Director of Public Prosecutions v SM

[2019] VSC 466

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2019 0123

DIRECTOR OF PUBLIC PROSECUTIONS

v  

SM

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JUDGE:	ELLIOTT J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 June 2019
DATE OF SENTENCE:	24 June 2019
CASE MAY BE CITED AS:	Director of Public Prosecutions v SM
MEDIUM NEUTRAL CITATION:	[2019] VSC 466

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CRIMINAL LAW – Contravention of interim supervision order – Summary hearing – First contravention – Possession and use of prohibited drug – Guilty plea – Serious Offenders Act 2018 (Vic), ss 34, 35, 38, 50, 169(1), 173(6), 174 – Drugs, Poisons and Controlled Substances Act 1981 (Vic), ss 73(1), 75 – Sentencing Act 1991 (Vic), ss 6AAA, 49.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr N Hutton	Office of Public Prosecutions
For the Accused	Ms N Kaddeche	Leanne Warren and Associates

HIS HONOUR:

A.       Introduction

1. SM, you have pleaded guilty to 2 charges of contravening a condition of an interim supervision order, pursuant to s 169(1) of the Serious Offenders Act 2018 (Vic) (“the Act”).[1]

   [1]Pursuant to s 279 of the Act, an order was made restricting publication of SM’s identity.

B.       Background

1. On 8 April 2019, this court made an interim supervision order under the Act, to which you were subject (“the Order”). You attended at court and were aware of the Order.

1. The Order relevantly provided:

6.Pursuant to ss 34, 35, 38 and 50 of the Act, the following additional conditions … apply to the Order:

…

(4)[SM] must not consume alcohol, save for:

(a)No more than 150 millilitres of wine, or, in the alternative to wine, no more than 2 cans of 375 millilitres of beer, per day; or

(b)If, in the reasonable opinion of the [Post Sentence Authority], there has been a breach of condition 6(4)(a) above, then only in accordance with any written directions of the [Post Sentence Authority], provided that [SM] has received written notice from the [Post Sentence Authority] of the alleged breach and the written directions.

(5)[SM] must not use or possess prohibited drugs (including synthetic drugs), obtain drugs unlawfully, or abuse drugs of any kind.

(6)[SM] must submit to breath testing, urinalysis or other test procedures (other than blood tests) approved by the Secretary [to the Department of Justice and Community Safety] or the Chief Commissioner of Police, as the case may be, for the detection of alcohol or drug use, at the direction of:

(a)An officer (as defined in s 211 of the Act) who has reasonable grounds to suspect that [SM] has breached either condition 6(4) or 6(5) of the Order, or both conditions, by consuming alcohol or using drugs, or both; or

(b)If [SM] is not residing at a residential facility or residential treatment facility, a police officer who has reasonable grounds to suspect that [SM] has breached either condition 6(4) or 6(5) of the Order, or both conditions, by consuming alcohol or using drugs, or both.

1. On 4 June 2019, a specialist case manager attended at your residence.  Based on your appearance, that case manager suspected that you had breached either or both of condition 6(4) or 6(5) of the Order by consuming alcohol, or using drugs, or both.  That case manager directed you to submit to urinalysis. That urinalysis returned a positive result for buprenorphine, a prohibited drug.[2]  As a result, you were charged with 1 count of contravening condition 6(5) of the Order by using a prohibited drug; namely, buprenorphine (“the First Charge”). 

   [2]Buprenorphine is a prescription opioid used in the treatment of heroin and methadone dependence.

1. Subsequently, on 6 June 2019, the informant, Detective Senior Constable Brendan Dwyer (“Dwyer”) attended at your residence.  You stated to Dwyer that you were in possession of a quantity of Suboxone, a prescription medicine which contains buprenorphine.  Dwyer seized 2 strips of Suboxone from your place of residence.  As a result, you were also charged with 1 count of contravening condition 6(5) of the Order by possessing a prohibited drug; again, buprenorphine (“the Second Charge”). 

1. You were arrested on 6 June 2019 and have been remanded in custody since then.

1. The proceeding relating to the First and Second Charges (together, “the Supervision Order Charges”) was transferred to this court pursuant to s 173(6) of the Act, by an order of the Magistrates’ Court of Victoria made on 7 June 2019. At a mention in this court on 17 June 2019, you were remanded in custody until today’s hearing.

1. In addition to the Supervision Order Charges, you were separately charged with underlying criminal offences in respect of the same conduct, namely:

(1)1 count of use of a drug of dependence, pursuant to s 75 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).

(2)1 count of possession of a drug of dependence, pursuant to s 73(1) of the Drugs, Poisons and Controlled Substances Act.

(Together, “the Underlying Charges”.)

1. The proceeding relating to the Underlying Charges was heard at the Magistrates’ Court at Wangaratta on 19 June 2019.  You pleaded guilty to the Underlying Charges and you were sentenced to an aggregate sentence of 7 days’ imprisonment, as time served. 

1. Today, in this court, you have pleaded guilty to the Supervision Order Charges. The court has exercised its power under s 174 of the Act to hear and determine the Supervision Order Charges summarily. This was not opposed by the prosecution.

C.        Sentence

1. 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. For instance, the contravention by the subject of an interim supervision order of any condition of an interim supervision order without reasonable excuse is punishable by up to 5 years’ imprisonment.[3] 

   [3]The Act, s 169(1). Indeed, in the case of an “intentional or reckless” contravention of a “restrictive condition” of an interim supervision order, mandatory minimum imprisonment terms ordinarily apply: see Sentencing Act 1991 (Vic), s 10AB. Here, however, condition 6(5) is not a “restrictive condition” of the Order. Further, as the matter is being dealt with summarily, the maximum term of imprisonment is 2 years: the Act, s 174(4) and the Sentencing Act 1991 (Vic), s 113.

1. Nonetheless, in the present case, a number of factors weigh in favour of a penalty other than imprisonment.

1. First, this is the first time that you have contravened the Order.  The sentencing authorities provided to the court by the prosecution indicate that, where the relevant supervision order contraventions are drug-related, repeated contraventions of an order are ordinarily required before even a short period of imprisonment is appropriate.[4]  Accordingly, as this is your first contravention, a sentence of imprisonment would be excessive.  Self-evidently, this factor will only weigh in your favour once.

   [4]See, for example, Director of Public Prosecutions v Mackeroy [2018] VCC (12 April 2018); Director of Public Prosecutions v DD [2017] VCC (23 August 2017); Director of Public Prosecutions v Ghebrat [2015] VCC (11 November 2015).

1. Secondly, it is significant that the drug taken on 4 June 2019, and in which you were in possession on 6 June 2019, is not an illicit drug, but a prescription medicine ordinarily used for treating addiction.  Though buprenorphine is nonetheless a prohibited drug, its possession and use ought to be treated differently to the possession and use of illicit drugs such as cannabis, methyl-amphetamine or heroin.

1. Thirdly, it has been explained that you sourced and used the buprenorphine because you were seeking some medical assistance which was not forthcoming, as desired.  Although, it is not permissible for you to take things into your own hands and this matter does not excuse your conduct, in the circumstances it should be treated, on this occasion, as a mitigating factor.

1. Fourthly, save for the conduct giving rise to the various charges, you have carried out your rehabilitation and integration in the community for some 2 months.

1. Finally, you have already spent a not insignificant period of time in custody since your arrest on 6 June 2019, comprising:

(1)       The sentence of 7 days’ imprisonment served in respect of the Underlying Charges.

(2)       11 additional days of pre-sentence detention in respect of the Supervision Order Charges. 

1. Taking each of the matters referred to into account, for the Supervision Order Charges to which you have pleaded guilty, the court imposes, pursuant to s 49 of the Sentencing Act 1991 (Vic), an aggregate fine in the sum of $500, being the sum of $250 for each of the First and Second Charges.[5]

   [5]Your counsel specifically requested that a fine be imposed rather than sentencing you on the basis of the time you have already served.

1. Pursuant to s 6AAA of the Sentencing Act, but for your plea of guilty, the court would have imposed an aggregate fine in the sum of $1,000. 

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