Director of Public Prosecutions v SJW (No 5)
[2023] VSC 758
•15 December 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0255
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SJW |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 December 2023 |
DATE OF SENTENCE: | 15 December 2023 |
CASE MAY BE CITED AS: | DPP v SJW (No 5) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 758 |
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CRIMINAL LAW – Sentence – Contravention of condition of supervision order (‘SO’) – Serious Offenders Act 2018 ss 169, 174 – Prohibited gambling on numerous occasions on online betting accounts – Prior convictions for similar offending – Offending during currency of adjourned undertaking to be of good behaviour – Early plea of guilty – Offender continuing otherwise to do well in the community – Overall compliance with SO with exception of gambling condition – General deterrence – Specific deterrence – Rehabilitation – Sentence of 51 days’ imprisonment – Declaration of 51 days’ pre-sentence detention.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms R Hamnett | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr T McCulloch | Victoria Legal Aid |
HIS HONOUR:
Introduction
SJW, you pleaded guilty on 7 December 2023 to one charge of contravening a condition of a supervision order (‘SO’) pursuant to s 169(1) of the Serious Offenders Act 2018 (‘the Act’). The charge was an amended charge incorporating the content of three further charges which were struck out at the commencement of the plea hearing. You admitted prior convictions contained in a criminal record filed in this case.
This is the fourth time on which the Court has been called upon to sentence you for contravening conditions of the SO.[1] As recently as 24 August 2023, you were before the Court for earlier contraventions. On that occasion, I sentenced you for a number of offences including contraventions of the SO to an adjourned undertaking with conviction. The relevant circumstances are set out in the sentence of the Court.[2]
[1]DPP v SJW [2020] VSC 746; DPP v SJW (No 2) [2021] VSC 55; DPP v SJW (No 4) [2023] VSC 505.
[2]DPP v SJW (No 4) [2023] VSC 505 (‘DPP v SJW (No 4) ’).
The current charge 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 a plea of guilty to the charge.
The maximum penalty for contravening a condition of a supervision order is 5 years’ imprisonment, but because the charge was dealt with summarily by this Court, the maximum penalty is 2 years’ imprisonment.[3]
Background to your offending
[3]Sentencing Act 1991, s 113(1).
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.[4]
[4]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 journey through the program at Rivergum was not without its difficulties, you progressed satisfactorily and, having been readied for re integration into the community, you graduated from the program and departed Rivergum. You have been living in a home in the community since 10 July 2023.
Facts of your offending
You are subject to a condition of the SO which prohibits you from engaging in any form of gambling except in accordance with the written directions of the Post Sentence Authority (‘PSA’). In addition, there is a current direction from the PSA which provides:
SJW must not either directly or indirectly access, create, or have any active gambling accounts, access or use another person’s gambling account, or have another person gamble on his behalf.
Victoria Police conducted an investigation into your gambling accounts after you inadvertently sent text messages to your Australian Community Support Organisation support worker and Senior Case Manager inviting them to play ‘slots’.
On 19 September 2023, your internet capable devices were seized for auditing by the Corrections Victoria Intelligence Unit. You cooperated with the seizure. In total, five mobile phones, one tablet and one laptop were seized for analysis. The informant Detective Senior Constable David Lumley (‘Lumley’) also took possession of your primary phone and observed that multiple gaming applications were installed on it.
On 22 September 2023, Lumley was advised by the Post Sentence Branch that you had stated during supervision with Senior Case Manager Sarah McGloin that your bank balance was in debt to the amount of $600 due to your gambling.
Account statements were received from betting agencies OKEBET, BetNation, BetDeluxe and BETR which revealed that you placed bets as follows:
OKEBET: an account was opened on 6 July 2023, with 120 bets placed in July (a total spend of $281.09 and net result of -$138.17), no bets placed in August, 115 bets placed in September (a total spend of $221.84 and net result of -$106.10), and 336 bets placed in October (a total spend of $681.40 and net result of -$284.89). In total 571 bets were placed using OKEBET between 6 July and 18 October.
BetNation: an account was opened on 6 August 2023, with 37 bets placed between that date and 22 August (a total spend of $311.50 and net result of -$150).
BetDeluxe: an account was opened on 19 July 2023, with 101 bets placed in July (a total spend of $260.21 and net result of -$74.49), 220 bets placed in August (a total spend of $1,691.21 and net result of -$253.87), 121 bets placed in September (a total spend of $649.87 and net result of -$274.01), 66 bets placed in October (a total spend of $213.15 and net result of $57). In total, 508 bets were placed using BetDeluxe between 19 July 2023 and 18 October 2023.
BETR: an account was opened on 10 July 2023 with 115 bets placed in July (a total spend of $246.16 and net result of $15), no bets placed in August and two bets placed in September (a total spend of $5 and net result of -$5).
Arrest and interview
On 25 October 2023, police attended your home address. You were arrested, and transported to Werribee Police Station for interview. You declined to be interviewed in relation to this offending.
You were brought before the Werribee Magistrates’ Court on 25 October 2023, and remanded in custody to appear in the Supreme Court.
Plea of guilty
You have pleaded guilty to the charge in question, having indicated an intention to do so at the earliest opportunity. I take that into account in your favour. Not only does your plea of guilty attract the utilitarian benefit that flows from such a plea, but I take it as being an indication of your remorse. That is in keeping with the impression I have otherwise formed of you that although your offending was repeated and flagrant, you do sincerely regret it.
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.[5]
[5]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.
Your next contraventions were those for which I sentenced you on 24 August 2023. These are not prior convictions for the purposes of the current sentence, because part of the period of your present offending occurred before sentence was passed, and part afterwards. On this occasion, the further hearing of all charges was adjourned to 23 August 2025 on your giving an undertaking to be of good behaviour in the meantime.
The fact that you were on bail for some of the period of your current offending, and subject to an adjourned undertaking for the rest of it, is an aggravating circumstances of your offending.
Material relied upon in the plea
Three documents were tendered on your behalf during the plea hearing. These were
· a report dated 24 November 2023 from Daniel Corsetti, a forensic counsellor with Hard Cuddles, a mental health service specialising in forensic counselling, life navigation and peer support;[6]
· a Quarterly Review Status Report from Corrections Victoria dated 31 August 2023;[7] and
· a Special Report from Corrections Victoria,[8] undated, but prepared subsequent to the Quarterly Review.
[6]Exhibit 2.
[7]Exhibit 3.
[8]Exhibit 4.
The Quarterly Review and the Special Report summarise your progress in recent months while living in the community and subject to the conditions of the SO. The Quarterly Review outlines your progress in pursuit of a number of goals set out in the report, in the fields of gaining pro-social community supports, using your time meaningfully, and engaging in volunteer or paid employment. In terms of the first of those goals, the report from Hard Cuddles is of note, and your contact with that organisation is clearly something viewed by Corrections as being beneficial.
It would be correct to say that in the summaries of your progress contained in the Quarterly Review and the Special Report, your progress is described in generally positive terms. You have maintained your engagement with all the services offered to you, including supervision with your Specialist Case Manager and treatment with Forensic Intervention Services, Caraniche High-Risk Offender Alcohol and Drug Service, and an IPC Health Gambling Counsellor. You have reported when required, and undergone all of the treatment and counselling made available to you, including accepting the counselling from the Hard Cuddles organisation.
In respect of the gambling treatment, initially this was through weekly telehealth sessions. It is interesting to note that in-person sessions were commenced at your request, made during the period of offending the subject of the current charge. There then followed weekly alternating telehealth and in-person sessions. You were clearly keen to maintain the gambling counselling, but not surprisingly, you were not frank in your engagement. The counsellor reported to Corrections that she had no concerns that you were engaging in gambling behaviour.
Another matter of interest is a disclosure you made to the Hard Cuddles counsellor Daniel Corsetti shortly after the confiscation of your digital devices referred to earlier. You admitted the anxiety this aroused in you. Mr Corsetti observed:
Despite the looming spectre of potential incarceration for violating his gambling prohibition, [Mr W], seemingly throwing caution to the wind, attended the Caulfield Cup.
Submissions by Mr McCulloch
The Court had the benefit of the submissions of Mr McCulloch on your behalf, both written and oral. It might be observed that he was in a difficult position. It was only a few months ago that he forcefully, effectively and in the end, successfully argued that in light of the good progress you had otherwise made on the SO, you should be given the opportunity to avoid a term of imprisonment and remain in the community, in the face of the charges of contravening a SO which you then faced.
He was now faced with the need to make the same arguments again, in the knowledge that before, at the time of, and after I imposed that lenient sentence upon you on 24 August 2023, you were repeatedly contravening the very same condition of your SO which was the subject of some of the breaches for which I sentenced you.
Mr McCulloch, acknowledging the importance of general and specific deterrence in this case, conceded that a custodial sentence could be the only response. He submitted, however, that in light of the particular circumstances in which you find yourself, a term of imprisonment of the duration of the pre-sentence detention at the time of the plea hearing, namely, 43 days, would be appropriate.
Mr McCulloch pointed to the effect upon your cognition of your use of prescription medicinal cannabis as being relevant to your decision to open betting accounts, but conceded this is not a complete answer or explanation for your offending in light of the duration of that offending.
He emphasised the entrenched nature of you gambling behaviour as both an addictive behaviour and one which provides a recreational outlet.
He informed the Court of the significant feelings of loneliness and social isolation you have experienced since your return to the community, notwithstanding your overall very positive thoughts about living in your own rented home, which, as noted in my previous sentence of you, you have described as a palace. You have adopted a pet dog, which has been a very positive thing, but the need to avoid former prison associates limits your potential social connections. You have engaged with Hard Cuddles with a focus on building social connections. In fact, the wife of your counsellor has been looking after your dog since your remand. You intend to continue your engagement with Hard Cuddles upon your release. Your residence remains available to you, but this will not be the case forever. Your lease runs out in January, and you are presently some hundreds of dollars in arrears.
Mr McCulloch submitted that your ongoing rehabilitation should continue to assume great prominence in the sentencing exercise. He pointed to:
· your positive performance and significant gains made at Rivergum;
· your continued compliance with and generally positive attitude towards other aspects of the SO including supervision itself;
· the fact that your breaching conduct is not accompanied by any other type of criminal conduct or even any suggestion that it is connected to or in contemplation of any other misconduct.
The prohibited conduct, submitted Mr McCulloch, is otherwise legal behaviour, and does no harm to other members of the community. Whilst it may serve to elevate other risk factors, of itself it does not directly increase your risk of committing a further violent offence. It can be distinguished from breaching conduct which is either a criminal offence in its own right or conduct which directly has the effect of placing the public at risk.
Bearing all of those factors in mind, and paying full regard to the early plea of guilty, and acknowledging the need to protect the integrity of the SO regime, he submitted that a modest custodial sentence would be sufficient in this case.
Prosecution submissions
Ms Hamnett, in her written and oral submissions on behalf of the prosecution, indicated that a custodial sentence is the only disposition open. Fairly, however, Ms Hamnett did not speak against the defence contention that the time you have already been in custody would amount to an adequate sentence in this case, submitting that the length of any custodial sentence is a matter for the Court. And she immediately followed that concession with a further concession that it is apparent from the material relied upon by your counsel that you are progressing well in your rehabilitation, other than in respect of gambling. Specific deterrence has become more and more important as a sentencing consideration in your case, Ms Hamnett submitted, in light of the fact that relatively lenient sentences imposed upon you in the past have not had the desired effect. That matter must be balanced, however, with the matters raised in connection with your rehabilitation and the protection of the community, and Ms Hamnett noted that your continued current trajectory is to be commended and may also be considered to enhance the protection of the community ultimately.
Analysis
As has frequently been said by this Court, and as I have frequently told you, every condition of your SO is important, and it is not for you to pick and choose which ones you will abide by. Having said that, I accept, as submitted by your counsel, that your fascination with gambling is deeply entrenched in your psyche as both an addictive behaviour and one which provides a recreational outlet. You have had some challenging times since you left Rivergum, and whilst you are generally very happy to be living independently in the community, your social outlets are limited, and you have suffered understandable feelings of loneliness and social isolation.
You understand, I am sure, that engaging in gambling is not only forbidden to you, but will end up being destructive, and will also, inevitably, be discovered by the authorities. Furthermore, I think you would also understand that in light of the opportunities extended to you by this Court on a number of occasions by the imposition of relatively lenient sentences, your continued gambling while subject to the adjourned undertaking imposed on 24 August 2023 is a very disappointing thing for the Court, and could be seen to be quite disrespectful by you not only of that condition of the SO, but of the authority of the Court as well.
Having said that, in almost every other respect, you have made good progress since your departure from Rivergum, and your overall conduct is consistent with a person who does, in fact, have respect for the SO with which you have lived for some years now, and the conditions imposed under it.
It is clear to me, and was conceded by your counsel, that your offending can only be met with a custodial sentence. The sentencing purposes of general and specific deterrence would dictate that outcome. In the normal course of events, in light of your history of contraventions of conditions of the SO, including the particular condition so flagrantly breached on this occasion, and the fact that previous sentences, some of them quite lenient ones, have failed to achieve the desired result, you could expect to receive a significant term of imprisonment now.
In the end, however, I have formed the view that the continuing importance of your rehabilitation in the sentencing synthesis has the effect of moderating the sentence that would otherwise have been passed so that it does not exceed the period you have currently spent on remand. This will mean that you will be able to return to your home in the community, and hopefully, continue on your generally positive trajectory towards ultimate rehabilitation.
You should remember, however, that if you continue to contravene the conditions of your SO, there will come a time when there will be no alternative to increasingly longer sentences. Also, whilst no action has thus far been taken by the authorities in respect of the breach of the undertaking you gave to the Court on 24 August 2023 constituted by the current offending, that undertaking continues to bind you, and any further offending before its conclusion on 23 August 2025 may have the effect of your being brought back before the Court to be dealt with for the breach, leading to the prospect of your being re-sentenced on all of those charges.
Sentence
On the charge before the Court of contravening a condition of a SO, you are convicted and sentenced to be imprisoned for 51 days.
I declare a period of 51 days up to and including yesterday, 14 December 2023, 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 of the Sentencing Act 1991 that, but for your plea of guilty to the charge before the Court, I would have imposed a sentence of 4 months’ imprisonment.
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