Director of Public Prosecutions v SM (No 2)
[2019] VSC 491
•22 July 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0156
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SM |
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JUDGE: | ELLIOTT J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 July 2019 |
DATE OF SENTENCE: | 22 July 2019 |
CASE MAY BE CITED AS: | Director of Public Prosecutions v SM (No 2) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 491 |
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CRIMINAL LAW – Contravention of interim supervision order – Summary hearing – Previous conviction for contraventions – Use of prohibited drugs – Guilty plea – Serious Offenders Act 2018 (Vic), ss 1(a), 5, 27(1), 34, 35, 38, 50, 169(1), 173(6), 174, 279 – Drugs, Poisons and Controlled Substances Act 1981 (Vic), ss 73(1), 75 – Sentencing Act 1991 (Vic), ss 6AAA, 18, 49, 113.
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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
SM, you have again 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.
Previously, on 24 June 2019, you pleaded guilty to 2 charges of contravening a condition of an interim supervision order (“the Earlier Offences”). The present charges closely resemble the Earlier Offences, although, as they are additional contraventions, 1 of which relates to an illicit substance, they are also more serious.
B. Background
B.1 The Order
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.
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.
B.2 The Earlier Offences
It is useful to provide the following background in relation to the Earlier Offences:[2]
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.[3] As a result, you were charged with 1 count of contravening condition 6(5) of the Order by using a prohibited drug; namely, buprenorphine ...
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 …
[2]Director of Public Prosecutions v SM [2019] VSC 466, [4]-[5].
[3]Buprenorphine is a prescription opioid used in the treatment of heroin and methadone dependence.
On 24 June 2019, with respect to the Earlier Offences, the court imposed an aggregate fine of $500.[4] The sentencing approach taken by the court on that occasion was informed by the following factors, amongst others:[5]
[4]Comprising a fine of $250 for each offence.
[5]See Director of Public Prosecutions v SM [2019] VSC 466, [13]-[17].
(1) You had been the subject of the interim supervision order for approximately 2 months, during which you had carried out rehabilitation and community integration.
(2) The Earlier Offences constituted your first contraventions of the Order.
(3) Buprenorphine, the use and possession of which gave rise to the Earlier Offences, though a prohibited drug, is a prescription medicine rather than an illicit drug.
B.3 The present charges
The present charges relate to your use of 2 substances on or about 9 July 2019.
On 9 July 2019, you were directed to submit to urinalysis.[6] That urinalysis returned positive results for “Amphetamine/Methylamphetamine” and, again, buprenorphine. Both are prohibited drugs for the purposes of the Order.[7]
[6]See condition 6(6)(a) of the Order: par 4 above.
[7]See Drugs, Poisons and Controlled Substances Act 1981 (Vic), sch 11, pt 3.
Accordingly, on 12 July 2019, you were charged with 2 counts of contravening condition 6(5) of the Order. The first charge relates to your use of “Amphetamine/Methylamphetamine”, the second charge to your use of buprenorphine.
You were arrested on that day and have been remanded in custody since then. Accordingly, you have already spent 10 days in custody.
The proceeding relating to the present 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 12 July 2019.
No separate underlying drug charges have been laid in respect of the unlawful conduct giving rise to the present charges. By contrast, you were separately charged in respect of the unlawful conduct giving rise to the Earlier Offences.[8] Those underlying drug charges were separately dealt with by the Magistrates’ Court at Wangaratta on 19 June 2019, some 5 days before you pleaded guilty, in this court, to the Earlier Offences.[9]
[8]Specifically, 1 count of use of a drug of dependence, pursuant to s 75 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) and 1 count of possession of a drug of dependence, pursuant to s 73(1) of the Drugs, Poisons and Controlled Substances Act.
[9]You pleaded guilty to those underlying charges and were sentenced to 7 days’ imprisonment as time served.
Counsel for the prosecution informed the court that, in the present case, the informant has no intention of laying separate underlying charges. Accordingly, the court informed the parties that the court will proceed on the basis that no further charges will be laid with respect to the underlying facts giving rise to the present charges.[10]
[10]The court took account of the time served in respect of the underlying charges in imposing a sentence for the Earlier Offences: Director of Public Prosecutions v SM [2019] VSC 466, [17].
The court has exercised its power under s 174 of the Act to hear and determine the present charges summarily. The parties consented to this course.
C. Your present circumstances
One of the conditions of the Order is that you reside in a particular rural location where you have never previously resided.[11] The court was informed that residing in this location, which is relatively isolated, and where you have yet to develop effective social support structures, has caused you difficulties.
[11]This location was chosen by the Department of Justice and Community Safety.
Further, it is apparent you have issues with drug use and dependency. However, save for pathology services, no services with respect to drug use or dependency are available at your current location. The nearest services are some distance away, which presents a particular obstacle as you do not presently hold a driver’s licence. Further, the court was informed that, apart from 3 counselling sessions in May 2019, you have not received any treatment for drug dependency whilst the Order has been in effect.[12]
[12]To some extent, your treatment options have also been limited by your arrest and remand in respect of the Earlier Offences, and the present charges.
Appropriately, you have indicated a willingness to treat your issues with drug use and dependency, and the Department of Justice and Community Safety has also informed the court of its willingness to facilitate such treatment (though the details of that anticipated treatment were not presently available). Your ability to cope in your present circumstances will undoubtedly be improved by your participation in drug-related treatment, and the imminent availability of such treatment.
Further, the court was informed that your mother, who was present in court, has now undertaken to reside with you in order to help you with your present circumstances. This will also assist in alleviating your present feelings of isolation and loneliness.
D. Sentence
The contravention of any court order is not to be treated lightly. However, as noted on the previous occasion, the contravention of a condition of an interim supervision order is a particularly 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.[13]
[13]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 again being dealt with summarily, the maximum term of imprisonment is 2 years for each offence: the Act, s 174(4) and the Sentencing Act 1991 (Vic), s 113.
In respect of the Earlier Offences, the court warned you that you would very likely receive a more severe penalty if you were to breach the Order again.[14] You have failed to heed that warning.
[14]Director of Public Prosecutions v SM [2019] VSC 466, [13].
In my view, a custodial sentence is now warranted in the present circumstances, including the following factors:
(1) The present charges are the second set of contraventions of the Order, and arise out of conduct occurring little more than 1 month after the conduct which gave rise to the Earlier Offences.
(2) The penalty imposed in respect of the Earlier Offences, and the court’s warning to you on that occasion, has failed to deter you from further contravening the Order.
(3) The substance the use of which gave rise to 1 of the charges, “Amphetamine/Methylamphetamine”, is not only an illicit drug, but is particularly associated with violence.[15]
[15]See further par 26 below.
In the circumstances, principles of both specific and general deterrence are factors to be taken into account. Importantly, so too are considerations of community protection. Indeed, a primary purpose of interim supervision orders is to provide for the “enhanced protection of the community”.[16] The conditions of interim supervisions order exist to, amongst other things, mitigate the risk of you re-offending by committing a further “serious violence offence“ and thus harming or endangering members of the community.[17] Compliance with all the conditions of the Order enhances that protective function; contravention of conditions of the Order tends to undermine it.
[16]See the Act, ss 1(a), 5: the “safety and protection of the community” is both one of the primary purposes of the Act, but also the “paramount consideration” in any decision under the Act.
[17]The Act, s 27(1).
Your counsel appropriately accepted that the present charges were more grave than the Earlier Offences as: they were the second set of contraventions; they involved a charge relating to an illicit as well as a prescription drug; and, that illicit drug is particularly linked with violence.
Nonetheless, your counsel emphasised the difficult circumstances giving rise to the current charges. In particular, she highlighted that you are receiving no ongoing assistance for drug dependency and were suffering the effects of isolation and instability in the rural location in which you now reside. In this regard, reference was also made to the frequent and visible visits to your residence by the local police, said to be at least once a week, which were said to contribute to your agitation, and your difficulty in integrating in your local community.[18] It was suggested that these visits may have had the effect of alerting local residents to your identity, which, in turn, has further aggravated your isolation. Further, whilst she conceded the gravity of using an illicit drug such as methylamphetamine, she noted that the urinalysis established only the fact of use and not the quantity or frequency of use. It was submitted that the fact that there was no evidence as to amount of use ought to weigh in your favour.
[18]The court makes no comment with respect to the appropriateness or otherwise of the frequency of such visits as it is in no position on the evidence available to properly do so.
As on the last occasion, I take into account that you have carried out your rehabilitation and integration into the community for approximately 2 months before you first offended. Further, you have so far complied with directions to subject yourself to drug and alcohol screening. Furthermore, although not your first contravention, the overall number of contraventions remains relatively modest. Your prospects of rehabilitation are obviously enhanced by your mother’s willingness to reside with you, and directly assist with your rehabilitation and reintegration in the community.
Finally, the court was provided with, and has taken into account, a copy of your criminal record dated 19 July 2019. It is unnecessary to set out that record here in detail. Indeed, to do so may have the effect of revealing your identity, or at least making your identity more readily discernible by members of the public. Suffice to say that, in addition to the Earlier Charges, that record contains, amongst other convictions, a conviction for a “serious violence offence” as defined in the Act.[19]
[19]The Act, s 3, sch 2.
Taking each of the matters referred to into account, with respect to each of the charges to which you have pleaded guilty, the court imposes, pursuant to s 49 of the Sentencing Act 1991 (Vic), an aggregate term of imprisonment of 10 days. With respect to the first charge, in relation to the use of methylamphetamine, the term of imprisonment imposed is 9 days and, for the latter charge, relating to the use of buprenorphine, 1 day. Pursuant to s 18 of the Sentencing Act, the court declares that the aggregate term of imprisonment of 10 days be reckoned as a period of imprisonment already served.
Pursuant to s 6AAA of the Sentencing Act, but for your plea of guilty, the court would have sentenced you to an aggregate term of imprisonment of 15 days.
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