DPP v SS - [2023] VSC 631

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…

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 SS

Details

AGLC: Director of Public Prosecutions v Ss [2023] VSC 631
Case: [2023] VSC 631
Decision Date: 20 October 2023

CaseChat Overview and Summary

The case of DPP v SS dealt with the sentencing of the accused, SS, who had breached the conditions of a supervision order and committed an offence while on bail. The matter was heard in the County Court of Victoria. SS had previously been convicted of murder in 2019 and was subject to a supervision order upon his release from prison. He subsequently breached this order by removing his electronic monitoring bracelet and leaving it in a car before entering a nightclub. After leaving the nightclub, SS was knocked unconscious and admitted to hospital overnight without his bracelet. Upon discharge from hospital, he failed to inform authorities of the bracelet's removal and engaged in other activities for several hours.

The court had to determine the appropriate sentence for SS's breach of the supervision order, as well as the sentence for the offence of breaching bail by committing a supervision order offence. Key issues included the need to avoid double punishment for the same act, the relevance of the purposes of sentencing, and the consideration of SS's criminal history, personality disorder, and guarded prospects for rehabilitation. The court also needed to balance the principles of parsimony and the need for a sentence that appropriately reflected the seriousness of the offences.

The court considered the early pleas of guilty by SS, his significant criminal history, and his personality disorder which contributed to his institutionalisation and limited prospects for rehabilitation. Despite the serious nature of the offences, the court imposed a sentence of 21 days' imprisonment on the supervision order offence, which was time served. The court noted that but for the plea of guilty, the sentence would have been 35 days' imprisonment. For the bail offence, SS was convicted and discharged. The court's decision balanced the need for punishment, deterrence, and the limited prospects for SS's rehabilitation.

No further orders were made by the court.

Orders