DPP v XG - [2024] VSC 82

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2023 0191

Between:
DIRECTOR OF PUBLIC PROSECUTIONS
-and-
XG	Accused

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 September 2023
DATE OF SENTENCE & EX TEMPORE REASONS:	6 September 2023
DATE OF PUBLICATION OF WRITTEN REASONS:	1 March 2024
CASE MAY BE CITED AS:	DPP v XG
MEDIUM NEUTRAL CITATION:	[2024] VSC 82

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CRIMINAL LAW — Sentence — Offence of contravening condition of supervision order by using methylamphetamine — Accused accrued three prior convictions for like offence over previous eight months — Accused sentenced on third offence and released from prison only four days before current offence — Whether previously accrued “Renzella time” exhausted by previous sentences — Accused held in custody for 14 days on current contravention charge — Accused verbally aggressive but offence otherwise at lower end of objective gravity — Early plea of guilty — Promising stint at treatment facility arranged for accused — Importance of balancing general deterrence, specific deterrence and rehabilitation as sentencing purposes — Parsimony — Accused sentenced to 14 days’ imprisonment — But for plea of guilty, sentence of 21 days’ imprisonment — Serious Offenders Act 2018 (Vic), ss 169 & 174; Sentencing Act 1991 (Vic), ss 5, 6AAA, 18 & 113; R v Renzella [1997] 2 VR 88.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr E Dober	Office of Public Prosecutions
For the Accused	Mr C McLennan	Chris McLennan & Co

HIS HONOUR:

Overview

On 6 September 2023, XG[1] sought, and was granted, summary jurisdiction in respect of the hearing of a charge that he contravened a condition of his supervision order by using methylamphetamine, contrary to s 169 of the Serious Offenders Act 2018 (Vic) (“SOA”). He then pleaded guilty through Mr McLennan, who appeared for him.
[1]Pursuant to an extant order made by Beale J on a previous occasion, the accused’s name must be anonymised, and his address must not be revealed.

After hearing an opening from Mr Dober, who appeared for the Director of Public Prosecutions, and a plea in mitigation from Mr McLennan, I convicted XG and sentenced him to 14 days’ imprisonment, and declared that he had already served that period in custody.

I gave brief reasons for imposing that sentence, but indicated I would publish more detailed written reasons at a later date. These are those written reasons (which are couched as if written at the time of sentence).

Background to and circumstances of offending

Background

I shall commence with the background to the making of the supervision order.

In 2013, XG pleaded guilty in this Court to intentionally causing serious injury and other offences involving the repeated assault and torture of a person in the company of others. Justice Beach imposed a total effective sentence of ten years and three months’ imprisonment, with a non-parole period of seven years and three months.

On 21 October 2022, about two weeks before that sentence…

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 XG

Details

AGLC: Director of Public Prosecutions v XG [2024] VSC 82
Case: [2024] VSC 82
Decision Date: 1 March 2024

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions versus XG, the accused was convicted for contravening the conditions of a supervision order by using methylamphetamine. This offence marked the third instance within an eight-month period, with the accused having been released from prison only four days prior to the current offence. The crux of the legal issue revolved around whether the “Renzella time” accrued from previous convictions had been exhausted by the sentences imposed for those offences. The court needed to determine the appropriate sentence for the third offence, balancing the purposes of general deterrence, specific deterrence, and rehabilitation, while considering the accused's early guilty plea and the promise of a treatment program.

The court found that the “Renzella time” from previous sentences had not been fully exhausted. Given the accused's recent release from prison and the persistence of the offence, the court determined that a custodial sentence was necessary. The accused had been held in custody for 14 days on the current charge, and while the offence was at the lower end of the scale in terms of objective gravity, the accused's verbal aggression during arrest was a concerning factor. The court took into account the early guilty plea and the promising treatment plan arranged for the accused. The court also considered the principle of parsimony in sentencing, ensuring that the sentence was proportionate and not excessive.

Following the analysis, the court sentenced the accused to 14 days' imprisonment. The sentence reflected the early guilty plea, reducing what would have been a 21-day imprisonment. The court highlighted the importance of balancing the various sentencing purposes, ensuring that the sentence served to deter both the accused and others, while also facilitating rehabilitation. The court’s decision underscored the need for a nuanced approach to sentencing, particularly in cases involving repeated offences and the necessity for effective rehabilitation programs.

Orders