were sentenced on all charges to an aggregate term of imprisonment of three months.
Material before me on the plea
By the time the current matters came before the Court, you had completed the program at Rivergum and had been transitioned into the community. For a week or so, you had been living in your new premises in the west of Melbourne, which you had furnished with a portion of your remaining superannuation balance. You had expressed very positive feelings about your new situation, and I was informed that you were going well.
The submissions made on your behalf by Mr McCulloch were preceded by the very fair concession by Ms Locke that a significant factor in the prosecution’s determination as to its appropriate sentencing position is the fact that you have completed the Rivergum program and transitioned to the community full time. That, conceded the Crown, is no small feat. Whilst the use of MA in the circumstances constituted a serious breach of the conditions, Ms Locke indicated that the prosecution would not oppose a non-custodial disposition in your case. A term of imprisonment at this stage might have a detrimental effect on your prospects of rehabilitation, and the maintenance of your current trajectory might be considered to enhance the protection of the community. Ms Locke addressed me on the various non-custodial options open.
During his submissions, Mr McCulloch tendered and relied on the report of Dr Davis dated 12 December 2019 which was before the Court at the time of the making of the SO, and the progress report of Dr Joel Godfredson dated 22 May 2023 which has been prepared in connection with the up-coming review of your SO.
He pointed out that notwithstanding the history of this matter following the plea hearing before me on 3 October 2022, at which you were in effect given the opportunity of demonstrating your bona fides in respect of your commitment to the Rivergum program, you have done exactly that, albeit with a few hiccups.
In spite of the significant gains you have made at Rivergum, there have been circumstances in which you can become quite overwhelmed and your coping mechanisms overborne. Your use of cannabis on the most recent occasion occurred in just such a situation, it was submitted.
Mr McCulloch took me to paragraphs [197]-[198] of Dr Godfredson’s most recent report in which he described your engagement in the intensive and immersive treatment at Rivergum as ‘exemplary’, noted that you had readily grasped sophisticated treatment concepts and applied them to your own functioning ‘with humility and honesty’, but continued to experience pervasive self-regulation difficulties which predispose you to substance misuse, problem gambling and poor decision making.
He also took me to Dr Davis’ report and referred to your damaged personality structure which is capable, so he submitted, of having a bearing on your moral culpability and the importance of general and specific deterrence as sentencing factors.
He noted evidence given by Dr Godfredson preceding the extension of the ITS condition earlier this year as to challenges you would inevitably face while transitioning from Rivergum, and pointed out that the charges that have arisen since my initial deferral of sentence ‘have arisen at the pointy end of the transition.’[5] However, as indicated by Dr Godfredson in paragraph [200] of his report, your instances of non-compliance were not associated with the level of hostility and violence observed among other offenders in similar circumstances, and you have remained ‘relatively unwavering in [your] willingness to cooperate with [your] professional supports.’
[5]Transcript 72.
Mr McCulloch submitted that in spite of the challenges you have faced, you have not withdrawn from treatment or exhibited other problematic behaviours beyond the charged offences which would either increase the need for community protection or require additional weight to be given to the need for general deterrence.
Mr McCulloch relied on your early pleas of guilty in respect of most of the charges, noting that the Court could make a finding of remorse in those cases.
Mr McCulloch raised the prospect of a combination of sentences in respect of the individual charges, inviting me to tailor the overall sentence to the needs of this case in a way which would not interfere with your current trajectory. Change is not linear, submitted Mr McCulloch. Lapses and relapses are to be expected, and continuity in the transition plan may assist you to fully understand your recent breaches, and refine your journey into one of desistence rather than relapses. If you end up back in prison now, there may be a tendency for you to revert to more catastrophic modes of thinking. He submitted that given the steps you have taken thus far in your rehabilitation, and the relatively positive place in which you now find yourself, a custodial response may be counterproductive to the ultimate goal of community protection.
Analysis
Having considered the submissions very effectively advanced on your behalf by Mr McCulloch, and the appropriate and fair concessions made by Ms Locke, I am driven to the conclusion that it would not be in the interests of justice at this time for you to be sentenced in a way which would interfere with your ability to continue to live in the community.
This may to some appear a surprising outcome in light of your earlier breaches of the conditions of the SO, a consideration of the matters currently before me, and the clear authority which dictates the considerable importance of general and specific deterrence in sentencing you.
I have reached this conclusion on a consideration of the entirety of the material before me. It is apparent that you have taken great strides during your time at Rivergum. It is very much to your credit that you have done so. You have shown respect for the program, and overall respect for the SO upon which you were placed some time ago. In addition, from my own personal observation, you have always shown great respect to the Court.
I think the various contraventions of conditions for which I am now to sentence you should be seen much more as products of your particular personality structure and vulnerabilities, especially during recent challenging months, than as deliberate and uncaring breaches of the conditions which bind you. I accept that you have found it difficult to abstain from the use of drugs. That will be an ongoing battle which you will need to fight with the assistance of the supervision and treatment you will continue to receive. As for your gambling problem, I know that during your years in prison, gambling occupied an important place in your life and psyche. You miss the ability to gamble, and find the urge difficult to resist.
Whilst acknowledging the importance of general and specific deterrence in this case, I believe that at this time your rehabilitation is itself a very important sentencing consideration. You have now reached the point, having completed the Rivergum program, of being returned to the community and commencing life in your own rented home, a place you have apparently described as a palace. The imposition of a term of imprisonment now of any significant duration may well have the most undesirable effect of derailing the progress you have made and disturbing the positive trajectory on which you now find yourself. That may imperil your prospects of rehabilitation, and be counter-productive to the need for the community to be protected from any future acts of violence by you.
I have considered all of the non-custodial options available to me. In my view, fines would be undesirable in light of your difficult financial circumstances. A community correction order, a form of non-custodial supervisory disposition, would also not be appropriate. You have a great deal of support and supervision in the community under the umbrella of the SO. No further supervision or control would be either necessary or appropriate.
In the end, I have decided that the needs of your case can be appropriately met by the imposition of an adjourned undertaking pursuant to s 72 of the Sentencing Act 1991. Upon your expression of a willingness to give the necessary undertaking, you will be convicted of all of the charges currently before the Court. The proceedings will be adjourned for a period of two years from today[6] on your giving an undertaking or promise to the Court to be of good behaviour during the period of the adjournment. You will be required to attend before the Court if called upon to do so during the period of the adjournment. If you remain of good behaviour for the period of the adjournment, you will be discharged without the need for any further hearing. You would not, in those circumstances, be required to attend.
[6]Until 23 August 2025.
Were you to commit any offence of any sort during the period of the adjournment, including an offence of contravening a condition of a SO, no doubt those offences would be dealt with in the usual way. In addition, you would be liable to be arrested and brought back before this Court and dealt with for the breach of the undertaking. You may then be dealt with for the original offences and sentenced afresh on those offences. Whilst nothing I say would bind me or any other judge as to how to deal with you in future, you would be in real jeopardy of being imprisoned on these charges should the need arise for you to again be sentenced on them.
As for any future contraventions by you of conditions of the SO, you should derive no comfort from the sentence I am about to pass as to what may befall you should you again contravene conditions of the order. I am giving you an opportunity to avoid a term of imprisonment as a result of the particular circumstances which currently prevail. Future contraventions would be highly likely to attract terms of imprisonment. The maximum penalty for contravening a condition of a SO is five years’ imprisonment. You would do well to remember, as I have told you in the past, that all of the conditions of your SO are important, and compliance with them is essential.
Sentence
You are convicted on all charges. The further hearing of all of the charges is adjourned to 23 August 2025 on your giving an undertaking to be of good behaviour in the meantime. As I said, there will be a condition requiring you to attend before the Court if called upon to do so during the period of the adjournment.
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