DPP v SS
[2023] VSC 631
•20 October 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0221
| Between: | |
| DIRECTOR OF PUBLIC PROSECUTIONS | |
| -and- | |
| SS | Accused |
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JUDGE: | Croucher J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 October 2023 |
DATE OF SENTENCE: | 20 October 2023 |
DATE OF REASONS: | 31 October 2023 |
CASE MAY BE CITED AS: | DPP v SS |
MEDIUM NEUTRAL CITATION: | [2023] VSC 631 |
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CRIMINAL LAW — Sentence — Summary hearing — Indictable offence of breaching condition of supervision order — Summary offence of breaching bail by committing supervision order offence — Contrary to condition of supervision order, accused removed electronic monitoring bracelet, and left in car nearby before entering nightclub — After leaving nightclub, accused knocked unconscious and admitted to hospital overnight, sans bracelet — Following discharge from hospital next morning, accused failed to alert authorities to removal of bracelet and did other things for several hours instead — Supervision order imposed in 2019 after service of sentence for murder committed when accused aged 19 — Significant criminal history, including for offences of breaching supervision order — Supervision order breach committed while on bail — Avoidance of double punishment when sentencing on bail offence — Early pleas of guilty — Personality disorder — Institutionalisation — Guarded prospects of rehabilitation — Relevance of sentencing purposes — Parsimony — Sentence of 21 days’ imprisonment (time served) on supervision order offence — But for plea of guilty, sentence of 35 days’ imprisonment — Convicted and discharged on bail offence — Serious Offenders Act 2018 (Vic), s 169; Bail Act 1977 (Vic), s 30B; Sentencing Act 1991 (Vic), ss 5, 6AAA & 73.
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| APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr L Andrews | Abbey Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr C Pearson | Greg Thomas, Barrister & Solicitor |
HIS HONOUR:
Overview
On 20 October 2023, at a summary hearing in this Court, SS pleaded guilty to the indictable offence of breaching a condition of his supervision order, contrary to s 169 of the Serious Offenders Act 2018 (Vic) (“the SOA”), in that he removed his electronic monitoring ankle bracelet. He also pleaded guilty to the summary offence of breaching bail, contrary to s 30B of the Bail Act 1977 (Vic), and admitted prior convictions.
After hearing a prosecution opening, a plea in mitigation, and submissions in reply, on the supervision order offence, I ordered that SS be convicted and imprisoned for 21 days, and declared that he had already served that period in custody. On the breach of bail, I ordered that he be convicted and discharged.
These are my reasons for imposing those sentences.[1]
[1]By the conclusion of the hearing, I was firm in my view as to the sentences to be imposed, including that SS was to be released forthwith. (Both counsel had provided written submissions ahead of the hearing.) At that time, counsel for SS, who appeared via video‑link from a regional court where he was mid‑trial in another matter, was due to resume that trial. Thus, rather than detaining counsel while I gave ex tempore reasons, and thereby inconveniencing the other court (including a jury), with the concurrence of the parties, I imposed sentence on the spot but deferred the publication of my reasons until a later date.
Procedural steps
At the commencement of the hearing, Mr Pearson, who appeared for SS, applied for a summary hearing of the indictable offence alleged in the first charge. The application was not opposed by Mr Andrews, who appeared for the Director of Public Prosecutions. Since there was ample jurisdiction to deal with the matter summarily, I granted the application.[2]
[2]See Serious Offenders Act 2018 (Vic), ss 174 & 176.
Mr Andrews then applied to make some minor amendments to the first charge. I granted that application, which was unopposed.
As it was a “related offence”, I was able to hear the summary offence alleged in the other charge at the same time.[3]
[3]See Serious Offenders Act 2018 (Vic), ss 175 & 176.
Through Mr Pearson, SS then pleaded guilty to both charges, and admitted prior convictions.
Summary of offending
Supervision order
Mr Andrews then read a prosecution summary of the offending, commencing with the circumstances in which the supervision order was made.
On 23 August 2019, pursuant to the provisions of the SOA, SS was placed on a six‑year supervision order by Tinney J. The jurisdiction to make that order arose from SS’s conviction and sentence for murder in July 2000. The offence was committed in 1998, when SS was aged 19.
Upon a review on 8 January 2021, Tinney J added an intensive treatment and supervision (“ITS”) condition to the supervision order. This required SS to reside at Rivergum, which is a secure treatment facility.
On 31 August 2022, Beale J heard a review of the ITS condition, and confirmed it.
On 28 April 2023, I reviewed the supervision order and heard an application to extend the ITS condition, which I refused. Since then, SS has returned to the community, but was and is still subject to various conditions under the supervision order, which expires in August 2025.
Relevantly, condition 7.9(d) of the order requires that SS must comply with monitoring as to his whereabouts (including electronic monitoring) unless otherwise directed by the Post Sentence Authority; and pursuant to s 35(2) of the SOA, he must not tamper with, damage, disable or remove any electronic monitoring device or equipment used for the electronic monitoring.
Supervision order offence
The Director’s case on the first charge was that, before 10:10 p.m. on 28 September 2023, SS breached condition 7.9(d) of his supervision order by removing his electronic monitoring ankle bracelet.
On that day, electronic monitoring of SS, via his bracelet, indicated he was present in the vicinity of an address in Ardyne Street, Murrumbeena, at 9:30 p.m.
At 10:10 p.m., the Metropolitan Ambulance Service found SS unconscious in Ardyne Street and took him to Monash Hospital in Clayton, where he was admitted at about 10:40 p.m.
Condition 7.2 of SS’s supervision order required him to be at his home address between 11:00 p.m. and 6:00 a.m. unless otherwise directed by the Post Sentence Authority. Unaware that he had been hospitalised, at 11:40 p.m., Adrian Coburn of Corrections Victoria’s Post Sentence Branch advised an officer of Victoria Police’s Offender Management Division that SS had not returned to his home and that his electronic monitoring device was still indicating that he was in Murrumbeena.
The next morning (i.e., on 29 September), at about 3:05 a.m., police attended at Ardyne Street, but were unable to find SS. At 6:30 a.m., police went there again and conducted a doorknock of the street to try to find him. They found his car, locked and unoccupied, outside the Ardyne Street address.
SS was discharged from Monash Hospital at 8:56 a.m. the same morning, but remained at the hospital waiting area until 10:30 a.m.
Meanwhile, at 9:50 a.m., officers from Victoria Police’s Supervision Order Response Unit went to Ardyne Street to help search for SS. At 10:50 a.m., pursuant to authority under s 163 of the SOA, investigators forced entry to SS’s car. They found his electronic monitoring bracelet, intact and undamaged, inside a bag in the rear seat of the car. Also, there were three mobile phones, one on a charger, but each turned off.
At about 10:55 a.m., SS caught a taxi from Monash Hospital to the Caulfield area. During the trip, SS asked the taxi driver to take him to a brothel. SS kept changing his mind about which brothel, and became verbally aggressive towards the driver. They argued over payment of the fare. SS eventually got out of the taxi on Glen Huntly Road, Caulfield, and was seen hailing another taxi before leaving the area.
Arrest and interview
At about 6:15 p.m. the same day, Protective Services Officers saw SS near Syndal Railway Station. They attempted to approach him, but he left the area in the opposite direction.
At 6:46 p.m., police arrested SS at the back of a hair salon, and transported him to the Melbourne West Police Station.
Later, SS was interviewed by police, during which he said the following, among other things:
a)The previous evening, he and his friend John were attacked from behind by some people they had encountered at Zagame’s, a nightclub in Caulfield. They grabbed John in a headlock. SS went to walk back to the car, and was going to call someone, and the next thing he remembered was waking up in hospital eight hours later.
b)At the hospital, SS noticed he was no longer wearing his electronic monitoring bracelet, and assumed it had been removed in the attack.
c)He did not alert anyone to the fact that his bracelet was missing, because his phone was dead.
d)He did not try to contact police, because he just wanted to get back to his car, and get to his friend John.
e)After he was discharged from the hospital, he went to the shops, got a drink, lollipops and sushi, and tried to charge his phone before catching a tram home. He went back to Zagame’s to get his car.
f)He did not remember getting a taxi from the hospital earlier that morning.
g)He did not run away from the officers at Syndal Railway Station, but rather walked to a nearby restaurant.
h)He had been set up, and his attackers ripped off his electronic monitoring bracelet so that he would “get time” for it.
i)He confirmed that the view of those who treated him at the hospital was that he had grass in his hair, a Glasgow coma score of three, no response to painful stimuli, and superficial scrapes to his back; that there was no evidence of external trauma to his chest, abdomen or limbs; that there was an incidental finding of cholesteatoma on CT; and that he needed a referral from MRI.
Bail Act offence
The Director’s case on the other charge was that, because SS was on bail at the time,[4] by committing the indictable offence of breaching a condition of his supervision order, he also committed the offence under s 30B of the Bail Act.
[4]He was on bail on a separate charge of breaching his supervision order on an earlier occasion.
Charges without bail
SS was charged and remanded in custody, where he remained until the day of the plea and sentence.
Maximum penalties
An offence contrary to s 169 of the SOA carries a maximum penalty of five years’ imprisonment. When a court is exercising summary jurisdiction, the maximum penalty available is two years’ imprisonment.
The Bail Act offence carries a maximum penalty of 30 penalty units or three months’ imprisonment.
Criminal history
Prior to his murder trial in July 2000, SS pleaded guilty to various other offences committed in the days leading up to the murder, including recklessly causing serious injury, aggravated burglary, reckless conduct endangering life, theft, and escape. On the murder, Teague J sentenced SS to 17 years’ imprisonment. With orders for partial cumulation of the individual prison sentences imposed for the other offences, his Honour fixed a total effective sentence of 20 years’ imprisonment, and set a non‑parole period of 15 years.
SS also has a criminal history that predates and postdates those convictions. Between 1997 and 1999, when a teenager, he was convicted of various offences, including attempted armed robbery, intentionally causing injury, recklessly causing injury, driving offences, assault, escape, drug offences, and theft and other property offences. The sentences imposed ranged from fines to a community‑based order, partially suspended sentences, and short terms of imprisonment.
Since the imposition of the supervision order in 2019, in this Court, SS has been convicted of offences of breaching that order, resulting in a fine in 2020 and imprisonment for five months in early‑2021 and for 210 days in late‑2021.
Plea in mitigation
Circumstances of offending
During his plea in mitigation, Mr Pearson conveyed that SS accepted that, contrary to his account to police, he, not others, removed his ankle bracelet. The bracelet had been fitted loosely so as not to aggravate his leg injury. As the swelling in his leg subsided, the bracelet became so loose that he was able to slip it off without any damage or hurt.
While it was a little unclear at first, SS, who appeared via video‑link from prison, explained the circumstances of, and the motivation for, the removal of his bracelet. He drove to Zagame’s in his car. Before going inside the nightclub with his friend John, he removed the bracelet and left it in his car. As he said, he did this because:
I didn’t want to wear it in front of [John’s] girlfriend. That was the first time I’d met her. I didn’t want her thinking I was a criminal. Then we went to … Ardyne Street. [The bracelet] was in the car. We got out of the car. That’s when I was assaulted.
Returning to SS’s instructions to Mr Pearson, after being discharged from hospital the next morning, he waited there for a time. He then took a taxi to catch up with a friend who worked at a brothel, though he was unsure which one, which is why he asked the driver to take him to various places. He said there was no confrontation with the driver.
I accepted that I should sentence on the foregoing version of the facts giving rise to the offending.
Gravity of offending
Mr Pearson submitted that the objective gravity of the bracelet offence was not high. SS did not remove the bracelet for the purpose of committing an offence or of ensuring that his whereabouts were not being monitored. Further, he remained in the vicinity of his bracelet after he removed it, and was only separated from it meaningfully when taken to hospital after being assaulted and rendered unconscious.
In Mr Pearson’s submission, in these circumstances, SS has some claim to being “more sinned against than a sinner”. While he removed the bracelet, he would have remained in its vicinity but for his being rendered unconscious and taken to hospital overnight in consequence.
However, SS accepted that, after being released from hospital, he should have gone straight back to his car and put his bracelet back on or gone back to his home. That said, he wanted to make sure his friend was okay.
While he denied actively trying to avoid police, SS also accepted that he did not want to be arrested, because he knew he would be taken into custody on the current charge.
Institutionalisation
As Mr Pearson explained, SS has a complicated presentation. After being taken into custody in late‑1998 on the murder and other charges at the age of 19, apart from short periods on parole, he was not released from prison until he was 40. He has been subject to restraint of one form or another for nearly the entirety of his adult life, and is very much a product of his environment. As a result, submitted Mr Pearson, SS is, in many ways, thoroughly institutionalised. I accepted that submission.
Personality disorder and moral culpability
Mr Pearson accepted that SS has shown that he has a capacity for self‑destructive behaviour. However, he pointed out that he suffers from an acquired brain injury sustained as a result of being assaulted while in prison, and that he also has a complex personality disorder.
On the latter condition, Mr Pearson referred to the contents of a psychiatric report by Dr Rajan Darjee, which had been in evidence before me at the review of SS’s supervision order earlier this year, and which I received in evidence at the present hearing as well. Among other things, Dr Darjee offered this opinion:[5]
Another important issue, which I have highlighted previously, is the need for all those working with [SS] from all agencies and services and at all levels to work with him in a way that is responsive to and takes into account his complex personality disorder, his history of trauma (which has contributed to his personality dysfunction) and his subtle but significant cognitive difficulties. This psychologically informed management should be core to his treatment and management, and should primarily focus on engaging with him, responding to him and interacting with him in a way that is less likely to trigger his core and deep‑seated personality/trauma related difficulties and that deals effectively with the difficulties that inevitably will occur when working with him. The only attempt I have seen to do this was late during his time in the community in 2020. I may be wrong, but I have not seen any reference to addressing this since then. This is much more than having a behavioural support plan or behavioural support worker.
[5]Report of Dr Darjee (dated 12 February 2023) at [25].
On the plea, I was not told whether approaches of the kind suggested by Dr Darjee are currently being undertaken in SS’s treatment. I hope they are.
As to the effects of his personality disorder, both Mr Pearson and Mr Andrews commended to me the following remarks made by Tinney J when sentencing SS on far more serious breaches of his supervision order in late‑2021:[6]
I do take into account, in assessing your moral culpability, that you suffer from a diagnosed personality disorder, have a particular personality type, and have led a difficult and disrupted life for many years, things that in combination mean that you do not have the skills a normal person may have to lead an organised, well‑planned life, avoiding impulsive, problematic and self‑destructive behaviour.
Having said that, it is clear to me that you well understood the conditions of the [supervision order], had it within yourself to comply with those conditions should you choose to do so in spite of your personality disorder, and yet you made a conscious decision on many occasions to ignore the conditions, or at the very least to push the envelope or chance your arm. In my view, your moral culpability for your offending is high.
[6]See DPP v SS (No 3) [2021] VSC 870 at [25]–[26].
As I understood his submission, Mr Pearson emphasised the remarks in the first of those paragraphs, and did not accept that SS’s moral culpability for the present offending was high.
Compliance with supervision order before arrest
Mr Pearson pointed out that, notwithstanding this offence and his earlier prior convictions, SS, in recent times, has been complying with the conditions of his order, including by keeping his supervision appointments, seeking employment, and observing his curfew conditions.[7] I accepted that these were promising signs.
[7]Mr Pearson acknowledged that the outstanding charge for which SS was on bail at the time of the current offence concerned an alleged breach of his curfew soon after the removal of the ITS condition in April, for which he claims he has a reasonable excuse. That matter is presently listed for a contested hearing in this Court next month.
Use of time in custody
Mr Pearson also explained that, during his three weeks in custody, SS used his time wisely by completing a short vocational course in strategies for planning workplace tasks.[8] This, he submitted, is consistent with SS’s aim to find employment, which, again, I accepted was another factor in his favour.
Director’s submissions
[8]I received in evidence a certificate of completion of the course.
Objective gravity of offending
Mr Andrews submitted that, while the particular forms of breach can vary markedly in gravity, the breach of a condition of a supervision order is in general a very serious matter, as demonstrated by the applicable maximum penalty.
He submitted that, for those subject to electronic monitoring, compliance with that condition is essential to the efficacy of the serious offender scheme, and that removal of a monitoring device is a relatively serious contravention.
Mr Andrews also submitted that the offence was aggravated by the fact that SS was on bail at the time of the offending.
While I accepted these submissions as far as they went, given the circumstances in which SS’s particular instance of breaching his supervision order occurred, I considered that the objective gravity of the offence was lower than it appears at first blush.
Moral culpability
Returning to Tinney J’s remarks from 2021 set out earlier, Mr Andrews submitted that, notwithstanding the different nature of SS’s current offending, the same analysis as to moral culpability was applicable here.
I agreed, but only in part. Yes, there was a level of moral culpability in deliberately removing his bracelet. While his plan was to remain in the vicinity of the bracelet, it was thwarted by the actions of others; but then, of his own volition, and consistently with his impetuous behaviour resulting from his personality disorder, he persisted in carrying on without his bracelet the next day. But the moral culpability involved in the offences before Tinney J was substantially greater, as that offending concerned an assault of a specialist case worker while accompanying SS in a van, and angry and aggressive refusals to obey instructions given by supervision officers later that day when he was returned to Rivergum.
Specific and general deterrence, and community protection
Mr Andrews argued that it is essential to the effectiveness of the supervision order scheme that offenders be aware of the significance of their obligations under the conditions of those orders, and of the seriousness with which breaches will be viewed by the courts.
In this regard, he submitted that specific and general deterrence loom particularly large here given that, by removing his bracelet, SS thwarted a central mechanism by which his supervision order ensures the community is protected.
He also submitted that, while SS is not to be doubly punished in respect of the two offences, the fact that the supervision order offence was committed while on bail also requires specific and general deterrence to be emphasised.
Mr Andrews also submitted, correctly, that, in addition to being a relevant factor in the sentencing exercise, protection of the community is the primary purpose of the SOA.[9]
[9]See Serious Offenders Act 2018 (Vic), s 1(a).
I accepted these submissions, and would add that his prior convictions for breaching his supervision order also add to the weight to be given to specific deterrence and protection of the community.
Rehabilitation
Again, Mr Andrews was correct in submitting that, in addition to being a relevant factor in the sentencing exercise, rehabilitation is a secondary purpose of the SOA.[10]
[10]See Serious Offenders Act 2018 (Vic), s 1(b).
When he was sentenced in this Court in December 2021, Tinney J considered that SS had some prospects of rehabilitation. As Mr Andrews pointed out, that assessment was made at a time when SS had made some positive steps towards rehabilitation, both before and during his time at Rivergum, which his Honour described as an environment where he could “carry out the necessary work to deal with [his tendency to engage in impulsive, problematic and self‑destructive behaviour]”.[11]
[11]DPP v SS (No 3) [2021] VSC 870 at [30].
In April, however, primarily for reasons outlined in Dr Darjee’s report and in his viva voce evidence, which I shall not rehearse here, I was not satisfied that the statutory criteria for the extension of an ITS condition were met in SS’s case.
In Mr Andrews’ submission, given that SS had now contravened his supervision order while in the community (in 2020), while in the secure environment of Rivergum (in 2021), and again while in the community after his discharge from Rivergum (the present offending), his prospects of rehabilitation were guarded at best.
While I accepted that SS’s prospects of rehabilitation were guarded, I also accepted that such prospects were still important matters to be weighed in the sentencing synthesis. Whatever limitations SS may have in this regard, I was satisfied that he wishes to reform, work, and live a productive life. In my view, he should be encouraged in those endeavours.
Current sentencing practices
I turn next to current sentencing practices. These are just one factor in sentencing, and certainly not a controlling one at that, but they can nevertheless be important in the sentencing synthesis.
Helpfully, in his written submissions, Mr Andrews addressed current sentencing practices for the offence of breaching a supervision order. He did so in two ways: first, by reference to sentencing statistics and, second, through case comparisons.
In the five years to 30 June 2021, the County Court and this Court dealt with a total of 169 charges of contravening either a supervision order or an interim supervision order. A sentence of imprisonment was imposed in 81 percent of those cases. Fines were imposed in about nine percent of cases and community correction orders in about four percent.[12]
[12]Sentencing Advisory Council, SACStat, Contravene a supervision or interim supervision order, Serious Offenders Act 2018 (Vic), s 169(1), Higher Courts, 1 July 2016 to 30 June 2021. See also DPP v RC [2023] VSC 312 at [69].
In considering these statistics, I recognised that they are of limited utility, mainly because they do not distinguish cases according to their most important sentencing considerations. Nevertheless, they do give some guidance.
As Mr Andrews pointed out, identifying comparable cases for supervision order breaches is often difficult. Sentencing remarks in the County Court are often unpublished or restricted. Additionally, aggregate sentences imposed for multiple offences can complicate the task.
That said, Mr Andrews was able to find three previous sentences imposed in the County Court for instances of the offence constituted by removal of electronic monitoring bracelets.[13] The sentences involved terms of imprisonment for 55, 72 and 95 days, respectively. Each case involved an offender with significant mental health difficulties who had pleaded guilty to breaching his supervision order by cutting off and damaging his bracelet when in or near Corella Place, which is a secure residential facility for some of those placed on supervision orders for sexual offending.[14] Two of the offences involved an element of protest. On each occasion, the offender was found in or near Corella Place.
[13]Since I was told that these sentences are subject to suppression orders, I shall describe the matters only in general terms.
[14]The second and third matters involved the same offender.
As Mr Andrews pointed out, while SS, unlike the offenders in these three cases, did not damage the bracelet, there is some similarity among all four cases in that none of the offences could be characterised as a precursor to the commission of a further serious violence or sex offence. Equally, however, in each of the other three cases, the risk posed to the community by the offending conduct was negligible because of each offender’s apparent intention to surrender immediately. That was not so in SS’s case, given the removal of his bracelet resulted in him being untraceable in the community via electronic monitoring for about seven hours on 29 September 2023 (excluding the time he spent in hospital).
It is possible to make more nuanced comparisons between the cases to which I was referred, the present case, and others. But, in sentencing, it is almost always difficult usefully to compare other cases. No two cases are ever truly alike. While they had some similar features, none of the three cases to which I was referred was quite the same as SS’s case. And, in any event, sentences are not precedents to be applied or distinguished.
Mr Andrews submitted that, overall, the three cases demonstrated simply that a sentence of imprisonment would be the appropriate disposition for SS’s offence of breaching his supervision order.
I accepted that those other sentences, and the sentencing statistics, were at least consistent with the view that a sentence of imprisonment would be open in this case.
Parsimony
When exercising the sentencing discretion, it must be remembered that s 5(3) of the Sentencing Act 1991 (Vic) commands that a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed. This reflects the fundamental principle of parsimony, which I applied when considering the appropriate sentences in this case.
Submissions on disposition
Mr Pearson submitted that, when all matters were weighed, including SS’s early plea of guilty, 21 days in prison is a sufficient punishment for this breach of the supervision order. Mr Andrews submitted that, while a longer term would not be manifestly excessive, a sentence amounting to time served would be open.
Mr Andrews cautioned, however, that I must be careful to sentence for the two offences in a way that avoids double punishment. He also submitted that, if I were to treat the commission of the supervision order offence while on bail as an aggravating feature of that offence, there may be little if anything left for the bail offence to add by way of criminality. No doubt with those and other factors in mind, Mr Andrews accepted that it would be open to convict and discharge SS on the bail offence.
I accepted those submissions.
Sentence
It was for the foregoing reasons that I sentenced SS as indicated at the outset of these reasons.
In particular, on the supervision order offence, I ordered that SS be convicted and imprisoned for 21 days; and, on the Bail Act offence, I ordered that he be convicted and discharged.[15]
[15]Pursuant to s 73 of the Sentencing Act 1991 (Vic).
Pursuant to s 18 of the Sentencing Act, I declared that he had already served 21 days under the sentence for the supervision order offence.
Pursuant to s 6AAA of the Sentencing Act, I declared that, but for his plea of guilty, I would have imposed a sentence of 35 days’ imprisonment on that offence.
As there was no requirement to make a declaration under s 6AAA in respect of the sentence imposed on the Bail Act offence, I did not make one.
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