JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 November 2020
DATE OF SENTENCE:	11 November 2020
CASE MAY BE CITED AS:	DPP v SJW
MEDIUM NEUTRAL CITATION:	[2020] VSC 746

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CRIMINAL LAW - Sentence - Contraventions of conditions of supervision order - Possession of a drug of dependence - Summary hearing – Condition prohibiting drug use and possession breached by use and possession of cannabis Gambling prohibition condition breached by online gambling commencing on day of commencement of supervision order and encompassing 223 bets over six week period – Early pleas of guilty and cooperation with authorities - Moral culpability for gambling prohibition breach somewhat reduced due to gambling addiction - General and specific deterrence still important – Protection of community – Rehabilitation – Sentence of 47 days’ imprisonment for gambling-related charge – Aggregate fine of $500 on all other 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 November 2020 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 possession of a drug of dependence pursuant to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981, and admitted prior convictions contained in a criminal record filed in this case.

The 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 on those charges. The other charge was before the Court because you consented to a direct indictment being filed containing that charge. Upon arraignment, you pleaded guilty to this charge also.

The maximum penalty for contravening the conditions of a supervision order is five years’ imprisonment, but because those charges were dealt with summarily by this Court, the maximum penalty on each charge is two years’ imprisonment,[1] with a total maximum penalty for all of the offences of five years.[2] As for the charge of possession of a drug of dependence, because of the circumstances of this crime, the maximum penalty is five penalty units.
[1]Sentencing Act 1991, s 113.
[2]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’).[3]
[3][2020] VSC 503.

On 18 March 2020, I…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v SJW

Details

AGLC: Director of Public Prosecutions v SJW [2020] VSC 746
Case: [2020] VSC 746
Decision Date: 11 November 2020

CaseChat Overview and Summary

The case before the court was an appeal by the Director of Public Prosecutions against the sentence imposed on SJW, who had pleaded guilty to multiple charges, including possession of a drug of dependence and contravention of conditions of a supervision order. The appeal centred on the appropriateness of the sentence given to SJW, who had breached the terms of his supervision order by using and possessing cannabis and engaging in online gambling. The appeal was heard in the Court of Appeal, which had jurisdiction to review the sentence imposed by a lower court.

The primary legal issue before the court was whether the sentence imposed on SJW was appropriate in light of the breaches of his supervision order and the relevant sentencing principles. The court was required to consider the principles of general and specific deterrence, the protection of the community, and the rehabilitation of the offender. The court also needed to assess whether the sentence adequately reflected the moral culpability of SJW for his breaches of the supervision order, particularly in relation to the gambling prohibition.

The court found that while SJW's moral culpability for the gambling prohibition breach was somewhat reduced due to his gambling addiction, the principles of general and specific deterrence and the protection of the community were still important. The court considered that a sentence of 47 days’ imprisonment for the gambling-related charge was appropriate, as it would adequately deter SJW and others from engaging in similar behaviour. The court also imposed an aggregate fine of $500 on all other charges. The court held that the sentence imposed was appropriate and did not merit alteration.

No further orders were made by the court. The sentence imposed on SJW was upheld, and the appeal was dismissed.

Orders